(Rev. 2014)

Appellate Defenders, Inc., offers these guidelines to assist appointed counsel for minors in dependency cases. They apply in the Fourth Appellate District.

The guidelines are intended to give direction 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. They apply when the minor is the subject of the proceeding, not formally either the appellant or respondent in an adversarial sense.

It is important to emphasize that every case is unique, and the overriding principle is always 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 record1 and contact minor’s trial counsel and social worker. Contact with the minor’s therapist, if any, might also be appropriate.

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.

Developing a Position

When the minor is neither appellant nor respondent, counsel has no pre-assigned role in the usual adversarial sense – for example, to challenge or defend the decision below. Counsel must make the fundamental decision as to the “position” of the minor on a case-by-case basis, by investigating the individual situation and applying these principles:

Considerations. The child’s preferences, if the child is sufficiently mature to communicate a meaningful preference, 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. The minor’s trial counsel, as the CAPTA guardian ad litem, also has a crucial role to play. (See In re Josiah Z. (2005) 36 Cal.4th 664, 677-682.)

Older children: Counsel should determine whether the child is of sufficient age or development to understand the nature of the proceedings and form and express a meaningful preference. This is an individualized factual decision, but generally around the age of 12, plus or minus a year or so, the child reaches the point of being able to make his or her own decisions about the fundamental objectives of the appeal. In that case, appellate counsel normally should argue for the position the child wants, unless it would be harmful to the child’s interests. If counsel takes a position different from the child’s wishes, counsel must inform the court of the child’s desires and the reasons for the difference. Caveat: If the child’s wishes conflict with the position of trial counsel (see “Consistency with trial counsel’s position” section, below), appellate counsel must contact ADI.

Younger children: For less mature children, 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 counsel’s position. In deciding what position to take, the rebuttable presumption is that appellate counsel should take the same position on appeal as was taken in the juvenile court, unless the minor or the minor’s trial counsel, the CAPTA guardian ad litem, agrees to the change. (In re Josiah Z., supra, 36 Cal.4th 664.)

  • Exception: On occasion appellate counsel may determine that there are weighty reasons not to adopt trial counsel’s position – for example, circumstances have changed significantly; or the client, if sufficiently mature, has strong contrary wishes; or trial counsel was and remains unreasonably wrong. If this occurs, appellate counsel must confer with ADI about the available options. (Important legal and systemic policy issues are at stake).

Presenting the Minor’s Position

Necessity and time of filing. Appellate counsel must 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.

  • Letter. A letter brief is appropriate if the minor’s position is served by joining in the position taken by one of the parties. Although it may present additional points and authorities, more than five pages single-spaced is best presented as a formal brief. 2

  • Brief. Full briefing is appropriate if the parties’ briefing does not adequately present 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 for 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.

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.

Augmentation. 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. Judicial notice under Evidence Code section 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.

New evidence on appeal. 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.

Attachment to letter or brief. 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.


1. Under rules 8.409(d)(1) and 8.416(c)(2), 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 ADI if there are problems.


2. Check with ADI about special requirements in Division Two.

History. The guidelines originated in the early half of the 1990’s at the request of the Fourth Appellate District, Division One. Justice Charles Froehlich appointed a committee chaired by Elaine Alexander and consisting of representatives from ADI, the panel, San Diego County Counsel, and dependency trial counsel. Division One accepted the recommendations of the committee, and Divisions Two and Three agreed to the use of the guidelines in those courts. ADI has modified the guidelines in the ensuing years to reflect rule and policy changes, new case and statutory law, and the like.


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