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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