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Name: In re Josiah Z.
Case #: F044121
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 05/19/2004
Subsequent History: Rev. granted 7/28/04: S125822

After both parents failed to reunify with the two minors, the court set a Welfare and Institutions Code section 366.26 hearing. Minors’ counsel then requested a hearing on relative placement. The court conducted the hearing, and denied the paternal grandparents placement based on their criminal records and prior dependency history. Trial counsel for the minors appealed. Minors’ appellate counsel requested travel funds to visit the minors to assess their current situation, explaining that visitation with the minors was necessary to determine whether pursuit of the appeal was in their best interest. If it was not, counsel intended to move to dismiss the appeal. The appellate court ordered briefing on appellate counsel’s authority to dismiss her minor clients’ appeal based on appellate counsel’s analysis of their best interests. It then denied the request for travel funds and held that appellate counsel for a dependent child does not have the authority to dimiss the child’s appeal based on appellate counsel’s assessment of the child’s best interests. To the extent that In re Eileen A. (2000) 84 Cal.App.4th 1248 held that appellate counsel must independently evaluate the best interests of the minor client, it is of questionable precedential value, if not outright disapproved by the Supreme Court in In re Zeth S. (2003) 31 Cal.4th 396. Appellate counsel’s suggested procedure leaves her clients with no recourse, their right to appeal having been abandoned. As a matter of legal practice, if a minor’s appellate counsel does not believe that an argument for reversal can be made, that attorney can file a Sade C. letter. In turn, the appellate court can authorize minor’s trial counsel to file a letter brief explaining why he or she believed the juvenile court committed error. If trial counsel shows arguable error, supplemental briefing can be ordered. [Editor’s note: Appointed counsel has informed CCAP that she will be seeking rehearing, review and/or depublication.]