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2024 California Rules of Court

Rule 5.661. Representation of the child on appeal

(a) Definition

For purposes of this rule, "guardian ad litem" means a person designated as the child's Child Abuse Prevention and Treatment Act (CAPTA) guardian ad litem as defined in rule 5.662.

(b) Child as appellant

A notice of appeal on behalf of the child must be filed by the child's trial counsel, guardian ad litem, or the child if the child is seeking appellate relief from the trial court's judgment or order.

(c) Recommendation from child's trial counsel or guardian ad litem

(1)  In any juvenile dependency proceeding in which a party other than the child files a notice of appeal, if the child's trial counsel or guardian ad litem concludes that, for purposes of the appeal, the child's best interests cannot be protected without the appointment of separate counsel on appeal, the child's trial counsel or guardian ad litem must file a recommendation in the Court of Appeal requesting appointment of separate counsel.

(2)  A child's trial counsel or guardian ad litem who recommends appointment of appellate counsel for a child who is not an appellant must follow the procedures outlined in (d)-(g).

(d) Time for trial counsel or guardian ad litem to file the recommendation with the Court of Appeal

A recommendation from the child's trial counsel or guardian ad litem may be filed at any time after a notice of appeal has been filed, but absent good cause, must be filed in the Court of Appeal no later than 20 calendar days after the filing of the last appellant's opening brief.

(e) Service of recommendation

The child's trial counsel or guardian ad litem must serve a copy of the recommendation filed in the Court of Appeal on the district appellate project and the trial court.

(Subd (e) amended effective January 1, 2015.)

(f) Factors to be considered

The following are factors to be considered by a child's trial counsel or guardian ad litem in making a recommendation to the Court of Appeal:

(1)  An actual or potential conflict exists between the interests of the child and the interests of any respondent;

(2)  The child did not have an attorney serving as his or her guardian ad litem in the trial court;

(3)  The child is of a sufficient age or development such that he or she is able to understand the nature of the proceedings; and

(A)  The child expresses a desire to participate in the appeal; or

(B)  The child's wishes differ from his or her trial counsel's position;

(4)  The child took a legal position in the trial court adverse to that of one of his or her siblings, and an issue has been raised in an appellant's opening brief regarding the siblings' adverse positions;

(5)  The appeal involves a legal issue regarding a determination of parentage, the child's inheritance rights, educational rights, privileges identified in division 8 of the Evidence Code, consent to treatment, or tribal membership;

(6)  Postjudgment evidence completely undermines the legal underpinnings of the juvenile court's judgment under review, and all parties recognize this and express a willingness to stipulate to reversal of the juvenile court's judgment;

(7)  The child's trial counsel or guardian ad litem, after reviewing the appellate briefs, believes that the legal arguments contained in the respondents' briefs do not adequately represent or protect the best interests of the child; and

(8)  The existence of any other factors relevant to the child's best interests.

(g) Form of recommendation

The child's trial counsel, the guardian ad litem, or the child may use Recommendation for Appointment of Appellate Attorney for Child (form JV-810). Any recommendation for an appellate attorney for the child must state a factual basis for the recommendation, include the information provided on form JV-810, and be signed under penalty of perjury.

Rule 5.661 amended effective January 1, 2015; adopted effective July 1, 2007.

Advisory Committee Comment

Generally, separate counsel for a nonappealing child will not be appointed for the purpose of introducing postjudgment evidence. See California Code Civ. Proc., § 909; In re Zeth S. (2003) 31 Cal.4th 396; In re Josiah Z. (2005) 36 Cal.4th 664. For further discussion, see In re Mary C. (1995) 41 Cal.App.4th 71.

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