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Name: In re Josiah Z.
Case #: S125822
Court: CA Supreme Court
District CalSup
Opinion Date: 07/25/2005
Summary

Appellate counsel requested travel funds to visit her minor client’s and assess their current situation, after minor’s trial counsel filed a notice of appeal from an order denying placement of the minors with their grandparents. Appellate counsel explained that if she determined that the current nonrelative placement was satisfactory, and transfer of the children was not in their best interests, she would move to dismiss the appeal. The appellate court ordered briefing on appellate counsel’s authority to move to dismiss her minor clients’ appeal based on her analysis of their best interests. The appellate court denied the request for funds, holding that appellate counsel lacked the authority to file a motion to dismiss based on her assessments of the children’s best interests, and that In re Zeth S. prevented the Court of Appeal from ruling on such a motion. The California Supreme Court granted review to determine what role appellate counsel plays in determining the minor client’s best interest, and specifically when appellate counsel may investigate whether dismissal of an appeal is in a minor’s best interests. The Supreme Court in this opinion concluded that appellate counsel has the power to seek dismissal of a minor’s appeal on the child’s best interests and the Court of Appeal has the power to consider and rule on such a motion even though it may involve consideration of postjudgment evidence. Further, counsel may seek funds to meet personally with her client to investigate a motion to dismiss in some circumstances, but may only file a motion to dismiss after consultation with and authorization from the child or the child’s guardian ad litem. Here, the Court of Appeal properly denied the request for travel funds as appellate counsel demonstrated no circumstances which might require the guardian ad litem to reconsider her position nor any possibility that the issuance of funds would lead the guardian to authorize a motion to dismiss. Remand was required without prejudice to appellate counsel to renew her motion under the standards set forth in the opinion.