APPELLATE PROTOCOL

Effective October 16, 2015

I.Appeals by Other Parties...... 1-3

II.Appeals by the Program...... 3-4

I.Appeals by Other Parties

  1. All incoming documents relating to an appealshall be immediately directed to the attention of the program’s appellate coordinator or, in the coordinator’s absence, to the individual designated by the supervising attorney in consultation with the circuit director to perform the coordinator’s duties in the coordinator’s absence.
  1. Upon receiving an appeal-related document, the appellate coordinator shall immediately (within 24 hours) determine whether the appeal relates to a new or pending appeal and proceed as follows:
  1. New Appeals. In the case of a new appeal, the coordinator shall (1)complete and submit a report of appeal and (2) fax or scan and email a copy of the appellate document(s) to the appellate team assistant. In the event the document(s) is/are too large to transmit via fax or e-mail, the coordinator shall call or email the appellate team assistant to determine how the document(s) will be transmitted.

a.Documents to be transmitted by all programs.

i.All documents served by opposing counsel and/or the court;

ii.Notice of Appeal or Petition and Appendix (if not served by opposing counsel);

iii.Copy of order appealed (if not served by opposing counsel);

iv.Designation to the Court Reporter or Order for Transcription (if not served by opposing counsel);

v.Motion to appoint appellate counsel (if applicable and not served by appellate counsel); and

vi.Order appointing appellate counsel (if applicable and not served by appellate counsel).

All of these documents should be served on the program and are available in the file of the clerk of the circuit court, if they have been filed. Electronic copies are acceptable to provide for our files.

b.By rule, all clerks must provide a copy of the entire record and transcripts to the GAL. If the circuit has not gone paperless, then the entire paper record must be served. If they do not and state they only have to provide an index, please direct them to the director of appeals. We must have a paginated, appellate record. We cannot look at the lower court docket and recreate the record.

  1. Pending Appeals. In the case of a pending appeal, the coordinator shall e-mail the appellate team assistant to advise that the program received a new document in the appeal within 24 hours of receipt.

The email shall reference the child(ren)’s initials and case number(s) and shall state the title of the document received and the date reflected in the certificate of service.

The document should be forwarded to the appellate team unless specifically told otherwise by the assigned appellate attorney. Neither the program attorney, case coordinator, or appellate coordinator shall assume any appellate document is a courtesy copy. The assigned appellate attorney must also be contacted immediately (within 24 hours) to ascertain if they need the document(s) or item(s) served, and if so, send it within 5 business days unless the appellate attorney states they need it sooner.

The appellate team shall be responsible for updating the status of the case in tracker.

Any questions regarding the appeal, including but not limited to requests for extension, requests to remand, supplement the record, or concerning concession of error, must be directed to the assigned appellate attorney.

II.Appeals by the Program

In order to maximize the statewide program’s limited resources and to assure consistency in arguments presented on appeal, no program may initiate an appeal or file or join a petition, response, or brief without prior approval of the Director of Appeals.

When a program desires to appeal a final or non-final order of a dependency court, the responsible program attorney shall discuss the case and the proposed appeal with his/her supervising attorney and program director. Such discussion(s) shall, at a minimum, include consideration of:

  1. The applicable standard of review;
  2. The facts of the case;
  3. The record made during the proceedings leading up to the order to be appealed;
  4. Any gaps in the record;
  5. The desired remedy;
  6. How the desired remedy furthers the best interests of the child(ren) and how the child(ren)’s interests may evolve while the case is on appeal;
  7. Whether the outcome of the appeal will have a broader effect on matters of statewide policy and, if so, how; and
  8. The cost to the program and/or the statewide program.

Ifthe supervising attorney and director decide to consult the appellate teamabout the proposed appeal, they shall set up a staffing with the Director of Appeals and the responsible regional counsel. Prior to the staffing, they program attorney shall fax/email to the Director of Appeals:

  1. A copy of the order at issue in the proposed appeal;
  2. A copy of the most recent GAL report, if any;
  3. A copy of the most recent case plan, if any;
  4. A copy of the transcript or a digital recording of the proceeding(s) from which the order emanated, and
  5. The petition or motion that the order at issue emanated from.

The Director of Appeals and/or their designee will review the documents submitted and staff the issue with the responsible regional counsel, supervising attorney and the assigned program attorney before making a final determination as to whether the appeal will be filed.

When the program initiates an appeal, the appellate team shall be responsible for creating a report of appeal and for updating the status of the appeal in the tracker. The circuit program attorney is responsible for perfecting the appeal. The appellate attorney will provide the program attorney with the notice of appeal, designation and directions to the clerk, which will be filed with the circuit court clerk. Additionally the program attorney must serve the court reporter the designation.

Once the appeal is perfected, an appellate team member will be responsible for briefing and arguing all aspects of the case in the appellate court unless other arrangements have been made by the Director of Appeals. Any questions regarding the appeal, including but not limited to requests for extension, requests to remand, to supplement the record, or concerning concession of error, must be directed to the assigned appellate attorney.

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