DEPENDENCY BRIEFS

Counsel in dependency appeals should be sure to argue the standard of review for each claim raised in the opening brief. We have seen a series of opinions lately stating that a claim was waived because counsel did not adequately explain in the opening brief why there was not substantial evidence or why the trial court abused its discretion. Further, counsel should be aware that there will no longer be any compensation for a Sade C. brief beyond a one page letter to the Court of Appeal, stating that you have found no issues to raise and that you request the Court to independently review the record.

In briefing an issue in a dependency case in the Sixth District, it is very important to set forth the standard of review and explain why there was an abuse of discretion or insufficient evidence. It is not enough to show we had a meritorious case below; we must show how the court was wrong because it abused its discretion or acted without sufficient evidence. We have seen a series of dependency opinions which state a claim is waived for failing to argue how there was an abuse of discretion: – •Arguments should be tailored according to the applicable standard of appellate review.ę (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge the proper scope of review is a concession of a lack of merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) • –[I]t is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift his responsibility in this matter.” [Citations.]ę (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.) And an attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. (Estate of Palmer (1956) 145 Cal.App.2d 428, 431.) Absent compliance with these rules, we presume that the judgment of the trial court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Stated another way, •The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.ę (9 Witkin, Cal. Procedure, supra, Appeal, ó 594, p. 627.)”

You should be aware that the Sixth District Court of Appeal will dismiss a case with a brief filed by counsel presenting no issues, even if the client attempts to file a supplemental brief. If, after you complete your review, you believe that there are no arguable issues, appellant will have two options. First, if your client wishes to file a brief directly with the Court of Appeal, then you need to request that the appointment of appellate counsel be vacated so that the client can proceed in pro per. So far, the court has been granting motions to vacate appointment. If appellant does not wish to file a brief, then you would file a letter stating that you can find no issue. You should be aware that there will no longer be any compensation for a Sade C. brief beyond a one page letter to the Court of Appeal, stating that you have found no issues to raise and that you request the Court to independently review the record. You should, however, write a letter to the client outlining the factual and procedural history of the case, any potential issues that you considered, and why there does not appear to be grounds for relief. Your description of the case would not be as long as a statement of fact and case. Your letter, of course, should assure the client that you have taken the case seriously. "Use of Previous Briefing" Form Now Required for All Claims

October 15, 2003


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