Speculation sunday- CAN WE APPLY IN RE A.R. (2021) TO LPS CONSERVATEES IN THE NEAR FUTURE

DOES FAILURE TO MAKE A TIMELY NOTICE OF APPEAL DUE TO IAC PRECLUDE APPELLANT’S RIGHT TO RELIEF FROM DEFAULT AND CAN WE APPLY IN RE A.R. (2021)11 CAL.5TH 234 TO LPS CONSERVATEES IN THE NEAR FUTURE 
 
 
Back to the whole issue with the Daigle court that noted “the applicability of the doctrine of ineffective assistance of counsel to the conservatorship context is an unsettled area of the law”. In re Conservatorship of Daigle, 269 Cal. Rptr. 770 (Ct. App. 1990), I found a case where IAC claims could very realistically become an issue for LPS Conservatees due to the large case load counsel bears.
 
There was dependency case (In re A.R. (2021) 11 Cal.5th 234, 251/LADL appellate counsel represented parent) with counsel filing things late and forfeiting review upon appeal later down the road in dependency. The Supreme court of California recently ruled on this issue where appellant asked that the Supreme court reverse and remand due to ineffective assistance of counsel (IAC) precluding her from properly appealing her termination of parental rights to the appellate court. Appellant cited that her “fundamental liberty interest … in retaining a parent-child relationship” safeguarded by her due process rights to competent counsel and right to appeal were violated when the appellate court rejected her notice for appeal for being four days late (through no fault of her own).
 
Appellant requested that the supreme court apply the constructive filing doctrine also known as the RELIEF FROM DEFAULT codified in Calif C.C.P. § 473. This basically is a form of relief from default (being the automatic denial of appeal due to lateness) and the relief would mandate that the lower court hear the case even though the statutory deadline has passed.
 
There were quite a few issues that I find could be used in a future amicus curiae for any future LPS Conservatorship appellant who wishes to raise the same issue and state that they are similarly situated with in re A.R. (In re A.R. (2021) 11 Cal.5th 234, 251.) Again, I’ll provide my posture and discuss each point seriatim.
 
(I)
 
One of the major disagreements raised in re A.R was the pitting of the parent’s rights again the purpose of the juvenile dependency system as it exists “to provide maximum safety and protection for children …ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (Welf. & Inst. Code, § 300.2.) Opposing counsel reasoned that the application of the constructive filing doctrine in this case “would be clearly impracticable or inappropriate” due to the “paramount importance” of the child and the special need for finality and stability in termination of court proceedings.
 
It is anticipated that opposing counsel for LPS Conservatorship would have similar reasoning in Welf & I C § 5350 et seq:
In appointing a conservator, the court shall consider the purposes of protection of the public and the treatment of the conservatee.
 
Understandably we lack the need for children’s permanency like in dependency. However, the same conflict exists as we are concerned with the pitting of the protection of the public and the treatment of the conservatee against the protection of their due process rights. We are concerned with adequately treating the conservatee’s and preventing a recurrence of grave disability against any unwanted violation of their due process rights because as we know LPS Conservatees are afforded protection under the highest burden of proof, grave disability beyond a reasonable doubt, (Roulet).
 
The A.R. court states that terminating parental rights is sometimes necessary …but it is a uniquely serious in that it is widely recognized as ranking “among the most severe forms of state action.” Because of this, parents risk such serious state action, they are afforded several legal safeguards, the first protection is the right to competent counsel and the second is the right of appeal. Although these rights are valuable, opposing counsel will always argue that “the paramount concern is the child’s welfare, and in particular the child’s interest in the finality of the proceedings” and that raising IAC claims would only prolong the court process and not provide the minor with the stability that is in their best interest.
 
 
NOTE: It then noted that the legislative history of the provision, too, supported the conclusion that “the statutory right to competent counsel carries with it the right to judicial review.”
 
 
 
LPS Conservatorship may lack the termination of parental rights actions or the minor in need of a permanent placement, but a strong argument could be made that LPS Conservatees have greater deprivations than dependency appellants as conservatees face indefinite placement (Conservatorship of E.B. (2020)). Because of this conservatees have the legal safeguard of proof beyond a reasonable doubt when appointing an LPS Conservator. Additionally, the conservatee has greater cause for a expeditious appeal as they face confinement in a closed locked facility which can undue distress should they not have their matter resolved in a timely manner.
 
 
Like dependency, the court shall also when petitioning for appointment of LPS conservator, appoint counsel pursuant to Welf & I C §5365. Although not explicitly codified in Welf & I C, conservatees should have a provision specifying, in explicit terms, that “[a]ll parties who are represented by counsel at LPS Conservatorship proceedings” are “entitled to competent counsel” and by extension judicial review of their counsel’s actions. As in the A.R. court, the second procedural safeguard afforded is the right to appeal. Like parents, conservatees have the right to appeal establishment of LPS Conservatorship.
 
Which brings us to the same point that the A.R. court raised; in an LPS Conservatorship hearing with the same fact pattern, does counsel’s actions constitute a valid IAC claim?
 
 
 
(II)
As addressed by the Daigle court, IAC claims are not often raised successfully with LPS Conservatorship matters. The two prong Strickland standard makes raising a valid IAC claim harder than it sounds as most appellants cite that their counsel failed to listen to them or did not do as they asked of them. However, to remember to raise an IAC claim we need two prongs to be met. The first is that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of LPS Conservatorship law”. The second is that counsel’s errors were serious enough that the deficiency of counsel subjected the [appellant] to demonstrable prejudice. As in the harmless error analysis must be applied and demonstrate that counsel made an error so serious that there would have been an alternative outcome had that error not been made. Should both prongs be met, conservatees may seek relief for incompetent representation in LPS Conservatorship. I believe that IAC claims in LPS Conservatorship cases generally have been raised by means of a petition for habeas corpus to the appellate court not trial court.
 
 
 
In re A.R. (2021) 11 Cal.5th 234, 251, the supreme court found that counsel’s failure to file parent’s notice of appeal on time was to act in a manner to be expected of reasonably competent attorneys, the first Strickland prong, as counsel was provided time and notice of parent’s desire to appeal. This is not a simple issue of whether appellant disagreed with the trial strategy. Counsel failed to submit appellant’s request for appeal. The second prong, the deficiency of counsel subjected the parent to demonstrable prejudice, is clear in this case as the supreme court opined that counsel’s failure precluded mother from being able to even have a chance to present her appeal to the court.
 
 
The same Strickland standard should not deviate with LPS Conservatorship. If the same fact pattern were to apply, there is no difference in this aspect of meeting the IAC Strickland prongs. LPS Conservatorship attorneys should be expected to file patient’s notice of appeal in a timely manner and should counsel fail to meet the deadline through no fault of the patient’s, then counsel would have prejudiced the conservatee’s case as they lack the risk of “prejudiced case” as their counsel’s error has made it so that no case was even calendared. There exists no case to be prejudiced….
 
 
Even if San Diego’s counsel is on top of everything someone’s county public defender isn’t. If it happens at the dependency level, then it going to happen within the LPS Conservatorship division. In re A.R. (2021) stemmed from the foundations set forth by the criminal courts.
 
 
 
(III)
The third point addressed in whether relief from default should be granted was the parent’s effort in maintaining contact with their counsel. In both criminal and dependency court in order to maintain a successful claim to relief based on IAC, the appellant’s promptness and diligence in pursuing an appeal must be present In re Benoit (1973) 10 Cal.3d 72; In re A.R. (2021) 11 Cal.5th 234, 251. The A.R. court noted that granting relief from default would depend on the [appellant’s] diligence in pursuing their appeal. The court will not “indiscriminately permit” relief from default for appellant’s who “has displayed no diligence in seeing that his attorney has discharged [his] responsibility.” Simply put if the appellant has (1) failed to follow up with counsel about their progress in filing a notice of appeal, (2) did not file their merits brief right after filing their notice of appeal (timely or not), or (3) seeking recourse for their counsel’s lateness in filing through means of a writ of habeas corpus, the supreme court states that the appellant cannot request relief from default. Nor can they if they fail to raise this IAC issue 6 months after the missed deadline. However, the parent in this case did all three thus constituting diligent effort to remain in contact and up to speed with her appeal.
 
 
 
 
Like dependency, LPS Conservatorship do not need the unique situation that parents find themselves in to raise the same issues.  Given that the two points made earlier are met, LPS Conservatees should if the record at either the trial court level or at a later evidentiary hearing at the appellate level demonstrate their promptness and diligence in communicating with their counsel be granted this relief.
 
The A.R. court notes that this need for appellant promptness is important as the costs of delay are particularly acute as the child is left without permanency. They are potentially stuck in a cycle of “endless” appeals and continuances. Endless as for a child, months can feel like forever and cause emotional trauma.
 
This opinion will differ from the A.R. opinion in that we are not dealing with minors but rather conservatees who are more similarly situated with prisoners. Other opinions have stated that this relief from default can be used a means to ensure the timely filing of court documents for prisoners who must rely on others, including prison officials and outside counsel in re Hollister Convalescent Hosp., Inc. v. Rico (1975). I would assert that LPS Conservatees are similarly situated in that they are subject to the aid of IMD staff, busy attorneys, and public conservators with large caseloads. They often do not have easy access to snail mail, phone calls, and emails.
 
Additionally, conservatees are subject to the unique factor that they are not cognitively intact. They are on LPS Conservatorship for a reason. Even though their medication may help with reducing the psychosis, they often have trouble understanding the complexities of the legal system, something most lay persons have trouble understanding. Because mental illness is biological, they should not be penalized for their trouble understanding deadlines and staying in contact with their counsel.
 
In applying whether the promptness and diligence in pursuing an appeal must be present for LPS Conservatees, present efforts should carry weight but failure to maintain a clear record of “staying on top of their attorney” should not be dispositive.  We should do so that conservatees are not denied access to the appellate courts by obstacles . . . other litigants readily could overcome”.
Should all of the following in sections I- III be found true, then the reviewing court should order that the appellate court reverse the judgment of the Court of Appeal denying relief from default and remand for further proceedings consistent with this opinion.