In re A.R. ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
In re A.R., a Person Coming Under the Juvenile Court Law.
__________________________________________________
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Respondent,
v.
M.B.,
Defendant and Appellant.
S260928
First Appellate District, Division One
A158143
Alameda County Superior Court
JD02839802
April 5, 2021
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Groban, and Jenkins concurred.
In re A.R.
S260928
Opinion of the Court by Kruger, J.
When the juvenile court terminated M.B.’s parental rights
to her minor child, M.B. promptly directed her court-appointed
attorney to appeal. The attorney mistakenly filed the notice of
appeal four days late, however, and the Court of Appeal
dismissed M.B.’s appeal as untimely. The question presented is
whether, as a result of her attorney’s mistake, M.B. has
irrevocably lost her right to appeal the termination of her
parental rights. We conclude the answer is no. By statute, every
parent facing the termination of parental rights is entitled to the
assistance of competent counsel (Welf. & Inst. Code, §§ 317,
317.5, 366.26, subd. (f)(2)), as well as the right to appeal an
adverse ruling (id., § 366.26, subd. (i)(1)). When an attorney
fails to file a timely appeal in accordance with a client’s
instructions, the parent may seek relief based on the attorney’s
failure to provide competent representation. Because time is of
the essence in matters affecting children’s long-term placement,
whether relief is granted will depend on the parent’s promptness
and diligence in pursuing the appeal.
I.
M.B. gave birth to A.R. in 2016. At the time, M.B. herself
was still a minor. Less than a year later, the Alameda County
Social Services Agency (Agency) filed a petition under Welfare
and Institutions Code section 300 to have A.R. declared a
dependent of the court. The operative petition alleged that M.B.
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had mental health concerns, such as depression, that impeded
her ability to care for her child. The juvenile court sustained the
petition. Although the court attempted to place A.R. with M.B.,
M.B. later raised concerns about her ability to care for A.R.
while she finished high school. The court ordered A.R. placed in
a foster home while M.B. participated in family reunification
services.
Several months later, the court entered an order
terminating reunification services. The court noted that it was
encouraged by the mother’s recent progress, however, and
expressed openness to M.B. bringing a future petition under
Welfare and Institutions Code section 388 (section 388) to
modify the order. M.B.’s court-appointed attorney prepared a
record documenting M.B.’s progress as a parent and her bond
with A.R. The court later found M.B. had made a prima facie
case that circumstances had changed so as to warrant
modification and accordingly granted her an evidentiary
hearing.
Two years after A.R. was first declared a dependent, the
juvenile court scheduled a hearing to determine whether to
grant M.B.’s section 388 modification petition or, in the
alternative, whether to terminate M.B.’s parental rights. (See
Welf. & Inst. Code, § 366.26 (section 366.26).) Although M.B.
had planned to testify in support of her section 388 petition, on
the day of the hearing she had a health emergency that landed
her in the emergency room and was unable to attend. Because
her original court-appointed attorney was in the process of
quitting her job at the time, a new attorney participated in the
hearing on M.B.’s behalf.
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At the hearing, the court rejected M.B.’s section 388
modification petition, having excluded M.B.’s supporting
evidence on technical grounds. The court then turned to the
question of whether to permanently sever M.B.’s parental
rights. M.B.’s attorney urged the court instead to apply the
beneficial parental relationship exception to the termination of
parental rights. (§ 366.26, subd. (c)(1)(B)(i).) The court rejected
that argument and entered an order terminating M.B.’s
parental rights.
Five days after the juvenile court ruled against her, M.B.
asked her new court-appointed counsel to file an appeal. Her
attorney, however, forgot about the request until it was too late:
The attorney did not file a notice of appeal on her client’s behalf
until four days after the 60-day filing deadline had passed.
The Court of Appeal initially docketed M.B.’s untimely
appeal. Some months later, M.B. timely filed her opening brief
on the merits along with an application for relief from default.
In the application, M.B. acknowledged her counsel’s error in
filing the notice of appeal and asked the court to consider the
notice of appeal to have been timely filed. The Court of Appeal
denied the application and dismissed M.B.’s appeal for lack of
jurisdiction. M.B. then filed a petition for a writ of habeas
corpus in the Court of Appeal, alleging that her attorney’s
substandard performance had denied her the right to pursue an
appeal. The court also denied M.B.’s habeas corpus petition,
albeit without prejudice to refiling it in the trial court.
We granted review, directing the parties to address two
issues: (1) whether a parent has the right to challenge her
counsel’s failure to file a timely notice of appeal from an order
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Opinion of the Court by Kruger, J.
terminating her parental rights, and (2) if she has such a right,
the proper procedures for raising such a claim.
II.
A.
The juvenile dependency law is designed “to provide
maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety,
protection, and physical and emotional well-being of children
who are at risk of that harm.” (Welf. & Inst. Code, § 300.2.) The
law authorizes a court to declare a child facing abuse or neglect
to be a dependent of the court. (Id., § 300.) Once the child has
been declared a dependent, “the statutory scheme is designed to
allow retention of parental rights to the greatest degree
consistent with the child’s safety and welfare, and to return full
custody and control to the parents or guardians if, and as soon
as, the circumstances warrant.” (In re Ethan C. (2012) 54
Cal.4th 610, 625.) “[T]he general rule is that when a dependent
child is removed from the parent’s or guardian’s physical
custody, child welfare services, including family reunification
services, must be offered.” (Id. at p. 626.) The court then
conducts periodic check-ins to determine whether the child may
safely be returned to the parent or guardian. (Ibid.) If the
answer is no, the court may decide to terminate parental rights
and order that the child be placed for adoption. (Ibid.; see
§ 366.26, subds. (b)(1), (c)(1); see generally Ethan C., at pp. 623–
626; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247–
249.)
While terminating parental rights is sometimes necessary
to secure the child’s long-term welfare, it is a uniquely serious
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step — one widely recognized as ranking “among the most
severe forms of state action.” (M. L. B. v. S. L. J. (1996) 519 U.S.
102, 128.) To guard against the risk that parental rights will be
terminated in error, the Legislature has enacted several
significant procedural protections. (In re James F. (2008) 42
Cal.4th 901, 904.) Two of those protections are central to the
issue we confront in this case.
The first protection is the right to counsel. Depending on
the circumstances of the case, constitutional due process
sometimes demands the appointment of counsel for a parent
facing the termination of rights. (Lassiter v. Department of
Social Services (1981) 452 U.S. 18, 32; In re Sade C. (1996) 13
Cal.4th 952, 984.) But even when court-appointed counsel may
not be constitutionally required, California statutory law has
long required the appointment of counsel in connection with
parental rights termination proceedings. (Welf. & Inst. Code,
§§ 317 (section 317), 317.5 (section 317.5), 366.26, subd. (f)(2).)
The right dates back to 1965, when the Legislature granted
indigent parents the right to court-appointed counsel in
termination hearings. (Civ. Code, former § 237.5, added by
Stats. 1965, ch. 1530, § 3, p. 3624, repealed by Stats. 1992,
ch. 162, § 2, p. 464.) Two decades later, the Legislature
expanded that guarantee to any dependency proceeding in
which out-of-home placement is at stake. (§ 317, subd. (b),
added by Stats. 1987, ch. 1485, § 21, p. 5613.) Finally, in 1994,
the Legislature added a provision specifying, in unusually
explicit terms, that “[a]ll parties who are represented by counsel
at dependency proceedings” are “entitled to competent counsel.”
(§ 317.5, subd. (a), added by Stats. 1994, ch. 1073, § 1, p. 6425,
italics added.) The amendment makes clear that under
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California law, every parent facing termination of parental
rights is entitled to competent representation.
The second procedural protection is the right of appeal.
Parents whose parental rights have been terminated are
entitled to appeal the order (§ 366.26, subd. (i)(1); see In re
Matthew C. (1993) 6 Cal.4th 386, 393), and no posttermination
petition for adoption may be granted before “the appellate rights
of the natural parents have been exhausted” (§ 366.26, subd. (j)).
After the parent’s appellate rights have been exhausted,
however, the juvenile court’s termination order becomes
“conclusive and binding,” and may not be set aside, changed, or
modified. (Id., subd. (i)(1).)
The issue in this case concerns what happens when denial
of the first protection — the right to competent counsel —
threatens the second protection, the right of appeal. Ordinarily,
the first step in pursuing an appeal is to file a timely notice of
appeal — which, under current rules of court, means filing
within 60 days of the challenged order. (Cal. Rules of Court,
rule 8.406(a)(1).) This is a jurisdictional deadline, meaning that
courts lack the power to extend it, regardless of whether failure
to meet the deadline was “wilful [sic] or inadvertent,”
“reasonable or unreasonable,” or rooted in “good faith or not.”
(Estate of Hanley (1943) 23 Cal.2d 120, 122 (Hanley); see Cal.
Rules of Court, rules 8.60(d), 8.104(b).) Here, M.B. and her
appointed attorney both attest that M.B. failed to file a timely
notice of appeal solely because her attorney failed to
competently discharge that responsibility. M.B. argues that the
appropriate remedy for the denial of her statutory entitlement
to competent representation is relief from default, which would
allow her to pursue her appeal notwithstanding her attorney’s
error. With certain caveats described below, we agree.
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Opinion of the Court by Kruger, J.
B.
As a general rule, a parent who has not received
competent representation in juvenile dependency proceedings is
entitled to seek relief based on denial of the statutory right. A
long line of appellate authority, beginning with In re Kristin H.
(1996) 46 Cal.App.4th 1635 (Kristin H.), so holds; we now affirm
the correctness of these decisions.
In Kristin H., the Court of Appeal considered a habeas
corpus petition filed by mother who claimed her attorney
performed incompetently by failing to investigate and introduce
favorable evidence at the dispositional stage of juvenile
dependency proceedings. (Kristin H., supra, 46 Cal.App.4th at
p. 1658.)1 Before Kristin H., appellate courts had agreed that
the right to counsel rooted in constitutional due process carried
with it a right to the effective assistance of counsel. (Kristin H.
1
Despite its familiar application in cases concerning official
confinement, California has long recognized habeas as a vehicle
for challenging child custody decisions. As early as 1892, this
court entertained a habeas petition by a mother seeking custody
of her child from the child’s uncle, on the ground that the
superior court order appointing the uncle guardian was void for
lack of jurisdiction. (In re Gates (1892) 95 Cal. 461–462.) The
logic underlying the habeas petition was that the child had been
“unlawfully restrained of her liberty” (id. at p. 461) by the
guardian; we ruled that since the superior court had lacked
jurisdiction, the child was to be “freed from all illegal restraint”
(id. at p. 462) and allowed to choose where to live. Since then,
this court has recognized that habeas corpus may be used to
“assert custody rights” as well as to “secure relief from
confinement resulting from criminal prosecution.” (In re
Richard M. (1975) 14 Cal.3d 783, 790; see id. at pp. 789–791;
accord, Adoption of Alexander S. (1988) 44 Cal.3d 857, 866–867;
In re Cody R. (2018) 30 Cal.App.5th 381, 392–393 [discussing
the availability of habeas corpus in the dependency context].)
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Opinion of the Court by Kruger, J.
at p. 1659, citing, inter alia, In re Christina P. (1985) 175
Cal.App.3d 115, 129.) But courts disagreed about whether the
same was true of the statutory right to counsel secured by
section 317. (Kristin H., at p. 1660.) Even before the
Legislature amended the statute to provide an explicit
guarantee of competent counsel, some courts analogized to
ineffective assistance of counsel in the criminal context and
“recognized claims based on violations of a statutory right to
counsel.” (Ibid.) Some courts, however, refused to recognize
claims based on violations of the statutory right to competent
counsel, reasoning that dependency cases are civil proceedings
in which “the paramount concern is the child’s welfare, and in
particular the child’s interest in the finality of the proceedings.”
(Id. at p. 1664; see also id. at p. 1660, citing, inter alia, In re
Michael S. (1981) 127 Cal.App.3d 348, 363–364.) In these
courts’ view, “allowing claims of ineffective assistance of counsel
will cause delay and consequently does not serve the best
interests of the child.” (Kristin H., at p. 1660; see also id. at
pp. 1665–1667 [cataloguing additional cases].)
Kristin H. concluded the Legislature effectively rejected
the latter approach in 1994 when it added the provision
guaranteeing representation by “competent counsel.” (§ 317.5,
subd. (a), italics added.) The court considered the wording
choice “particularly meaningful, as California case law defining
the right to effective assistance of counsel uses this word in the
test for determining adequacy of counsel” in adjudicating claims
of ineffective assistance. (Kristin H., supra, 46 Cal.App.4th at
p. 1662.) It then noted that the legislative history of the
provision, too, supported the conclusion that “the statutory right
to competent counsel carries with it the right to judicial review.”
(Id. at p. 1663.) In particular, the court highlighted portions of
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Opinion of the Court by Kruger, J.
the legislative history indicating that the 1994 revisions were
intended to address the “ ‘problem of a lack of any meaningful
process’ ” whereby parties in dependency proceedings could
“ ‘complain about their appointed counsel,’ ” and analogizing the
statutory right to counsel to the guarantees that would be
afforded a criminal defendant. (Ibid., quoting Assem. Com. on
Judiciary, Rep. on Sen. Bill No. 783 (1993–1994 Reg. Sess.) as
amended Apr. 13, 1994, p. 2.) In sum, the Kristin H. court saw
“nothing vague or ambiguous about th[e] directive” to provide
competent representation: Because the Legislature could not
have intended to create a “ ‘hollow right,’ ” the statutory right to
competent representation “must include the right to seek review
of claims of incompetence of counsel.” (Kristin H., at pp. 1660,
1662.)
The Kristin H. court acknowledged prior courts’ concerns
that claims of incompetent representation would delay the
finality of dependency proceedings. The court observed,
however, that the child’s interest in finality is not the only value
to consider; the child also has an important interest in ensuring
that her relationship with a parent is not erroneously severed
because of the incompetence of the parent’s lawyer. (Kristin H.,
supra, 46 Cal.App.4th at p. 1664.) The court also explained that
even if finality interests do not foreclose relief entirely, they do
require that parents act promptly in raising their claims. The
court cautioned that “untimeliness may in many cases preclude
review of claims of ineffective assistance of counsel,” since
“[n]owhere is timeliness more important than in a dependency
proceeding where a delay of months may seem like ‘forever’ to a
young child.” (Id. at p. 1667.) Applying these principles to the
case before it, the Kristin H. court permitted the mother to
proceed with her habeas petition challenging her attorney’s
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juvenile court performance. (Id. at p. 1642.) Since Kristin H.,
the Courts of Appeal have uniformly agreed that parents may
seek relief for incompetent representation in juvenile court
proceedings. (See, e.g., In re Paul W. (2007) 151 Cal.App.4th 37,
52–54; In re Darlice C. (2003) 105 Cal.App.4th 459, 465–466; In
re O. S. (2002) 102 Cal.App.4th 1402, 1406 & fn. 2; In re Carrie
M. (2001) 90 Cal.App.4th 530, 533–534.) Neither the Agency
nor A.R. disputes the point. We, too, agree that a parent may
seek relief for deprivation of the statutory right to competent
representation secured by sections 317 and 317.5.
C.
The central point of dispute between the parties concerns
whether the right to seek relief for incompetent representation
lapses with the jurisdictional deadline for filing a notice of
appeal from the parental rights termination order — even when
counsel’s incompetence is the very reason no filing has been
made by that deadline. The Agency and A.R. contend that, no
matter the reasons for the delayed filing, the passage of the
deadline marks the point at which the child’s interest in
avoiding unnecessary delay definitively overcomes any
countervailing interests the parent may have.
We emphatically agree that dependent children have a
critical interest in avoiding unnecessary delays to their long-
term placement. (See, e.g., In re Sade C., supra, 13 Cal.4th at
p. 993 [describing the “pointed and concrete harm” a child may
suffer from protracted custody proceedings]; Lehman v.
Lycoming County Children’s Services (1982) 458 U.S. 502, 512
(Lehman) [referencing the “exceptional need for finality in child-
custody disputes”].) But it does not follow that parents must
automatically lose the ability to seek redress for incompetent
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Opinion of the Court by Kruger, J.
representation as soon as the time for filing the notice of appeal
has passed. Certainly nothing in the statute says so. While the
statute makes an order terminating parental rights “conclusive
and binding,” it does so expressly subject to the parent’s right of
appeal. (§ 366.26, subd. (i)(1) [“nothing in this section shall be
construed to limit the right to appeal the [termination] order”].)
And to underscore the point, the statute further provides that
the child may not be adopted until “the appellate rights of the
natural parents have been exhausted.” (Id., subd. (j).) The
statute does not purport to deny appellate rights to a parent
whose appeal has been untimely filed because of counsel’s
mistakes.
And while finality is a critically important interest in
termination proceedings, it is not the only interest at stake.
Children and parents alike also have an interest in ensuring
that the parent-child relationship is not erroneously abridged.
(Kristin H., supra, 46 Cal.App.4th at p. 1664.) The Legislature
sought to protect this interest in accuracy by affording parents
a right to competent counsel, as well as a right of appellate
review. (§§ 317, 317.5, 366.26, subd. (i).) When parents raise a
timely claim that the deprivation of the first right has worked
to undermine the other, the logical remedy is to afford them the
appeal to which they are statutorily entitled, and thus to ensure
the decision to terminate parental rights has been made
accurately before it is made final.
The Agency and A.R. contend that any effort to revive an
appeal that occurs in the absence of a timely notice is prohibited
as a collateral attack on the juvenile court’s termination order.
They rely for this argument primarily on Adoption of Alexander
S., supra, 44 Cal.3d 857 (Alexander S.). In Alexander S., a birth
mother initially consented to adoption, but later changed her
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Opinion of the Court by Kruger, J.
mind and petitioned to withdraw the consent. The petition was
denied, and she did not appeal. Some months later, the birth
mother appealed a different order and sought in her appellate
brief to challenge the denial of her petition to withdraw consent
as well. The Court of Appeal acknowledged the time for
appealing the latter order had already lapsed, but attempted to
resuscitate the claim by treating the appeal as a petition for writ
of habeas corpus based on the incompetent performance of the
counsel who advised her to sign the consent to adoption. We
reversed, explaining: “Out of concern for the welfare of children
in adoption actions, we hold that habeas corpus may not be used
to collaterally attack a final nonmodifiable judgment in an
adoption-related action where the trial court had jurisdiction to
render the final judgment.” (Alexander S., at pp. 867–868.)
Alexander S. relied in turn on Ex parte Miller (1895) 109
Cal. 643. In that case, parents who had failed to file a timely
appeal of an order appointing a third party as the guardian of
their child later filed a habeas petition seeking to collaterally
attack the final appointment order on its merits. This court
rejected the petition, explaining that habeas corpus would lie
only to attack the jurisdiction of the court that entered the
guardianship order, not to establish a right to the custody of the
child as against her appointed guardian. (Miller, at pp. 646–
647.) Alexander S. affirmed Miller’s holding, concluding that
“sound public policy offers continued justification” for a rule that
avoids “[p]rotracted litigation over the custody of a child.”
(Alexander S., supra, 44 Cal.3d at p. 868.)
Neither Alexander S. nor Miller speaks to the situation we
confront here. Each of those cases concerned efforts to
repackage untimely appeals from certain final custody-related
orders as requests for habeas relief, based on alleged defects
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Opinion of the Court by Kruger, J.
that could have been fully addressed on appeal. In both cases,
those efforts were barred by the settled rule that “ ‘habeas
corpus cannot serve as a substitute for an appeal . . . .’ ”
(Alexander S., supra, 44 Cal.3d at p. 865, quoting In re Dixon
(1953) 41 Cal.2d 756, 759.) In neither case did the court consider
a habeas petition raising a claim of incompetent representation
that resulted in the loss of any opportunity to appeal. Indeed,
Alexander S. made this point explicitly, noting that the birth
mother in that case did not “assert any excuse for her failure to
file a timely notice of appeal” from the order denying her
withdrawal of consent. (Alexander S., at p. 865; accord, id. at
p. 863.) The rule that habeas cannot substitute for an appeal
has limited relevance where, as here, the only issue is whether
the litigant will be permitted the opportunity to pursue her
appeal in the first place.
Notwithstanding the differences between Alexander S.,
Miller, and this case, we reaffirm those cases’ emphasis on the
importance of avoiding protracted litigation over matters
concerning a child’s long-term placement. (Alexander S., supra,
44 Cal.3d at p. 868.) As we will explain further below, this policy
requires courts to consider whether parents have acted
promptly and diligently in pursuing their rights before granting
relief. But the policy does not erect an absolute bar to relief for
the parent whose attorney mistakenly files the notice of appeal
after the deadline or fails to file it entirely despite a request from
the parent to do so, thereby denying the parent the benefit of
important statutory protections against erroneous decisions. In
many cases the risk of delay is minimal when compared to the
ordinary timing of an appeal: Here, for example, M.B.’s notice
of appeal was filed just four days late; M.B. promptly attempted
to remedy the error, and filed her appellate brief on time. To
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categorically cut off any possibility of appeal in such case would
not serve any meaningful interest in avoiding unnecessary
delay. It would instead serve only to penalize the parent for
relying on the putatively “competent counsel” to which she is
statutorily entitled. (§ 317.5, subd. (a).)2
D.
Having concluded that parents may raise an incompetent
representation claim based on the untimely filing of a notice of
appeal, we now address several questions about the contours of
such claims and the procedures for raising them.
The first question concerns the substantive showing
necessary to establish a prima facie case for relief. In general,
“[a] parent seeking review of a claimed violation of section 317.5
must show a violation of the statute, i.e., that counsel failed to
act in a manner to be expected of reasonably competent
attorneys practicing in the field of juvenile dependency law.”
(Kristin H., supra, 46 Cal.App.4th at pp. 1667–1668.) As the
high court has observed, “a lawyer who disregards specific
instructions from [his or her client] to file a notice of appeal acts
in a manner that is professionally unreasonable.” (Roe v. Flores-
Ortega (2000) 528 U.S. 470, 477 (Flores-Ortega).) A parent
therefore generally will satisfy this requirement by showing
2
We disapprove the following cases to the extent they are
inconsistent with the conclusion that parents in M.B.’s situation
may be entitled to relief from default: In re J.A. (2019) 43
Cal.App.5th 49, 56; In re Z.S. (2015) 235 Cal.App.4th 754, 769–
770; In re Ryan R. (2004) 122 Cal.App.4th 595, 598; In re Alyssa
H. (1994) 22 Cal.App.4th 1249, 1254; In re Ricky H. (1992) 10
Cal.App.4th 552, 560; In re Issac J. (1992) 4 Cal.App.4th 525,
533; In re A.M. (1989) 216 Cal.App.3d 319, 322.
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that counsel was directed to file an appeal on behalf of a parent
but failed to do so in a timely manner.3
But a showing of incompetence is usually only the first
step in making out a claim of error based on the ineffective
assistance of counsel; the represented party ordinarily must also
establish that the attorney’s unprofessional performance was
prejudicial. (Kristin H., supra, 46 Cal.App.4th at p. 1668.)
Where, as here, the claim of error is based on violation of a state
statute, the test for prejudice is generally whether “it is
reasonably probable that a result more favorable to [her] would
have been reached in the absence of the error.” (People v.
Watson (1956) 46 Cal.2d 818, 836.)
The parties disagree about the showing necessary to
satisfy this prong of the analysis. The Agency contends that in
a case concerning a late-filed notice of appeal, a parent must
demonstrate that there is a reasonable probability she would
have prevailed on appeal if the notice of appeal had been timely
filed. M.B. counters that no such showing should be required; it
is enough for the parent to show that she directed her attorney
to appeal and the attorney failed to file a timely notice.
We reject the Agency’s contention that Watson imposes a
likelihood-of-success condition on the right to pursue an appeal
in these circumstances. For a parent whose attorney has
incompetently failed to file a timely appeal, the relevant injury
is not denial of any specific substantive appellate victory; it is
the opportunity to appeal at all. Confronting a similar question
in the context of criminal appeals, the United States Supreme
3
We do not here address a situation in which the lawyer
concludes that there are no arguable grounds for appeal. (See
In re Sade C., supra, 13 Cal.4th at p. 982.)
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Court has held that when attorney incompetence deprives a
criminal defendant of the right to pursue an appeal, the
defendant need not show “some likelihood of success on appeal”
in order to secure relief. (Rodriquez v. United States (1969) 395
U.S. 327, 330.) So long as there are “substantial reasons to
believe [a losing party] would have appealed” were it not for
attorney incompetence, a party seeking to revive the appeal can
demonstrate prejudice. (Flores-Ortega, supra, 528 U.S. at
p. 486; see also Garza v. Idaho (2019) ___ U.S. ___, ___ [139 S.Ct.
738, 742] [“[W]hen an attorney’s deficient performance costs a
defendant an appeal that the defendant would have otherwise
pursued, prejudice to the defendant should be presumed.”].) We
take a similar approach here: To ascertain prejudice, we focus
on whether the parent would have taken a timely appeal,
without requiring the parent to shoulder the further burden of
demonstrating the appeal was likely to be successful.
The final, and crucial, element of any successful claim to
relief based on incompetent representation is the claimant’s
promptness and diligence in pursuing an appeal. These
requirements are not unique to dependency proceedings. In In
re Benoit (1973) 10 Cal.3d 72 (Benoit), for example, this court
held the so-called constructive filing doctrine offered a form of
relief from default to prisoners whose attorneys failed to file
timely notices of appeal from their criminal convictions. We
advised, however, that the availability of this relief would
depend on the prisoner’s diligence in pursuing the appeal. We
cautioned that courts should not “indiscriminately permit” relief
from default for a defendant who “has displayed no diligence in
seeing that his attorney has discharged [his] responsibility.”
(Id. at p. 89; see also In re Jordan (1992) 4 Cal.4th 116, 122
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[discussing the appropriate test for assessing a prisoner’s
diligence].)
What we said in Benoit and Jordan applies with even
greater force in the dependency context, where the costs of delay
are particularly acute. The purpose of the dependency law is to
promote the well-being of children, ultimately by ensuring a safe
and stable permanent home. A parent who seeks to challenge a
termination order therefore must act promptly to avoid
jeopardizing the child’s long-term placement. Here, the notice
of appeal was filed just four days late, and M.B. promptly sought
relief from default along with her timely filed brief on the merits,
thus minimizing the risks of delay. This is not to suggest that a
four-day delay is the outer limit for promptness. But, as the
court advised in Kristin H., in many other cases the failure to
promptly seek relief “may . . . preclude review of claims of
ineffective assistance of counsel,” since “[n]owhere is timeliness
more important than in a dependency proceeding where a delay
of months may seem like ‘forever’ to a young child.” (Kristin H.,
supra, 46 Cal.App.4th at p. 1667.)
We next address the proper procedures for raising a claim
of incompetent representation based on counsel’s late filing of a
notice of appeal. We address two primary issues. First, M.B.
invites us to extend the constructive filing doctrine as
announced and applied in Benoit, to the juvenile dependency
context. Second, M.B. asks us to hold, as some courts have done,
that a constructive filing claim may be made by means of a
streamlined motion procedure. (See, e.g., People v. Zarazua
(2009) 179 Cal.App.4th 1054, 1062 (Zarazua).)
As to M.B.’s first point, we see no reason to extend the
constructive filing doctrine to this context. That doctrine
developed in the context of prison filings and has, historically,
17
In re A.R.
Opinion of the Court by Kruger, J.
been limited to cases involving incarcerated appellants who are
unable to personally ensure the timely filing of court documents,
and thus must rely on others, including prison officials and
counsel. (See Hollister Convalescent Hosp., Inc. v. Rico (1975)
15 Cal.3d 660, 669 (Hollister); see also Silverbrand v. County of
Los Angeles (2009) 46 Cal.4th 106, 129 [describing the doctrine
as a means of “ensur[ing]” that prisoners “are not denied access
to the appellate courts by obstacles . . . other litigants readily
could overcome”].) For such litigants, we have explained,
“diligent but futile efforts” to file a timely appeal may be treated
as “in themselves tantamount to actual filing of a timely appeal”
— letting a court construe the filing as timely, and in that way
overcoming any jurisdictional barrier to appellate review.
(Hollister, at p. 669.)
Parents in M.B.’s position are entitled to seek relief on a
different and independently sufficient basis: Like other parents
whose lawyers have made serious mistakes in the
representation, they are entitled to seek a remedy for the
violation of their statutory right to competent representation.
(See, e.g., In re Jackson W. (2010) 184 Cal.App.4th 247, 261; In
re Dennis H. (2001) 88 Cal.App.4th 94, 98; In re O. S., supra,
102 Cal.App.4th at p. 1406 & fn. 2; In re Eileen A. (2000) 84
Cal.App.4th 1248, 1259–1261, disapproved on another ground
in In re Zeth S. (2003) 31 Cal.4th 396, 413–414.) Where, as here,
a parent’s failure to file a timely notice of appeal is the result of
counsel’s error, reinstating an otherwise-defaulted appeal is
generally the only meaningful way to safeguard the statutory
right to competent representation.
Incompetent representation claims in dependency cases
generally have been raised by means of a petition for habeas
corpus, like the one filed in Kristin H. (See, e.g., In re Carrie M.,
18
In re A.R.
Opinion of the Court by Kruger, J.
supra, 90 Cal.App.4th at pp. 533–534; cf. In re Jackson W.,
supra, 184 Cal.App.4th at p. 258 [observing that the “customary
way” to raise an ineffective assistance of counsel claim is
through habeas corpus].)4 This is partly because habeas allows
for consideration of matters outside the appellate record,
including evaluation of counsel’s decisions and tactics, which is
a necessary focus of many ineffective assistance claims. (E.g.,
In re Darlice C., supra, 105 Cal.App.4th at p. 463.) But it is also
because habeas carries with it broad authority to fashion
appropriate relief for the claimed violation. (E.g., People v.
Booth (2016) 3 Cal.App.5th 1284, 1312.) This authority includes
the power to conduct such additional proceedings as may be
appropriate to remedy the statutory or constitutional
deprivations alleged, even where those proceedings would
normally be barred by jurisdictional filing deadlines. (In re
Byrnes (1945) 26 Cal.2d 824, 827–828; see also, e.g., Flores-
Ortega, supra, 528 U.S. at p. 485 [addressing the circumstances
under which a criminal defendant’s appellate rights can be
reinstated on account of his or her attorney’s negligent failure
to file a timely notice of appeal].) Where the deprivation in
question stems from a defaulted appeal, habeas offers an avenue
for relief from default.5
4
Insofar as this opinion describes the practice for raising
incompetent representation claims in dependency cases, it
should not be read to cast any doubt on the practices courts have
developed for handling constructive filing claims. (See, e.g.,
Zarazua, supra, 179 Cal.App.4th at p. 1062.)
5
This remedy follows from the nature of the claim. As noted
above, we have long held that the time for filing a notice of
appeal cannot be extended, even for reasons of equity. “ ‘In the
absence of statutory authorization, neither the trial nor
19
In re A.R.
Opinion of the Court by Kruger, J.
This brings us to M.B.’s second point. Although M.B.
acknowledges that habeas is the usual path for relief based on
claims of incompetent representation in dependency cases, she
raises practical concerns about following the same course in
cases seeking to reinstate late-filed appeals. As M.B.
emphasizes, habeas typically requires compliance with the
formal procedures set out in Penal Code sections 1473 through
1508 (see Alexander S., supra, 44 Cal.3d 865), beginning with
the filing of a verified petition for habeas corpus and including,
as appropriate, formal responses and the holding of an
evidentiary hearing (People v. Romero (1994) 8 Cal.4th 728,
744). M.B. contends that use of these formal procedures will
cause needless delay, a result all parties wish to avoid.
As an initial matter, we do not agree that obtaining relief
through formal habeas procedures necessarily “must be slow or
appellate courts may extend or shorten the time for appeal
[citation], even to relieve against mistake, inadvertence,
accident, or misfortune [citations]. . . . If it appears that the
appeal was not taken within the 60-day period, the court has no
discretion but must dismiss the appeal of its own motion even if
no objection is made.’ ” (Hollister, supra, 15 Cal.3d at pp. 666–
667, quoting Hanley, supra, 23 Cal.2d at p. 123; see also
Maynard v. Brandon (2005) 36 Cal.4th 364, 372–373.) But we
have also made clear this jurisdictional bar is absolute only
“ ‘[i]n the absence of statutory authorization’ ” to extend the time
for filing. (Id. at p. 373.) In the case of a claim concerning
deprivation of the statutory right to competent representation
— collateral relief our courts have previously recognized is
available to parents in the dependency context (see ante, pp. 7–
10 & fn. 1) — section 317.5 and the habeas corpus law provide
the necessary authorization to override the interests in finality
reflected by the jurisdictional rule, at least so long as the
extension is of sufficiently short duration that it will not
prejudice the interests of others with a stake in the dependency
proceedings (see pp. 16–17, ante).
20
In re A.R.
Opinion of the Court by Kruger, J.
cumbersome.” (People v. Romero, supra, 8 Cal.4th at p. 744.) In
criminal-related habeas matters, we have noted that while
courts must give the opposing party the opportunity to file a
return following the issuance of a writ of habeas corpus or order
to show cause, the opportunity may be waived, or, depending on
the exigencies of the situation, may be required within “as little
as 24 hours.” (Ibid.) Indeed, the Rules of Court vest courts with
significant discretion to expedite and simplify proceedings.
(See, e.g., Cal. Rules of Court, rule 8.386(d)(1) [“Unless the court
orders otherwise, within 30 days after the respondent files a
return, the petitioner may serve and file a traverse.”].)
That said, we agree with M.B. that strict adherence to the
full Penal Code habeas procedures is neither necessary nor
practical in the context of an application for relief from default
based on an attorney’s late filing in a dependency
case.6 Although the Legislature has recognized that the Penal
Code provisions may apply outside the criminal context, those
provisions were, for the most part, developed in — and in some
cases are explicitly aimed at — the penal context and other cases
involving official custody or restraint. (See, e.g., Pen. Code,
§ 1473, subd. (a) [authorizing habeas corpus relief for “[a] person
unlawfully imprisoned or restrained of their liberty”]; id., § 1487
[governing discharge of prisoners]; but see id., § 1507
[describing procedures for a petition made “by or on behalf of
any person other than a defendant in a criminal case”].) Courts
have appropriately found the Penal Code provisions controlling
in their handling of habeas corpus petitions seeking relief based
6
We emphasize that we do not here address the procedures
required to obtain habeas corpus relief in criminal matters or
other contexts; our opinion is strictly limited to the dependency
context.
21
In re A.R.
Opinion of the Court by Kruger, J.
on incompetent representation in dependency proceedings.
(See, e.g., Alexander S., supra, 44 Cal.3d at p. 865.) But they
have also recognized that the rules must in some instances be
adapted to fit the dependency context. (In re Paul W., supra,
151 Cal.App.4th at p. 53 [“ ‘Because the rules on habeas corpus
petitions evolved in the context of prisoners asserting unlawful
confinement or conditions of confinement, they do not fit the
dependency context well.’ ”]; accord, id. at p. 67 (conc. opn. of
Bamattre-Manoukian, Acting P. J.) [observing that the
standard framework for habeas does not “provide an ideal model
for a habeas proceeding raising ineffective assistance of counsel
in a dependency setting”].)
It follows that courts can and should handle claims
seeking to revive appeals from the termination of parental
rights in a manner that is sensitive to both the importance of
speed and finality in this context and the precise nature of the
claim at hand. As with all dependency-related proceedings, the
court has an obligation to ensure the matter is resolved as
expediently as possible, to avoid delays that may destabilize a
child’s long-term placement. (Cf. Welf. & Inst. Code, § 395,
subd. (a)(1) [entitling dependency appeals to priority
consideration].) Courts should also recognize that this type of
claim is in many ways unique, even among incompetent
representation claims raised in dependency cases. To evaluate
claims like M.B.’s does not demand any significant evidentiary
inquiry into counsel’s strategic judgment or litigation tactics; it
instead requires a more straightforward inquiry into the nature
of the parent’s instructions to her attorney and her promptness
and diligence in pursuing her appellate rights.
In determining the appropriate procedures, the court must
give all parties notice and an opportunity to be heard, ensuring
22
In re A.R.
Opinion of the Court by Kruger, J.
adequate exploration of the issues relevant to the granting of
relief. (Alexander S., supra, 44 Cal.3d at p. 865.) But in the
absence of contrary directives, a court has substantial discretion
to determine the specific procedures to be employed in handling
applications for relief from default based on an attorney’s late
filing. (See Weiss v. People ex rel. Dept. of Transportation (2020)
9 Cal.5th 840, 857 [“[W]hen no procedure is specified by statute
or rule, judges may fashion nonstatutory procedures suitable to
the specific cases before them,” though they “do not have the
authority to adopt procedures or policies that conflict with
statutory law or the Rules of Court.”].) We hasten to add,
however, that the Legislature may always choose to provide
more specific guidance about the procedures to be followed, and
the Judicial Council is likewise empowered to adopt statewide
rules consistent with statutory procedures. (In re Cook (2019)
7 Cal.5th 439, 459; Weiss, at p. 857.)
There remains a final procedural question: To which court
should the application for relief be addressed? We conclude that
as a general matter, an application seeking to pursue or perfect
an appeal is properly directed to the Court of Appeal rather than
the superior court, since, after all, “the court in which the appeal
is pending is the court which can relieve from default.” (In re
Gonsalves (1957) 48 Cal.2d 638, 646; see id. at pp. 641–642
[directing the Court of Appeal to entertain the defendant’s
petition for habeas corpus seeking relief from default on his
appeal]; accord, Benoit, supra, 10 Cal.3d at pp. 75, 89; People v.
Lyons (2009) 178 Cal.App.4th 1355, 1363 [observing that “since
1972, only the appellate court can grant ‘Benoit’ relief”].) We see
no reason why relief from default in a juvenile dependency
appeal should operate differently.
23
In re A.R.
Opinion of the Court by Kruger, J.
III.
In this case, the Court of Appeal dismissed M.B.’s appeal
as untimely, notwithstanding her efforts to demonstrate that
the untimeliness of her notice of appeal was the result of
incompetent performance by her attorney. We today hold that
when their court-appointed attorneys have failed to timely file a
notice of appeal of an order terminating parental rights, parents
whose rights have been terminated may seek relief based on the
denial of the statutory right to the assistance of competent
counsel. (§§ 317, 317.5.) To succeed in such a claim, parents
must show that they would have filed a timely appeal absent
attorney error and that they diligently sought relief from default
within a reasonable time frame, considering the child’s
“ ‘unusually strong’ ” interest in finality. (Alexander S., supra,
44 Cal.3d at p. 868, quoting Lehman, supra, 458 U.S. at p. 513.)
Whether M.B. has made the required showing is a matter
for the Court of Appeal to determine in the first instance. We
thus reverse the judgment of the Court of Appeal and remand
for further proceedings not inconsistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
24
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re A.R.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP order filed 1/21/20 – 1st
Dist., Div. 1
Rehearing Granted
__________________________________________________________
Opinion No. S260928
Date Filed: April 5, 2021
__________________________________________________________
Court: Superior
County: Alameda
Judge: Charles A. Smiley III
__________________________________________________________
Counsel:
Louise E. Collari, under appointment by the Supreme Court, for
Defendant and Appellant.
Michael J. Levy and Catherine Blakemore for California Commission
on Access to Justice as Amicus Curiae on behalf of Defendant and
Appellant.
Raymond A. Cardozo, Dennis A. Fischer, Scott M. Reddie, Robin
Meadow, Robert Gerstein, Rex S. Heinke, Kirk Jenkins, R. Rothschild,
Robin B. Johansen; Colantuono, Highsmith & Whatley, Michael G.
Colantuono, Pamela Graham; Law Offices of Robert S. Gerstein and
Robert S. Gerstein for Academy of Appellate Lawyers as Amicus
Curiae on behalf of Defendant and Appellant.
Stephanie G. Miller; Deanna F. Lamb; and Linda M Fabian for
California Appellate Projects Amicus Curiae on behalf of Defendant
and Appellant.
Donna Ziegler, County Counsel, and Samantha N. Stonework-Hand,
Deputy County Counsel, for Plaintiff and Respondent.
Anna L. Stuart, under appointment by the Supreme Court, for Minor
A.R.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Louise E. Collari
First District Appellate Project
475 14th St., Suite 650
Oakland, CA 94612
(415) 495-3119
Samantha N. Stonework-Hand
Deputy County Counsel
1221 Oak St., Suite 450
Oakland, CA 94612
(510) 272-6718
Anna L. Stuart
Sixth District Appellate Program
95 S. Market St., Suite 570
San Jose, CA 95113
(408) 241-6171