In re A.R., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
S260928
IN THE SUPREME COURT OF CALIFORNIA
April 5, 2021
First Appellate District, Division One A158143; Alameda County Superior Court JD02839802. Justice Kruger authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, Groban, and Jenkins concurred.
When the juvenile court terminated M.B.‘s parental rights to her minor child, M.B. promptly directed her court-appointed attorney to appeal. The attorney mistakenly filed the notice of appeal four days late, however, and the Court of Appeal dismissed M.B.‘s appeal as untimely. The question presented is whether, as a result of her attorney‘s mistake, M.B. has irrevocably lost her right to appeal the termination of her parental rights. We conclude the answer is no. By statute, every parent facing the termination of parental rights is entitled to the assistance of competent counsel (
I.
M.B. gave birth to A.R. in 2016. At the time, M.B. herself was still a minor. Less than a year later, the Alameda County Social Services Agency (Agency) filed a petition under
Two years after A.R. was first declared a dependent, the juvenile court scheduled a hearing to determine whether to grant M.B.‘s
At the hearing, the court rejected M.B.‘s
Five days after the juvenile court ruled against her, M.B. asked her new court-appointed counsel to file an appeal. Her attorney, however, forgot about the request until it was too late: The attorney did not file a notice of appeal on her client‘s behalf until four days after the 60-day filing deadline had passed.
The Court of Appeal initially docketed M.B.‘s untimely appeal. Some months later, M.B. timely filed her opening brief on the merits along with an application for relief from default. In the application, M.B. acknowledged her counsel‘s error in filing the notice of appeal and asked the court to consider the notice of appeal to have been timely filed. The Court of Appeal denied the application and dismissed M.B.‘s appeal for lack of jurisdiction. M.B. then filed a petition for a writ of habeas corpus in the Court of Appeal, alleging that her attorney‘s substandard performance had denied her the right to pursue an appeal. The court also denied M.B.‘s habeas corpus petition, albeit without prejudice to refiling it in the trial court.
We granted review, directing the parties to address two issues: (1) whether a parent has the right to challenge her counsel‘s failure to file a timely notice
II.
A.
The juvenile dependency law is designed “to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (
While terminating parental rights is sometimes necessary to secure the child‘s long-term welfare, it is a uniquely serious step — one widely recognized as ranking “among the most severe forms of state action.” (M. L. B. v. S. L. J. (1996) 519 U.S. 102, 128.) To guard against the risk that parental rights will be terminated in error, the Legislature has enacted several significant procedural protections. (In re James F. (2008) 42 Cal.4th 901, 904.) Two of those protections are central to the issue we confront in this case.
The first protection is the right to counsel. Depending on the circumstances of the case, constitutional due process sometimes demands the appointment of counsel for a parent facing the termination of rights. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 32; In re Sade C. (1996) 13 Cal.4th 952, 984.) But even when court-appointed counsel may not be
The second procedural protection is the right of appeal. Parents whose parental rights have been terminated are entitled to appeal the order (
The issue in this case concerns what happens when denial of the first protection — the right to competent counsel — threatens the second protection, the right of appeal. Ordinarily, the first step in pursuing an appeal is to file a timely notice of appeal — which, under current rules of court, means filing within 60 days of the challenged order. (Cal. Rules of Court, rule 8.406(a)(1).) This is a jurisdictional deadline, meaning that courts lack the power to extend it, regardless of whether failure to meet the deadline was “wilful [sic] or inadvertent,” “reasonable or unreasonable,” or rooted in “good faith or not.” (Estate of Hanley (1943) 23 Cal.2d 120, 122 (Hanley); see Cal. Rules of Court, rules 8.60(d), 8.104(b).) Here, M.B. and her appointed attorney both attest that M.B. failed to file a timely notice of appeal solely because her attorney failed to competently discharge that responsibility. M.B. argues that the appropriate remedy for the denial of her statutory entitlement to competent representation is relief from default, which would allow her to pursue her appeal notwithstanding her attorney‘s error. With certain caveats described below, we agree.
As a general rule, a parent who has not received competent representation in juvenile dependency proceedings is entitled to seek relief based on denial of the statutory right. A long line of appellate authority, beginning with In re Kristin H. (1996) 46 Cal.App.4th 1635 (Kristin H.), so holds; we now affirm the correctness of these decisions.
In Kristin H., the Court of Appeal considered a habeas corpus petition filed by mother who claimed her attorney performed incompetently by failing to investigate and introduce favorable evidence at the dispositional stage of juvenile dependency proceedings. (Kristin H., supra, 46 Cal.App.4th at p. 1658.)1 Before Kristin H., appellate courts had agreed that the right to counsel rooted in constitutional due process carried with it a right to the effective assistance of counsel. (Kristin H.
at p. 1659, citing, inter alia, In re Christina P. (1985) 175 Cal.App.3d 115, 129.) But courts disagreed about whether the same was true of the statutory right to counsel secured by
The Kristin H. court acknowledged prior courts’ concerns that claims of incompetent representation would delay the finality of dependency proceedings. The court observed, however, that the child‘s interest in finality is not the only value to consider; the child also has an important interest in ensuring that her relationship with a parent is not erroneously severed because of the incompetence of the parent‘s lawyer. (Kristin H., supra, 46 Cal.App.4th at p. 1664.) The court also explained that even if finality interests do not foreclose relief entirely, they do require that parents act promptly in raising their claims. The court cautioned that “untimeliness may in many cases preclude review of claims of ineffective assistance of counsel,” since “[n]owhere is timeliness more important than in a dependency proceeding where a delay of months may seem like ‘forever’ to a young child.” (Id. at p. 1667.) Applying these principles to the case before it, the Kristin H. court permitted the mother to proceed with her habeas petition challenging her attorney‘s juvenile court performance. (Id. at p. 1642.) Since Kristin H., the Courts of Appeal have uniformly agreed that parents may seek relief for incompetent representation in juvenile court proceedings. (See, e.g., In re Paul W. (2007) 151 Cal.App.4th 37, 52-54; In re Darlice C. (2003) 105 Cal.App.4th 459, 465-466; In re O. S. (2002) 102 Cal.App.4th 1402, 1406 & fn. 2; In re Carrie M. (2001) 90 Cal.App.4th 530, 533-534.) Neither the
C.
The central point of dispute between the parties concerns whether the right to seek relief for incompetent representation lapses with the jurisdictional deadline for filing a notice of appeal from the parental rights termination order — even when counsel‘s incompetence is the very reason no filing has been made by that deadline. The Agency and A.R. contend that, no matter the reasons for the delayed filing, the passage of the deadline marks the point at which the child‘s interest in avoiding unnecessary delay definitively overcomes any countervailing interests the parent may have.
We emphatically agree that dependent children have a critical interest in avoiding unnecessary delays to their long term placement. (See, e.g., In re Sade C., supra, 13 Cal.4th at p. 993 [describing the “pointed and concrete harm” a child may suffer from protracted custody proceedings]; Lehman v. Lycoming County Children‘s Services (1982) 458 U.S. 502, 512 (Lehman) [referencing the “exceptional need for finality in child custody disputes“].) But it does not follow that parents must automatically lose the ability to seek redress for incompetent representation as soon as the time for filing the notice of appeal has passed. Certainly nothing in the statute says so. While the statute makes an order terminating parental rights “conclusive and binding,” it does so expressly subject to the parent‘s right of appeal. (
And while finality is a critically important interest in termination proceedings, it is not the only interest at stake. Children and parents alike also have an interest in ensuring that the parent-child relationship is not erroneously abridged. (Kristin H., supra, 46 Cal.App.4th at p. 1664.) The Legislature sought to protect this interest in accuracy by affording parents a right to competent counsel, as well as a right of appellate review. (
Alexander S. relied in turn on Ex parte Miller (1895) 109 Cal. 643. In that case, parents who had failed to file a timely appeal of an order appointing a third party as the guardian of their child later filed a habeas petition seeking to collaterally attack the final appointment order on its merits. This court rejected the petition, explaining that habeas corpus would lie only to attack the jurisdiction of the court that entered the guardianship order, not to establish a right to the custody of the child as against her appointed guardian. (Miller, at pp. 646-647.) Alexander S. affirmed Miller‘s holding, concluding that “sound public policy offers continued justification” for a rule that avoids “[p]rotracted litigation over the custody of a child.” (Alexander S., supra, 44 Cal.3d at p. 868.)
Neither Alexander S. nor Miller speaks to the situation we confront here. Each of those cases concerned efforts to repackage untimely appeals from certain final custody-related orders as requests for habeas relief, based on alleged defects that could have been fully addressed on appeal. In both cases, those efforts were barred by the settled rule that ” ‘habeas corpus cannot serve as a substitute for an appeal . . . .’ ” (Alexander S., supra, 44 Cal.3d at p. 865, quoting In re Dixon (1953) 41 Cal.2d 756, 759.) In neither case did the court consider a habeas petition raising a claim of incompetent representation that resulted in the loss of any opportunity to appeal. Indeed, Alexander S. made this point explicitly, noting that the birth mother in that case did not “assert any excuse for her failure to file a timely notice of appeal” from the order denying her withdrawal of consent. (Alexander S., at p. 865; accord, id. at p. 863.) The rule that habeas cannot
Notwithstanding the differences between Alexander S., Miller, and this case, we reaffirm those cases’ emphasis on the importance of avoiding protracted litigation over matters concerning a child‘s long-term placement. (Alexander S., supra, 44 Cal.3d at p. 868.) As we will explain further below, this policy requires courts to consider whether parents have acted promptly and diligently in pursuing their rights before granting relief. But the policy does not erect an absolute bar to relief for the parent whose attorney mistakenly files the notice of appeal after the deadline or fails to file it entirely despite a request from the parent to do so, thereby denying the parent the benefit of important statutory protections against erroneous decisions. In many cases the risk of delay is minimal when compared to the ordinary timing of an appeal: Here, for example, M.B.‘s notice of appeal was filed just four days late; M.B. promptly attempted to remedy the error, and filed her appellate brief on time. To categorically cut off any possibility of appeal in such case would not serve any meaningful interest in avoiding unnecessary delay. It would instead serve only to penalize the parent for relying on the putatively “competent counsel” to which she is statutorily entitled. (
D.
Having concluded that parents may raise an incompetent representation claim based on the untimely filing of a notice of appeal, we now address several questions about the contours of such claims and the procedures for raising them.
The first question concerns the substantive showing necessary to establish a prima facie case for relief. In general, “[a] parent seeking review of a claimed violation of
that counsel was directed to file an appeal on behalf of a parent but failed to do so in a timely manner.3
But a showing of incompetence is usually only the first step in making out a claim of error based on the ineffective assistance of counsel; the represented party ordinarily must also establish that the attorney‘s unprofessional performance was prejudicial. (Kristin H., supra, 46 Cal.App.4th at p. 1668.) Where, as here, the claim of error is based on violation of a state statute, the test for prejudice is generally whether “it is reasonably probable that a result more favorable to [her] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
The parties disagree about the showing necessary to satisfy this prong of the analysis. The Agency contends that in a case concerning a late-filed notice of appeal, a parent must demonstrate that there is a reasonable probability she would have prevailed on appeal if the notice of appeal had been timely filed. M.B. counters that no such showing should be required; it is enough for the parent to show that she directed her attorney to appeal and the attorney failed to file a timely notice.
We reject the Agency‘s contention that Watson imposes a likelihood-of-success condition on the right to pursue an appeal in these circumstances. For a parent whose attorney has incompetently failed to file a timely appeal, the relevant injury is not denial of any specific substantive appellate victory; it is the opportunity to appeal at all. Confronting a similar question in the context of criminal appeals, the United States Supreme
Court has held that when attorney incompetence deprives a criminal defendant of the right to pursue an appeal, the defendant need not show “some likelihood of success on appeal” in order to secure relief. (Rodriquez v. United States (1969) 395 U.S. 327, 330.) So long as there are “substantial reasons to believe [a losing party] would have appealed” were it not for attorney incompetence, a party seeking to revive the appeal can demonstrate prejudice. (Flores-Ortega, supra, 528 U.S. at p. 486; see also Garza v. Idaho (2019) ___ U.S. ___, ___ [139 S.Ct. 738, 742] [“[W]hen an attorney‘s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed.“].) We take a similar approach here: To ascertain prejudice, we focus on whether the parent would have taken a timely appeal,
The final, and crucial, element of any successful claim to relief based on incompetent representation is the claimant‘s promptness and diligence in pursuing an appeal. These requirements are not unique to dependency proceedings. In In re Benoit (1973) 10 Cal.3d 72 (Benoit), for example, this court held the so-called constructive filing doctrine offered a form of relief from default to prisoners whose attorneys failed to file timely notices of appeal from their criminal convictions. We advised, however, that the availability of this relief would depend on the prisoner‘s diligence in pursuing the appeal. We cautioned that courts should not “indiscriminately permit” relief from default for a defendant who “has displayed no diligence in seeing that his attorney has discharged [his] responsibility.” (Id. at p. 89; see also In re Jordan (1992) 4 Cal.4th 116, 122 [discussing the appropriate test for assessing a prisoner‘s diligence].)
What we said in Benoit and Jordan applies with even greater force in the dependency context, where the costs of delay are particularly acute. The purpose of the dependency law is to promote the well-being of children, ultimately by ensuring a safe and stable permanent home. A parent who seeks to challenge a termination order therefore must act promptly to avoid jeopardizing the child‘s long-term placement. Here, the notice of appeal was filed just four days late, and M.B. promptly sought relief from default along with her timely filed brief on the merits, thus minimizing the risks of delay. This is not to suggest that a four-day delay is the outer limit for promptness. But, as the court advised in Kristin H., in many other cases the failure to promptly seek relief “may . . . preclude review of claims of ineffective assistance of counsel,” since “[n]owhere is timeliness more important than in a dependency proceeding where a delay of months may seem like ‘forever’ to a young child.” (Kristin H., supra, 46 Cal.App.4th at p. 1667.)
We next address the proper procedures for raising a claim of incompetent representation based on counsel‘s late filing of a notice of appeal. We address two primary issues. First, M.B. invites us to extend the constructive filing doctrine as announced and applied in Benoit, to the juvenile dependency context. Second, M.B. asks us to hold, as some courts have done, that a constructive filing claim may be made by means of a streamlined motion procedure. (See, e.g., People v. Zarazua (2009) 179 Cal.App.4th 1054, 1062 (Zarazua).)
As to M.B.‘s first point, we see no reason to extend the constructive filing doctrine to this context. That doctrine developed in the context of
Parents in M.B.‘s position are entitled to seek relief on a different and independently sufficient basis: Like other parents whose lawyers have made serious mistakes in the representation, they are entitled to seek a remedy for the violation of their statutory right to competent representation. (See, e.g., In re Jackson W. (2010) 184 Cal.App.4th 247, 261; In re Dennis H. (2001) 88 Cal.App.4th 94, 98; In re O. S., supra, 102 Cal.App.4th at p. 1406 & fn. 2; In re Eileen A. (2000) 84 Cal.App.4th 1248, 1259-1261, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Where, as here, a parent‘s failure to file a timely notice of appeal is the result of counsel‘s error, reinstating an otherwise-defaulted appeal is generally the only meaningful way to safeguard the statutory right to competent representation.
Incompetent representation claims in dependency cases generally have been raised by means of a petition for habeas corpus, like the one filed in Kristin H. (See, e.g., In re Carrie M. supra, 90 Cal.App.4th at pp. 533-534; cf. In re Jackson W., supra, 184 Cal.App.4th at p. 258 [observing that the “customary way” to raise an ineffective assistance of counsel claim is through habeas corpus].)4 This is partly because habeas allows for consideration of matters outside the appellate record, including evaluation of counsel‘s decisions and tactics, which is a necessary focus of many ineffective assistance claims. (E.g., In re Darlice C., supra, 105 Cal.App.4th at p. 463.) But it is also because habeas carries with it broad authority to fashion appropriate relief for the claimed violation. (E.g., People v. Booth (2016) 3 Cal.App.5th 1284, 1312.) This authority
This brings us to M.B.‘s second point. Although M.B. acknowledges that habeas is the usual path for relief based on claims of incompetent representation in dependency cases, she raises practical concerns about following the same course in cases seeking to reinstate late-filed appeals. As M.B. emphasizes, habeas typically requires compliance with the formal procedures set out in
As an initial matter, we do not agree that obtaining relief through formal habeas procedures necessarily “must be slow or
appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. . . . If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal of its own motion even if no objection is made.’ ” (Hollister, supra, 15 Cal.3d at pp. 666-667, quoting Hanley, supra, 23 Cal.2d at p. 123; see also Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373.) But we have also made clear this jurisdictional bar is absolute only ” ’ [i]n the absence of statutory authorization’ ” to extend the time for filing. (Id. at p. 373.) In the case of a claim concerning deprivation of the statutory right to competent representation — collateral relief our courts have previously recognized is available to parents in the dependency context (see ante, pp. 7-10 & fn. 1) —
cumbersome.” (People v. Romero, supra, 8 Cal.4th at p. 744.) In criminal-related habeas matters, we have noted that while courts must give the opposing party the opportunity to file a return following the issuance of a writ of habeas corpus or order to show cause, the opportunity may be waived, or, depending on the exigencies of the situation, may be required within “as little as 24
That said, we agree with M.B. that strict adherence to the full Penal Code habeas procedures is neither necessary nor practical in the context of an application for relief from default based on an attorney‘s late filing in a dependency case.6 Although the Legislature has recognized that the Penal Code provisions may apply outside the criminal context, those provisions were, for the most part, developed in — and in some cases are explicitly aimed at — the penal context and other cases involving official custody or restraint. (See, e.g.,
on incompetent representation in dependency proceedings. (See, e.g., Alexander S., supra, 44 Cal.3d at p. 865.) But they have also recognized that the rules must in some instances be adapted to fit the dependency context. (In re Paul W., supra, 151 Cal.App.4th at p. 53 [” ‘Because the rules on habeas corpus petitions evolved in the context of prisoners asserting unlawful confinement or conditions of confinement, they do not fit the dependency context well.’ “]; accord, id. at p. 67 (conc. opn. of Bamattre-Manoukian, Acting P. J.) [observing that the standard framework for habeas does not “provide an ideal model for a habeas proceeding raising ineffective assistance of counsel in a dependency setting“].)
It follows that courts can and should handle claims seeking to revive appeals from the termination of parental rights in a manner that is sensitive to both the importance of speed and finality in this context and the precise nature of the claim at hand. As with all dependency-related proceedings, the court has an obligation to ensure the matter is resolved as expediently as possible, to avoid delays that may destabilize a child‘s long-term placement. (Cf.
In determining the appropriate procedures, the court must give all parties notice and an opportunity to be heard, ensuring adequate exploration of the issues relevant to the granting of relief. (Alexander S., supra, 44 Cal.3d at p. 865.) But in the absence of contrary directives, a court has substantial discretion to determine the specific procedures to be employed in handling applications for relief from default based on an attorney‘s late filing. (See Weiss v. People ex rel. Dept. of Transportation (2020) 9 Cal.5th 840, 857 [“[W]hen no procedure is specified by statute or rule, judges may fashion nonstatutory procedures suitable to the specific cases before them,” though they “do not have the authority to adopt procedures or policies that conflict with statutory law or the Rules of Court.“].) We hasten to add, however, that the Legislature may always choose to provide more specific guidance about the procedures to be followed, and the Judicial Council is likewise empowered to adopt statewide rules consistent with statutory procedures. (In re Cook (2019) 7 Cal.5th 439, 459; Weiss, at p. 857.)
There remains a final procedural question: To which court should the application for relief be addressed? We conclude that as a general matter, an application seeking to pursue or perfect an appeal is properly directed to the Court of Appeal rather than the superior court, since, after all, “the court in which the appeal is pending is the court which can relieve from default.” (In re Gonsalves (1957) 48 Cal.2d 638, 646; see id. at pp. 641-642 [directing the Court of Appeal to entertain the defendant‘s petition for habeas corpus seeking relief from default on his appeal]; accord, Benoit, supra, 10 Cal.3d at pp. 75, 89; People v. Lyons (2009) 178 Cal.App.4th 1355, 1363 [observing that “since 1972, only the appellate court can grant ‘Benoit’ relief“].) We see no reason why relief from default in a juvenile dependency appeal should operate differently.
III.
In this case, the Court of Appeal dismissed M.B.‘s appeal as untimely, notwithstanding her efforts to demonstrate that the untimeliness of her notice of appeal was the result of incompetent performance by her attorney. We today hold that when their court-appointed attorneys have failed to timely file a notice of appeal of an order terminating parental rights, parents whose rights have been terminated may seek relief based on the denial of the statutory right to the assistance of competent counsel. (
Whether M.B. has made the required showing is a matter for the Court of Appeal to determine in the first instance. We thus reverse the judgment of the Court of Appeal and remand for further proceedings not inconsistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re A.R.
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP order filed 1/21/20 - 1st Dist., Div. 1
Rehearing Granted
Opinion No. S260928
Date Filed: April 5, 2021
Court: Superior
County: Alameda
Judge: Charles A. Smiley III
Counsel:
Louise E. Collari, under appointment by the Supreme Court, for Defendant and Appellant.
Michael J. Levy and Catherine Blakemore for California Commission on Access to Justice as Amicus Curiae on behalf of Defendant and Appellant.
Raymond A. Cardozo, Dennis A. Fischer, Scott M. Reddie, Robin Meadow, Robert Gerstein, Rex S. Heinke, Kirk Jenkins, R. Rothschild, Robin B. Johansen; Colantuono, Highsmith & Whatley, Michael G. Colantuono, Pamela Graham; Law Offices of Robert S. Gerstein and Robert S. Gerstein for Academy of Appellate Lawyers as Amicus Curiae on behalf of Defendant and Appellant.
Stephanie G. Miller; Deanna F. Lamb; and Linda M Fabian for California Appellate Projects Amicus Curiae on behalf of Defendant and Appellant.
Donna Ziegler, County Counsel, and Samantha N. Stonework-Hand, Deputy County Counsel, for Plaintiff and Respondent.
Anna L. Stuart, under appointment by the Supreme Court, for Minor A.R.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Louise E. Collari
First District Appellate Project
475 14th St., Suite 650
Oakland, CA 94612
(415) 495-3119
Samantha N. Stonework-Hand
Deputy County Counsel
1221 Oak St., Suite 450
Oakland, CA 94612
(510) 272-6718
Anna L. Stuart
Sixth District Appellate Program
95 S. Market St., Suite 570
San Jose, CA 95113
(408) 241-6171