Excerpts, Practice Manual For Children's Lawyers, Volume One: Representing
Children in Child Welfare Proceedings, Part One - Abuse and Neglect Proceedings
prepared by
The Legal Aid Society
Juvenile Rights Practice
XVII. Appeals
A. Statutory
Provisions
Various rules governing
appeals appear in Article Eleven of the Family Court Act. Only some of these
rules will be highlighted here.
When, in an Article Ten
or Article Ten-A proceeding, the court issues an order which will result in the
return of a child previously remanded or placed in the custody of someone other
than the respondent, such order shall be stayed until five p.m. of the next
business day after the order is issued, unless such stay is waived by all
parties by written stipulation or upon the record in court. The judge retains
discretion to stay the order for a longer period of time. FCA
§1112(b). In other cases, the timely filing of a notice of appeal does
not stay the order from which the appeal is taken. FCA §1114(a); see also
Matter of John H., 56 A.D.3d 1024, _N.Y.S.2d_ (3rd Dept. 2008) (language
of FCA § 1114[a] stating that filing of notice of appeal does not give rise to
stay abrogates more general automatic stay provision of CPLR 5519[a][1] that
provides automatic stay where state or political subdivision is appellant).
An appeal is taken by filing a notice of
appeal pursuant to FCA §1115. An appeal from an intermediate or final order or
decision in an Article Ten proceeding may be taken as of right to the appellate
division, and a preference in accordance with CPLR 5521 must be afforded, without
the necessity of a motion. FCA §1112(a). An appeal
"must be taken no later than thirty days after the service by a party or
the [child’s attorney] upon the appellant of any order from which the appeal is
taken, thirty days from receipt of the order by the appellant in court or
thirty-five days from the mailing of the order to the appellant by the clerk of
the court, whichever is earliest." Orders must contain a statement
regarding the aforementioned timeliness rule in conspicuous print, and, when
service of an order is made by the court, the time for taking an appeal does
not begin to run unless the order contains the required statement and there is
an official notation in the court record as to the date and the manner of
service of the order. FCA §1113. See also
FCA §217 (filing and service of orders).
In
Upon the filing of a
dispositional order issued pursuant to FCA §1052, it shall be the duty of counsel
for each party and the child’s attorney to promptly advise the client "in
writing of the right to appeal to the appropriate appellate division of the
supreme court, the time limitations involved, the manner of instituting an
appeal and obtaining a transcript of the testimony and the right to apply for
leave to appeal as a poor person if the party is unable to pay the cost of an
appeal." The lawyer also has a duty to explain "the procedures for
instituting an appeal, the possible reasons upon which an appeal may be based
and the nature and possible consequences of the appellate process." FCA §1121(2). The lawyer must then ascertain whether the
client wishes to appeal, and, if so, must file a notice of appeal, and, as
applicable, apply for leave to appeal as a poor person, file a certification of
continued eligibility for appointment of counsel pursuant to FCA §1118, and
submit such other documents as may be required by the appellate division. FCA §1121(3). Where a party wishes to appeal, the lawyer
must apply for assignment of counsel, file a certification of continued
eligibility for appointment of counsel and, in the case of an adult party, of
continued indigency, and submit such other documents
as may be required
by the appropriate appellate division. FCA §1121(5). See
also FCA §1052-b. The requirements set forth in FCA §1121 apply to
Article Ten appeals to the extent that such requirements are consistent with
FCA §1052-b. FCA §1121(1).
Obviously, the child’s
attorney should consult any client who is sufficiently mature to understand the
concept of an appeal, and should, in any event, independently evaluate the
circumstances and determine whether a notice of appeal should be filed. See
Matter of Mark T. v. Joyanna U., (3rd Dept. 2009)
(child denied effective assistance of appellate counsel where attorney, inter
alia, neither met nor spoke with child, and determined client’s position
at time of trial but did not know child’s position on appeal; child was entitled to consult with and be
counseled by attorney, to have appellate process explained; to have his
questions answered, to have opportunity to articulate position which, with
passage of time, may have changed since time of trial, to explore whether to
seek extension of time within which to bring his own appeal, and to be informed
of progress of proceedings throughout).
The child’s attorney’s appointment
automatically continues without further court order whenever the child’s
attorney or a party has filed a notice of appeal. FCA
§1120(b). See also FCA §1016 (child’s attorney's
appointment terminates at expiration of a FCA §1052 dispositional order
directing supervision or protection or suspending judgment, or an extension of
such an order, or at expiration of an order adjourning a case in contemplation
of dismissal or an extension of such an order, or foster care placement); FCA
§1090(a) (“the appointment of the [child’s attorney] shall continue without
further court order or appointment, unless another appointment of a [child’s
attorney] has been made by the court, until the child is discharged from
placement and all orders regarding supervision, protection or services have
expired”).
Counsel for the
appellant must request preparation of a transcript of the proceedings from
which the appeal is being taken no later than ten days after filing a notice of
appeal. FCA §1121(6)(a). The transcript shall be
completed within thirty days from the receipt of the request. The appellant
shall perfect the appeal within sixty days of receipt of the transcript or
within any different time prescribed by appellate division rule or as otherwise
specified by the appellate division. Upon the granting of an extension of time,
the appellate division shall issue new specific deadlines by which the
appellant's brief, the answering brief and any reply brief must be filed and
served. FCA §1121(7).
It should be noted that the “fugitive
disentitlement doctrine,” under which an absconding party effectively forfeits
the right to appeal, may be applicable in Article Ten proceedings. See Matter of Tradale
CC., 52 A.D.3d 900, 859
N.Y.S.2d 288 (3rd Dept. 2008) (while noting
respondent’s availability to follow court mandates, and its discretion in
applying fugitive disentitlement doctrine, Third Department refuses to apply
doctrine and dismiss appeal where, while appeal was pending, respondent
absconded with child, was arrested pursuant to family court warrant, had child
removed from her care, absconded again without child, was arrested on unrelated
matter and was presently incarcerated).
B. Brief
Writing
1. Statement
Of Facts
The statement of facts
may be the most important part of the brief. For the most part, the issues
raised in these cases are not unfamiliar to the appellate division. The facts
are what matter. You want to organize the statement of facts in a way that
tells the most compelling story. More often than not, you should divide the
statement of facts into a write-up of the petitioner's case, the respondent's
case, and where appropriate, the child’s attorney's case. While this technique
has the disadvantage of jumping around a bit from subject to subject and from
time period to time period, it is the simplest to employ and, at least in those
cases in which the petitioner presented a strong case and there is no useful evidence
in the respondent's case, it will be effective. In some cases, it is better to
synthesize the testimony of all the witnesses and tell one, linear story.
In your first draft,
include all the arguably relevant facts and err on the side of including facts
you think may not be relevant. We are not in the habit of ignoring bad facts;
we may couch them in language that mutes their significance or make them
inconspicuous, or place them in proximity to other facts that are
contradictory, but we do not ignore them.
Remember that whenever
an objection to a question or answer is sustained, the answer, or the
objected-to portion of the answer, is deemed stricken even if the objecting
attorney does not separately move to strike the testimony.
You must at least refer
to, and briefly discuss the testimony of, every witness who testifies
regardless of whether the testimony can be disregarded as irrelevant.
While you can
paraphrase and summarize testimony that is not central to the cause of action,
and even leave out some facts that really are not relevant at all, you should
err on the side of quoting from or repeating almost verbatim anything in the
transcript that you will be using in your argument. Summarizing facts and
rephrasing testimony in your own words can be imprecise and misleading, and
once you put the facts in the draft, there is a good chance you will never go
back to the transcript and pick up on your mistake or oversight. This method is
not even more time-consuming, since you are simply using all the witness’s own
words and do not spend any time editing and paraphrasing.
You should not refer to
facts in your argument unless you have included them in the statement of facts.
This may be relatively harmless if you have provided a citation to the record
in the argument, or if other parties have included the same facts, but it is
bad form and you should try to avoid it.
Do not become
argumentative in the statement of facts. Certainly, there is a temptation to
comment on facts you find persuasive and compelling, but there is plenty of
time for that in the argument. More importantly, if you have thought carefully
about how to organize and present the facts and "tell the story" in a
manner that leaves the reader with no choice but to conclude that you are
right, your presentation will presage your argument without being
argumentative.
If documents have been
offered into evidence, you must review them before writing the brief, and
include in your statement of facts any information in those documents that do
not appear in the testimony of the witnesses.
Especially at the end
of a long hearing, summations can be repetitive and not as well-organized as
your brief will be, and there may be no need to say very much about them. For
the most part, you should skim the essence of the argument of each attorney and
summarize it in a short paragraph. This is particularly useful where the
attorneys have honed in on the key issues, and you can use their summations to
frame the issues that will be addressed in your argument. If appellate counsel
is raising legal arguments that were not mentioned by anyone in the court
below, there may be a preservation problem and the trial attorney's silence may
be important.
In describing the
judge’s decision, the safest course is to include verbatim the judge's entire
statement on the record. It is, after all, the clearest indication in the
record of what, exactly, the judge thought of the evidence and what the legal
basis was for the decision. If the judge goes on ad nauseum
summarizing the evidence and giving a long-winded and rambling analysis and
ruling, a summary with verbatim excerpts might be best.
2. Argument
First of all, it is
likely that the legal issues you are briefing have been addressed repeatedly in
briefs prepared by JRD. Do not reinvent the wheel; we have experienced and
skilled appellate attorneys here who have prepared excellent summaries of the
law.
There are certain
common methods of organizing the argument. One way is to open with a
straightforward statute/case law-based description of the elements of the cause
of action and what the petitioner is required to prove. Then, you would quickly
summarize the facts in your case -- you do not need to include citations to the
record again, but there is no problem if you feel more comfortable doing it
that way -- and apply the law to the facts and explain why the facts either do
or do not satisfy the statute.
Another way is to begin
with a strongly worded paragraph in which you summarize very succinctly the
crucial facts and state why they are sufficient or not sufficient to sustain a
cause of action. Then you proceed, as described above, to state the law, and
then connect it to the facts in a comprehensive way while using all the facts,
addressing nuances in the law, anticipating arguments, etc.
Good appellate advocacy
requires that you review the record carefully while writing your argument, and
pick out every fact that supports your argument in any way. It is not uncommon
for an appellate attorney to make arguments in conclusory
form, while assuming that the court will connect the dots and keep the facts in
mind when evaluating the arguments. Do not assume that. Keep the statement of
facts in front of you while writing the argument, and read it again after the
first draft of your argument is completed. Play back for the court, as support
for your arguments, all the facts that are helpful.
Generally, whether you
are appellant or respondent, do not ignore statutory or appellate law and
arguments that undermine your position. Unlike family court trial practice,
appellate practice allows for more contemplation and precision, and, for that
reason, it is probable that either your adversary or the court will uncover the
problems with your argument. It is best to work hard at explaining why the
facts of your case distinguish it from other cases in which different
conclusions were reached.
On the other hand, if
you are appellant, and will have an opportunity to submit a reply brief, you do
have the option of waiting to see whether and how your adversary deals with the
law that is favorable to respondent's position, and go from there.
Never engage in ad
hominem attacks on an adversary no matter how much you have been
provoked, and never use terms like "absurd" or "ridiculous" to describe
your adversary's arguments or what the trial judge did. This is not a mud
wrestling match; the court is not looking for the most clever
barbs, and he/she who takes the high road always comes across better.
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Last updated January 7, 2010
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