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Another Untimely Appeal Excused in Dependency Case Based on Ineffective Assistance of Counsel

Tim Kowal     January 27, 2022

In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (In re A.R. (2021) 11 Cal.5th 234, discussed in Tim Kowal, “Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds,” Apr. 6, 2021.)

The reason this was surprising is that, until then, a uniformity of California cases had held that an untimely appeal was an “absolute bar” to appellate jurisdiction. (Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 83; In re Marriage of Eben-King and King (2000) 80 Cal.App.4th 92, 116 ["[T]he time for filing a notice of appeal is absolutely jurisdictional, and cannot be extended by a trial or appellate court without statutory authorization, even for reasons of mistake, estoppel, or other equitable considerations."].)

The result in A.R. was that the dismissed appeal, having been filed four days late (the appellant had instructed her attorney to timely file it, but the attorney forgot), was reinstated. The reinstatement was based on the appellant’s motion and her habeas petition. The Court reasoned that the 1994 statute providing a right to effective assistance of counsel, and the habeas statutes, when strictly followed, together formed a remedy for ineffective assistance in the way of forgiveness of brief delays in filing a notice of appeal. Given the appellant’s clear instruction to her counsel, the mere four days’ delay, and her habeas petition, the A.R. Court set aside the dismissal and reinstated the appeal.

But in the recent case of In re B.P. (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.), the Court of Appeal took A.R. quite a bit further. The events leading up to the untimely appeal are analogous: The appellant immediately instructed her attorney to take the appeal, but the attorney failed to do so. The attorney thought she could wait until a judgment was entered, which the respondent didn’t submit for several months. The attorney was wrong, resulting in an appeal over four months late. (Recall the appeal in A.R. was just four days late.)

In addition to the appeal being four months late, unlike in A.R. the appellant failed to file a habeas petition.

No matter. The Fifth District Court of Appeal held the untimeliness was not a jurisdictional bar.

The court did acknowledge this was a “close case” because of the four-month delay, which undermines the policy of expeditious results in dependency proceedings: “As our high court in A.R. pointed out, “ ‘a delay of months may seem like ‘forever’ to a young child.’ ” (A.R., supra, 11 Cal.5th at p. 253.) Here, months and months had passed because of multiple failings on the part of appellant's trial counsel: (1) trial counsel mistakenly thought the time to file started when the judgment prepared by respondent was filed; (2) even in light of that mistaken belief, trial counsel failed to take initiative to prepare a judgment herself in absence of any action by respondent, knowing that appellant was planning to appeal and that her client's and young B.P.'s interests were at stake; and (3) trial counsel waited approximately an additional three weeks after respondent's judgment was filed to file the notice of appeal.”

After balancing the equities, however, the court concluded that disregarding the untimeliness of the appeal was appropriate. And then went on to affirm.

Comment: I reiterate, a fortiori, the concerns expressed about A.R. here. The statute giving a right to competent counsel in juvenile dependency proceedings does not indicate the Legislature intended an exception to the jurisdictional bar to untimely appeals. The Legislature surely is aware of Rule 4 of the Federal Rules of Appellate Procedure, and could easily adopt such a rule if it wished. And while A.R. based its holding on the habeas statutes, and noted the appellant had filed a petition for habeas corpus, that aspect of A.R. analysis is absent from B.P.

As I said before, courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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