Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds

Timothy Kowal, Esq.
April 6, 2021

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act, regardless of merits, good cause, or equity.

Does the Court's holding undermine this jurisdictional rule? To escape the harsh effect of the jurisdictional requirement of filing a timely appeal, the Court relies heavily on another statutory right: the right to competent counsel in dependency proceedings. (Welf. & Inst. Code, § 317.5.) But as the Court acknowledges, the Legislature does not furnish any remedy for this right. Namely, the Legislature does not suggest any exception to the jurisdictional limits on the courts' powers.

Here are the facts of In re A.R.:

Faced with an order terminating her parental rights, appellant asked her attorney to take an appeal. Unfortunately, the attorney forgot, and failed to timely appeal. The appeal was filed four days late.

Appellant filed a motion seeking relief from her default. She also timely filed her opening brief. She also filed a habeas petition.

Despite her diligent efforts, the Court of Appeal dismissed her appeal.

The Supreme Court reversed.

The Court began by acknowledging appellant's daunting task in this case. First, the Court reiterated that the deadlines for taking an appeal are "jurisdictional": "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).)"

Another grim reality for appellant is that dependency proceedings carry a strong policy in favor of expeditious and final proceedings.

But the Supreme Court went on to note that the Legislature subsequently added the statutory right to "competent counsel" in 1994. Citing the 1996 Court of Appeal decision in Kristin H., the Court agreed that "the Legislature could not have intended to create a ' " hollow right, " ' and so the right to competent counsel 'must include the right to seek review of claims of incompetent counsel.' "

The Court went on to acknowledge its jurisdictional bar against considering untimely appeals. "But," the Court went on, "this jurisdictional bar is absolute only “ ‘[i]n the absence of statutory authorization’ ” to extend the time for filing." Here, the Court concluded, "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."

But to reiterate: section 317.5 does not identify such a remedy, or otherwise relax the courts' jurisdictional limits. And the Court rather cavalierly cast aside the statute-driven habeas procedures, which are, as appellant notes, formal and strict.

Here, the Court noted, "counsel's incompetence is the very reason no filing has been made by that deadline." The Court stressed that the appeal was just four days late, that appellant attempted to remedy the error, and filed her brief on time.

The Court also held that, to establish her right to file an untimely appeal due to lack of competent counsel, appellant did not need to establish prejudice by way of a likelihood of prevailing on the merits. Instead, the relevant injury is the denial of opportunity to appeal.

The procedure for seeking relief from an untimely appeal in a dependency proceeding is to apply in the Court of Appeal in the first instance.

One might wonder: What if the lack of competence manifests not in the form of an untimely appeal, but in the form of advice (presumably bad advice) not to appeal at all? In such an instance, the denial of the right to competent counsel might not manifest for months, even years. The Court explicitly declines to illuminate: "We do not here address a situation in which the lawyer concludes that there are no arguable grounds for appeal."

The Court also relies on the federal procedure for relief from untimely appeals. This raises a further question: Presumably our Legislature is aware of Rule 4 of the Federal Rules of Appellate Procedure, which allow appellants to apply to the district court for relief for untimely appeals. Yet our Legislature has not adopted such a rule, but rather has maintained the strict limits to the courts' "jurisdiction" against considering untimely appeals. Does this not suggest the Court here is fashioning for itself a remedy beyond its authority? Not only the authority afforded expressly by the Legislature, but the authority intended or contemplated?

The upshot: I do not expect In re A.R. will lead to any different results in civil appeals in the short term. Courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.