In re Sade C. 13 Cal. 4th 952 Wende Brief/No Issue brief

In re Sade C.

Court policy recommends that when appellate counsel cannot find an issue to brief in a dependency case counsel is required to file a no issue brief. The brief should include a statement that covers the appealability of the case and a statement of facts. It does not need to be long, but it should sufficiently explain the relevant facts to the court which will not necessarily read the record. You should then state that counsel has reviewed the entire record on appeal and remains available to brief any issue upon the court's request
Appellate counsel should argue in the brief that the supreme court decided: "[W]e do not exercise our supervisory powers to require the Court of Appeal to permit an indigent parent who has appealed from an order of the juvenile court affecting his or her parental rights to personally file a brief whenever appointed counsel files a brief raising no issues. Instead, we hold that the Court of Appeal has the discretion to permit the parent to personally file a brief and must do so only upon a showing of good cause that an arguable issue does, in fact, exist." (In re Phoenix H. (2010) 47 Cal.4th 835, 844-845.) Thus, the Court of Appeal should permit the parent 15 days to show to the court good cause why an arguable issue exists. If the court ultimately decides an arguable issue does exist, it should request appellate counsel to brief the issue.
By the time you file the brief, you should have written to the client explaining that you could not find any issues to argue, that he or she now has an opportunity to inform the court of any issues he or she may think the case contains, and that he or she must do so within 15 days of you filing the no issues brief in the Court of Appeal.


​


​Procedural Posture
Appellant indigent parent sought review from the Court of Appeal of California, Second Appellate District, Division Three, which determined that appellant was not entitled to counsel for an appeal from a judgment, obtained by respondent department of children's services, adversely affecting the custody of his child. Appellant asserted various procedural and constitutional arguments.


Overview
Appellant indigent parent, a criminal and drug user, had a child who was thereafter declared dependent. Appellant's parental rights were terminated. Appellant was appointed counsel to represent him on appeal. After that appeal was unsuccessful, appellant again sought review and the question of whether the case of Anders, revolving around a right to counsel on appeal, applied to an indigent parent's appeal from a judgment, obtained by respondent department of children's services, adversely affecting custody of a child. On review, the court noted that generally, Anders was confined to apply to criminal appeals. The court explored the history behind the right to appointed counsel and noted that those convicted in criminal cases were afforded more protections than parents involved in parental right/juvenile court proceedings. The court held that an indigent parent adversely affected by a state-obtained decision on child custody or parental status was simply not a criminal defendant and was not afforded the same protections and considerations as under Anders. The court held that there was no reversible error or other defect to require a reversal. The judgment was affirmed accordingly.


Outcome
The court affirmed the decision against appellant indigent parent because appellant was not entitled, under Anders or otherwise, to counsel for an appeal from the judgment in favor of respondent department of children's services, which terminated his custody rights. The court held that, as no claim of error or other defect was raised, the appeal was properly dismissed.