DEPENDENCY appeal process
Notice of appeal is filed in the trial court. The appellate court receives that notice while the record is being put together to be transmitted. The court of appeal processes assigns a case number (B number) which is used to identify the case when searching for it. The court of appeal will send a notice of appeal packet to appellate lawyers who will review the case. It takes a while to receive the documentation so the appellate attorneys do not know much about the case if a client calls. Usually, it is a panel attorney who does the initial review. In San Diego it is ADI and in LA it is CAP-LA.
The attorneys need to wait for the entire trial court record before they can provide any feedback about the appealability of the case’s issues. The briefing stages take a long time. Dependency cases tend to get priority on the docket over LPS Conservatorship matters as the parent’s rights and child’s need for permanency are of upmost importance. Termination of parental rights are given fast track status meaning that they are placed at the top of the docket. The appellant’s opening brief is due within 40 days and 30 days if it is a TPR. The department or agency afterwards has 30 days to respond to the opening brief with their response brief. Appellant has 20 days to file their response brief to the department.
If the record is not complete then the reviewing panel attorney has to file a request to ask the trial court clerk to transmit the missing documentation (rule 8). Remember no new evidence or documents may be proffered. Only the existing trial court record. The parties can request extensions if exceptions apply but with TPR matters the court may defers to the need for expeditious proceedings and deny requests.
Oral arguments follow the briefing stage. Generally, parties must give notice within 20 days if they wish to make an appearance and provide an oral argument. The case will be marked as submitted if a party wishes to make an appearance. If no one wishes to make an appearance, then they will send back notice of waiver of oral argument and the case will be marked as submitted. The panel attorney will make a decision based on the trial court record and current case law.
The court of appeal will issue an opinion within 90 days after receiving the case is “submitted”. The opinion will provide the appellate court’s reasoning and deference to particular statue and case law. There is a period of time for several potential actions to be taken. There can be a request for rehearing, writ of certiorari, and/or publication/depublication. If the parties choose not to act then the next step will happen.
The court will issue a remittitur which will send the case back to the juvenile court and the trial court must proceed in accordance with the new guidelines set forth by the appellate court’s opinion. The opinion is remanded for _x_ compliance or make _x_ order consistent with the court of appeal opinion.
Generally, it takes around 340 days for all of the above to happen. Appeals do not happen quickly nor are they a chance for the appellant to have a second try at their case. The court of appeals will only look at the issues proffered in the appellant’s opening brief on the merits. No new evidence or issues of law may be brought up during oral argument.
If the parent has filed a notice of appeal, they must not desist in working their case plan. The court of appeal process takes a while and in the meantime the juvenile court will not stay proceedings for an appeal. There is also a high chance the parent may receive a no issue (Sade C brief) back and the court will continue as normal.
With dependency the trial court needs to look at Welf & I C § 395 which lays out that counsel may only file a notice of appeal for a dispositional order. This bars trial counsel from filing an appeal for:
NO notice of appeal of detention.
No notice of appeal from jurisdiction
*Welf & I C § 360 (b) exception and DVROs
Welf & I C § 395 mandates that an appealable order is a final judgement.
When it comes to the trial court setting a .26 hearing, the two avenues for challenging it are a 388 motion or the writ exception. The parent must file a notice of writ. Trial counsel cannot challenge a .26 order via notice of appeal. Trial counsel must file notice of intent.