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 New York, the statutory deadline for filing a notice of appeal in a civil proceeding (CPLR §5513[a]) has been treated as a “jurisdictional” matter. Thus, while there are statutory rules that extend the filing deadline in specific instances (see, e.g., CPLR §1022), an untimely filing may not otherwise be excused. Hecht v. City of New York, 60 N.Y.2d 57, 467 N.Y.S.2d 187 (1983); Jones, et al. v. Schloss, 37 A.D.3d 417, 829 N.Y.S.2d 230 (2d Dept. 2007) (time period for filing notice of appeal is jurisdictional and nonwaivable).

            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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