Today’s post comes from one of my own cases decided by the Third Appellate District, In re J.P., (Nov. 25, 2015 C078735 & C079093). In this dependency appeal I raised the ever-recurring argument the county had failed to comply with the notice requirements of the Indian Child Welfare Act. I represented mother; father also appealed, joining my arguments. However, it appears my client may have recently passed away, according to a communication to the court from county counsel. Having heard from her not too long ago, I was a bit dubious, but there a recent obituary for someone of the same name in that area. I requested the county, being the powerful government agency it is, provide the Court of Appeal with a certified copy of a death certificate and then I would respond accordingly. No document was forthcoming, but today the Court of Appeal filed its opinion, dismissing mother’s appeal based on the county’s representation, but also reversing the orders terminating parental rights for father, as he joined my arguments. So my arguments succeeded after all.
This cases provides several insights. First, if the appellant in a dependency case passes away, the appeal usually will be dismissed as moot, rather than “abating,” as in a criminal case, on the ground the Court of Appeal can grant no practical relief. Had mother been the only appellant, presumably something more authoritative than a letter would have been required to dismiss the appeal, but since the disposition was a reversal, that would not be required in the grand scheme of things. Second, if you represent parents in dependency cases, try and get both parents to appeal, even if the other parent has the stronger argument. In most cases, one parent can just join the other parent’s arguments since a reversal for one generally will benefit the other. Third, be alert for notice arguments, especially concerning the ICWA. Fourth, although the appellate odds are stacked against appellants, respondents do not always prevail; this opinion in particular employs some firm language rejecting several of respondent’s claims.
And lastly, as an appellate lawyer, there are many ways to count a “win.” You have to take ’em where you find ’em. If your argument succeeds, you succeed, even though your appeal is “dismissed.”
read the opinion: