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dependency writs

STEPS IN TYPICAL DEPENDENCY STATUTORY WRIT
Under Welfare and Institutions Code section 366.26 or 366.28

Governing rules: The procedures applicable to these writs are set out in California Rules of Court, rules 8.450-8.456 (PDF)

Notice of intent filed (Cal. Rules of Court, rules 8.450(e), 8.454(e)): See JV-820 (external link in new window) or JV-822 (external link in new window). Normally it is filed by trial counsel for the petitioner or by the client in pro per. (Rules 8.450(c), 8.454(c).)

Superior court – service of notice of intent and start of record preparation: The superior court clerk mails a copy of the notice of intent to the relevant parties and the Court of Appeal and begins preparation of the record (due 20 days after notice of intent is filed). (Rules 8.450(f) & (g), 8.454 (g) & (h).)

Record:

  • Normal record: As prescribed by rules 8.450(g) and 8.454(h): reporter's transcript of hearing to be reviewed and clerk's transcript including notice of intent with proof of service and all items required by rule 8.404(a).
  • Due date: Record is due within 20 days after notice of intent was filed. (Rules 8.450(g), 8.454(h).) In planning their schedule, however, counsel should be aware that the Fourth District, Division One, asks the clerk to prepare it in only 12 days, and that is more typical of the actual time.
  • Filing and notice: The record is filed with the Court of Appeal. Court of Appeal clerk notifies parties of filing and petition due date. (Rules 8.450(h)(1) & (i), 8.454(i)(1) & (j).
  • Delivery to counsel: The superior court sends the record to all counsel of record and any unrepresented party. (Rules 8.450(h)(2), 8.454(i)(2).)

Filings in Court of Appeal

  • NOTE: ADI's Filing and Service Chart (PDF) provides additional details. The Guide to Fourth District Practice offers practical advice on the court's policies and expectations
  • Petition due date: A petition is due within 10 days after the record is filed in the Court of Appeal, unless augmentation or correction of record (below) is necessary. (Rules 8.452(c)(1), 8.456(c)(1).)
  • Extensions: Brief extensions of time may be available on an exceptional showing of good cause. (Rules 8.450(d), 8.454(d); Code Civ. Proc, § 45.) ADI has a sample form: WordPerfect Word PDF. The request may be fax filed in the Fourth District, but regular service is required. (See information below, under Augmentation or correction of record, if needed, for extensions connected with record completion.) Counsel should follow rules 8.50, 8.60, and 8.63 as to formal requirements and content.
  • Petition for extraordinary writ: Counsel should consult the applicable Court of Appeal for the preferred form, if any. Counsel accustomed to writ practice may want to use ADI's Sample Dependency Writ Petition WordPerfect Word PDF, which reflects the suggested format, the content required by rule 8.452(a) and (b) and rule 8.456(a) and (b), applicable filing and service rules, etc. It includes an optional request for a stay (see following item). Another option, perhaps easier for trial counsel, is JV-825 (external link in new window). Rules 8.452(c) and 8.456(c) prescribe service and filing requirements.
  • Request for stay of lower court proceedings or order: If the panel attorney determines a stay of the section 366.26 hearing or section 366.28 placement order is necessary, a request may be served and filed in compliance with the standards set out in rule 8.452(f) or 8.456(f). Rule 8.486(a)(7) has further requirements for stays. (See also Fourth Appellate District Local Rules, rule 1.)
  • No-issue letter: If no issue can be raised, the attorney should notify the Court of Appeal, unless local practice requires a different procedure. ADI has a Sample No-Issue Letter WordPerfect Word PDF to file with the court and serve on all counsel and the juvenile court. The Court of Appeal will likely dismiss the proceeding upon receiving the no-issue letter. The letter has a standard request for time for the client to file a brief in pro per, but in ADI's experience administering dependency writs in Division One of the Fourth District, the court has always denied it.
  • Response: Any response by real party is due within 10 days after the petition is filed, or 15 days if the service copy was mailed. Or the Court of Appeal may request a response and specify a time at which it is due. (Rule 8.452(c)(2).) Service follows same rules as the petition.
  • Non-petitioning minor's filing, if any: The rules do not specify a time for this document. It is safest to use the respondent's due date (above). Division One of the Fourth District allows a filing 10 days after the response is filed if accompanied by a declaration that the response does not adequately represent the minor's interests or position. (Misc. Order 022112). As with appeals, in the Fourth District the normally expected form of the filing is a letter.
  • Filing and service requirements for petitions and responses
    • Court of Appeal: The court is sent copies of an original petition or response with proof of service, plus four copies. (Rule 8.44(b)(3).) In the Fourth District, the attorney should submit an electronic copy of the filing at the time of filing.
    • Service: A copy of the filing must be served on County Counsel of the applicable county and other parties, as prescribed by rules 8.452(c) and 8.456(c). ADI's Court and Attorney Contacts page has some applicable contact information for Fourth District service.
  • Other filings: Unless rules 8.450-8.456 specify otherwise, the normal rules for appeals govern such procedures as motions and applications, judicial notice, petitions for rehearing, etc. (Rules 8.50-8.63, 8.470, 8.252-8.272.) ADI's Guide to Motions Practice (PDF) has helpful information on this topic. See also ADI's Filing and Service Chart (PDF).

Augmentation or correction of record, if needed: Except as otherwise specified in rule 8.452(e) or 8.456(e), the provisions of rule 8.410 apply. Division One of the Fourth District has a form for completing the record when part of the normal record is missing.

  • Motion to augment or correct due date: A motion by the petitioner is due within:
    • 5 days of record filing if record 300 pages or less.
    • 7 days if record exceeds 300 pages.
    • 10 days if record exceeds 600 pages.
      (Rules 8.452(e)(2), 8.456(e)(2).)
  • Attachment: The requested document or transcript must be attached to the motion, if available. (Rules 8.452(e)(3), 8.456(e)(3).) If not available, the motion must identify it as required under rules 8.122 and 8.130. (Rules 8.452(e)(4), 8.456(e)(4).)
  • Due date for augmented or corrected record: The court order granting the motion specifies the time, not to exceed 15 days. (Rules 8.452(e)(5), 8.456(e)(5).)
  • Revised petition due date after augmentation or correction is ordered: The time to file any petition or response is extended by the number of additional days granted to augment or correct the record. (Rules 8.452(e)(6), 8.456(e)(6).)

Procedures in Court of Appeal:

  • Oral argument: The provisions of rules 8.452(g) and 8.456(g) apply.
  • Decision – filing, finality, modification, and remittitur: Filing of the decision is governed by rule 8.452(h) or 8.456(h). Finality, modification, and remittitur are governed by rule 8.490 on writs of mandate and prohibition. (Rules 8.452(i), 8.456(i).) The dependency writ rules strongly encourage an opinion on the merits. (Rules, 8.452(h)(1), 8.456(h)(1).) Such a decision is final as to the Court of Appeal 30 days after filing, unless later modified or ordered published. (Rule 8.490(b)(2)-(5).) If the petition is summarily denied, however, the decision is final immediately. (Rule 8.490(b)(1).)

Petition for review: This matter is governed by the general rules for proceedings in the California Supreme Court, rule 8.500 et seq. ADI's Form and Samples web page has templates and information for clients.

Online resources:

 

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