These guidelines have been produced by Appellate Defenders, Inc., to assist counsel for minors in dependency cases in the Fourth Appellate District. They were initially requested and approved by the justices of Division One, but all provisions except where specifically noted are applicable in all three divisions. They are intended to give some guidance in the typical case as to what the appropriate role of minor’s appellate counsel is and what specific responsibilities he or she will be expected to fulfill. (The guidelines are applicable when the minor is in the typical position as the subject of the proceeding, and not formally either the appellant or respondent.)

It is important to emphasize that every case is unique, and the overriding principle always is that counsel must be diligent in protecting the minor’s interests, as determined by the circumstances of the particular case.

Communication and Investigation

Initial steps. The first responsibilities of appellate counsel for the minor will be to review the record** and contact minor’s trial counsel and social worker. Contact with the minor’s therapist, if any, might also be appropriate.

** Under rules 8.408(d) and 8.416(c), California Rules of Court, minor’s counsel will receive a separate copy of the record. In fast-track cases (rule 8.416), the record should arrive by express mail or the equivalent. Please contact Appellate Defenders as soon as possible if there are problems.

Contact with minor. After the contacts mentioned above, appellate counsel will be expected to contact the minor as well, unless strong reasons for not doing so have been received from the minor’s trial counsel, social worker, therapist, or others. To facilitate communication and to ensure against potentially harmful approaches to interviewing the minor (e.g., reviewing the underlying abuse or molestation allegations), appellate counsel should arrange the contact through trial counsel or the social worker.

Other investigation. Other contacts might also be needed, but full-scale investigation is normally not contemplated unless appellate counsel determines trial counsel’s investigation was seriously deficient or other unusual circumstances exist.

Regular Reviews to Determine Need for Independent Minor’s Counsel (Division One Only)

The justices of Division One have indicated appointments of minor’s counsel are made with the understanding that minor’s counsel will review the case periodically to determine whether independent counsel for the minor is still needed. If the review at any stage suggests lack of need, counsel should explain that situation to the court and move to withdraw.

A preliminary review should be done after the communication and investigation procedures described in the preceding section are completed. A motion to withdraw might be appropriate if, for example, counsel concludes the investigation and representation by trial counsel were adequate, the likely appellate issues are well-delineated and primarily legal, and/or the minor is too young for meaningful communication.

If counsel remains in the case, another review should be made after the respondent’s brief is filed. Withdrawal would be appropriate if counsel determines the arguments made in the briefs adequately support the position taken by the minor. Other reviews should be undertaken whenever counsel suspects the lack of a substantial role for minor’s counsel in the particular case.

Developing a Position

Considerations. Counsel must ascertain the child’s preferences if the child is sufficiently mature to communicate a meaningful preference. The child’s preferences and best interests are the primary considerations in determining what position to take. The child’s age, maturity, and competence dictate how much relative weight to give these considerations.

Child 14 years or older. If the child is 14 years of age or older, appellate counsel normally should argue for the position the child wants, unless counsel determines such a position would be harmful to the child’s interests. If counsel takes a position different from the child’s wishes, counsel must inform the court in writing of the child’s desires and the reasons for the difference.

Younger children. If the child is younger than 14 but is sufficiently mature and competent to form and express a meaningful preference, counsel should consider the child’s wishes, but also give substantial weight to external circumstances. For children who are too young or have too many mental or emotional problems to have a meaningful preference, counsel should determine what the child’s best interests require. In all cases, counsel should inform the court of the child’s expressed preferences.

Consistency with trial court position. In deciding what position to take, the rebuttable presumption is that appellate counsel should take the same position on appeal as was taken at trial, unless appellate counsel believes trial counsel was wrong or unless circumstances have changed significantly.

Presenting the Minor’s Position

Necessity and time of filing. Appellate counsel does have to file a letter or brief indicating the minor’s position. Filing nothing is not acceptable. The letter or brief is due 10 days after the respondent’s brief is filed. (Rule 8.412(b)(4).)

Form of written presentation. The presumptively appropriate document is a letter rather than a full brief. It should indicate the minor’s position and frequently will join one of the parties. In rare cases it may be appropriate to remain neutral on behalf of the minor, but presumptively a position should be stated. The letter may present additional points and authorities. A letter that would be more than five pages single-spaced is best presented as a formal brief. (Check with Appellate Defenders about special requirements in Division Two.) Full briefing is appropriate if the parties’ briefing is substantially deficient in presenting the minor’s position, if the minor wants to state a position significantly different from that of either party, or if for other reasons appellate counsel deems it necessary to protect the minor’s interests. The minor’s brief should have a yellow cover.

Substance of presentation. The letter or brief should state what the minor’s position is and why. In the typical case, it should contend whether the judgment should be affirmed, reversed, or modified, and it should indicate that the position is taken because of the minor’s preferences and/or best interests. (See section on “Developing a Position,” above, for guidance in determining what position minor’s counsel should take.) The points and authorities or other legal arguments presented should be those that support the minor’s position in favor of affirmance, reversal, or modification. Counsel’s role is to advocate the result preferred by or in the interests of the minor, not to act as a “judge” as to whether the appellant or the respondent has the better legal argument.

Oral argument (Division One only). Division One has indicated that it is not always necessary for minor’s counsel to attend a scheduled oral argument in that court. Counsel should appear only if oral argument by the minor will make a substantial contribution to the case. If counsel has merely filed a short letter joining the arguments of another attorney, attendance may be unnecessary. Once counsel has informed the court formally or informally of an intention not to be present, counsel will automatically be excused from attendance.

Evidence Outside Existing Record

Counsel should follow recognized procedures for bringing the court’s attention to facts not contained in the existing record. Providing substantive information to the court in written or oral form outside recognized procedures is not appropriate appellate practice. A request for augmentation may be made if appropriate under rule 8.155, 8.340(a)-(b), 8.408(e), or 8.416(d). Judicial notice pursuant to Evidence Code sections 450 et seq. and rule 8.252(a) may also be sought. The evidence normally will consist of documents on file or testimony offered in the juvenile court. If the evidence has never been presented in the juvenile court, an application for additional evidence on appeal under rules 8.252(c) and Code of Civil Procedure section 909 may be made. In making such an application, counsel must consider the limitations outlined in In re Zeth S. (2003) 31 Cal.4th 396.

Evidence sought to be added to the record may be attached to the minor’s letter or brief. A separate document should be filed with the letter or brief requesting permission for the addition and referencing the rule or code section relied on as authority.

New Developments in Trial Court

Counsel should be in contact with trial counsel throughout the progress of the appeal to determine whether proceedings in the trial court have changed the posture of the appeal significantly and, if they have, should notify the Court of Appeal as soon as possible.