The limits to switching gears on behalf of a minor on appeal

A pre-teen in a juvenile proceeding has counsel appointed for her in the trial court (the counsel is also appointed as her guardian ad litem). Her counsel argues at the dispositional hearing that the minor’s repeated hospitalizations are due to mother’s refusal to acknowledge the seriousness of the minor’s diabetes diagnosis or appropriately monitor her treatment, and the trial court removes the minor from her mother’s custody.

The mother appeals, and appellate counsel is appointed for the minor. The minor did not appeal, and you would think the minor’s position is pretty well solidified at this point, right?

Wrong. Or may, “it all depends.”

On the appeal In re Felicity .S, case no. A137439 (1st Dist. Oct. 31, 2013), the minor’s appointed counsel on appeal reversed course completely. The minor’s appellate counsel asked for more time to file her appellate brief, then filed a whopper of 75 pages that, instead of focusing on “how the issues raised by the mother’s appeal impacted the minor’s best interests,” instead backed up all of the mother’s arguments, without offering any explanation for the change in course.

In a huge understatement, the appellate court stated that the attorney’s “failure to provide any explanation for taking a position conflicting with that taken by the minor’s trial counsel is highly problematic.”  So, the judge asked the attorney for a declaration explaining her reasons for the about-face. The Court of Appeal found her 25-page declaration unconvincing, to say the least. She stated she spoke with minor’s trial counsel, but did not give the substance of the conversations or even claim that trial counsel recommended the change in position.

But wait, there’s more! The attorney tried to “backdoor” new issues into the appeal, outside the scope of those raised by the mother, her declaration and despite the fact that the minor had not even appealed.

In sum, we conclude that when this court exercises its discretion to appoint counsel for the minor in a situation where the minor has not appealed, it is improper for the appellate counsel to reverse the position taken by minor’s trial counsel without authorization by the minor’s guardian ad litem and/or without an explanation as to how the reversal of position is in the child’s best interests. When, after careful analysis of the record and briefs of the parties, minor’s counsel fully adopts the arguments of a party to the appeal, preparation of a full statement of the case and repetition of that party’s arguments will rarely be helpful to the court or serve the best interests of the minor.

(Footnote omitted.) These limitations hardly impose a straightjacket on appointed counsel. The court explicitly left open the possibility that such reversals of position might be justified; they just have to be adequately explained.

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