Dependency, Juvenile Delinquency 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 appeals.
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 cases.
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 1023, 1029.)
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. [Citation.]”)
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 writ review.)
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, 664-671.)
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. (Rule 8.452(c)(1).)
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 198, 200-202.)
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, 1254.)
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.)