Can You Win a Dismissed Appeal? Well, Kinda

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:


Parental Right to Reasonable Discipline Reaffirmed

Division Two of the Second District handed mother a victory in her parental rights’ appeal in In re D.M. (Nov. 24, 2015, B260549), ruling her use of her hand or a sandal to spank her children on rare occasions, but never leaving marks, was not infliction of “serious physical harm” within the meaning of Welfare and Institutions Code section 300 because the juvenile court did not determine the conduct “falls outside the right of parents, which exists elsewhere in California civil and criminal law, to discipline their children as long as the discipline is genuinely disciplinary, is warranted by the circumstances, and is reasonable (rather than excessive) in severity.”  This ruling is important because it emphasizes California juvenile law is not to be viewed in isolation, hermetically sealed from the rest of the legal universe.

“Spanking” cases crop up periodically in dependency appeals, generally resolved by unpublished opinions, providing little guidance to appellate attorneys.  However, the published  D.M.  not only explains the relevance of related areas of the law in a dependency law analysis, but also catalogues the spectrum of parental discipline previous appellate opinions have found to be abuse, also noting instances in which the juvenile court unnecessarily acted to restrict parental rights.  Although the State must act to protect children, sometimes its agents are overzealous in asserting their authority.  Hopefully, D.M. will prove an important check on state interference with parental rights.

The opinion also is of interest because of its discussion of “mootness,” both in the majority opinion and the dissent, providing ammunition to practitioners on both sides of that dispute in the future.  Read the opinion:


Who’s In Charge During Appeal?

In In re K.M. (G051656 Nov. 20, 2015) 4/3 recently reminded dependency courts and practitioners a juvenile court lacks jurisdiction to modify a section 366.26 order terminating parental rights, even to “fix” the Agency’s defective Indian Child Welfare Act (“ICWA”) notice in order to head off an inevitable reversal.  After the parents filed their appellate briefs, rather than stipulating to a limited reversal (which presumably would have been inconvenient for the Agency’s appellate statistics) the Agency undertook the required ICWA notice, obtaining letters from tribes “declining K.M. for tribal membership.”  So armed, the Agency obtained a post-judgment trial court order to the effect the ICWA did not apply  then asked the Court of Appeal to dismiss the appeal as moot.

Before reaching its conclusion, the Court discussed the appropriate mechanism by which this type of information may be brought before the reviewing court, a topic of interest to all practitioners.  Augmentation was inappropriate because the matter was not before the trial court.  For the same reason, judicial notice did not fit the bill.  Additionally, a court cannot take judicial notice of the truth of matters in documents.  However, CCP 909 was procedurally correct as the purpose ostensibly was to show the appeal was moot.

The Court explained granting the Agency’s motion to get the information in front of the Court was “a hollow victory” because the trial court had no jurisdiction “to consider SSA[‘s] belated remedial ICWA efforts because it was in substance a collateral attack on the termination order,” prohibited by section 366.26, subdivision (I)(1), hence it was void, demonstrating the general rule that the Court of Appeal, not the trial court, has jurisdiction over an order which is the subject of the appeal is even stronger in termination of parental rights cases.



Do Not Assume No One at the Court Reads the Record

From a footnote in a tentative opinion from 4/2 (not directed at this office):

We pause here to remind counsel for XXXXX of her duties as an officer of the court, which include a duty of candor. (Bus & Prof. Code, [sec] 6068, subd. (d); Rules Prof. Conduct, rule 5-200.) When counsel writes that the court “never mentioned [the child’s] best interests,” and then cites to a page of the reporter’s transcript where the court explicitly considers the child’s best interests (“[T]he decision for [the child’s] current placement is appropriate, and it’s not in her best interest to change it”) . . .counsel breaches the duty of candor.  Similarly, when counsel writes “there is no evidence that [the child] ‘loved’ [her prospective adoptive parents] or that the ‘loved’ her, , , counsel simply misstates the record, as the social worker explicitly noted that the child “states that she loves [the prospective adoptive parents] and wishes to be adopted by them,” and that the prospective adopted parents were focused on “providing a stable, loving home where [the child] can feel valued and safe.” . .. Counsel would be well advised to adhere strictly to her professional duties, including the duty of candor, in any further proceedings before this court.

Be careful zealous advocacy does not cross the line, departing from reality, which in appeal land is found within the four corners of the record.  Someone at the Court is going to read that record, and you don’t want to be called out for flights of fancy.

Even Billionaires Have to Follow the Rules

Yesterday’s opinion concerning the Clippers’ saga, Sterling v. Sterling, B258151, will provide another in the long list of citations useful to respondents as it is notable for pointing out not just one, but three, fatal procedural errors:  failure of the appellant to cite to the record, failure to summarize evidence in favor of the prevailing party — resulting in forfeiture–, and failure to demonstrate prejudice.  A billion dollar dispute resolved in three paragraphs.  The court continues on to discuss the facts and the merits however, resulting in a successful businessman’s personal health tragedy being enshrined in California law.  Benefit to client??