DEPENDENCY
BRIEFS
Counsel in dependency appeals should be sure to argue
the standard of review for each claim raised in the opening
brief. We have seen a series of opinions lately stating that
a claim was waived because counsel did not adequately explain
in the opening brief why there was not substantial evidence
or why the trial court abused its discretion. Further, counsel
should be aware that there will no longer be any compensation
for a Sade C. brief beyond a one page letter to the Court
of Appeal, stating that you have found no issues to raise
and that you request the Court to independently review the
record.
In briefing an issue in a dependency case in the Sixth District,
it is very important to set forth the standard of review and
explain why there was an abuse of discretion or insufficient
evidence. It is not enough to show we had a meritorious case
below; we must show how the court was wrong because it abused
its discretion or acted without sufficient evidence. We have
seen a series of dependency opinions which state a claim is
waived for failing to argue how there was an abuse of discretion:
– •Arguments should be tailored according to the applicable
standard of appellate review.ę (Sebago, Inc. v. City of Alameda
(1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge
the proper scope of review is a concession of a lack of merit.
(James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
• –[I]t is an attempt to place upon the court the burden of
discovering without assistance from appellant any weakness
in the arguments of the respondent. An appellant is not permitted
to evade or shift his responsibility in this matter.” [Citations.]ę
(Paterno v. State of California (1999) 74 Cal.App.4th 68,
102.) And an attack on the evidence without a fair statement
of the evidence is entitled to no consideration when it is
apparent that a substantial amount of evidence was received
on behalf of the respondent. (Estate of Palmer (1956) 145
Cal.App.2d 428, 431.) Absent compliance with these rules,
we presume that the judgment of the trial court is correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Stated
another way, •The reviewing court is not required to make
an independent, unassisted study of the record in search of
error or grounds to support the judgment. It is entitled to
the assistance of counsel. Accordingly, every brief should
contain a legal argument with citation of authorities on the
points made. If none is furnished on a particular point, the
court may treat it as waived, and pass it without consideration.ę
(9 Witkin, Cal. Procedure, supra, Appeal, ó 594, p. 627.)”
You should be aware that the Sixth District Court of Appeal
will dismiss a case with a brief filed by counsel presenting
no issues, even if the client attempts to file a supplemental
brief. If, after you complete your review, you believe that
there are no arguable issues, appellant will have two options.
First, if your client wishes to file a brief directly with
the Court of Appeal, then you need to request that the appointment
of appellate counsel be vacated so that the client can proceed
in pro per. So far, the court has been granting motions to
vacate appointment. If appellant does not wish to file a brief,
then you would file a letter stating that you can find no
issue. You should be aware that there will no longer
be any compensation for a Sade C. brief beyond a one page
letter to the Court of Appeal, stating that you have found
no issues to raise and that you request the Court to independently
review the record. You should, however, write a letter
to the client outlining the factual and procedural history
of the case, any potential issues that you considered, and
why there does not appear to be grounds for relief. Your description
of the case would not be as long as a statement of fact and
case. Your letter, of course, should assure the client that
you have taken the case seriously. "Use of Previous Briefing"
Form Now Required for All Claims
October 15, 2003
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