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SELF-HELP FOR NON-LAWYERS IN DEPENDENCY AND FAMILY CODE SECTION 7800 APPEALS AND WRITS

What these web pages cover:
This web page deals with appeals in California dependency cases and cases under California Family Code sections 7800 (and following). It does not cover other kinds of cases, which often have different deadlines and rules. Guidance for non-capital felony, juvenile delinquency, and civil commitment cases is on ADI's Self Help for Non-Lawyers in Non-Capital Felony Criminal, Juvenile Delinquency, and Civil Commitment Cases page.

Appellate Defenders, Inc. (ADI): ADI runs the system of court-appointed lawyers on appeal in dependency and Family Code section 7800 cases from San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties. The court tells ADI when an appeal is filed. ADI contacts you for any necessary information and, once you have provided the information, helps the Court of Appeal select your lawyer. In appeals from other California counties, another district appellate project will do that. ADI usually does not have any part in dependency writs (reviews of an order setting a permanent plan hearing under Welfare and Institutions Code section 366.26, or an order changing a child's placement after termination of parental rights).

 

GENERAL INFORMATION ABOUT AN APPEAL

ADI information: ADI's Understanding Your Appeal - Dependency information form walks you through the usual stages of appeal. It is also available in Spanish (PDF). It is on the ADI Forms & Samples page under "Information for Clients About Their Appeal" on the list of forms, which is alphabetical. It covers such topics as:

  • What is an appeal?
  • Who will represent me on appeal and what does Appellate Defenders, Inc., do?
  • What can I expect to happen during the appeal?
  • How can I find out more about my appeal?

Court information: The Court of Appeal, Fourth District, Division One, has a Starting a Criminal or Juvenile Delinquency or Dependency Appeal: Information Handout (external PDF link) for clients.

ADI Manual: This web page makes many references to the "ADI Manual." The official title is the ADI California Criminal Appellate Practice Manual. Although it has "Criminal" in its title, much of it is helpful for dependency and Family Law cases, too. You should understand it is written for lawyers, with many points assumed, rather than spelled out. (See the caution in the Agreement (PDF) near the start of the ADI Manual.) It does not take the place of professional assistance from a lawyer.

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GENERAL QUESTIONS ABOUT AN APPEAL

  • STARTING: How can I get Court of Appeal review in my dependency or Family Code section 7800 case?
  • MY LAWYER: How can I get a lawyer to do my appeal?
  • DO IT YOURSELF? (1) Can I represent myself? (2) Can I file my own brief if I am represented by a lawyer?
  • SUPREME COURTS: My lawyer on appeal is not going to take my case to (1) the California Supreme Court or (2) the United States Supreme Court on issues that I lost in the Court of Appeal. What can I do on my own?
  • MORE! How can I get additional self-help information?

 

1. STARTING: How can I get Court of Appeal review in my dependency or Family Code section 7800 case?

(1) Appeal in dependency or Family Code section 7800 case

What you can appeal: You can appeal from the disposition order made after a finding that the child is a dependent of the juvenile court. You can also appeal from decisions made at hearings after the disposition order

  • Except for: (a) an order setting a "366.26 hearing," at which the court selects a permanent plan for the child under Welfare and Institutions Code section 366.26 or (b) an order under Welfare and Institutions Code section 366.28, after termination of parental rights, changing the placement of a child. Review of those orders must be by a writ petition – see the next two topics.

Filing a notice of appeal: An appeal is started by filing a notice of appeal. It must be filed in the juvenile court where the decision being appealed was made. The ADI Manual, chapter 2, section 2.90 etc., discusses this process.

  • ADI notice of appeal forms: ADI's Dependency Forms page has notice of appeal forms for dependency cases and cases under Family Code section 7800. (Look under "Notice of Appeal." The list is in alphabetical order.) The forms have detailed instructions on when and where to file a notice of appeal, plus a place for requesting a court-appointed lawyer if you cannot afford to hire a lawyer. These ADI forms are preferred – but not required – for cases from San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties.
  • Notice of appeal forms for other areas of the state: For cases that took place outside of San Diego, Imperial, Riverside, San Bernardino, Inyo, or Orange County, it is best to use a different form from the ADI one. Ask your trial lawyer, a court clerk, or the district appellate project for a notice of appeal form.
  • Judicial Council notice of appeal forms: You may use the Judicial Council Form, JV-800, for dependency cases.
  • Notice of appeal not on a form: You may make up your own notice of appeal, although that is not recommended. It must at least identify the particular decision you are appealing and be signed by you or your lawyer. If possible, include the date of the decision appealed, the name of the judge, case numbers for all matters you want to include in the appeal, and other such details.

When to file a notice of appeal: CAREFUL – Strict 60-day filing deadline! Except for an order setting a "366.26" hearing to select a permanent plan for the child or a "366.28" placement order after termination of parental rights, in dependency cases you have 60 days, from the order or other decision you want to appeal, to file a notice of appeal. This time limit is STRICT. (See California Rules of Court, rules 8.400 (d)-(g).) Different rules and deadlines often apply to other types of cases.

Where to file a notice of appeal: File a notice of appeal in the court where your trial or hearing took place. Ask the court clerk for assistance.

 

(2) How can I get Court of Appeal review of an order setting a "366.26" hearing, to select a permanent plan for the child in my dependency case?

Writ as the means of review: You cannot appeal right away from an order setting a hearing under Welfare and Institutions Code section 366.26, to select a permanent plan for the child in your dependency case. Court of Appeal review of that order is by writ, rather than appeal.

Notice of intent to file a writ petition: If the court has made an order referring your case for "366.26" hearing, at which the court selects a permanent plan for the child, you cannot appeal right away, but must first file a notice of intent to file a writ petition instead of a notice of appeal to get Court of Appeal review of that order.

  • Form for notice of intent: The Judicial Council has a Notice of Intent form to start the writ process. Either you or your lawyer will file it.
  • Time limits: CAREFUL! The time limits for filing a notice of intent are much shorter than those for a notice of appeal. Check with your trial lawyer and rule 8.450(e)(4) or 454(e) of the California Rules of Court.

Writ petition: After a notice of intent is filed, the court will automatically prepare the record required by rule 8.450(g). Then the petition required by rule 8.452 of the California Rules of Court must be filed.

  • Form for writ petition: The Judicial Council has a form writ petition, JV-825, for this kind of case.
  • Time limits: CAREFUL! The time limits for a writ petition are much shorter than those for an appeal.
  • Filing by trial lawyer or you yourself: In most cases, dependency writ proceedings are handled by your trial lawyer or by you yourself, not by an ADI appointed lawyer. Ask your lawyer who – you or the lawyer – will have this responsibility in your case

More information: ADI'S web page on Dependency Writs shows how a typical dependency writ proceeds and gives other general information.

 

(3) How can I get Court of Appeal review of an order under Welfare and Institutions Code section 366.28 changing the placement of a child after termination of parental rights?

Writ as the means of review: You cannot appeal from an order under Welfare and Institutions Code section 366.28 changing the placement of a child after termination of parental rights. Court of Appeal review of that order is by writ, rather than appeal.

Procedures: For the most part, the procedures for writ review of a Welfare and Institutions Code section 366.28 placement order are the same as those for a section 366.26 case, as spelled out in part (2), right above this part. You file a notice of intent; then the record is prepared automatically by the court; then you or your trial lawyer files a petition. But, instead of the rules mentioned in part (2), rules 8.454 and 8.456 of the California Rules of Court apply to section 366.28 cases.

 

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2. MY LAWYER: How can I get a lawyer to do my appeal or writ?

Hiring a lawyer: If you can afford to hire a lawyer, you must do that for either an appeal or a writ. The State Bar of California (all California lawyers are members), has a guide called How Can I Find and Hire the Right Lawyer? Many County Bar Associations (lawyer groups) have lawyer referral services that help you find a lawyer with experience in these cases.

Court-appointed lawyers for dependency or Family Code section 7800 appeals: If you cannot afford to hire a lawyer for an appeal, you will usually be entitled to one appointed and paid by the Court of Appeal. Appellate Defenders, Inc. (ADI), runs the system of court-appointed lawyers in appeals from San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties. In appeals from other counties, another district appellate project will do that.

  • What you need to do: The court usually needs a request for appointment of a lawyer and financial information from you. After the Court of Appeal tells ADI you have filed an appeal, ADI will contact you and ask for the necessary information from you, if you did not provide it on the notice of appeal.
  • How an appointed lawyer is chosen: When ADI has the necessary information from you, ADI will help the Court of Appeal select your lawyer.

"366.26" writs to challenge an order setting a permanent plan hearing and "366.28" writs to challenge a child placement order made after termination of parental rights: Except in unusual cases, you or your trial lawyer must handle these cases; ADI is not involved. Ask your trial lawyer who will be responsible.


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3. DO IT YOURSELF? (1) Can I represent myself? (2) Can I file my own brief if I am represented by a lawyer?

(1) Representing yourself

Appeals: Most persons involved in dependency or Family Code section 7800 in appeals going through the ADI program are represented by a lawyer. Most persons unable to afford to hire a lawyer have the right to a lawyer appointed by the court at public expense. For this reason, self-representation may or may not be an option, depending on the court's policy.

"366.26" writs to challenge an order setting a permanent plan hearing or "366.28" writs to challenge a child placement order made after termination of parental rights: You or your trial lawyer must handle these. Ask your trial lawyer who will be responsible. For the most part, ADI lawyers are not appointed to do these.

(2) Filing your own briefs

If you are represented by a lawyer, your lawyer must file all briefs, motions, and most other documents on your behalf, as the California Supreme Court said in In re Barnett (2003) 31 Cal.4th 466. If you want to file a document on your own, first discuss this matter with your lawyer.


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4. SUPREME COURTS: My lawyer on appeal is not going to take my case to (1) the California Supreme Court or (2) the United States Supreme Court on issues that I lost in the Court of Appeal. What can I do on my own?

If your lawyer on appeal or a 366.26 writ decides not to take your case any further after the Court of Appeal decision, you yourself will be responsible to go on.

(1) Petition for review in the California Supreme Court

If you lost your case, or part of it, in the California Court of Appeal, the next step is a petition for review in the California Supreme Court. Generally, the California Supreme Court will review only those issues you raised first in the Court of Appeal. You must take federal issues to the California Supreme Court before taking your case to the U.S. Supreme Court.

Information on petitions for review: Online sources of help include:

  • ADI: ADI has an information form (PDF) on how and when to file a petition for review in the California Supreme Court. It is also available in Spanish.
  • Rules of Court: See rule 8.500 etc. of the California Rules of Court, for the requirements.
  • Manual: The ADI Manual, chapter 7, section 7.46 etc., discusses petitions for review. That part of the Manual applies to dependency cases, too.
  • Your lawyer: Your appeal lawyer can provide information.
  • Help from the Supreme Court: The California Supreme Court has guidance on "Petitioning for Review in the Supreme Court." The Supreme Court clerk's office can answer questions.

Sample petition for review: Another help is ADI's Petition for Review Template (PDF), which is a sample petition for review. For guidance, ask your lawyer and use the arguments made in the brief that your lawyer filed in the Court of Appeal.

(2) Certiorari petition asking for review by the United States Supreme Court

The odds of getting review (technically called writ of certiorari) granted in the U.S. Supreme Court are quite small, and in the great bulk of cases a petition is not filed. But you may file one if you wish.

Important things you must know

  • Limits on kinds of issues: When reviewing a state court decision, the U.S. Supreme Court can consider only issues that are federal. Generally, this means they are based on the U.S. Constitution. Few dependency appeals involve that kind of issue.
  • Required steps in California state courts before going to the U.S. Supreme Court: You must take certain steps in the California courts first. Usually, an issue must be raised in the trial court to be considered on appeal. On appeal, you must clearly raise the federal issue (a) in the Court of Appeal and (b) then again in the California Supreme Court.
  • Due date: If you have raised the federal issues in the state courts and you now want to take those up to the U.S. Supreme Court, the petition must be filed no more than 90 days after the denial of a petition for review by the California Supreme Court. (If the California Supreme Court granted review in your case, different deadlines apply. Check with your lawyer.)
  • Help on court website: The U.S. Supreme Court has a Guide for Prospective Indigent Petitioners for Writs of Certiorari. The ADI Manual, chapter 7, § 7.100 etc., also discusses petitions for certiorari.

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5. MORE! How can I get additional self-help information?

Official rules and forms

Fourth Appellate District handout: The Court of Appeal, Fourth Appellate District, has a Starting a Criminal or Juvenile Delinquency or Dependency Appeal: Information Handout, which includes dependency case information.

Clerks of the court: Clerk's offices can be very helpful. Court of Appeal and Supreme Court clerks can provide information about procedures in those courts. Superior court clerks can help you with notices of appeal and records.

 

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*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.