. 5
( 9)


only if “the actor utilizes the mediation itself to further the commission of a
The following cases illustrate the complexity of determining the scope of
con¬dential privileges in alternative dispute resolution. In an Idaho case,
State v. Trejo,131 a husband and wife had a very acrimonious relationship
while their divorce and custody proceedings were pending. After two ver-
bal altercations at local bars, the mother and one of her friends went to the

126 Sarah R. Cole, supra note 6, at 9“19.
127 The CPR-Georgetown Commission on Ethics and Standards in ADR, Rule 4.5.2 provides, “A

lawyer serving as a third-party neutral shall maintain the con¬dentiality of all information
acquired in the course of serving in that role, unless the third-party neutral is required or
permitted by law or agreement of all the parties to disclose or use any otherwise con¬dential
information.” 13 WORLD ARB. MEDIATION REP. 331, 334 (2002).
128 For instance, California Rules of Professional Responsibility, Rule 3-100 (July 1, 2004) pro-

vides that “an attorney may, but is not required to, reveal con¬dential information relating to
the representation of a client to the extent that the attorney reasonably believes the disclosure
is necessary to prevent a criminal act that the attorney reasonably believes is likely to result
in death of, or substantial bodily harm to, an individual.”
129 San Francisco, California, Superior Court Rule 12.47(D)(2); Kern County, California, Supe-

rior Court Rule 7.6.3.
130 Model Standards of Conduct For Mediators (American Arbitration Association and American

Bar Association, 2002); Uniform Mediation Act, section 2f; Mindy D. Rufenacht, supra note
119, at 125“126.
131 State v. Trejo, 979 P. 2d 1230 (Idaho 1999).
114 Legal Ethics in Child Custody and Dependency Proceedings

father™s house to take custody of her child because she believed the father
was not properly caring for the baby. The mother™s friend confronted the
father, who then went into his house, obtained a “9mm semi-automatic pis-
tol,” and shot the mother™s friend. The father was charged with aggravated
battery, and in his criminal trial he sought to introduce testimony given by
the mediator in his divorce case. The father stated that the mother had stated
that “I want to see him [the father] six feet under” during the mediation,
and the father wanted this con¬dential mediation statement introduced in
his criminal case to impeach the mother™s credibility in her testimony against
him.132 The state mediation con¬dentiality statute held that “[a] client has
a privilege in any civil or criminal action to which the client is a party to
refuse to disclose and to prevent any other person from disclosing con¬den-
tial communications made in the furtherance of the rendition of mediation
services to the client. . . . ” The court of appeal reversed the trial court™s exclu-
sion of the mother™s con¬dential mediation statement because the mother
was merely a witness, not a party, in the father™s criminal trial. However,
after reviewing the evidence, the court determined that the error in exclud-
ing the statement was harmless and did not require reversal.133 The Trejo
case is important because it demonstrates the effects of a narrow application
of mediation con¬dentiality statutes, especially when those statements are
introduced in collateral proceedings. If the divorce, child custody, or child
dependency mediation is based upon facts that might also give rise to crim-
inal prosecution, attorneys must be careful to explain the limited protection
of civil mediation con¬dentiality.
For instance, in Rinaker v. Superior Court134 a minor was charged with van-
dalism of his neighbor™s car. The state ¬led a juvenile delinquency petition,
and the neighbor also ¬led a civil harassment action. During the harass-
ment action the judge submitted the case to mediation, during which the
neighbor allegedly “admitted to all present, including the mediator, that
he did not actually see who threw the rocks at his car.”135 The minor
subpoenaed the mediator to testify regarding the neighbor™s con¬dential
mediation admission, which was strong exculpatory evidence for the child™s
defense. The court held that the minor™s constitutional right to confront and

132 Id. at 1234“1236.
133 Id. at 1235“1238. See also Donnelly v. Donnelly, 92 P. 3d 298, 302 (Wyoming 2004), in which

the mother™s attorney in a child custody proceeding asked the father questions about his
con¬dential mediation statements. The court, after reviewing the record, found that the
error was not prejudicial because it was a court trial and “we presume that the district court
disregarded any improperly admitted evidence unless the record af¬rmatively demonstrates
that the court™s decision was in¬‚uenced by that evidence.”
134 Rinaker v. Superior Court, 74 Cal. Rptr. 2d 464 (California 1999).
135 Id. at 467“468.
The Ethics of Alternative Dispute Resolution in Child Custody 115

cross-examine witnesses trumped the state™s important public policy of pro-
viding con¬dentiality in mediation proceedings. The court noted that many
important public policy privileges, such as the psychotherapist-patient priv-
ilege, evidence of plea agreements, subsequent repairs to prove negligence,
and evidence of insurance to prove wrongdoing, have to give way when
they deny criminal defendants due process.136 The court further rejected
the mediator™s argument that the boy waived the right to compel the use of
con¬dential mediation data because the minor signed a con¬dentiality agree-
ment. However, the court narrowly construed the legal concept of “waiver”
and held that when the minor signed the con¬dentiality agreement, it was
prior to the neighbor™s inconsistent and exculpatory statement; he therefore
did not voluntarily and knowingly waive his right to cross-examination and
confrontation.137 Rinaker raises the important concept of waiver in relation
to parties™ participation in alternative dispute resolution.
Other courts have been willing to apply a broad approach to waiver. For
instance, Ohio permits parties to waive any right as long as it is not unconsti-
tutional or against public policy.138 In Lamberts v. Lillig,139 the Iowa Supreme
Court, for instance, held that a father™s waiver of parental rights in a depen-
dency mediation was constitutionally defective because there was not a suf-
¬cient demonstration that the father “was informed of and knowingly and
voluntarily waived his rights.”140 A California court held that parents waived
the right to discuss the child™s parentage without the presence of the medi-
ator because “they did not object to that condition during the settlement
conference.”141 However, the failure of a parent to attend and participate in
child abuse mediation does not provide suf¬cient grounds for holding that
the parent waived that right to confront witnesses in the dependency court
proceeding because that would violate due process.142
Allen v. Leal143 is one of the most bizarre cases to ¬nd that the parties
had waived alternative dispute resolution con¬dentiality. After signing a

136 Id. 137 Id. at 471“472.
at 470.
138 Kelm v. Kelm, 749 N. E. 2d 299 (Ohio 2001).
139 Lamberts v. Lillig, 670 N. W. 2d 169, 134“135 (Iowa Supreme Court 2003).
140 Id. at 135.
141 In re Nicholas H., 5 Cal. Rptr. 3d 261, 269 (California 2003).
142 In re Dolly D., 48 Cal. Rptr. 2d 691, 694“695 (California 1995). See also Smith v. Smith, 75 S.

W. 3d 815, 826 (Missouri 2002) [father™s failure to attend the child custody mediation was not
suf¬cient ground for a change of visitation order because father™s act was not purposeful]. But
In re Erik Q., 2001 WL 1497742 (California Appellate Second District, November 26, 2001;
unpublished) held that the parents™ untimely request for mediation services constituted a
waiver because of the need for rapid permanency for the child. See also Ruble v. Ruble, 2004
WL 1618531 (Florida, July 21, 2004; unpublished); Kiser v. Kiser, 595 S. E. 2d 816 (North
Carolina 2004; unpublished).
143 Allen v. Leal, 27 F. Supp. 2d 945 (S. D. Texas 1998).
116 Legal Ethics in Child Custody and Dependency Proceedings

mediated settlement agreement, the parties asked the court to set aside the set-
tlement based upon the mediator™s coercive tactics. However, the court held
that because the professional credibility of the mediator was being attacked,
public policy favored permitting the mediator to testify on the coercion issue,
even though the statute held that “[a]ll communications made during ADR
procedures are con¬dential and protected from disclosure. . . . ”144 The court
held that the parties waived the con¬dentiality protection by “˜opening the
door™ by attacking the professionalism and integrity of the mediator. . . . ”145
However, even more interesting than the court™s ruling was its reaction to
a statement made to the press by the president of the local Association of
Attorney-Mediators that “[w]hat some people might consider a little bul-
lying is really just part of how mediation works.” The court termed that
comment an “egregious statement” that is inconsistent with the Texas law
that declares that a mediator “may not compel or coerce the parties to enter
into a settlement agreement.”146
An Oregon court in In the Matter of Marriage of Reich147 held that “con-
¬dential mediation communications may not be offered as evidence in sup-
port of a motion to enforce a subsequent settlement agreement.” However,
because the mother offered the con¬dential mediation statements not to
enforce the mediation agreement, but rather to enforce an agreement entered
into by the spouses “long after the mediation failed,” the statements were
inadmissible.148 Therefore, even in jurisdictions that permit a limited use of
mediation statements to determine the nature of the settlement agreement,
the scope of use is limited solely to that agreement in the same proceeding.149
The preceding discussion not only demonstrates the complexity of alter-
native dispute resolution con¬dentiality laws but also illustrates the traps
that await unsuspecting parties who unreasonably rely upon a broad
interpretation of that privilege. Even in those jurisdictions that provide
almost absolute con¬dentiality of mediators™ statements, due process may
trump that con¬dentiality public policy.150 Thus, attorneys must be

144 Id. 145 Id. at 947, fn. 4.
at 947.
146 Id. at 948.
147 In the Matter of Marriage of Reich, 32 P. 3d 904 (Oregon 2001).
148 Id. at 908.
149 For instance, in Few v. Hammack Enterprises, Inc., 511 S. E. 2d 665, 669 (North Carolina 1999),

the court held that the con¬dential mediation statute “does not prohibit the admission of
the outcome of a mediation settlement conference before a judge making the determination
of whether settlement was reached and of the terms of that settlement” even though speci¬c
con¬dential statements are not admissible for other purposes. See contra Ryan v. Garcia, 33
Cal. Rptr. 2d 158 (California 1994).
150 For instance, California Evidence Code § 703.5 provides that the mediator is “incompetent”

to testify at a subsequent civil proceeding concerning statements made during mediation.”
The Ethics of Alternative Dispute Resolution in Child Custody 117

extremely careful in counseling clients regarding con¬dentiality of child cus-
tody and dependency alternative dispute resolution mechanisms.


Commentators, legislators, and judges are almost unanimous in declaring
that the preeminent quality of mediators is neutrality and that the method
used should be facilitation, not directedness or coercion in assisting parties in
resolving disputes. For instance, The Model Standards for Family and Divorce
Mediation de¬ne that alternative dispute resolution genre as “[a] process
in which a mediator, an impartial third party, facilitates the resolution of
family disputes by promoting the participants™ voluntary agreement.”151 And
because mediation takes place outside the public™s or court™s purview, one
commentator stated that “˜[t]he integrity of mediation . . . depends largely
on the ethics of mediators. To promote the success of the process and protect
the rights of the parties, mediators must remain impartial and must preserve
the con¬dentiality of median sessions.™”152 Even in mediation systems that are
evaluative rather than facilitative, neutrality is the central tenet. “In evaluative
mediation, the mediator directs the focus of the discussion, including speci¬c
issues to be included or, importantly excluded, and sets boundaries about
the procedure to be used.”153
However, parties and their attorneys disagree upon which attributes con-
stitute a good mediator. “According to a 1997 Minnesota study, the most
important mediator quali¬cation for attorneys surveyed was ˜substantive
experience in [the] ¬eld of law related to the case.™ The next two most highly
sought quali¬cations were ˜mediator should be a litigator™ and ˜mediator
should be a lawyer,™” and lawyers prefer evaluative processes, not facilita-
tive.154 Parties not only prefer facilitative mediation in which they gain a
sense of empowerment but they also value most their perception of the “pro-
cedural justice and fairness” of the process even if they fail to achieve their
mediated goal.155 In addition, clients, unlike lawyers, are much less inter-
ested in “time . . . , cost, ef¬ciency, or optimal substantive outcomes. . . . ”156
Therefore, attorneys who wish to have satis¬ed clients, who desire a process
that meets clients™ expectations, and who wish to reduce the potential for
legal malpractice actions must tailor their expectations to those consistent

151 See Nancy Ver Steegh, supra note 4, at 170.
152 David A. Ruiz, Asserting a Comprehensive Approach for De¬ning Mediation Communication,
15 OHIO ST. J. DISP. RESOL. 851, 862 (2000).
153 Marsha B. Freeman, supra note 39, at 67, 70.
154 J. Brad Reich, Attorney v. Client: Creating a Mechanism to Address Competing Process Interests

in Lawyer-Driven Mediation, 26 S. ILL. U. L. J. 183, 187“188 (2002).
155 Id. at 192“193. 156 Id. at 194“195.
118 Legal Ethics in Child Custody and Dependency Proceedings

with client interests both in the tenure of the process and the outcome of the
Researchers have demonstrated that it is very dif¬cult for mediators to
maintain neutrality, or at least the appearance of neutrality, in emotionally
charged child custody and dependency proceedings. First, the substantive
context of mediations often shapes mediator attitudes and tactics regard-
ing “˜self-determination™ or ˜impartiality.™”157 And additionally, many state
mediation statutes place an af¬rmative duty on the mediator to protect the
best interests of children during the settlement negotiations: “The media-
tor shall use his or her best efforts to effect a settlement of the custody or
visitation dispute that is in the best interest of the child. . . . ”158 There is a
real question whether a mediator is truly neutral if the interests of one of the
parties, the child, are preeminent in what is often a trilateral dispute.
In addition, legislators and ethics codes often place additional af¬rmative
duties upon the mediator:159 (1) to ensure that one or more parties do not
harass or bully other parties,160 (2) to ensure that parties waiving rights do so
with informed consent,161 and (3) to “inform the participants that they may
seek information and advice from a variety of sources during the mediation
process.”162 The Model Standards of Conduct for Mediators provide that the
“mediator may provide information about the process, raise issues, and help
parties explore options.”163 However, can mediators remain neutral if they
are required to provide parties with factual and legal information, and if
so, how can the lay mediator provide such advice without violating state
prohibitions against practicing law without a license?164 In a survey of judges
and lawyers, the following settlement tactics were deemed unethical: (1)
giving legal advice to the side with the weaker case, (2) speaking personally
with a party to encourage a settlement agreement; (3) siding with the stronger
party to force an agreement, and (4) giving information to the weaker side.

157 Charles Pou, Jr., “Embracing Limbo”: Thinking About Rethinking Dispute Resolution Ethics,
108 PENN. ST. L. REV. 199, 203 (2003).
158 California Family Code § 3180. 159 Charles Pou, Jr., supra note 156, at 223.
160 “The mediation process should ensure that litigants are treated with dignity, respect, and,

most critical, fairness.” John R. Van Winkle, MEDIATION: A PATH BACK FOR THE LOST LAWYER
23 (2001).
161 “A mediator shall make all reasonable efforts to assure that all parties understand the medi-

ation process and procedures.” National Health Law Association Alternative Dispute Reso-
lution Service Code of Ethics for Mediators, Rule 2.04 (Washington, D.C. 1991).
162 Model Standards of Practice for Family and Divorce Mediation, Standard 1C.
163 Model Standards of Conduct for Mediators (American Arbitration Association and American

Bar Association 2002) [contained in Abraham P. Ordover & Andrea Doneff, ALTERNATIVES
164 Cynthia E. Nance, Unrepresented Parties in Mediation, 15 No. 3 PRAC. LITIG. 47, 49 (2004).
The Ethics of Alternative Dispute Resolution in Child Custody 119

Because many of these tactics are either discretionary or required under
various mediator codes of ethics and/or statutes, it is no wonder that there is a
disconnect between mediator obligations and attorney and client satisfaction
with mediators™ services.
Mediation will continue to ¬‚ourish in child custody and dependency cases
because it is faster, cheaper, and better able to fashion individualized family
dispute resolution. Because the alternative dispute resolution revolution has
already occurred, it is time for law schools to offer and/or require courses in
arbitration, negotiation, and mediation as a graduation requirement. Until
then, lawyers must assure themselves and clients that they fully understand
the substantive, procedural, and strategic necessities of the alternative reso-
lution of children™s and parents™ legal problems.
5 Ethical Considerations and Constraints
in Child Custody and Dependency Appeals

Because many parties in both family custody and in child dependency cases
do not have a constitutional or statutory right to appointed counsel on
appeal, it should not be surprising that appellate courts have rarely dis-
cussed legal ethics in those proceedings. “Historically, family and juvenile
courts have been largely pro se tribunals in which legal representation was
permitted, but not encouraged.”1 And during the last decade of “limited
appellate court resources and burgeoning caseloads,” some appellate jurists
have bemoaned the “general deterioration in the quality of appellate advo-
cacy.”2 State bar association mandatory continuing legal education courses
rarely involve appellate advocacy training, and there are few avenues for
attorneys, once they graduate from law school, to receive formal training in
appellate skills and/or specialized training in the custody and dependency
appellate processes.3 This chapter focuses on those few areas of concentrated
ethical decisions in appeals involving child custody and juvenile dependency
and attempts to answer some of the following questions: (1) Is there a right
to appointed appellate counsel; (2) who has standing to appeal; (3) what
is the subject matter jurisdiction of appellate courts in these proceedings;
(4) should appellate courts apply a narrow or liberal construction to appel-
late rules of court; (5) under what circumstances are trial issues waived from
consideration on appeal; and (6) what are appellate counsel™s ethical duties.
Unlike the previous four chapters, this chapter focuses on the complexity
of the appellate process, providing attorneys a discussion of existing appel-
late procedures with the intent of increasing their level of competency in
child custody and dependency appeals. Because child custody appeals in

1 Merril Sobie, The Role of Counsel in Family Court, 10 N.Y. FAM. CT. PRAC. § 14:1 (Novem-
ber 2004 Update).
2 Honorable Roger J. Miner, Professional Responsibility in Appellate Practice: A View from the

Bench, 19 PACE L. REV. 323, 323, 325“326 (1999).
3 Id. at 339“340.

Ethical Considerations and Constraints in Child Custody 121

family court are generally controlled by general civil appellate procedures,
this chapter focuses more on the unique processes inherent in dependency


Historically, expansion of procedural rights in custody and dependency pro-
ceedings has been determined by analogy to those rights due criminal defen-
dants. However, the United States Supreme Court has never held that criminal
defendants have a right to an appeal in state court in criminal proceedings,
but “once established, these avenues (of appellate review) must be kept free
of unreasoned distinctions that can only impede open and equal access to
the courts.”4 The Supreme Court has held that, if appellate review is granted
by the state, the two fundamental procedural necessities are a competent
attorney advocate for the criminal defendant and an appellate record that
will enable the appellate court a means of reviewing the trial court record.5
Therefore, the Court has held that in criminal cases in which a state pro-
vides convicted criminals “a ¬rst appeal of right, the federal constitution
guarantees of due process (fair procedure) and equal protection (equality
among litigants) require that state to provide appellate counsel for indigent
defendants.”6 In addition, if counsel is appointed, the criminal defendant has
a right to competent respresentation.7 But the right to a competent appel-
late attorney only attaches to the ¬rst state right of appeal; neither the due
process clause nor the equal protection clause requires states to provide sec-
ondary appeals or collateral writs, and even if they do, states need not provide
appointed counsel.8
Those arguing that the federal constitutional right to competent and zeal-
ous counsel applies equally to family law and dependency proceedings have
many hurdles to cross. The ¬rst problem is that the United States Supreme
Court has not clearly stated the constitutional grounds for appellate procedu-
ral rights. Justices have relied upon the Sixth Amendment right to counsel, the
Fourteenth Amendment due process clause, and the equal protection clause.
However, the Court has noted that none of those clauses alone “provides an
entirely satisfactory basis for the results reached” on the questions of what

4 Rinaldi v. Yeager, 384 U.S. 305, 310 (1966).
5 Britt v. North Carolina, 404 U.S. 226, 227 (1971); Douglas v. California, 372 U.S. 353, 355
(1963); Grif¬n v. Illinois, 351 U.S. 12 (1956).
6 In re Sanders, 84 Cal. Rptr. 2d 899, 912 (1999); Murr v. Giarranton, 492 U.S. 1, 7 (1989).
7 Evitts v. Lucey, 469 U.S. 387, 396 (1985).
8 See Coleman v. Thompson, 501 U.S. 722, 752“754 (1991); Pennsylvania v. Finley, 481 U.S. 551

122 Legal Ethics in Child Custody and Dependency Proceedings

appellate rights are due in criminal cases. If the right to appellate counsel
and competent counsel is based upon the Sixth Amendment, then analogy
to custody and dependency cases is clearly inapt because the Sixth Amend-
ment applies exclusively to criminal trials. However, the Court has backed
off exclusive reliance on the Sixth Amendment as the constitutional ground
for the right to appellate counsel.9 Further, if the right to appellate coun-
sel in custody and/or dependency cases is predicated upon the Fourteenth
Amendment due process clause, then one would assume that perfecting the
right to appellate counsel would be hampered by the same impediments that
convinced the Court in Lassiter v. Department of Social Services to hold that
counsel in termination of parental rights cases must be decided under the
tripartite Mathews v. Eldridge balances test, which has usually led to a denial
of a federal constitutional right to trial counsel. In addition, because equal
protection requires a comparison of two groups who must be suf¬ciently
similarly situated, it is dif¬cult to make a convincing argument that, because
criminal defendants have a right to court-appointed appellate counsel, then
parents and/or children have an equivalent right in custody and child abuse
actions. However, perhaps the strongest argument for a constitutonal right
to appointed counsel is based upon an equal protection comparison in states
that provide appellate review of child custody and dependency judgments,
but only to those who can afford appellate attorneys. The equal protection
argument would closely mirror the equal protection argument in criminal
cases in which the Supreme Court held that indigent criminal defendants
and nonindigent defendants must be treated similarly and that required the
states to provide appointment of counsel for indigents as long as appeals
were a matter of right.
Few state courts have determined whether parents and/or children who
are parties in dependency and/or custody cases have a constituional right to
appointment of appellate counsel and, if so, whether there is a concomitant
right to competent counsel. A Kansas court10 held that parents in termina-
tion of parental rights proceedings have a right to appointment of appel-
late counsel in the ¬rst appeal under the equal protection clause because

9 “In recognizing the right to effective assistance of counsel on appeal, however, the Court
emphasized that the right is a due process right; that is, one based on fundamental fairness
secured entirely and directly by the Due Process Clause of the Fourteenth Amendment, rather
than through the Equal Protection Clause or by incorporation of the Sixth Amendment.”
Lissa Grif¬n, The Right to Effective Assistance of Appellate Counsel, 94 W. VA. L. REV. 1, 17“
18 (1994) [arguing that the right to effective counsel is not co-extensive under the Sixth
Amendment and under the Fourteenth Amendment due process clause].
10 In Interest of Brehm, 3 Kansas App. 2d 325 (1979). For a comprehensive survey of the right

to appellate counsel, see Particia C. Kussmann, Right of Indigent Parent to Appointed Counsel
in Proceedings for Involuntary Termination of Parental Rights, 92 AM. L. REP. 379 (2004).
Ethical Considerations and Constraints in Child Custody 123

nonindigent parents can retain such counsel. A Michigan court11 held that,
even though indigent parents had a statutory right to appellate counsel, they
were also entitled to counsel pursuant to the equal protection clauses of the
U.S. and Michigan Constitutions. And a right to appointed appellate counsel
in Florida was predicated upon the due process clause.12
However, those few state courts that have held that there is a constitutional
right to appointed appellate attorneys have usually limited appointment to
the termination of parental rights phase of dependency proceedings.13 Such
a limitation under a due process analysis appears consistent with the United
States Supreme Court™s analysis of the right to counsel in dependency cases,
which it considered only in relation to the termination hearing in Lassister.
However, if the basis for the right to appointment of counsel is predicated
upon the equal protection clause, there is no rationale for limiting such
appointment to termination hearings if other appellants can retain counsel
in other dependency appeals. In several other states in which there is not
a constitutional right to appointment of appellate counsel, appointment is
available pursuant to statute.14


Both family law and dependency cases have expanded the number and classes
of individuals permitted either to participate or be present during proceed-
ings to determine the best interest of children. However, mere presence for
some classes of participants, such as noncustodial relatives, de facto par-
ents, and/or foster parents, does not necessarily establish standing to appeal.
For example, relatives may not only lack party status in dependency pro-
ceedings but parties may also lack standing to raise relatives™ arguments on
appeal.15 Although a nonrelative, noncustodial guardian may have consti-
tutional grounds for asserting standing, most statutes do not provide such
relatives with appellate access. For instance, in a Florida case the maternal
aunt argued in the dependency court that she should have standing. However,

11 Reist v. Bay County Circuit Judge, 241 N. W. 2d 55 (1976). See also In re K. S. M., 61 S. W.
3d 632 (Texas 2001).
12 In re K. W., 779 So. 2d 292 (Florida 1998).
13 Matter of D. D. F., 784 P. 2d 89 (Oklahoma 1989). However, in Washington an indigent parent

who has a right to counsel in all dependency proceedings has a right to appointed counsel
of appeal as well. In re Grove, 897 P. 2d 1252 (1995).
14 For example, California Family Code § 7895 and California Rules of Court, rule 1435(b) &

(d) (3) grant indigents the right to counsel on appeal in dependency cases. However, some
states have held that even if a parent has a statutory right to counsel at trial, there is no
right to appointed appellate counsel. See Casper v. Huber, 456 P. 2d 436 (Nevada 1969); State
Department of Human Services v. Harris, 1992 WL 25928 (Tennessee 1992).
15 In re Conn., 2003 WL 22290217 (Ohio, October 7, 2003; unpublished opinion).
124 Legal Ethics in Child Custody and Dependency Proceedings

because the trial court denied the aunt custody of the child, the court held
that she lacked standing to appeal that denial order.16 However, standing
is not simply predicated upon child custody and/or relative relationships;
rather it can arise from the dependency allegations themselves. For instance,
Pennyslvania has granted standing to appeal to mothers™ boyfriends when
“the adjudication was based on the ¬nding that the paramour sexually abused
the child . . . since the trial court made a direct ¬nding of appellant™s complic-
ity in the sexual abuse, since the court ordered that appellant have no contact
with the children, and since the court™s directives implicitly required appel-
lant to undergo rehabilitation he had a ˜substantial and immediate interest
in the outcome of the case™.”17
Even if a prospective appellant can suf¬ciently assert standing, appellate
rules regarding the scope of review and the subject of that review are extremely
complex. In fact, because the appeal is often limited by the scope and
suf¬ciency of articulated error in the family and dependency courts, the
scope of appellate review is the greatest intersection between the compe-
tency of trial and counsel and the competency of appellate counsel. One
must wonder how any pro per parents could possibly maneuver the rigorous
path of appellate and writ rules and procedures.


Because neither the American Bar Association Model Rules nor state ethics
rules differentiate between the responsibilities of attorneys pretrial, during
trial, or on appeal, the general rules of ethical competency apply in cus-
tody and dependency appeals. Therefore, because “[a]ppellate practice has
developed into an increasingly specialized area of the law,” trial counsel
must ¬rst determine whether they possess the full understanding of the
procedural and/or substantive appellate legal universe that is necessary to
provide their client competent representation.18 American Bar Association
Model Rule 1.1 states that “[c]ompetent representation requires the legal
knowledge, skill, and thoroughness and preparation reasonably necessary
for the representation.” The Comments to Rule 1.1 indicate that legal com-
petence is affected by the variables of the relative complexity of the case, its
specialized requirements, the attorney™s training and experience, as well as

16 Inre A. M. V., 486 So. 2d 92 (Florida 1986).
17 In the Interest of C.L., 648 A. 2d 799 (Pennsylvania 1994); In re M. K., 636 A. 2d 198
(Pennsylvania 1994).
18 Kay Nord Hunt & Eric J. Matgnuson, Ethical Issues on Appeal, 19 WM. MITCHELL L. REV. 659,

659“660 (1993).
Ethical Considerations and Constraints in Child Custody 125

the necessity of using “methods and procedures meeting the standards of
competent practitioners. . . .”19 The Model Rules also indicate that a lawyer
may reasonably develop the necessary competence or associate with another
attorney who is suf¬ciently competent to represent the client.20 This is even
as some appellate jurists have bemoaned the level of appellate attorneys™
competence and the increasing “number of briefs and oral arguments that
appear to be lacking in adequate preparation on the law and on the facts”
and that “fail to raise the issue of subject matter jurisdiction.”21
One of the ¬rst decisions that trial counsel must make is whether a trial
attorney is as competent as a separate appellate attorney to review the tran-
scripts for appellate error. Trial counsel may determine that they have a better
understanding of the facts in the case than a new appellate attorney. However,
depending on the potential appellate issues, trial counsel may consciously
or unconsciously have a self-interested bias when reviewing their own trial
performance. Certainly, if the client or facts indicate that an issue of incom-
petence of trial counsel might be involved, a neutral appellate specialist is
in a better position than the trial counsel to judge the issue of competency.
Because ineffective assistance of counsel is one of the most frequently alleged
trial court errors in custody and dependency appeals, trial counsel must care-
fully consider whether they will be suf¬ciently able to review allegations of
their own incompetency.
One court has de¬ned the duty of competence of appellate attorneys as “the
duty to prepare a legal brief containing citations to the (appellate record) and
appropriate authority, and setting forth all arguable issues, and the further
duty not to argue the case against his client.”22 For example, in a child depen-
dency case in which the mother™s reuni¬cation services were terminated, the
mother ¬led a writ pursuant to the appropriate rule of court, which required
the writ to state “the factual basis for the petition.” However, because the
mother left blank the factual basis section of the statutory form, the court of
appeal held that it “must dismiss the petition as factually inadequate.”23
The most frequent reason for the dismissal of child custody and child
dependency appeals is the waiver of trial court errors that were not litigated
in the trial court. For example, in Miller v. Miller,24 the husband in a divorce

19 American Bar Association, Model Rule 1.1, Comments (1)“(6).
20 Id.,Comment (4): lk “A lawyer may accept representation where the requisite level of com-
petence can be achieved by reasonable preparation.”
21 Honorable Roger Miner, supra note 2, at 331“333.
22 People v. Barton, 146 Cal. Rptr. 727, 730 (California Supreme Court 1978), citing People v.

Lang, 113 Cal. Rptr. 9, 12 (1974).
23 Angela P. v. Superior Court of Madera County, 2002 WL 31413921 (California, October 28,

2002; not published).
24 Miller v. Miller, 744 A. 2d 778 (Pennsylvania 1999).
126 Legal Ethics in Child Custody and Dependency Proceedings

action argued in the trial court that a child dependency tax exemption could
be awarded to the noncustodial parent. The court dismissed that appellate
issue because the father failed to raise the issue in a timely fashion and
therefore “acquiesced” in that trial court determination. Many courts have
dismissed appeals based upon a failure to raise the issue of incompetence of
counsel in the trial court rather than raising it for the ¬rst time on appeal. For
instance, a Massuchussetts court stated that “[a]bsent exceptional circum-
stances, we [the appellate court] do not review claims of ineffective assistance
of counsel for the ¬rst time on appeal.”25 However, appellate courts have dis-
cretion to entertain the issue of incompetence of counsel under extraordinary
circumstances. For instance, in a California case the court noted that incom-
petency of counsel issues should usually be ¬led as writs in the appellate
court; however, such a claim may be “made as part of the appeal . . . [and]
asserted even after the order terminating parental rights. . . .”26 The court
found the trial attorney™s representation incompetent because he committed
a patent error in agreeing that the incarcerated parent lacked the capacity to
care for her child, even though the statute required the state to prove that
the parent lacked the ability to “arrange for the child™s care” even if the par-
ent was incarcerated.27 Appellate courts have held that numerous trial court
errors are waived if not properly lodged in the trial court where the judge can
determine the prejudicial impact of the alleged error: (1) waiver of review
of a dispositional order based upon a nolo contendere plea,28 (2) waiver of
denial of a change of custody,29 (3) waiver of issues of child placement by
Tribe because they were not appealed prior to the current custody decision,30
(4) waiver of the issue of termination of reuni¬cation services because the
parent did not meet the statutory period within which to ¬le a writ petition,31
(5) waiver based upon failure to ¬le an appeal within a reasonable time after
the disposition hearing,32 (6) jurisdictional errors waived if not appealed
prior to the disposition hearing,33 and (7) con¬‚icts of interest waived if not
raised in the trial court.34

25 Care and Protection of Oleg & Another, 776 N. E. 2d 1039, (Massachusetts 2002; unpublished

26 In re S. D., 121 Cal. Rptr. 2d 518, 524 (California 2002).
27 Id. at 525. The court stated that “[t]here is not a ˜Go to jail, lose your child™ rule in California.”
28 Julie M. v. Orange County Social Services, 2002 WL 31781145 (California, December 12, 2002;

unpublished). See also In the Matter of the Appeal in Marcopa County, Juvenile Action No.
J-74449A, 511 P. 2d 693 (Arizona 1973) [waiver of incompentency of counsel].
29 In re Matthew R., 2003 WL 21267213 (California, June 3, 2003; unpublished).
30 In re Liliana S., 10 Cal. Rptr. 3d 553 (California 2004).
31 Christy L., 2002 WL 1980689 (California, August 28, 2002; unpublished).
32 In re T. T., 842 A. 2d 962 (Pennsylvania 2004).
33 In re C. H., 2003 WL 22966248; (Ohio, December 18, 2003; unpublished).
34 In re Sessoms, 2003 WL 22283495; (Ohio, October 6, 2003; unpublished).
Ethical Considerations and Constraints in Child Custody 127

One exception for waiver on appeal of issues not raised in the trial court
involve cases in which the parties did not have suf¬cient notice of the error.
For instance, in Dwayne P.,35 the appellate court ruled that Native American
parents did not waive dispositional review even though they had not properly
appealed those issues because the state failed to follow the proper notice
requirements under the Indian Child Welfare Act. Other appellate courts have
held that some constitutional errors are never waived and can be litigated
even if not raised in the trial court.36


No state bar association, attorney general opinion, ethics code, or court opin-
ion has speci¬cally determined that appellate attorneys representing parties
in custody and dependency proceedings have a lower standard of client obli-
gation regarding competence, loyalty, con¬dentiality, or zealousness than
is owed by trial counsel. However, the de¬nition of those duties may differ
depending upon whether the attorney™s task is one involving the trial or the
appeal, or whether more specialized statutory duties of trial counsel may not
apply to appellate attorneys. For instance, in a recent case, In re Zeth S.,37 the
California Supreme Court had to determine whether specialized statutory
attorney duties toward abused children in dependency trial proceedings apply
to attorneys representing children in the appeals of dependency ¬ndings.38 In
1994 the California Legislature ordered the California Judicial Council, the
court rule-making authority, to draft specialized rules for determining mini-
mal competency of dependency court attorneys.39 In addition, the California
Legislature promulgated minimum competency requirements for children™s
dependency counsel, including (1) making “any further investigation that
he or she deems necessary to ascertain the facts, including the interviewing
of witnesses”; (2) “cross-examine witnesses in both the adjudicatory and
dispositional hearings”; (3) present necessary witnesses; (4) suggest services

35 Dwayne P., 126 Cal. Rptr. 2d 639 (2003).
36 In re Fennell, III, 2002 WL 194221 (Ohio, January 23, 2002; unpublished). But see R. G., 792

So. 2d 1269 (Florida 2001); In the interest of W. A., 2003 WL 21290900 (Utah, February 6,
2003; unpublished).
37 In re Zeth S., 2 Cal. Rptr. 3d 683 (California Supreme Court, 2003).
38 The author orally argued In re Zeth S. in the California Supreme Court as amicus curiae.
39 California Welfare & Institutions Code § 317.6 provides, “On or before January 1, 1996, the

Judicial Council shall, after consulting with representatives from the State Bar of California,
county counsels, district attorneys, public defenders, county welfare directors, and children™s
advocacy groups, adopt rules of court regarding the appointment of competent counsel in
dependency proceedings. . . .”
128 Legal Ethics in Child Custody and Dependency Proceedings

needed by the child; and (5) “investigate the interests of the child beyond the
scope of the juvenilie proceeding and report to the court other interests of the
child that may need to be protected by the institution of other administrative
or judicial proceedings.”40
The issue in In re Zeth S. was whether those specialized children™s attor-
ney responsibilities in the juvenile dependency trial courts carried over into
appeals from dependency court verdicts. The court of appeal appointed
a separate appellate attorney for the child. That attorney, relying on the
express language of Welfare & Institutions Code § 317 to “make further inves-
tigation,” analyzed postjudgment evidence regarding the continuing best
interest of the minor. At the termination of parental rights hearing, the court
adopted the recommendations of the Department of Child and Family Ser-
vices and the minor™s trial counsel to terminate parental rights and place the
child for adoption with the maternal grandfather who was separated from the
maternal grandmother, a recovering alcoholic. However, after conducting an
independent investigation pursuant to § 317, the child™s appellate attorney
discovered that the grandfather stated that he had been pressured to adopt
his grandchild and instead preferred a legal guardianship.41 After the child™s
appellate attorney informed the court of appeal that she was taking a position
that was diametrically opposed to the minor™s trial counsel based upon this
postjudgment evidence, the court of appeal ordered further appellate brie¬ng
on the appropriate remedy in light of the newly discovered postjudgment
evidence. After a supplemental brie¬ng, the court of appeal reversed the ter-
mination of parental rights order and remanded the case for a new review
The California Supreme Court reversed the judgment of the court of appeal
by ¬rst stating that it was not determining whether children have either a
statutory or constitutional right to the appointment of an appellate attor-
ney.42 The California Supreme Court determined that none of the specialized
rules of zealous and competent representation promulgated in Welfare &
Institution Code § 317 were applicable in juvenile dependency appeals

40 California Welfare & Institutions Code § 317. In addition, California Rule of Court, Rule 1438

also requires, as a de¬nition of “competent” counsel in dependency proceedings that the
attorney “has participated in training in the law of juvenile dependency, and who demon-
strates adequate forensic skills, knowledge and comprehension of the statutory scheme, the
purposes and goals of dependency proceedings, the speci¬c statutes, rules of court, and cases
relevant to such proceedings, and procedures for ¬ling petitions for extraordinary writs.”
In addition, competent counsel must also have “a minimum of eight hours of training
or education in the area of juvenile dependency, or who have suf¬cient recent experience
in dependency proceedings in which the attorney has demonstrated competency, may be
appointed to represent parties.”
41 In re Zeth S., at 688. 42 Id. at fn. 6.
Ethical Considerations and Constraints in Child Custody 129

because the statute referred speci¬cally to cases in the “juvenile court,” not
in all representation arising out of dependency proceedings. The court noted
that “[a]lthough a reviewing court is free to appoint separate counsel for a
minor in an appeal of an order and judgment terminating parental rights,
section 317 does not compel the appellate court to make such an appointment
of counsel, nor does that section purport to prescribe or regulate the duties
and obligations of appointed counsel in juvenile dependency appeals.”43 The
California Supreme Court also held that absent exceptional circumstances,
which it found did not exist in the instant case, the consideration of post-
judgment evidence cannot be considered in an appeal from a termination of
parental rights judgment.44
The opinion in In re Zeth S. has had a dramatic effect upon children
in dependency court appeals. Because the California Supreme Court deter-
mined that minor™s appellate counsel has no af¬rmative obligation to inves-
tigate postjudgment evidence, and because it did not determine whether
children are entitled to separately appointed appellate counsel, the court of
appeal, which was the subject of the appeal, has eliminated its procedure
of automatically appointing appellate attorneys for children. However, the
scope and reach of the Zeth S. case are still in doubt. For instance, one appel-
late court has held that Zeth S. is limited to cases of parental termination
appeals and that postjudgment evidence is admissible in cases that do not
involve the reversal of court judgments, such as changes of custody.45
One of the issues inherent in the In re Zeth S. case, a con¬‚ict between
the child™s trial counsel and the child™s appellate attorney, has resurfaced
in another case pending in the California Supreme Court. If both of the
minor™s attorneys are charged with representing the best interest of the child,
what rules should apply when trial counsel determines that an appeal is in
the child™s best interests, but the minor™s appellate counsel thinks that the
appeal should be dismissed? In In re Josiah Z.,46 the court of appeal, in a
rather facile analysis, concluded that In re Zeth S. controlled and that any
postjudgment evidence indicating that it would be in the child™s best interest
to dismiss the appeal was inadmissible in the appellate court. The court
further determined that it is “not our role, nor that of appellate counsel, to
evaluate the [minor™s] best interests. Instead, it is the dependency court judge
who is charged with the responsibility of analyzing and determining the best
interests of dependent children.”47

43 Id. 44 Id. at 696“697.
at 698.
45 In re Elizabeth C., 2003 WL 22100812 (September 11, 2003; unpublished opinion).
46 In re Josiah Z., 13 Cal. Rptr. 3d 456 (May 19, 2004; hearing granted in the California Supreme

47 Id. at 461.
130 Legal Ethics in Child Custody and Dependency Proceedings

There are several problems with the analysis in Josiah Z. First, unlike the
Zeth S. case, the minor™s appellate counsel was not attempting to use post-
judgment evidence to reverse a judgment by the juvenile trial court, but was
rather merely arguing that dismissal may be warranted. In fact, in one of
her briefs to the California Supreme Court, the minor™s appellate attorney
stated that she had never requested that the minor™s appeal be dismissed, but
rather she merely requested funding from the court of appeal to speak with
her child client to determine whether or not dismissal would be in the child™s
best interest.48 Therefore, the issue in Josiah Z. is better de¬ned as whether
a child™s appellate attorney in a child dependency case has a duty or the dis-
cretion to determine whether the appeal is still in the child™s best interest,
especially if considerable time has elapsed since the trial court™s judgment
and the trial counsel™s decision to ¬le a notice of appeal. Under that scenario,
the child™s appellate counsel is caught in a Catch-22 regarding the ambit of
zealous advocacy. On the one hand, if the appeal is still appropriate, then
appellate counsel should ¬le an opening brief. However, on the other hand,
if the child™s appellate counsel determines that the appeal may harm the child
or that trial counsel™s original notice of appeal was frivolous, appellate coun-
sel may not be permitted to continue with the appeal. Most jurisdictions
provide sanctions and possible awards of appellate court costs for ¬ling a
frivolous appeal.49 For instance, in Guardianship of Mellissa W.,50 the court
of appeal awarded $13,004 in sanctions against the grandparents for prose-
cuting a frivolous appeal because the minor™s appeal was moot based upon
the child™s marriage. In fact, courts have recognized a duty of appellate attor-
neys to dismiss appeals if postjudgment evidence renders the appeal moot.51
Therefore, the court of appeal opinion in Josiah Z. that the minor™s appellate
counsel lacked discretion to ¬le a motion to dismiss the child™s dependency

48 Appellant™s Answer to Amicus Curiae Brief of Whittier Law School Legal Policy Clinic, ¬led in
the California Supreme Court on May 19, 2004, at 12.
49 For proscriptions and sanctions for ¬ling frivolous appeals, see Kay Nord Hunt, supra

note 41, at 655“670; American Bar Association Model Rule 3.1 (“A lawyer shall not bring
or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for
doing so that is not frivolous, which includes a good faith argument for an extension, mod-
i¬cation or reversal of existing law”).
50 Guardianship of Melissa W., 118 Cal. Rptr. 2d 42 (2002).
51 Hale v. Laden, 224 Cal. Rptr. 182 (1986); Wax v. Infante, 194 Cal. Rptr. 14 (1983); In re

Marriage of Murphy, 786 N. E. 2d 132 (Illinois 2003) [general discussion of appellate fee
awards]; Nancy J. Arnold & Tim Easton, Illinois Supreme Court Civil Cases: Fees and Family
Law, “No” To Immunity, and More, 92 ILL. B. J. 180 (April, 2004). Because appellate court
dockets include “burgeoning caseloads,” it is not surprising that sanctions for frivolous
appeals would be increasing or that such sanctions will generally be upheld absent an abuse
of discretion. Honorable Roger J. Miner, supra note 2, at 325“326; Lockhart v. Grieve, 834
P. 2d 64 (Wisconsin 1992); Harrington v. Pailthorp, 841 P. 2d 1258 (1992).
Ethical Considerations and Constraints in Child Custody 131

appeal appears inconsistent both with ethical mandates and general case law
if the dismissal was based upon postjudgment evidence demonstrating that
the appeal was now moot. In addition, the court of appeal reliance on the
In re Zeth S. case seems inappropriate because the policy basis for that opin-
ion was not permitting dependency court judgments to be reversed based
upon new evidence because a dismissal of the appeal would not affect the
juvenile court judgment and would not frustrate the dependency policies of
judicial economy or legal ¬nality.
The Josiah Z. court suggested that the appropriate remedy for a child™s
appellate attorney who decides that a “good faith . . . argument for reversal
can[not] be made” is for the attorney to ¬le a no-merit brief; the court of
appeal would then “authorize trial counsel for the child to ¬le a letter brief
explaining why he or she believed the juvenile court committed prejudicial
error. If trial counsel can show arguable error, we will order supplemental
brie¬ng and thereafter review the merits.” This, of course, is a variant on the
remedy selected by the United States Supreme Court in Anders v. California,52
in which the Court determined that if a criminal defendant™s appellate attor-
ney could not discover any nonfrivolous appellate issues, the attorney should
attempt to withdraw from the case after ¬ling “a brief referring to anything
in the record that might arguably support the appeal” so that the indigent
can proceed with the appeal and so that the Court can appoint new appellate
counsel should the Court discern a colorable issue.53
Although the California Supreme Court, unlike courts in many other
states, has rejected a direct application of Anders to dependency appeals
because Anders was based upon the Sixth and Fourteenth Amendments, it
has suggested a similar procedure for dependency appeals.54 The California
Supreme Court in In re Sade C.55 determined that the appropriate remedy
for appellate attorneys in dependency cases is to ¬le a letter brief “setting

52 Anders 53 Id. at 744.
v. California, 386 U.S. 738 (1967).
54 Courts that have applied Anders to dependency proceedings include J. K. v. Lee County, 668
So. 2d 813 (Alaska 1995); In re Keller, 486 N. E. 2d 291 (Illinois 1985); Morris v. Lucas County
Children Serv. Bd., 550 N. E. 2d 291 (Ohio 1989); In re V. E., 611 A. 2d 1267 (Pennsylvania
1992); State v. Balfour, 814 P. 2d 1069 (Oregon 1991); In the Interest of D. E. S., et al., 135 S.
W. 3d 326 (Texas 2004).
55 In re Sade C., 55 Cal. Rptr. 2d 771 (1996). The California Supreme Court had earlier decided

that its pre-Anders appellate procedures met the requirements of the due process clause even
though they were not identical to those suggested in Anders. Under the California approach,
and unlike the Anders approach, counsel “neither explicitly states that the review has led
him or her to conclude that an appeal would be frivolous . . . nor request leave to withdraw.
Instead, counsel is silent on the merits of the case and expresses availability to brief any issues
on which the court might desire brie¬ng. . . . The appellate court . . . must conduct a review
of the entire record, regardless of whether the defendant has ¬led a pro se brief.” See Pullen
v. Florida, 802 So. 2d 1113, fn. 2 (Florida 2001); People v. Wende, 25 Cal. 3d 436 (1979).
132 Legal Ethics in Child Custody and Dependency Proceedings

forth a statement of the case, a summary of the facts, and potential arguable
issues”; however, unlike under Anders, the appellate court has no duty to
conduct an independent review of the record for arguable issues, and if the
dependency court party does not ¬le a supplemental appellate brief, the court
has discretion to dismiss the appeal.56 The problem with applying Sade C.,
the California version of Anders, in dependency appeals is that Josiah Z. does
not involve an attorney who is declaring that there are no colorable appellate
issues, but rather that she needs to investigate whether raising such issues, if
they exist, is still in the child™s best interest. This raises issues that were not
implicated in either Anders or Sade C., and the policies of those cases are not
implicated in Joziah Z.
The importance of Josiah Z. and Zeth S. is that they are perhaps the ¬rst
comprehensive discussions in American jurisprudence regarding the some-
times con¬‚icting roles of appointed trial and appellate counsel in child abuse
proceedings. Although those opinions have begun the debate, the results
in those cases raise at least one signi¬cant undecided issue. If the child™s
appointed appellate counsel cannot raise the relevance of postjudgment evi-
dence either on the vitality of the juvenile court™s order or on the wisdom of
proceeding with the appellate process that was begun months earlier by the
child™s trial counsel, who is available to represent the child on appeal as the
child™s guardian ad litem?57 Section 5106a of the Child Abuse Prevention and
Treatment and Adoption Reform Act,58 hereinafter, CAPTA, provides that
any state receiving federal child abuse and foster care funding must adopt
“provisions and procedures requiring that in every case involving an abused
or neglected child which results in a judicial proceeding, a guardian ad litem,
who has received training appropriate to the role, and who may be an attorney
or a court appointed special advocate who has received training appropri-
ate to the role (or both), shall be appointed to represent the child in such

56 In re Angbela S., 2003 WL 1232583 (California, March 18, 2003; unpublished). However,
even though the Supreme Court held in Sade C. that the court of appeal need not indepen-
dently review the record, courts have discretion to do so. In re Mario C., 2002 WL 1608470
(California, July 19, 2002; unpublished opinion).
57 The author, in his amicus curiae brief ¬led in the California Supreme Court in In re Josiah Z.,

was the ¬rst advocate to articulate the danger of holding that the child™s appellate attorney
cannot function as the child™s GAL in the appeal unless counsel can determine the child™s
best interest. See William Wesley Patton, Amicus Curiae Brief, for Whittier Law School Legal
Policy Clinic, ¬led on September 16, 2004, at 7“17.
58 42 U.S. C. § 5106a.
59 The California Legislature has indicated the importance of following the requirements under

CAPTA in appointing a GAL for abused children. In fact, during the legislative history of
Senate Bill 2160 in 2000, the legislature indicated that failure to follow those statutory dictates
Ethical Considerations and Constraints in Child Custody 133

This federal requirement does not make a distinction between trial and
appellate court proceedings or among any of the various detention, juris-
dictional, disposition, review, or termination of parental rights proceed-
ings inherent in child abuse litigation. Instead, the statute requires a GAL
for the abused child in “every case . . . in such proceedings.”60 Further, it
is clear that CAPTA is concerned with providing competent representation
not only in trial courts but also on appeal because one of the purposes
of the CAPTA grants is “improving legal preparation and representation,
including . . . procedures for appealing and responding to appeals of sub-
stantiated reports of abuse and neglect. . . .”61
California could meet the CAPTA guardian ad litem (GAL) requirement
by appointing a lay GAL for the child on appeal, by continuing the trial coun-
sel as the child™s GAL in the appellate court, or by ¬nding that the child™s
appellate attorney functions in the dual role as counsel/GAL in the appellate
courts unless a con¬‚ict of interests arises.62 The ¬rst option, of appointing
a new lay GAL, is problematic because doing so will introduce yet another
adult stranger into the child™s already frenetic and emotionally fragile life.
Of course, if a lay GAL represented the child in the trial court, then that
GAL could continue to represent the child on appeal. However, because the
arguments in the court of appeal or in the Supreme Court often require travel
away from the local juvenile courts, it may be dif¬cult for the lay guardian
to arrange such a travel schedule, especially if the GAL represents other chil-
dren. In addition, such travel expenses will increase the cost of the appellate
process. The second option, retaining the child™s trial attorney as the appel-
late GAL, was adopted by the California Supreme Court.63 However, that
option is equally problematic because doing so would introduce a second
attorney™s views on appeal regarding the child™s best interest, duplicate attor-
ney costs, and cause dif¬culty with the trial attorney™s scheduled cases during
the required travel time to the appellate court arguments. The third option
is the one rejected by the Josiah Z. court, which held that the child™s appellate

could result in a loss of $5.2 million in federal CAPTA funds. See www.leginfo.ca.gov/pub-
99-00/bill/sen/sb 2151-2200/sb 2160.
60 The Federal Code of Regulations, section 1340.14(g) also states, “In every case involving an

abused or neglected child which results in a judicial proceeding, the State must ensure the
appointment of a guardian ad litem or other individual whom the state recognizes as ful¬lling
the same functions as a guardian ad litem, to represent and protect the rights and best interests
of the child.”
61 42 U.S. C. § 5106a (a) (2) (B) (i); see also Appellant™s Answer, supra note 70, at 4.
62 The court in In re Charles T., 102 Cal. App. 4th 869 (2002), found that there was no inherent

con¬‚ict of interest in having appellate counsel serve as the GAL.
63 In re Josiah Z., 31 Cal. Rptr. 3d 472, 485 (2005): The California Supreme Court determined

that appellate counsel, with the consent of the child or the child™s guardian ad litem, can
move to dismiss the dependency appeal based upon the best interests of the child. Id. at 485.
134 Legal Ethics in Child Custody and Dependency Proceedings

attorney lacks the discretion to consider the child™s best interests based upon
postjudgment evidence. However, who is in a better position to consider the
child™s current interest than the appellate counsel who has represented the
minor since the juvenile court judgment? In addition, having the attorney
function in the dual role as appellate advocate and as GAL will reduce the
administrative cost of dependency court appeals because only one fee and
only one travel expense will be involved. It will be interesting to see what
other state courts decide regarding the appropriate remedy when children™s
trial and appellate counsel disagree regarding the child™s appellate rights and
remedies. In addition, who will ultimately represent children as guardians
ad litem during the appellate process?64


The United States Supreme Court has termed the duty of loyalty to a client
as “˜perhaps the most basic™ responsibility of counsel. . . .”65 No jurisdiction
has expressly held that the duty of loyalty of counsel to clients is different
in appellate advocacy compared to all other attorney representation. As was
discussed in Chapter 1, con¬‚icts of interest implicate the duty of loyalty
because a client might presume that if an attorney has con¬‚icting obligations
then the attorney™s representation might violate both the duty of con¬dential-
ity and zealousness.66 Just so, if an apparently adverse party™s attorney, such as
counsel for the Department of Children and Family Services or counsel for an
abusing parent, represents the child on appeal, there is a real potential for a

64 Appellate Defenders, a group of court-appointed attorneys who represent abused children in

appeals in California, suggest that the child™s appellate attorney should give great deference
to decisions by the child™s trial counsel: “In deciding what position to take, the rebuttable
presumption is that appellate counsel should defer to trial counsel and take the same position
on appeal as was taken at trial, unless appellate counsel believes trial counsel was clearly
wrong or unless circumstances have changed signi¬cantly.” Guidelines for Minor™s Counsel on
Appeal, Appellate Defenders, www.adi-sandiego.com/dependency/guidelines minors.htm.
The Appellate Defender standards also suggest that often only a letter brief, rather than a full
appellate brief, should be ¬led if the child™s position is already briefed by another party and
that oral argument is not always a necessary component of the child™s appellate case. Id.
65 Burger v. Kemp, 107 S. Ct. 3114, 3129 (1987).
66 In addition to addressing con¬‚icts of interests in representing multiple parties in the same

appeal, appellate attorneys also have to be cognizant of potential con¬‚icts of interest in repre-
senting different clients in separate cases regarding the same appellate issue. These “positional
con¬‚icts” by a lawyer or law ¬rm “are more likely to be scrutinized on a comparative basis at
the appellate level. When faced with a potential positional con¬‚ict, the lawyer must consider
the likelihood of the identical issue being raised in each case, the likely impact of a decision
in favor of one client on the position of another client, and the signi¬cance of the issue.” If
the issue falls within ABA Model Rule 1.7 con¬‚icts, then the attorney must “obtain the client™s
consent after consultation.” Hunt, supra note 41, at 671.
Ethical Considerations and Constraints in Child Custody 135

violation of the duty of loyalty because the Department™s and/or the parent™s
position might con¬‚ict with the child™s stated preference on appeal. Although
American Bar Association Model Rule 1.7 permits an attorney to represent
two or more clients whose interests con¬‚ict, such representation can only
proceed after “the client consents after consultation. [And] [w]hen represen-
tation of multiple clients in a single matter is undertaken, the consultation
shall include explanation of the implications of the common representation
and the advantages and risks involved.” The problem in representing abused
children on appeal is that they will seldom have the capacity to make a volun-
tary and knowing waiver of the con¬‚ict of interest. In addition, it will be very
dif¬cult, even if the children can legally waive the con¬‚ict, to assess whether
they are also waiving their right to the duty of loyalty and con¬dentiality.
Therefore, it usually is a bad idea to permit the government™s or parents™
appellate attorney to represent the interests of the child unless it is extremely
clear that no potential con¬‚icts of interest are inherent or will develop during
that appellate representation.
So far, states have not determined that abused children have a constitu-
tional right to separately appointed appellate counsel in child abuse appeals.
However, in states that have supplied parents and/or the state a right to appeal
dependency judgments, children might raise a colorable argument that deny-
ing them appellate access violates equal protection. Even though states are not
constitutionally required to provide civil appeals, the United States Supreme
Court has held that “once established, these avenues must be kept free of
unreasoned distinctions that can only impede open and equal access to the
courts.”67 For instance, in California a juvenile who had been adjudicated
a delinquent argued that he was denied equal protection because he, unlike
adult crimininal defendants, was not provided with a right to noti¬cation of
his right to appeal or his right to appointed counsel.68 The court of appeal
found that the minor was denied equal protection because in “cases touch-
ing upon fundamental interests of the individual, the state bears the burden
of establishing not only that it has a compelling interest which justi¬es the
suspect classi¬cation, but also that the distinctions drawn by the regulation
are necessary to further its purpose.”69 However, whether state courts will
¬nd a child™s right to association with parents and/or siblings a suf¬cient

67 Rinaldi v. Yeager, 384 U.S. 305, 310 (1966).
68 In the Matter of Arthur N., 112 Cal. Rptr. 89 (California 1974).
69 Id. at 91. One California court has held that equal protection was not violated by providing

different appellate rules for appealing the denial of suppression motions in criminal and
juvenile court because the right to exclude evidence is not a funadamental right and the state
need only demonstrate a rational basis supporting the distinction. In re David. G., 155 Cal.
Rptr. 500, 502“503 (California 1979).
136 Legal Ethics in Child Custody and Dependency Proceedings

fundamental right to require a compelling state interest to support different
appellate procedural rules for adults and abused children is uncertain.70
The California appellate scheme provides two potential equal protection
arguments by dependent children. The ¬rst is that, although court rules pro-
vide the court with discretion to provide both parents and child appellants
appointed counsel, in reality, judges routinely appoint counsel for parents,
but almost never for children.71 Children might argue that the failure to exer-
cise discretion to appoint appellate counsel for them is the equivalent of the
denial of the right to counsel that is almost always granted to parents.72 And
second, California courts only have discretion to appoint counsel for appel-
lants, not dependency court respondents.73 Children who want counsel to
help them secure the bene¬ts of the dependency court judgment as respon-
dents could argue that they are discriminated against because children seek-
ing to set aside court orders can be provided counsel at the discretion of the
appellate court. Whether a state™s economic argument that child respondents
do not need counsel because other adults, either the Department of Child
and Family Services or their parents, will argue the respondent™s position will

70 The two principal United States Supreme Court cases concerning equal protection regarding

appellate rights both concerned criminal appeals. For instance, in Grif¬n v. Illinois, 76 S.
Ct. 585 (1956), the Court determined that once a state established a ¬rst right of appeal in
criminal cases, equal protection requires similar treatment of indigents and nonindigents.
And in Douglas v. California, 83 S. Ct. 814 (1963), the Court held that denying indigent
criminal defendants appointed appellate counsel denied them equal protection. Because the
Supreme Court held in Lassiter that due process does not require appointment of counsel
to every parent whose parental rights are subject to termination, it is uncertain whether
the Court will apply the equal protection clause to dependency appeals. However, because
the issue of equal protection does not implicate whether the state must provide appellate
remedies as a matter of due process, but rather whether the state can differentiate among
different parties in dependency appeals, there is nothing inconsistent in the court ¬nding that
equal protection applies to denial of counsel in dependency appeals. There is also a question
of whether the Court would require that appointed appellate counsel be competent, even
though the Court held that criminal defendants have a right to competent appellate attorneys.
Evitts v. Lucey, 105 S. Ct. 830 (1985). Pennyslvania has determined that juvenile delinquents
also have a right to competent appellate counsel. In the Interest of A.P., 617 A. 2d 764 (1992).
71 California Rules of Court, Rule 1435 provides that “[a]ll appellants are entitled to represen-

tation by counsel [on appeal] and the reviewing court may appoint counsel to represent an
indigent child, parent, or guardian.”
72 The California Supreme Court noted that there “is no uniform statewide requirement or

practice that separate counsel be appointed for the minor in an appeal by the parent from
an order terminating parental rights. . . . The parties have not asked us to address that
circumstance, nor do the facts of this case present us with an occasion to consider it. It is
noteworthy that the Fourth District Court of Appeal is the only Court of Appeal statewide to
presently require appointment of counsel for the minor in all dependency appeals coming
before that court.” In re Zeth S., 2 Cal. Rptr. 3d 683, fn. 6 (California 2003).
73 Id. Rule 1435 (d) provides the “right of an indigent appellant to have counsel appointed by

the reviewing court.”
Ethical Considerations and Constraints in Child Custody 137

satisfy the equal protection compelling interest standard is uncertain. Those
arguments have been articulated for denying children zealous advocates in
the trial court on the theory that all other adults will present the relevant law
and facts.
Because no state has yet decided that children have a procedural due pro-
cess or equal protection right to appointment of separate appellate counsel, it
is an open question whether the child™s trial counsel or the appellate counsel
representing the Department of Children and Family Services or the parents
on appeal has an obligation to alert the court either of the child™s need for
separate counsel or of any potential or actual con¬‚icts of interest inherent in
dual appellate representation. However, because state professional responsi-
bility con¬‚ict rules apply to all proceedings, including appellate proceedings,
counsel arguably have a duty to resolve con¬‚icts in the dual representation
of children and other clients during the appeal.74
But unlike the questions of whether there is a constitutional right to
appointed appellate counsel or the scope of con¬‚icts of interest on appeal,
it is clear that most ethics codes have held that the duty of candor toward
the tribunal trumps the duty of client loyalty in some circumstances. “[A]n
appellate attorney™s loyalties are divided between the duty of candor owed to
the court and the duty of zealous representation owed to the clients. Where
these duties con¬‚ict, ˜the duty to the court is paramount, even to the interests
of his client.™”75 Of course, like most ethics rules, application of the standard
to discrete contexts permits creative interpretation.
Lying to the court of appeal, of course, is clearly inappropriate. For
instance, in People v. Roose76 an attorney was disbarred for violating Colorado
rules of professional responsibility that prohibit an attorney from engaging
in “conduct involving dishonesty, fraud, deceit, or misrepresentation” and
that prohibit an attorney from knowingly making a false statement of mate-
rial fact or law to a tribunal.”77 The attorney in Roose was appointed by the
court to represent a mother in a child dependency proceeding. However,
during the second day of the jury trial, the attorney informed the court that
she was providing her client incompetent representation because this was
her ¬rst jury trial and that she did not really know how to proceed. The judge
denied the attorney™s motion to withdraw, and instead, appointed co-counsel
to represent the mother. The attorney informed the judge that she would not
proceed with co-counsel and began to walk out of the courtroom, leaving

74 “[T]he appellate lawyer must also conduct a con¬‚icts check.” Hunt, supra note 41, at 671.
75 Hunt, supra note 41, at 672, quoting from Steinle v. Warren, 765 F. 2d 95, 101 (7th Cir. 1985)

(citing VanBerkel v. Fox & Road Mach., 581 F. Supp. 1248 (D. Minn. 1984)).
76 People v. Roose, 44 P. 3d 266 (Colorado 2002).
77 Id. at 270“272 (quoting from Colorado RPC 8.4 and 3.3(a)(1)).
138 Legal Ethics in Child Custody and Dependency Proceedings

her client and co-counsel behind. The judge informed the attorney that if she
left the courtroom he would hold her in contempt of court. Co-counsel, after
consulting with the mother by telephone, entered the mother™s admission to
the neglect charges and the jury was dismissed. The court held the ¬rst attor-
ney in contempt of court and terminated the attorney™s representation of the
mother. However, when the attorney learned that the mother had pleaded
to the allegations, she ¬led a motion to set aside the plea. The trial court
again informed that attorney that she had been relieved from representing
the mother and that she must not ¬le any more court documents for the
mother. But the attorney ¬led a notice of appeal for the mother in which
she listed herself as the mother™s attorney and did not indicate that she had
been removed from the case, with orders by the trial judge not to ¬le any
more motions on behalf of the mother. The notice of appeal also included
statements that were clearly not true, including that the mother had been
excluded from the proceedings at one point.
The court in the attorney disciplinary ethics hearing found the series of
false statements and the abandonment of her client when the attorney left
the jury trial to be suf¬cient evidence to warrant disbarment. The court
referenced ABA Standard 6.11, which provides, “Disbarment is generally
appropriate when a lawyer, with the intent to deceive the court, makes a
false statement, submits a false document, or improperly withholds material
information, and causes serious or potentially serious injury to a party, or
causes a signi¬cant or potentially signi¬cant adverse effect on the legal pro-
ceeding.” It was clear that the attorney had on multiple occasions made false
statements. The prejudice to the mother occurred when the attorney tried to
intercede in the case and upset the mother to such a degree that the mother
chose not to participate in the termination of parental rights proceeding.
“The loss of that opportunity [to personally participate in that hearing] con-
stituted a serious injury to the client.”78 Although the remedy of disbarment
is not surprising based upon the seriousness and number of ethical violations
in this case, the court™s analysis on harm to the client is interesting because it
omits a step that is required in an incompetence of counsel claim. To set aside
a verdict based upon incompetence of counsel, the parent in a dependency
proceeding must not only demonstrate that the attorney performed at a level
below the reasonable practitioner in that ¬eld of law but also that the client
was prejudiced by the attorney™s incompetence. Many courts place upon the
parent the burden of showing that without counsel™s incompetence the par-
ent would have received a more favorable result. However, in determining
the level of sanction for ethical violations, the Roose court only required a

78 Id. at 273.
Ethical Considerations and Constraints in Child Custody 139

¬nding of potential injury to the client, a much lower standard that would
not support reversal based upon incompetence of counsel. The irony in Reese
is that the disciplined attorney attempted to convince the court to permit
her to withdraw based upon her incompetency because she did not know
how to conduct a jury trial. If the judge had granted her motion to withdraw,
the attorney might never have been disciplined; however, if the mother had
¬led for a reversal of the verdict based upon her attorney™s admission of
incompetence of counsel, she would likely have lost that motion because she
would not have been able to demonstrate the likelihood of a more favorable
On the other end of the spectrum from the duty not to deceive the court
is the duty to disclose controlling authority even if such disclosure is detri-
mental to the client™s case. For instance, ABA Model Rule 3.3(a)(3) requires
that “[a] lawyer shall not knowingly . . . fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel.”
Although this mandate clearly states that an atttorney™s duty as an of¬cer of
the court trumps the duty of client loyalty regarding adverse legal author-
ity, many critics have debated this mandate™s ef¬cacy. For example, Monroe
Freedman has argued that the adversary system itself is the best assurance that
all applicable law will be brought to the court™s attention.79 Because the plain-
tiff and the defendant often have equal access to legal materials, one might
argue that this duel or legal combat should not be tilted by requiring adverse
counsel to assist the adversary. However, Judge Roger J. Miner justi¬es the
disclosure rule because the appellate court should provide “a level playing”
¬eld in which not all attorneys are of equal ability.80 He suggests that justice,
not a “anything-goes-for-a-client mindset,” is the core of the American judi-
cial system and that “[w]e must not lose sight of the fact that the purpose
of our enterprise is justice under the law and that anything that moves us
away from that purpose, including the non-disclosure of legal precedent, is
to be condemned.”81 Judge Miner argues that the rule of disclosure should
be expanded to include authority from other jurisdictions.82
Of course, even if one agrees with the rule, attorneys have for decades
used their creativity to avoid its application by determining that a seemingly
controlling case is distinguishable. And a number of appellate opinions have
narrowly interpreted the duty to disclose adverse authority in determining
that all elements of the mandate must be present before an attorney can be

79 Monroe H. Freedman, Arguing the Law in an Adversary System, 16 GA. L. REV. 833 (1982).
80 Honorable Roger J. Miner, Professional Responsibility in Appellate Practice: A View from the
Bench, 19 PACE L. REV. 323, 330 (1999).
81 Id. at 329. 82 Id.
140 Legal Ethics in Child Custody and Dependency Proceedings

found to have violated the duty of disclosure.83 Thus, the attorney must have
“knowingly” failed to disclose authority in the controlling jurisdiction that
is “known” by the lawyer to be “directly” adverse to the client™s position and
“not disclosed” by opposing counsel.
It thus does not take a creative legal genius to see the many ways around
being found to have violated this duty of disclosure. First, how will the
court determine that an attorney knows the particular legal opinion under
consideration? Would it be suf¬cient to demonstrate that counsel has cited the
opinion in other clients™ cases? If so, must the ethics panel determine whether
the reasonable attorney should remember every case cited in other cases
during his or her career? Who is going to disclose the attorney™s failure to cite
the adverse authority? Because opposing counsel has not cited the authority,
it is unlikely that opposing counsel will even know of its existence. If the trial
court locates the authority, how would the court prove that the attorney had
also found the case unless the attorney admitted such knowledge? And how
can the court determine that an attorney who found the authority “knew”
that it was controlling if he or she has at least a nonfrivolous argument for
why the case is distinguishable and therefore not controlling in the case?
Thus, there are few appellate opinions disciplining an attorney for failing to
cite adverse authority.84 However, courts have held that the duty of disclosure
applies even after oral argument and exists as long as the court has jurisdiction
in the case.85
Finally, the duty of candor applies to statements of the case and facts in
appellate briefs: “Candor to the court requires fairly portraying the record.”86
For instance, in CDD Programs, Ltd. v. Leighton,87 the court indicated that
the duty of candor requires “scrupulous accuracy” to the record because the
court “relies on counsel to state clearly, candidly, and accurately the record
as it in fact exists.” Of course, that does not mean that appellate attorneys in
child dependency or child custody proceedings must excise all adjectives and
adverbs in zealously providing an accurate statement of the facts. However,
if appellate attorneys™ statements of facts wax too hyperbolic, there is a risk
that the justices will conclude that counsel is attempting to “dupe” the court

83 For a discussion of the cases analyzing violations of the duty to disclose adverse authority
in the controlling jurisdiction, see, e.g., Eric J. Magnuson, Ethical Issues on Appeal, 19 WM.
MITCHELL L. REV. 659, 672“679 (1993); J. Michael Medina, Ethical Concerns in Civil Appellate
Advocacy, 43 SW. L. J. 677, 704“715 (1989).
84 For a case holding that an attorney failed to disclose adverse controlling authority, see Dorso

Trailer Sales, Inc. v. American Body & Trailer, Inc., 464 N. W. 2d 551, rev. in part at 482 N. W.
2d 771, 773 (Minnesota 1992).
85 See, e.g., Board of License Commissioners v. Pastore, 469 U.S. 238, 240 (1985).
86 Hunt, supra note 41, at 677.
87 DCD Programs, Ltd. v. Leighton, 846 F. 2d 526 (9th Cir. 1988).
Ethical Considerations and Constraints in Child Custody 141

and that attitude may in¬‚uence the justices™ attribution of credibility to the
remainder of counsel™s arguments. In addition, the duty of candor requires
counsel to refer only to data that were presented to the trial court. Facts out-
side the record usually need to be presented through a companion extraor-
dinary writ.88


Most states apply liberal construction rules to family custody and dependency
appeals, in part because of the seriousness of the substantive rights involved
and in part because many of these appeals are ¬led without the assistance
of appellate counsel. For example, a father in a Minnesota termination of
parental rights appeal alleged that the government™s evidence was insuf¬cient
to support the termination order; however, “the father failed to challenge
speci¬cally the ˜neglected and in foster care™ basis for terminating parental
rights. . . .”89 Even though the father™s appeal was statutorily de¬cient because
it did not expressly attack each of the county™s grounds for termination, the
appellate court found the notice of appeal suf¬cient: “We discern no prejudice
to the county, the guardian ad litem, or father in treating the issue in this
manner and refuse to summarily af¬rm the termination of father™s parental
rights.”90 In an Oklahoma case the county moved to dismiss the parents™
appeal in a child dependency case because they failed to follow statutory
requirements of appeals by failing to “(1) show by af¬davit the facts entitling
them to an appeal; (2) state in the notice of appeal whether errors were upon
questions of law, fact or both, and if upon a question of law the particular
ground for appeal relied upon; (3) execute a proper appeal bond executed by
two suf¬cient sureties; (4) ¬le an appeal bond conditioned upon presenting
the appeal without delay.”91 The appellate court rejected the county™s motion
to dismiss the appeal because a statute provided the court with “authority to
grant amendments in cases where the appellant, in good faith, gives notice
of appeal but inadvertently fails to do other acts necessary to perfect such
appeal.”92 The court concluded that “statutes granting a right of appeal are
to be construed liberally to effect the ends of justice.”93
Most appellate courts will not dismiss dependency appeals based
upon technicial violations of statutory requirements unless prejudice is

88 Hunt, supra note 41, at 679.
89 In the Matter of the Welfare of J. L. and T. L., 1994 WL 34199 (Minn. App., February 8, 1994;

90 Id. at 1.
91 Livingston v. Graham, 396 P. 2d 496, 498 (Oklahoma, 1964).
92 Id. at 498“499. 93 Id. at 499.
142 Legal Ethics in Child Custody and Dependency Proceedings

demonstrated. For instance, in In re Serena M.94 the county moved to dismiss
the parents™ appeal because the notice of appeal was signed by the parents™
attorney, but not, as required, by the parents themselves. The appellate court
stated that a notice to appeal is to be liberally construed, and that because the
parents “attended the contested six-month review hearing, opposed continu-
ation of jurisdiction and received notice of ¬ling of their notices of appeal,” it
is clear that counsel did not ¬le the notice of appeal without the parents™ con-
sent.95 Further, although many states prohibit appealing errors that occurred
prior to the termination of parental rights hearing for the ¬rst time in a ter-
mination appeal, liberal construction rules have been applied to permit such
appeals if the parents were not properly informed of their appellate rights
in the pre-termination hearings. As one court noted: “In failing to provide
appellant notice of her right to appeal, the juvenile court erred. . . . Under the
cirucmstances of this case, and in light of appellant™s ineffective assistance
of counsel claim, we address each of appellant™s contentions on their mer-
its, including those relating to hearings held prior to the . . . [permanency
planning hearing”].96
In addition to the procedural requirements of appeals, jurisdictions differ
regarding which juvenile dependency orders are directly appealable, the tim-
ing of those appeals, and the designation of which issues must be brought
by a writ rather than a direct appeal. For instance, in Florida dependency
appeals receive expedited treatment;97 however, whether adjudication hear-
ings that do not result in termination of parental rights are suf¬ciently ¬nal
judgments that trigger the duty to timely appeal such ¬ndings has proven
a dif¬cult question of law. Although states differ in their de¬nitions of ¬nal
orders that are appealable, Arizona™s de¬nition is consistent with those in
most jurisdictions: “a ¬nal order was one ˜which ends the proceedings, leav-
ing no question open for further judicial action. . . .™”98 The Arizona court

94 In re Serena M., 2002 WL 31677059 (California, November 27, 2002; unpublished).
95 Id. at 2. See also In re Christopher C., 2002 WL 31082393 (California, September 17, 2002;
96 In re Mariah L., 2002 WL 31479043, at 7 (California, November 7, 2002; unpublished). And

A. V. v. Morgan County of Department of Human Resources, 623 So. 2d 331 (Alabama 1993)
held that liberal rules relating to the appellate record apply in child dependency cases. That
court held that even though there were “some inaudible” portions of the taped transcript
of the hearing, because there were over 500 pages available for review, that evidence was
suf¬cient to be certi¬ed as the appellate record for review.
97 G. L. S. v. Department of Children and Families, 724 So. 2d 1181, 1186 (Florida 1998): “The

district court of appeal shall give an appeal from an order terminating parental rights priority
in docketing and shall render a decision on the appeal as expeditiously as possible.” Fla. Stat.
§ 39.473.
98 In the Matter of Appeal in Yavapai County Juvenile Action No. J-8545, 680 P. 2d 146, 150

Ethical Considerations and Constraints in Child Custody 143

noted that because periodic reviews reaf¬rming earlier ¬ndings of depen-
dency are ¬nal decisions, they are therefore appealable.99 But the timing of
the appeal for each dependency proceeding often is determinative of whether
appeals have been properly perfected. For instance, in G. L. S. v. Department
of Children and Families,100 the court of appeal determined that adjudication
orders in which parental rights are terminated are ¬nal orders and are appeal-
able. However, the court found that because the parents did not timely ¬le a
notice of appeal from that adjudication hearing, the parents™ appeal from the
termination order must be dismissed because “this Court is without juris-
diction to review it at this juncture.” The court of appeal suggested that the
parents have a “right to apply to the trial court for a belated appeal pursuant
to a petition for writ of habeas corpus.”101 In contrast, California courts have
given the term “¬nal order” a much narrower de¬nition than many other
states. For instance, in In re Tomi C.,102 the court of appeal held that an order
dismissing the dependency proceedings was not appealable because it was
not a ¬nal order since the proceedings were not dismissed with prejudice and
could be ¬led again by the Department of Family and Children™s Services. In
contrast, the Florida Supreme Court upheld the court of appeal ¬nding that a
termination of parental rights order at the adjudication hearing is appealable;
however, it determined that the adjudication termination order could also
be appealed from the subsequent dispositional hearing order.103 Imagine pro
per parents attempting to maneuver in this procedural appellate morass that
the Florida Supreme Court termed an “ambiguous post-disposition statu-
tory framework.”104 In jurisdictions that do not have liberal construction
rules on appeal, the parents would be precluded from even gaining appellate
review of the decision to sever their fundamental right to rear their children.


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