skip to Main Content

CENTRAL CALIFORNIA APPELLATE PROGRAM

Providing administrative services to the Third District and Fifth District Courts of Appeal, and assisting court-appointed counsel with the goal of improving the quality of indigent representation in criminal, juvenile, dependency and mental health appeals.

Recent Case Summaries

Name: In re A.A.
Case #: E079176
Opinion Date: 02/16/2023

Summary

Eligibility as a “naturalized member” but not as an enrolled member of a tribe is insufficient to trigger the substantive and procedural safeguards of the Indian Child Welfare Act (ICWA). The minors were removed from Mother and placed in foster…

View Full Summary
In re A.A.

Eligibility as a “naturalized member” but not as an enrolled member of a tribe is insufficient to trigger the substantive and procedural safeguards of the Indian Child Welfare Act (ICWA). The minors were removed from Mother and placed in foster care. Father and his relatives denied any Indian ancestry. Mother was an enrolled member of the Jemez Pueblo tribe. The Agency contacted the tribe who said that the tribe requires individuals to have ¼ Jemez Pueblo blood quantum to be eligible for membership.  Therefore, the minors were only eligible to be “naturalized members” (qualifying for tribal health services) but not fully enrolled members receiving federal funds from the tribe. The tribe would not intervene in the dependency case because the minors were only naturalized members of the tribe. The juvenile court found that ICWA did not apply and terminated parental rights at the section 366.26 hearing. The parents appealed and the reviewing court affirmed. Indian tribes determine whether a child is a member of the tribe or eligible for membership and each tribe has sole authority to determine tribal eligibility. While the information that the Jemez Pueblo tribe had about the minors’ blood quantum may have been incorrect, Mother never challenged the tribe’s conclusion that the minors were not eligible to become enrolled members. The minors being “naturalized members” of the tribe is insufficient to trigger ICWA. Thus, the juvenile court did not err in finding that ICWA did not apply.

https://www.courts.ca.gov/opinions/documents/E079176.PDF

Name: In re L.B.
Case #: A165001
Opinion Date: 02/16/2023

Summary

There was sufficient evidence to support jurisdictional findings where the parents' custody order was insufficient to protect the minor and this was not the only basis for jurisdiction. The minor was removed from Mother due to domestic violence with the…

View Full Summary
In re L.B.

There was sufficient evidence to support jurisdictional findings where the parents’ custody order was insufficient to protect the minor and this was not the only basis for jurisdiction. The minor was removed from Mother due to domestic violence with the father of Minor’s younger siblings and Mother’s mental and physical health, including substance abuse. The minor had been residing with Father prior to removal. Mother had sent him to live with Father because of the domestic violence in her home. The custody order provided for the minor to spend the summer with Father and the school year with Mother. Following detention, the minor was left in the care of Father. After a contested jurisdiction and disposition hearing, the juvenile court found true section 300, subdivision (b) allegations and removed the minor from Mother’s custody. The court dismissed the dependency, granting sole physical custody to Father, with joint legal custody to both parents, and supervised visitation to Mother. The appellate court affirmed the orders. Mother argued on appeal that recent changes to section 300 made the jurisdiction finding untenable. Effective January 1, 2022, section 300, subdivision (b)(1) was amended to include the following language: “A child shall not be found to be a person described by this subdivision solely due to the failure of the child’s parent or alleged parent to seek court orders for custody of the child.” Based on the plain language of the statute, this new provision only applies when the child is described by section 300 solely due to the failure of a parent to seek custody orders.  Here, the lack of appropriate custody orders was only one of many factors placing the minor at risk, and thus the recently amended section 300 is not relevant. The custody orders in place at the time of jurisdiction allowed Mother to remove the minor from Father’s care and Mother’s behavior and denial of domestic violence in her home created a risk to the minor if she did so.

https://www.courts.ca.gov/opinions/documents/A165001.PDF

Name: D.S. v Superior Court
Case #: E079017
Opinion Date: 02/15/2023

Summary

The Indian Child Welfare Act (ICWA) inquiry duties mandated by section 224.2 are not limited to biological relationships. Mother is the adoptive mother of the minor. The minor was removed from Mother due to allegations of physical abuse. Mother denied…

View Full Summary
D.S. v Superior Court

The Indian Child Welfare Act (ICWA) inquiry duties mandated by section 224.2 are not limited to biological relationships. Mother is the adoptive mother of the minor. The minor was removed from Mother due to allegations of physical abuse. Mother denied Indian ancestry and provided contact information for several relatives. At the jurisdictional and dispositional hearing, the juvenile court found that ICWA did not apply, denied Mother further reunification services, and set the matter for a section 366.26. hearing. Subsequently, Mother filed a section 388 petition seeking to have minor returned to her home, which the juvenile court summarily denied. Mother appealed. The appellate court noted that the ICWA issue Mother raised on appeal was outside the scope of her appeal from the denial of her section 388 petition because the issue of ICWA was not raised in the petition. However, it construed Mother’s appeal as a petition for extraordinary writ seeking to order the juvenile court to comply with ICWA, and so ordered. Under California law, an adopted person and the adopting person are, by law, in a parent-child relationship the same as a natural parent and child and section 224.2, subdivision (b) makes no distinction when using the term “parent.” Additionally, the section 224.2, subdivision (b) duty of initial inquiry includes legal guardians, Indian custodians, and others who have an interest in the child, thus suggesting no limitation on the duty based upon a biological connection to the child. Here, the record did not show that the Agency made any attempt to inquire of Mother’s extended family members despite Mother having provided their contact information. The Agency’s argument that it had no duty to conduct an ICWA inquiry in this case because Mother was an adoptive mother is incorrect.

https://www.courts.ca.gov/opinions/documents/E079017M.PDF

News & Updates

Petition Filing Fees Alert

When initiating a new case by filing an original petition – including a writ petition or petition for review – select “File” and follow the on-screen prompts for making a…

Read more
Petition Filing Fees Alert

When initiating a new case by filing an original petition – including a writ petition or petition for review – select “File” and follow the on-screen prompts for making a submission. Note: Whether filing a petition for review in a criminal, juvenile (delinquency or dependency), or civil commitment case, always select “Criminal Petition for Review” as the “Case Type” – selecting “Civil Petition for Review” will result in a $750 filing fee.

Interim Claims Processing Effective January 2023

The JCC/ACS has now added limited-scope interim claims as noted below for three categories of time.  In addition to the normal interim claim (submitted post-AOB filing date), starting on January…

Read more
Interim Claims Processing Effective January 2023

The JCC/ACS has now added limited-scope interim claims as noted below for three categories of time.  In addition to the normal interim claim (submitted post-AOB filing date), starting on January 1, 2023, counsel may file up to three other interim claims to provide flexibility and additional financial stability.

The new additional interim claims include:

  1. An early interim claim (pre-AOB) for hours on Line 2 on the claim form, “Record Review,” where the read pages of the record exceeds 1,500 pages;
  2. Where counsel has been waiting pre-AOB for an augmented or corrected record longer than 90 days from the motion filing date or rule 8.340 submission date; and
  3. An additional interim claim submitted after the reply brief is filed for claiming hours to capture ONLY Line 8, “Reply Brief” and Line 10, “Review of Opposing Brief” time. (Other claimed time will not be recommended and deferred by staff to the final claim.)

The letter from the JCC authorizing these new categories is available here (link to PDF).

View All News

Savvy tips for Augmenting Record Items

Always identify/enumerate augment items When augmenting the record for items found in the clerk's transcript, identify each requested document by its title and filing date or, if the filing date…

Read more
Savvy tips for Augmenting Record Items

Always identify/enumerate augment items
When augmenting the record for items found in the clerk’s transcript, identify each requested document by its title and filing date or, if the filing date is not available, the date it was signed. Minute orders may be requested by date. (See Cal. Rules of Court, rule 8.122(a)(1).) For documentary exhibits admitted into evidence or lodged, specify the exhibit by number or letter. (See Cal. Rules of Court, rule 8.122(a)(3). But see Cal. Rules of Court, rules 8.224, 8.320(e) [outlining the procedure for transmitting exhibits to the Court of Appeal].) Counsel should note in the MTA that the exhibit is a document rather than a physical item. Be sure to explain why you are requesting the item in a motion to augment rather than following the procedure in rule 8.224 for transmitting exhibits to the Court of Appeal after the respondent’s brief is filed. (See Third District’s preference, below.) It is also helpful to include any other information in the record that will assist the Court of Appeal in identifying the item and ruling on the motion to augment.

When augmenting for items found in the reporter’s transcript, specify the date of each proceeding. (See Cal. Rules of Court, rule 8.130(a)(1).) It is also helpful to include the reporter’s name and certification (CRS) number if known, and any other information in the record that will assist the Court of Appeal in identifying the hearing and ruling on the motion to augment. For example, if counsel determines that a hearing occurred because there is a minute order for the hearing in the clerk’s transcript, counsel should also provide a record citation page number reference when identifying the corresponding reporter’s transcript.

Always justify items needed
Whenever moving to augment the record, be sure to explain how the requested materials will be useful on appeal. (See People v. Gaston (1978) 20 Cal.3d 476, 482.)

In the Third District, to add record documents counsel has access to:

  1. If the documents counsel is seeking add are part of the normal record, including any subsequent trial court order, the preference is to use an omissions letter in the trial court. (CRC 8.155, 8.340.)
  2. If the documents are exhibits in the possession of the trial court, the preference is a motion to transmit exhibits. (CRC 8.224, 8.320.)
  3. If the documents are not part of the normal record but are in the possession of the trial court, a motion to augment is preferable (and need not include attachments if not in the party’s possession). (CRC 8.155.)
  4. If the documents are not part of the normal record and are not in the possession of the trial court but are accessible and were lodged or considered by the trial court, a motion to augment with attached exhibits is preferable. (CRC 8.155.)
  5. If a motion to augment has already been granted and the trial court has failed to transmit the ordered documents, an omission letter is preferable to a successive motion to augment.

In the Fifth District, to add record documents counsel has access to:

  1. This court prefers counsel not add the document by way of omission letter if it is not part of the normal record as the superior court likely will not agree to provide it without a formal motion.
  2. For documents not part of the normal record but are in the possession of the trial court, counsel can do a motion to augment under 8.155. In the motion they can either request this court order an augmented record from the superior court, or they could submit the proposed augmented documents directly with the motion for this court to file. When doing the latter, it is preferable to have the documents submitted separately from the motion and must follow this court’s filing guidelines, including consecutive pagination for submission via TrueFiling. This court does not have a preference for obtaining the augmented record from either the party or the superior court.
  3. When documents are submitted from counsel, it is preferable to have a file-stamped copy of the document so that it is clear it is the same document that is in possession of the trial court. It is not uncommon for this court to provide the opposing party time to file a response to a motion to augment where counsel provides the documents directly to this court.
View All News