AND OTHER SPECIAL APPEALS.
Most of the manual assumes appointment to represent criminal
appellants. However, SDAP is engaged to represent other appellants
in other contexts. These merit some special mention because
of procedures and considerations which are unique to such
1. Dependency and Termination of Parental Rights.
The dependency law involves the statutory scheme whereby children
may be removed from the custody of parents and, failing a
successful reunification, may lead to long term foster care,
guardianship or termination of parental rights to free the
child for adoption. (Welf. & Inst. Code, sec. 300, et seq.)
SDAP has developed a special panel of attorneys with expertise
in this area of the law.
a. Counsel should be aware of the special scrutiny
which is given to notices of appeal and notices of intent
to file a writ petition.
As a matter of practice, an appellate court generally assumes
that an attorney has the client’s consent to the filing of
an appeal. This assumption does not necessarily apply in dependency
With respect to notices of appeal, it is a good idea to have
the client sign the notice of appeal. In particular, the client
should sign the notice of appeal if he or she did not attend
the last hearing. (In re Alma B. (1994) 21 Cal.App.4th 1037,
1043; appeal dismissed where the attorney signed the notice
of appeal and the record showed that the client was not present
at the last hearing; accord, In re Steven H. (2001) 86 Cal.App.4th
Importantly, the client is required by law to execute the
notice of intent to file a writ petition. (Cal. Rules of Ct.,
rule 8.450(e)(3).) While this requirement may be excused on a
showing of “good cause, based on a declaration by the attorney
of record as to why the party could not sign the notice” (rule
8.450(e)(3)), counsel is well advised to obtain the client’s
signature if at all possible. (See Janice J. v. Superior Court
(1997) 55 Cal.App.4th 690, 691; a " petition may
be summarily dismissed in the absence of a showing that the
parent consented to, or authorized the filing of, the petition.
b. Time is of the essence whether by appeal or writ.
The law abhors delays and that is true of no area of the law
more than the dependency field. The dependency cases are true
priorities. The appellate court, cognizant that a child has
been left "in limbo" by a protracted appeal, is not likely
to disturb the stable "best" placement away from parents if
an appeal is unduly delayed. (See In re Emily L. (1989) 212
Cal.App.3d 734, 743.)
Given the preference for speed in dependency cases, a motion
to augment the record must be promptly made. The motion is
due in cases involving termination of parental rights “within
15 days after counsel has received the record on appeal.”
(Cal. Rules of Ct., rule 8.416(d)(2).) As a matter of practice,
the 15 day period begins to run in the Sixth District on the
date on which the record is filed with the court.
The appellate attorney must be sensitive to which orders may
be the subject of appeal. The initial jurisdictional and dispositional
orders are generally appealable. The general rule, found in
Welfare and Institutions Code section 395, is that a judgment
may be appealed from in the same manner as a final judgment.
An exception exists when the initial dispositional order includes
a finding that reunification services need not be provided
and the case is scheduled for a termination hearing pursuant
to Welfare and Institutions Code section 361.5, subdivision
(f). Such an order is not cognizable on appeal and the only
remedy is writ review. (See Wanda B. v. Superior Court (1996)
41 Cal.App.4th 1391, 1393-1396; but see In re Rashad B. (1999)
76 Cal.App.4th 442, 446-450; order is appealable if the trial
court fails to apprise the parent of the necessity of seeking
Periodic reviews are a unique feature of the dependency proceedings.
Section 395 provides that "any subsequent order may be appealed
from as from an order after judgment; . . . ." This would
generally include the six month review orders and any orders
from motions to modify, orders on visitation, or placement.
However, whenever the trial court issues an order which requires
the holding of a termination hearing, the order is unreviewable
by appeal unless a timely petition for writ of mandate is
first taken. (Welfare and Institutions Code section 366.26,
subd. (l); see In re Charmice G. (1998) 66 Cal.App.4th 659,
Given the reality that a termination hearing must be held
within 120 days, a notice of intent to file a writ petition
and request for record must be filed within 7 days of the
order setting the termination hearing (Cal. Rules of Ct., rule 8.450(e)(4)) or, if the parent
was not present at the hearing, 12 days from the date the court mailed the notification
of the requirement to file a writ petition. (Rule 8.450(e)(5).) The writ petition must be filed within
10 days of the filing of the record in the Court of Appeal.
With such time constraints, it is the clear obligation of
trial counsel to file a petition for writ in the appropriate
circumstances. Be aware that
the Judicial Council form is usually inadequate, and it is often necessary
to include additional points and authorities. (See Reyna R.
v. Superior Court (1993) 20 Cal.App.4th 1398, 1406.) Appellate
counsel may still find a case where a writ should be pursued
rather than appeal and can still endeavor to obtain a remedy
by writ with an explanation of the circumstances which caused
delay in filing. (See Katheryn S. v. Superior Court (2000)
82 Cal.App.4th 958, 968-969.)
c. Sade C. Procedures.
Under California law, the Court of Appeal has no independent
duty to review the record in a dependency case when appointed
counsel is unable to find an arguable issue. (In re Sade C.
(1996) 13 Cal.4th 952, 959.) Rather, if counsel does not file
a brief on the merits, the Court of Appeal will simply dismiss
the appeal. (Id., at p. 994; In re Sara H. (1997) 52 Cal.App.4th
If you are unable to find an issue in an independent case,
it is your duty to return the record to your mentoring attorney
at SDAP. The SDAP staff attorney will then review the record.
If SDAP agrees that the case does not present any arguable
issues, it will be your duty to advise the client accordingly.
You 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. You should argue the court should exercise its discretion to permit the parent to personally file a brief to detemine if an arguable issue exists. (See In re Phoenix H. (2010) 47 Cal.4th 835, 844-845.)
The hearings in the trial court are closed to the public to
protect the confidentiality of the proceedings. The records
and briefs in the appellate court are accorded the same confidentiality.
(Cal. Rules of Ct., rule 8.400(b).) To ensure confidentiality,
the briefs and documents filed with the Court of Appeal should
not bear the child's surname. An example of a proper case
caption is as follows:
In re Michelle M., a Person Coming Under the Juvenile Court
Law. Monterey County Department of Social Services, Plaintiff
and Respondent, v. Brenda M., Defendant and Appellant.
e. Watch out for mootness.
It is understandable that appellate attorneys tend to view
cases pending on appeal as being static. Issues are developed
by focusing solely on the record on appeal -- frozen in time
-- as documented in the clerk's and reporter's transcripts.
In some circumstances, however, limiting focus solely to the
record on appeal can be dangerously myopic.
Dependency cases are not static. Removal of the child from
the parent's custody often culminates in termination of the
parent's rights to the care and custody of the child. Termination
can occur anywhere from 120 days to close to two years following
the dispositional hearing.
In all pending cases, it is vital that appellate counsel monitor
subsequent proceedings in the trial court to avoid the possibility
of mootness. Specifically, unless a notice of appeal is filed
from the order terminating parental rights, the order becomes
final and renders any issue raised in the dependency appeal
(i.e., whether the juvenile court properly took jurisdiction
over the child, whether removal was proper, etc.) moot. (See
In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317.) Trial
counsel may not understand the risk of dismissal of the appeal
by failure to appeal a subsequent termination order. Appellate
counsel should track the progress of the case, consult with
trial counsel, and, if necessary, file a notice of appeal
from the later order to avoid dismissal. If a timely notice
of appeal is not filed, the prejudice to the parent will be
irreparable since the constructive filing doctrine applicable
in criminal cases does not apply to termination of parental
rights cases. (In re Alyssa H. (1994) 22 Cal.App.4th 1249,
Moreover, in dependency cases, it is vital that counsel stay
in touch with the client if possible. During the reunification
process, things can happen. Interests may change. Children
may be returned and the dependency dismissed. Counsel must
understand what the client wants in light of such changes.
Otherwise, one runs into the danger of working at cross purposes.
f. Advise the Court of Appeal of new developments
which could change the result.
In unusual cases, the court of appeal may take new evidence
which was not presented in the trial court. (Code of Civ.
Proc., sec. 909; Cal. Rules of Ct., rule 8.256.) The Supreme
Court has stressed that this procedure shall be used only
when evidence would “completely undermine the legal underpinnings
of the juvenile court’s judgment under review.” (In re Zeth
S. (2003) 31 Cal.4th 396, 413, fn. 11.) For example, in one
case the Supreme Court accepted new evidence upon stipulation
of the parties when it showed that “due to changed circumstances
and the minor’s advanced age, the minor in that case was no
longer adoptable . . . thereby undermining the foundational
basis of the trial court’s order terminating mother’s custody
and control . . . .” (Ibid., citing In re Elise K. (1982)
33 Cal.3d 138.) The new evidence presented to the appellate
court must be competent evidence, and unsworn statements from
counsel are insufficient. (Ibid.)
2. Juvenile Delinquency.
As is the case with dependency appeals, considerations of
confidentiality apply. Thus, the case title should not include
more than the minor's last initial.
Counsel should be aware that special terms of art apply in
juvenile court. There is a detention hearing rather than arraignment;
jurisdictional hearing instead of trial; dispositional hearing
rather than sentencing; true finding rather than conviction;
and commitment instead of sentence.
Many attorneys assume that their knowledge of criminal law
will directly transfer to the handling of juvenile delinquency
matters. The assumption will work for most evidentiary issues
and substantive law relating to offenses. However, there are
some areas where juvenile law is sui generis.
The length of a juvenile’s confinement is such an area. If
a ward was over 16 and the court finds that he committed one
of many specified serious offenses, he can remain at the California
Youth Authority until age 25 or the expiration of a two year
period of control, whichever is later. (Welf. and Inst. Code,
secs. 707, subd. (b) and 1769, subd. (b).) If the offense
is not one listed in section 707, the mandatory discharge
is at age 21 or after a two year period of control, whichever
is later. (Sec. 1769, subd. (a).)
The calculation of maximum confinement time is based on the
adult scheme but has differences. As in adult court, the court has the discretion
to aggregate counts or run them concurrent. (Sec. 726.)