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Name: In re A.R.
Case #: S260928
Court: CA Supreme Court
District CalSup
Opinion Date: 04/05/2021

When an attorney fails to file a timely appeal in accordance with a client’s instruction in a parental rights termination case, relief may be sought based on the attorney’s failure to provide competent representation. Mother asked her court-appointed counsel to appeal the court’s order terminating her parental rights. The attorney did not file the notice of appeal until four days after the 60-day filing deadline had passed. Mother timely filed her opening brief and requested relief from default. The Court of Appeal denied the application and dismissed mother’s appeal for lack of jurisdiction. Mother then filed a petition for writ of habeas corpus, alleging that her attorney’s incompetence denied her the right to pursue an appeal. This habeas corpus petition was denied. The California Supreme Court reversed and remanded. There is a due process and statutory right to counsel for a parent facing the termination of parental rights. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 32; Welf. & Inst. Code, § 366.26(f)(2).) When a court appointed attorney has 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. “To succeed in such a claim, parents must show that they would have filed a timely appeal absent attorney error and that they diligently sought relief from default within a reasonable time frame, considering the child’s unusually strong interest in finality.” (Internal quotations omitted.) It is not required that the parent demonstrate that the appeal would have been successful. Given the potentially slow habeas process and the need for swift resolution in dependency cases, a court has substantial discretion to determine the specific procedures to handle relief from default based on an attorney’s late filing. The application for relief should be directed to the Court of Appeal rather than the superior court.