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      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
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    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
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    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
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    • SERVING AS CONSERVATOR
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    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
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    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
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  • New Updates
    • Right to Choose

7/14/2019

Preserving the record for appeal

1 Comment

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Preserving the record for appeals in dependency court
When making an objection or appeal, it is very important to make a timely appeal. When appealing, counsel needs to be mindful of the timelines that exist for appealing. Different issues have different deadlines to raise an objection or appeal. There are two issues to be addressed; timely appeals/objections and specific objections.

The first, specific objections, pose an issue for forfeiture of issue later on. Trial counsel may err on the side of being too cautious or vigorous in their defense out of fear of ineffective assistance of counsel, IAC. Counsel may raise an objection such as “Your honor I object out an abundance of caution. For the record mother and father objects to the case.” To begin if counsel states that they withdraw their contest, but then follows with a general objection, they nullify their statement. The objection that counsel raises is insufficient as it does not specify on what grounds counsel is objecting. Even something along the lines of “Please note mothers objection to termination of reunification services’ is not sufficient. On what grounds is she objecting? Reasonable services? Due process? Even though counsel may be raising an objection to the proceedings, it is important to remember that these objections are targeted toward the superior court and not the real parties in interest; county counsel nor minor’s counsel. When counsel fails to raise an a timely objection at the trial court level, they forfeit the right to claim error as grounds for reversal on appeal.

The second half of the equation is making that the record is complete to ensure that an appeal can be sustained factually and not risk forfeiture. When counsel fails have a factual record, they risk the appellate court dismissing their appeal.
80% of writs are not preserved in the record. To preserve the record, it is encouraged that trial counsel reminds the trial court of any errors in the record. When an issue goes up before an appellate court counsel is asking the appellate court to exercise its discretion. Since the court of appeal relies on the existing record and discovery is not conducted, it is crucial to preserve the record as best as possible. Referring to issues that were brought up by trial counsel in passing but never formally entered into the record will not pass.
 
There are two exceptions to when failure to raise a timely objection can be forgiven. When the matter is a UCCJEA issue or ICWA, the court will usually forgive any failure to enter into the record a timely objection. Since these issues deal with constitutional rights and due process, the appellate court will overlook any defects in timely waivers.
 
However, when the appellate court is dealing with non fundamental issues, other issues are subject to forfeiture. Issues such as failing to state that a specific law is not being followed needs to raised in a timely manner. Opening the code book and reading what the department was supposed to do during the trial court level can be key to preserving the record. Let the record show exactly how the department deviated from the code. Do not simply enter that the department failed to perform its duties.  Another issue is whether the court terminated FR too early. If the court did terminate too early do not wait until appellate court to raise the issue for the first time. Object and state how the department was negligent in its actions and how these specific omissions failed to satisfy what is required in the statutes or case law. Again refer to the codes to point out specifics. If a status review report doesn’t have different changes or lacks certain requirements make a formal note of it in the record. If there are multiple continuances, ensure that the client is receiving and engaging in services. Do not wait until appeal to raise the reasonable services objection. If counsel fails to raise their argument in a timely manner county counsel and minor’s counsel will state that it is the first time they have heard of this and why did parent’s counsel not raise this issue before when it first became an issue.
 
Another issue to note is that in appellate court the parent has the burden of proof to make a offer of proof. Court of appeals tends to weigh in favour of the superior court so it is appellate counsel’s job to build a case for the client using the existing record. With a well preserved record, counsel should strongly argue that the evidences fails to assert the specific facts. Using the evidence to show that services did not happen when they should have happened within the timeframe. If the record was properly preserved, then counsel should be able to cite the record accurately and show that the trial court made errors that severely prejudiced their client. Remember that appellate review is a higher standard of review than at the trial court level. Even though it may seem unfair or extra work, forfeiture is a large issue that can be the death of a client's case.


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Cam Faulkner link
7/15/2023 07:32:44

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Los Angeles Office of the Public Guardian 
510 S Vermont Ave, 14th Floor 
Los Angeles, California 90020 
Phone: LPS (213) 974-0527
(213) 974- 0407
Los Angeles Mental Health Court 
5925 Hollywood Blvd 
Los Angeles, California 90028 
Fax: (442) 247-3972


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1100 Union St, Dept 1902
​LPS Hearings Tuesday/Thursday 9am
San Diego, California 92101 
Phone: (619) 844-2700



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Office of the Public Conservator

5560 Overland Ave Ste 130
San Diego, California 92123
Phone: (858) 694-3500 ext 2
© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose