SADE C. & PHOENIX H. PROCEDURES IN DEPENDENCY CASES IN THE THIRD & FIFTH
In In re Sade C. (1996) 13 Cal.4th 952, the California Supreme Court held that on appeal from a dependency matter, independent Wende/Anders court review was not required. In In re Phoenix H. (2009) 47 Cal.4th 835, the court further held that if appointed counsel has determined that there is no arguable basis for challenging the judgment, the appellate court is not required to permit the parent to file a supplemental brief to pursue an appeal that has no arguable merit. However, the court has the discretion to allow the parent to personally file a brief and must do so only upon a showing of good cause that an arguable issue does, in fact, exist.
Samples Phoenix H. Briefing
A Phoenix H. brief is now required by our courts, however, the mode and model-minimal language for these briefs is slightly different. Please be sure to become familiar with the procedures for the different courts you practice in.
In light of the new In re Phoenix H. case the Third District is adjusting their procedures for Sade C. filings, effective as of Jan. 7, 2010:
Pursuant to the dictates of Phoenix H., if no arguable issue can be discerned, counsel should no longer file a letter to that effect nor move to substitute appellant to proceed in pro per. Rather, counsel should file a “Wende-type” brief [a formal “Phoenix H. brief”] which shall include an abbreviated recitation of the relevant facts and procedure and a declaration establishing that counsel has advised appellant that counsel has reviewed the entire record, served a copy of the brief on appellant, and informed appellant of appellant’s right to file, within 30 days of the filing of the “Phoenix H. brief,” a motion to file a supplemental brief supported by a showing of good cause that an arguable issue does exist.
In any case where appellant already has been permitted to proceed in pro per, the court will proceed to dispose of the appeal on the merits if an opening brief is filed by appellant.
Henceforth, all Sade C. letters and motions to substitute appellant in pro per will be rejected with a directive to file a formal opening brief in compliance with Phoenix H.
“Brief” is as defined in the Rules of Court, which includes a brief cover, tables, a statement of appealability, an abbreviated statement of case/fact (as discussed above), an “argument” portion, a word count, and a proof of service. “Brief” does NOT mean letter-brief format.
For your convenience, CCAP has drafted a sample Phoenix H. brief that meets the Third District’s new procedures, including minimal advisory elements, a sample Phoenix H. client advisory letter, and other relevant samples. Please refer to the Dependency Client Samples page for a current list of samples.
The Fifth has announced the following procedures:
Effective immediately, the Fifth District Court of Appeal will no longer accept for filing letters from court-appointed counsel in juvenile dependency appeals stating no opening brief will be filed pursuant to In re Sade C. (1996) 13 Cal.4th 952. Pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, when court-appointed counsel find no arguable issue to be pursued on appeal, they should so inform the court, file a letter brief setting out the applicable facts, procedure and law (a “Phoenix H. brief”), and provide a copy of the Phoenix H. brief to the appellant, respondent, the trial court, and CCAP, with a proof of service.
Court-appointed counsel may submit the Phoenix H. brief in letter format; compliance with California Rules of Court, rule 8.360(a) is not mandatory with this court when court-appointed counsel find no arguable issue to be pursued on appeal.
Once a Phoenix H. brief is filed, it is the appellant’s burden to personally make a good cause showing that an arguable issue does exist. Court-appointed counsel are urged to so inform their appellant-clients. Upon the filing of a Phoenix H. brief, the court will extend 30-days leave for appellant to personally file, with the court, a letter stating a good cause showing that an arguable issue does exist. No formal motion or other pleading will be required of the appellant, except that appellant must attach a proof of service of the letter upon the superior court clerk, trial counsel for the child(ren), appellant’s counsel, and counsel for respondent. If the appellant does not file such a letter within the time permitted or otherwise does not making a good cause showing that an arguable issue does exist, the appeal will be dismissed as abandoned.
For your convenience, CCAP has drafted a sample Phoenix H. letter brief that meets the Fifth District’s procedures, including minimal advisory elements, a sample Phoenix H. client advisory letter, and other relevant samples. Please refer to the Dependency Client Samples page for a current list of samples.
CCAP also recommends that appellants be separately informed of a parent’s right to request leave to file a supplemental brief on a showing of good cause as fully discussed in the Phoenix H. case.
It is strongly recommended that counsel thoroughly read the Phoenix H. case in order to properly understand how Wende procedures have evolved and what is required of appellate counsel to provide effective representation in this situation.
When Do I Send the Record to the Client?
CCAP has received this question, with strongly held opinions by appointed counsel going both ways, since Phoenix H. was first issued. Appointed counsel’s election to send or not send the record along with their own Phoenix H. brief to the client is a matter of practice and is not determined by the wishes of either the courts or the project; it is a matter of choice for counsel of record.
Some attorneys prefer to retain the record as a matter of practice in the event that the Court of Appeal contacts counsel for further briefing after hearing from the appellant in pro. per. Some attorneys prefer to send the record immediately as a matter of practice because time is short and the pro. per. appellant may need it for their filing.
One difference between traditional Wende practice (where most attorneys choose to retain the record), and Phoenix H. procedures, regardless of which court you are in, is that Wende procedures permit a supplemental brief filing by the appellant; Phoenix H. does not. Instead, as noted above, the procedures for the appellant in pro. per. following counsel’s filing of a Phoenix H. brief is either a pro. per. motion (Third District) or a request (Fifth District) stating a good cause showing that an arguable issue does exist.
Expectations for Assist and Independent Cases:
The following procedures apply to filing a Sade C./Phoenix H. filing by appointed counsel:
Remember that CCAP expects appointed counsel to consult with the CCAP staff attorney assigned to the case not only before the filing of a Sade C./Phoenix H., but also before counsel even writes to the client regarding the conclusion that there are no issues to be briefed. It can severely undermine the client’s confidence in you and even trigger a serious breakdown in the attorney-client relationship if you deliver this disappointing news and then have to retract it because CCAP subsequently identifies an issue that was missed.
The requirement that no Sade C./Phoenix H. brief or abandonment be filed without prior consultation with CCAP applies both to assisted and independent appointed cases without exception. It is best to first phone the assigned CCAP buddy to alert him or her that you anticipate filing a Sade C./Phoenix H. brief. Your buddy will then let you know what s/he needs to complete CCAP’s review of the record:
In Assisted Cases that will occur only after the staff attorney has thoroughly reviewed the record on appeal, including any augmentation that was received after the original memo was sent, and has reviewed your draft Sade C./Phoenix H. brief. In assisted cases, counsel should contact his or her CCAP buddy to let him or her know that the record is coming along with the Sade C./Phoenix H. draft. CCAP staff attorneys always appreciate receiving a memo from assisted counsel in which the issues considered and rejected are set forth, together with supporting authorities.
Summary of steps for assist-appointed cases:
- Call CCAP buddy for consultation;
- Send CCAP draft Sade C/Phoenix H.“brief”;
- Send CCAP complete record, including augmented materials, if any;
- Send CCAP memorandum of issues considered and rejected.
In Independent Cases CCAP staff attorneys have considerable more latitude. The assigned CCAP buddy is listed in the initial CCAP “thank you for accepting appointment letter” for each independent case. The staff attorney may want to review the record, or simply review a memo from counsel setting forth the facts, and detailing the issues considered and rejected. As a result, in independent cases counsel should contact the CCAP staff attorney assigned to the case to determine how to proceed.
Summary of steps for independent-appointed cases:
- Call CCAP buddy for consultation before filing;
- Send CCAP complete record, if requested.
If contact with the client has been lost, a Sade C./Phoenix H. brief should not be filed until counsel has exercised due diligence in an attempt to locate the client. Such due diligence should include searching the record for alternative addresses for the client and for the addresses of friends or relatives who might be able to assist in locating your client. Trial counsel may also be able to assist in this process. The prison locator number should also be called to determine whether the client has been released or transferred if the client was in custody. Checking with CCAP to see if we have an alternative address for the appellant is also prudent. Contact with the probation or parole officers in order to locate a client may result in revocation of probation or parole and other consequences harmful to them unless the release was very recent. CCAP suggests that you may well want to discuss this matter and how to proceed with your CCAP buddy before filing any brief or abandonment. At the same time, counsel should remember that it is the client’s duty to keep his or her attorney apprised of any change in his or her address, and that the failure to do so could impair the client’s rights on appeal.