No Issue Briefs in Dependency Cases

SDAP recommends the following procedure when appellate counsel cannot find an issue to brief in a dependency case. Counsel should file a brief that clearly indicates on the cover and in the text of the brief that no issue is being raised. The brief should include a statement of facts and case. 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.

(February 18, 2010)


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