New Rules in Dependency Appeals and Writ Petitions

The Judicial Council has announced its annual recodification of the rules of court concerning appeals. This time, the amendments focus on juvenile cases. The new rules go into effect on January 1, 2005. Dependency attorneys should be aware of changes in the rules concerning petitions for writ of habeas corpus and petitions for writ of mandate or prohibition which are discussed in another article.

Dependency appeals. New rules 37 through 38.6 generally govern appellate review of juvenile cases. (Cal. Rules of Court, new rule 37(a)(1).) New rule 37.4 applies to appeals from the termination of parental rights under either the Family Code or the Welfare and Institutions Code. It also applies to all dependency appeals from Orange, Imperial, and San Diego Counties. (New rule 37.4(a).)

New rule 37.1 lists more clearly the normal record in dependency cases, including appeals from the termination of parental rights. New rule 37.2(e)(1) states that an omission from the record can be corrected without a court order in the same manner as in a criminal appeal, referring to rule 32.1(b) (former rule 35(e)). New rule 37.2(e)(2) states the record can be augmented in the same manner as in any other appeal, citing rule 12. However, an appellant must file a request to augment or correct the record within 15 days of the fiiling of the record in appeals governed by new rule 37.4. (New rule 37.4(d)(2).)

The opening brief is still due 40 days after the record is filed (new rule 37.3(b)(1)), but it is due in 30 days in appeals governed by new rule 37.4 (new rule 37.4(e)). The respondent's brief is due 30 days after the opening brief is filed. (New rule 37.4(b)(2).) The rule now specifies that the minor's brief is due 10 days after the respondent's brief is filed. (New rule 37.3(b)(4).) The reply brief is due 20 days after the respondent's brief (which would be 10 days after the minor's brief). (New rule 37.3(b)(3).) If the opening brief or respondent's brief is not filed on time, the parties have 30 days to file the brief under rule 17(a). (New rule 37.3(b)(5).) An extension of time can be granted for good cause. (New rule 37.3(c).) However, an extension of time in appeals governed by new rule 37.4 will not be granted without an "exceptional showing of good cause." (New rule 37.4(f).)

The brief must be served on the superior court, the parties, and the district appellate project. (New rule 37.3(d).) County counsel is now required to serve two copies of the brief on appointed counsel so that counsel can send a copy to the client. (New rule 37.3(d)(2)(A).) The same rules in criminal appeals apply to juvenile appeals concerning the content, form, and length of the briefs. (New rule 37.3(a), citing rule 33(a) & (b).) This means that the briefs can be as long as 25,500 words. (Rule 33(b)( 1).)

In appeals governed by new rule 37.4, requests for oral argument must be made within 15 days after the reply brief is filed or due. (New rule 37.4(g)(1).) The oral argument must be heard within 60 days of the filing or deadline for the reply brief. (New rule 37.4(g)(2).) New rule 37(b) codifies existing law concerning the confidentiality required in juvenile cases.

Petitions from the setting of the section 366.26 hearing. Old rule 39.1B has been recodified in new rules 38 and 38.1. The notice of intent to file a writ petition must be filed within seven days if the court personally advises the party of the obligation, and the notice must be signed by the parent. (New rule 38(e)(3) & (e)(4).) If the party is advised only by mail, the notice of intent must be filed within 12 days of the date the notice is mailed, not from the date of the hearing. (New rule 38(e)(5).) The content of the record is now governed by the same rule that applies to all juvenile appeals, new rule 37.1. New rule 38.1(e) requires any request to augment the record to be filed within five days of the filing of the record or within ten days if the record is more than 600 pages long.

New rule 38.1(a) now makes it clear that the petition requires pleading which identifies the parties, the date the juvenile court ordered a section 366.26 hearing, the date the section 366.26 hearing is scheduled to occur, and a summary of the grounds for relief. (New rule 38.1(a)(1).) Further, the petition must include points and authorities. (New rule 38.1(b).) The petition must be filed within ten days of the filing of the record. (New rule 38.1(c)(1).) The petitioner serves the same parties as he or she would in a dependency appeal. (See new rule 37.3(d).)

Miscellaneous changes. Under newly enacted Welfare and Instiutions Code section 366.28, juvenile court orders concerning the placement of minors after parental rights have been terminated normally must be reviewed by the court of appeal by way of a writ petition, similar to writ petitions seeking review of the setting of the section 366.26 hearing. New rules 38.2 and 38.3 set forth the rules governing these writ petitions.

Old rule 40(k) declared a brief or petition for rehearing or review filed on the date postmarked if it were mailed certified or overnight express. New rule 40.1(b)(3) now provides that the brief is deemed filed on the date postmarked if sent through the United States Postal Service or overnight express through an overnight courier. This provision does NOT apply to petitions for writ of habeas corpus, writ of mandate or prohibition, or dependency writs under new rules 38 through 38.3 (including former rule 38.1B). (New rule 40.1(b)(4).)

Rule 40.5 has been amended to require the attorney submitting a notice of change of address or telephone number to specify the cases pending before the court. Rule 48(b) has been amended to no longer require the signature of the attorney of record when a party seeks to substitute counsel. Rule 48(c) applies when the attorney seeks to withdraw.

View the new rules

November 24, 2004

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