Does failure to make a timely notice of appeal due to IAC preclude appellant’s right to relief from defaultRead Now
Does failure to make a timely notice of appeal due to IAC preclude appellant’s right to relief from default
IN RE A.R.
Published 4/05/2021; Supreme Court of California Docket No. S260928
In re A.R. (2021) 11 Cal.5th 234, 251.
Mother’s child was declared dependent under Welfare and Institutions Code § 300 for general neglect, (B count) as the department alleged that due to mother’s history of mental illness she was unable to care safely for the child. The trial court sustained the petition at juris/dispo and ordered that mother participate in services. At a subsequent status hearing, the court ordered termination of services. It citing that mother had made progresses but not enough to mitigate the risk that brought the child to the attention of the department. The court advised mother to file a 388 motion at a later date as a means of contesting the order terminating services.
When mother filed her 388 motion and filed her evidence of progress in completing services and bonding exception, the trial made a finding that mother had proffered sufficient evidence of changed circumstances and the need for modification. The court set an evidentiary hearing. However, mother was hospitalized for illness and was unable to make the hearing. Additionally, her counsel was relieved and new counsel appointed.
On the day of the hearing for unstated reasons, the court rejected the 388 motion and barred the mother’s evidence on evidentiary grounds. The court then set a date for a selection and implementation hearing under § 366.26. Mother’s counsel cited the bonding exception under c(1)b(1), however, the trial court rejected that claim and terminated rights. Mother requested that her counsel file a notice of appeal. Counsel forgot mother’s request and filed four days after the mandatory hearing. The appellate court docketed the request. At a later date mother filed her opening brief on the merits along with an application for relief from default acknowledging her counsel’s error in filing the notice of appeal late and asked the appellate court to consider the notice of appeal to have been timely filed. The appellate court rejected her application and denied her appeal. Mother attempted again to file a writ of habeas corpus citing that her counsel’s ineffective representation led to the inappropriate denial of her right to an appeal. The appellate court also denied the writ of habeas corpus.
The California supreme court granted review of two main issues:
(1) whether a parent has the right to challenge her counsel’s failure to file a timely notice of appeal from an order terminating her parental rights, and (2) if she has such a right, the proper procedures for raising such a claim.
This review will cover the issues that the supreme court covered in a different order for clarity.
The argument in chief is whether mother can ask for a form of relief from default due to her counsel’s mistake as administered under CCP § 473.
§ 473 (b) states that:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect…
This application for relief from default must be made before 6 months passed since the missed filing deadline. However, the court tends to be deferential toward the movant as the court is ordered to liberally apply § 473 and the amount of evidence required minimal.
It is the policy of the law to favor, whenever possible, a hearing on the merits...Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.
Within this case this application for relief from default is referred to under the constructive filing doctrine. This doctrine was originally created to protect incarcerated pro se defendants from inappropriate state interference on their right to appeal a judgment in their criminal cases. Over time it was extended to other areas of law.
Currently, the law allows for the constructive filing doctrine to provide relief for criminal defendants who are able to establish 1) diligence in requesting that their trial attorney file a notice of appeal for them, 2) justifiable reliance on their attorney’s promise to file a notice of appeal, and 3) ineffective assistance of counsel in failing to timely file the notice of appeal.
However, mother avers that this has not yet been formally extended to parents who are subject to the dependency system. Mother insists that the constructive filing doctrine may be extended when “there are compelling reasons to do so” to ensure “equality of access to our courts.” The issue that the supreme court is considering is whether mother’s right to competent counsel — threatens the second protection, the right of appeal. To better understand that, it is important to understand the rights of those facing dependency proceedings under Welf & I C § 366.26 and how they interplay with the overbearing goal of dependency which is the protection and the best interest of the minor, a core legal authority that opposing counsel cites is placed in jeopardy by mother’s protracted fight over her right to appeal.
The objection that opposing counsel raises many times if the issue of whether stymieing the proceedings would place at risk the child’s best interest, namely the need for permanency and an adoption or placement order that is “conclusive and binding,” and may not be set aside, changed, or modified which may cause undue distress to the minor. However, the appellate and supreme court noted that the termination of a parent’s right to their child is the “among the most severe forms of state action.” (M. L. B. v. S. L. J. (1996) 519 U.S. 102, 128.). Because of the serious and finality of such an order there exists many safeguards to prevent arbitrary and capricious decisions.
The safeguards discussed in this opinion are the right to competent counsel and the right to appeal the decision to terminate parental rights.
California statutory law has long required the appointment of counsel in connection with parental rights termination proceedings. (Welf. & Inst. Code, §§ 317 (section 317), 317.5 (section 317.5), 366.26, subd. (f)(2).)
Additionally, the legislature cites that along with the right to“competent counsel carries with it the right to judicial review.”
The second safeguard is the right to appeal a decision made by the trial court terminating parental rights. While the parent is exercising their right to appeal the decisions made, the adoption orders are stayed until a final judgement has come down from the reviewing court(s). Once the parent has exercised all of their avenues of appeal, the juvenile court’s termination order becomes “conclusive and binding” thus granting the minor permanency in their life something that opposing counsel cites is far more important in this case than mother’s purported countervailing right to appeal.
Given these two key safeguards, mother asserts that the first safeguard was impacted by counsel’s lack of effective representation and thus it impacts the second, her right to appeal.
Because her counsel failed to meet the jurisdictional deadline, the appellate court lacks the power to extend it, regardless of reason. However, mother avers that the proper remedy for the denial of her statutory entitlement stemming from a lack of competent representation is relief from default, the first concept discussed.
In order to address the contention that:
“the paramount concern is the child’s welfare, and in particular the child’s interest in the finality of the proceedings.”
The court differentiated mother’s assertion and demand for review from those cases which stem from cases “whereby parties in dependency proceedings could complain about their appointed counsel” and create the “problem of a lack of any meaningful process” to this IAC process. The supreme court notes several times in their opinion that to prevent that issue, the availability of this relief from default would depend on the objector’s diligence in pursuing the appeal.
We cautioned that courts should not “indiscriminately permit” relief from default for a defendant who “has displayed no diligence in seeing that his attorney has discharged [his] responsibility.” However, this is not the case as mother demonstrated a clear and consistent effort to remain in contact with her counsel and informing the court of her involvement and awareness of counsel’s failure to file a timely appeal.
Here, for example, M.B.’s notice of appeal was filed just four days late; M.B. promptly attempted to remedy the error, and filed her appellate brief on time.
Additionally, the court addresses opposing counsel’s concerns about parent’s use of appeal as an collateral attack a final nonmodifiable judgment, adoption order. The supreme court notes that the mother was in the process of exercising her right to appeal (earlier noted a necessary step before adoption orders can be finalized) and had yet to exhaust her full rights to appeal.
The second point the supreme court addresses is whether the mother had ground for ineffective assistance of counsel claim.
To analyze whether a claim of IAC will be successful, the courts apply the Strickland two prong test. The first prong:
“[a] parent seeking review of a claimed violation of section 317.5 must show that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law.”
Mother asserts that due to her counsel’s failure to act in a manner to be expected of reasonably competent attorneys, her right to appeal was wrongfully barred. The record indicates that her counsel was directed to file an appeal but failed to do so in a timely manner.
“a lawyer who disregards specific instructions from [his or her client] to file a notice of appeal acts in a manner that is professionally unreasonable.” (Roe v. FloresOrtega (2000) 528 U.S. 470, 477.
The second prong of Strickland is a finding that counsel’s ineffectiveness prejudiced the outcome. This test for prejudice is whether:
“it is reasonably probable that a result more favorable to [her] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
Opposing counsel cites that the issue is that mother must demonstrate that there would have been a reasonable probability she would have prevailed on appeal if the notice of appeal had been timely filed. Mother dissented citing that counsel is misdirected and that they “skipped a step” and that her issue is instead that she was deprived of the right to appeal, a step that must happen before any judgement in favour can be granted (ie there can be no favourable judgement if there is no appeal to begin with). The supreme court concurs with mother in that when an attorney’s incompetence deprives a defendant of their right to an appeal, the defendant does not need not show “some likelihood of success on appeal” as the foundational right to appeal needs to be remedied first. In other words, prejudice is presumed.
[“[W]hen an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed.”].)
The supreme court noted that when a failure to make a timely notice of appeal is the result of counsel’s error, reinstating an otherwise-defaulted appeal is currently the only meaningful way to safeguard the right to competent representation and by extension judicial review.
Juvenile Dependency and