CA Supreme Court: parents have right to effective assistance of counsel on appeal

In In re A.R., the Supreme Court of California considered a situation where a parent whose rights had been terminated instructed her trial counsel to appeal but trial counsel filed the appeal late and it was dismissed as untimely.  The Court concluded that parents have a right to effective assistance of counsel and that “When an attorney fails to file a timely appeal in accordance with a client’s instructions, the parent may seek relief based on the attorney’s failure to provide competent representation. Because time is of the essence in matters affecting children’s long-term placement, whether relief is granted will depend on the parent’s promptness and diligence in pursuing the appeal.” 

The court explained that “even when court-appointed counsel may not be constitutionally required, California statutory law has long required the appointment of counsel in connection with parental rights termination proceedings” and that the Legislature had added the word “competent” to the statute governing appointment of counsel at trial, plus parents have a right to appeal, so “The issue in this case concerns what happens when denial of the first protection—the right to competent counsel—threatens the second protection, the right of appeal.”  The court concluded that “a parent who has not received competent representation in juvenile dependency proceedings is entitled to seek relief based on denial of the statutory right.  While the court acknowledged the importance of not unduly delaying proceedings and that the statute referred to termination decisions being “conclusive and binding”, such statements were subject to the right of appeal.  The court distinguished prior cases rejecting untimely appeals because those cases hadn’t involved ineffective assistance of counsel claims. 

The court then established a 3-prong test for evaluating these claims: 1) the parent directed the attorney to file a timely appeal but the attorney failed to do so; 2) the attorney’s failure was prejudicial, which the court defined as there being “whether the parent would have taken a timely appeal, without requiring the parent to shoulder the further burden of demonstrating the appeal was likely to be successful”; and 3) the parent’s promptness and diligence in correcting the error (which, in this case, was just 4 days later).  The court added that “a court has substantial discretion to determine the specific procedures to be employed in handling applications for relief from default based on an attorney’s late filing” and that the request to accept an untimely filing should be made to the court of appeal rather than the trial court.