TYPICAL DEPENDENCY WRIT
(Welf. & Inst. Code, § 366.26 or 366.28; Cal. Rules of Court, rules 8.450-8.456)
Notice of intent filed (Cal. Rules of Court, rules 8.450(e), 8.454(e)): See JV-820 or JV-822.
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).)
Assignment of panel attorney:
Notice to ADI of case needing attorney: Court of Appeal sends notice of intent and accompanying documents to ADI. DLG emails “Need for Dependency Writs Attorney – Background Information”* sheet to ADI at DLGwrits@adi-sandiego.com.
Case offer: ADI emails case offer to one or more writs panel attorneys, providing non-confidential information from notice of intent and “Background Information”* sheet.
Notice to DLG: ADI, after selecting panel attorney, emails “Notice of Panel Attorney Assignment” and “Notice of Association of Counsel”* to DLG at writinfo@dlgsd.com. A somewhat different form is used for emergency writs.
Information to panel attorney: ADI emails the panel attorney an acknowledgment and provides the attorney the complete background information in its possession.
Notice to Court of Appeal: DLG files “Notice of Association of Counsel” in Court of Appeal, serving counsel of interested parties and panel attorney.
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 Court of Appeal asks the clerk to prepare it in only 12 days, and that is more typical of actual time.
Filing and notice: Record is filed with the Court of Appeal. Court of Appeal clerk notifies parties of filing.
Delivery to counsel: Superior court sends record to DLG by county mail system. DLG sends record to panel attorney by overnight mail.
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 (next item) is necessary. (Rules 8.452(c)(1), 8.456(c)(1).) Short extensions may be available; ADI has a sample form, available on the ADI DEPENDENCY WRITS page. Extension requests may be filed by fax, but require regular service.
Augmentation or correction of record, if needed (rules 8.452(e), 8.456(e), 8.410):
Motion to augment 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
Attachment: The requested document or transcript must be attached to the motion, if available.
Due date for augmented or corrected record: The court order granting the motion specifies the time, not to exceed 15 days.
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).) In practice the attorney’s additional time runs from the date of the filing of the supplemental record.
Required or available communication with DLG and/or ADI about case:
Consultation: The panel attorney is invited to consult with ADI or DLG about substantive, procedural, or other matters concerning the case.
No arguable issues: On determining there may be no arguable issues, the panel attorney must discuss the matter with the DLG trial attorney and is invited to consult ADI. The responsible DLG supervisor may request ADI to review all or part of the record. If there are co-petitioners in the case, counsel should consult with them about potential issues, since it may be possible to join another’s petition.
IAC issue: The panel attorney must consult with the ADI staff attorney immediately on determining there may be an issue of ineffective assistance of trial counsel. Contact with DLG should be directed to the trial counsel’s supervisor.
Selection of minor’s writ counsel:
Offer of case: ADI, when notified by DLG that it believes association of minor's counsel will be needed, offers the minor's assignment to selected attorneys on the minor's counsel panel. After selecting counsel, ADI informs DLG who the attorney is, using forms and procedures described above.
Transmission of record to minor’s counsel: DLG overnights record to minor’s writ counsel.
Notice to Court of Appeal: DLG files “Notice of Association of Counsel” with Court of Appeal, serving counsel of interested parties and panel attorney.
Preliminary duties: Minor’s appellate counsel uses any time before the petition is filed to review the record, contact trial counsel, call or visit the client, etc. (Usually in-person visits will not be feasible or necessary. Please consult the DLG trial attorney about the most recent visit and any need for follow-up. If, after this consultation, you are still unsure whether to visit, contact the assigned ADI staff attorney.)
ADI’s Guidelines: ADI’s Guidelines for Minor’s Counsel apply where relevant to writ proceedings.
Change of position: Minor’s counsel must consult with the DLG trial counsel and the ADI staff attorney if considering taking a position different from that of trial counsel.
Principal filings in Court of Appeal
Petition for extraordinary writ: The panel attorney may use the template provided on the ADI DEPENDENCY WRITS page, which includes suggested format, content required by rule 8.452(a) and (b) and rule 8.456(a) and (b), filing and service rules, etc. It includes an optional request for a stay (see “Procedures in Court of Appeal” below, second paragraph). Another option, less preferred for this program, is JV-825. Rules 8.452(c) and 8.456(c) prescribe service and filing requirements.
No-Issue letter: If no issue can be raised, as discussed under “Communication with DLG and/or ADI about case” above, third paragraph, the panel attorney files a letter with the court (sample provided on DEPENDENCY WRITS page), serving all counsel and the juvenile court. The Court of Appeal will dismiss the proceeding.
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 petition.
Minor’s filing: The rules do not specify a time for this document. It is safest to use the respondent’s due date (above). As with appeals, the normally expected form of the filing is a letter.
Filing and service
Court of Appeal: The court is sent copies of an original with proof of service, plus four copies. (Rule 8.44(b)(3).) At the time of filing the attorney should provide the Court of Appeal with an emailed PDF copy of the filing, in addition to paper copies required by rule 8.44(b)(3), sent to 4d1ebrief@jud.ca.gov.
County Counsel: If the attorney has been approved for e-service on County Counsel, only the email copy is necessary, except for filings in the California Supreme Court. Otherwise, counsel should serve the agency a paper copy by mail, with an additional courtesy PDF copy by email. Email service address is SDCCJD.Appeals@sdcounty.ca.gov.
Other parties: Rules 8.452(c) and 8.456(c) prescribe who must be served.
ADI and DLG: All service on ADI (DLGwrits@adi-sandiego.com) and DLG (writinfo@dlgsd.com) may be by e-mailed PDF copy.
Further information on e-filing and e-service: Guidance is in ADI’s “Summary of Electronic Service and Filing Programs” and the Court of Appeal’s “Electronic Briefs and Documents to the 4th District Court of Appeal.”
Procedures in Court of Appeal:
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 provided a sample for this purpose on its DEPENDENCY WRITS page. Rules 8.450-8.456 do not provide for a “grace” period analogous to rule 8.416(e)(1), but we note the court’s practice has been to issue a 10-day warning before dismissing a case.
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.
Oral argument: The provisions of rules 8.452(g) and 8.456(g) apply.
Other procedures: Unless rules 8.450-8.456 specify otherwise, the normal rules for appeals govern such procedures as motions and applications, judicial notice, rehearing, etc. (Rules 8.470, 8.252-8.272.)
Decision, 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).) Normally, because the dependency writ rules strongly encourage an opinion on the merits, the decision will be final as to the Court of Appeal 30 days after filing, unless later modified or ordered published.
Petition for review: This matter is governed by the general rules for proceedings in the California Supreme Court, rule 8.500 et seq.
Disposition of Record:
If the attorney believes the record may be of use in a subsequent appeal, the panel attorney should retain it until the appeal is concluded. Presumptively, the same attorney(s) will be selected for the appeal, but if for some reason the same attorney cannot be selected, ADI will provide direction on where to send it. If the attorney does not judge it useful to retain the record, the attorney should dispose of the record in the same way as if it had been an appeal. DLG suggests: Adult client – Notify client the record will be destroyed in 45 days unless the client asks for it in that time. Caution incarcerated clients to consult trial counsel about the advisability of sending a confidential record into a custodial institution. Minor client – Destroy the record or send it to DLG, which will take responsibility for obtaining a replacement if the client later asks for it. Records should be destroyed in a manner consistent with confidentiality.
Compensation:
Standards: DLG will pay $85.00 per hour reasonably spent, plus reasonable photocopying, binding, delivery, long-distance telephone, travel, and other normally reimbursable expenses, according to the standards regularly used by ADI and the California Court of Appeal. For cases in which the notice of intent was filed on or after September 19, 2011, record review will be compensated at the rate of $1.00 per page of transcript. Claimed expenses require receipts, if available. If not available, counsel may explain (e.g., “in-house copy machine at $0.10 per page,” or “personal car usage at $0.485 per mile,” etc.).
Invoice: ADI has provided a form for the Compensation Invoice:
The writ attorney should send the invoice to DLG to the attention of the trial attorney's supervising attorney. Every invoice must include the attorney's Federal Tax ID Number or Social Security Number, as well as his or her Remit To Address. DLG will pay all approved invoices with Net 30 Day Terms (within 30 days).
Time to submit: The invoice may be submitted to DLG when the writ attorney's services in the Court of Appeal are concluded. If further services are necessary because of a Supreme Court grant of review or other unusual circumstances, a supplemental invoice may be filed by prearrangement with DLG.
DEPENDENCY LEGAL GROUP OF SAN DIEGO: CONTACT INFORMATION
Candi M. Mayes, CEO and Executive Director
candimayes@dlgsd.com
Senior supervisor: Robert Gulemi
rgulemi@dlgsd.com
Primary Parent Office (PPO)
1660 Hotel Circle North, Suite 130
San Diego, CA 92108
(619) 795-1315
Supervisor: Kevin Lemieux
klemieux@dlgsd.com
Conflict's Counsel Office (CCO)
1660 Hotel Circle North, Suite 201
San Diego, CA 92108
(619) 795-1440
Supervisor: Cristina Sanchez
csanchez@dlgsd.com
Minor’s Counsel Office (MCO)
1660 Hotel Circle North, Suite 701
San Diego, CA 92108
(619) 795-1540
Supervisor: Tilisha Martin
tmartin@dlgsd.com
Conflict Parent Office (CPO)
1660 Hotel Circle North, Suite 125
San Diego, CA 92108
(619) 795-1254
Supervisor: Robert Gulemi
rgulemi@dlgsd.com
If unsure of DLG trial counsel, address office supervisor.
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