Stanford Law School - Robert Crown Law Library

Filed 7/25/05

IN THE SUPREME COURT OF CALIFORNIA

In re JOSIAH Z. et al., Persons Coming
Under the Juvenile Court Law.
____________________________________)
)
KERN COUNTY DEPARTMENT OF
HUMAN SERVICES,
S125822
Plaintiff and Respondent, )
Ct.App.
5
F044121
v.
Kern County Super. Ct.
Nos. JD097344, JD097345
TINA M. et al.,
)
Defendants;
JOSIAH Z. et al.,
)
Appellants.

A child’s dependency appeal, challenging the juvenile court’s evaluation of
the child’s best interests, involves a delicate balancing of considerations. We must
decide what role a child’s appellate counsel plays in this balance and, in particular,
under what circumstances appellate counsel may investigate whether dismissal of
an appeal is in the child’s best interests.
We conclude the following: (1) appellate counsel has the power to seek
dismissal of a child’s dependency appeal based on the child’s best interests, and
the Court of Appeal has the power to consider and rule on such a motion;
(2) pursuant to appellate counsel’s power, counsel may seek funds to meet
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personally with her client to investigate a potential motion; but (3) appellate
counsel may actually file a motion to dismiss only after consultation with and
authorization from the child or the child’s guardian ad litem. Here, appellate
counsel for two minor siblings failed to demonstrate cause for the appropriation of
funds in light of the guardian ad litem’s unequivocal opposition to any motion to
dismiss. We affirm the Court of Appeal’s denial of appellate counsel’s request for
funds, but remand without prejudice to appellate counsel’s renewing her motion
under the standards set forth in our opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2002, the Kern County Superior Court determined that two-year-
old Josiah and infant Gabriel came within its jurisdiction under Welfare and
Institutions Code section 300, subdivision (b) after Gabriel tested positive for
drugs at birth.1 It found that the children were at substantial risk of physical harm
or illness due to their mother’s drug abuse and their father’s physical abuse of their
mother.2 The court subsequently declared Josiah and Gabriel dependents of the
court and removed them from parental custody. After both parents failed to
reunify with their sons, the court terminated reunification services and set a
section 366.26 permanency planning hearing.
In light of the children’s recent move to placement with a nonrelative, the
children’s attorney sought a hearing on relative placement. The children’s

1
All further unlabeled statutory references are to the Welfare and Institutions
Code.
2
Gabriel M. has a different father than Josiah Z. Gabriel’s father, a man
known to the mother only as “Daniel,” made no appearance in the dependency
proceedings. Consistent with the Court of Appeal’s and parties’ usage, all
references to “father” and to paternal relatives are to the father of Josiah Z. and his
relatives.
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attorney asserted she did not know why respondent Kern County Department of
Human Services (the department) had previously denied the paternal
grandparents’ request to have the children placed in their home nor why the
department had not placed the children with any other relative. The court granted
counsel’s request and set a special hearing on the issue of relative placement.
At the hearing, the department made a showing that each of the paternal
grandparents had a criminal record and the paternal grandmother’s own children
had been juvenile dependents due to her neglect. The department had denied the
paternal grandparents’ requests for a criminal records exemption (§ 361.4, subd.
(d)(2)) that would have allowed Josiah and Gabriel to be placed with them. The
court found the department had not abused its discretion in denying these requests.
It then separately considered and denied the paternal grandparents’ current request
for placement (§ 361.3). Trial counsel for the children appealed on her clients’
behalf.
Consistent with its usual practice, the Court of Appeal appointed new
counsel to represent the children on appeal. Appellate counsel requested travel
funds to visit her young clients and assess their current situation and wishes. She
explained that, in her professional opinion, pursuit of the appeal was not in the
children’s best interests because their current nonrelative placement was
satisfactory. She indicated that if, after visiting the children, her opinion remained
unchanged, she would move to dismiss the appeal.
The Court of Appeal ordered briefing on appellate counsel’s authority to
move to dismiss her minor clients’ appeal based on her analysis of their best
interests. Appellate counsel argued that she had the authority, and indeed the duty,
to seek dismissal of the appeal, independent of the views of trial counsel, if she
concluded to do so was in the children’s best interests. The department and trial
counsel opposed the request for funds and any potential motion to dismiss, arguing
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that appellate counsel was not so empowered and that the consideration of
postjudgment evidence would conflict with our recent decision in In re Zeth S.
(2003) 31 Cal.4th 396.
The Court of Appeal denied the request for funds. It ruled that appellate
counsel lacked the authority to file a motion to dismiss based on her assessment of
the children’s best interests, and that In re Zeth S., supra, 31 Cal.4th 396,
prevented the Court of Appeal from ruling on such a motion. We granted review
to address significant questions of first impression relating to the scope of an
appellate counsel’s authority in handling a child’s dependency appeal.
DISCUSSION
I. Does Appellate Counsel Have the Power to Seek
Dismissal of an Appeal Based on a Child’s Best Interests?
The goal of dependency proceedings, both trial and appellate, is to
safeguard the welfare of California’s children. “The objective of the dependency
scheme is to protect abused or neglected children and those at substantial risk
thereof and to provide permanent, stable homes if those children cannot be
returned home within a prescribed period of time.” (In re Marilyn H. (1993)
5 Cal.4th 295, 307.) These proceedings are “ ‘designed not to prosecute a parent,
but to protect the child.’ ” (In re Malinda S. (1990) 51 Cal.3d 368, 384.) The best
interests of the child are paramount. (§ 202, subd. (d); In re Malinda S., at p. 384;
In re Mary C. (1995) 41 Cal.App.4th 71, 77.)
In deciding what services or placement are best for the child, time is of the
essence. “After reunification efforts have failed, it is not only important to seek an
appropriate permanent solution—usually adoption when possible—it is also
important to implement that solution reasonably promptly to minimize the time
during which the child is in legal limbo. . . . Courts should strive to give the child
[a] stable, permanent placement, and [a] full emotional commitment, as promptly
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as reasonably possible consistent with protecting the parties’ rights and making a
reasoned decision.” (In re Celine R. (2003) 31 Cal.4th 45, 59; see also In re Sade
C. (1996) 13 Cal.4th 952, 993 [state interest in expeditious resolution of
dependency matters is “strong indeed”].) “It is undisputed that children require
secure, stable, long-term, continuous relationships with their parents or foster
parents. There is little that can be as detrimental to a child’s sound development
as uncertainty over whether he is to remain in his current ‘home,’ under the care of
his parents or foster parents, especially when such uncertainty is prolonged.”
(Lehman v. Lycoming County Children’s Services Agency (1982) 458 U.S. 502,
513-514.) Thus, the priority in dependency proceedings is to identify and carry
out the services and placement that best serve the child’s interests as swiftly as
possible.
With these broad principles in mind, we consider whether appellate counsel
has the power to file a motion to dismiss an appeal based on counsel’s assessment
of the child’s best interests.
First, appellate counsel generally has the power to move to dismiss an
appeal. California Rules of Court, rules 20 and 30.3 authorize an appellant,
through counsel, to seek dismissal of an appeal. In cases such as this one, where
the record has been filed with the Court of Appeal, counsel must file a motion to
dismiss with the appellate court, which has the discretion to grant or deny the
motion. (Cal. Rules of Court, rules 20(c), 30.3(b)(2); DeGarmo v. Goldman
(1942) 19 Cal.2d 755, 768 [“An appellant may not dismiss his appeal as a matter
of right; whether he will be permitted to do so is within the discretion of the
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court”].) This procedure applies equally to dependency appeals. (See In re Karen
G. (2004) 121 Cal.App.4th 1384, 1389; Cal. Rules of Court, former rule 39(a).)3
Second, the power to move to dismiss the appeal includes the power to do
so based on the child’s best interests. California Rules of Court, rules 20 and 30.3
contain no express exceptions. They reflect the usual rule that, in every case, an
attorney has the power to seek dismissal of an appeal based on the attorney’s and
the client’s evaluation of the client’s best interests, as, for instance, when the client
elects to settle in lieu of pursuing an appeal. The question then is whether
anything in the dependency rules warrants a departure from this usual rule. We
conclude not.
In In re Zeth S., supra, 31 Cal.4th 396, we addressed whether appellate
counsel has a statutory duty to “independently investigate the current
circumstances of the child’s preadoptive placement, and to report any significant
changes to the reviewing court so that the court can determine anew whether the
trial court’s judgment should be reversed . . . .” (Id. at p. 414.) We concluded that
although section 317 imposes investigatory duties on a child’s counsel (§ 317,

3
California Rules of Court, former rule 39(a) provided that the rules
applicable to criminal appeals (including rule 30.3, governing dismissal) were
applicable to dependency appeals, unless otherwise noted. As part of an ongoing
project to simplify the rules of appellate procedure, rule 39 was repealed effective
January 1, 2005, and its substance was transferred to rule 37. (See Advisory Com.
com., 23 pt. 1 West’s Ann. Codes, Rules (2005 ed.) foll. rule 37, p. 683.) Though
new rule 37 no longer expressly incorporates the rules for dismissal of criminal
appeals, nothing in the advisory notes indicates that this omission was intended to
extinguish the possibility of dismissing a dependency appeal, nor do we read rules
37 to 38.6 as rendering dependency appeals immune from dismissal. Rather, we
read them as providing the relevant rules of appellate procedure for dependency
appeals for the topics covered; one must look elsewhere in the rules of appellate
procedure for general rules concerning topics for which no special dependency
rule is set out.
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subd. (e)),4 the statute by its terms applies only to trial counsel and thus imposes
no similar duties on appellate counsel. (In re Zeth S., at p. 415.) But in deciding
that section 317 did not require counsel to conduct an investigation, we did not
hold that the statute would prevent counsel from doing so, or from bringing a
motion to dismiss motivated by the child’s best interests. Nor does any other
dependency statute or regulation preclude such a motion.
Indeed, the concerns motivating dependency law persuade us that such a
motion will sometimes be the proper course. As we explained in the writ context:
“Sometimes the additional delay that seeking writ relief might cause could harm
the children. An attorney for a child is ‘charged in general with the representation
of the child’s interests’ (§ 317, subd. (e)) rather than always seeking a result that
counsel thinks is legally correct regardless of whether that result is in the child’s
best interest.” (In re Celine R., supra, 31 Cal.4th at p. 60.) If the delay from a
writ proceeding can justify forgoing a potentially meritorious petition, then the
typically far greater delay from an appeal can surely sometimes justify forgoing a
potentially meritorious appeal. (See id. at p. 59 [“The delay an appellate reversal

4
Section 317, subdivision (e) provides in relevant part: “The counsel for the
child shall be charged in general with the representation of the child’s interests.
To that end, the counsel shall make or cause to have made any further
investigations that he or she deems in good faith to be reasonably necessary to
ascertain the facts . . . . In any case in which the child is four years of age or older,
counsel shall interview the child to determine the child’s wishes and to assess the
child’s well-being, and shall advise the court of the child’s wishes. Counsel for
the child shall not advocate for the return of the child if, to the best of his or her
knowledge, that return conflicts with the protection and safety of the child. In
addition counsel shall investigate the interests of the child beyond the scope of the
juvenile proceeding and report to the court other interests of the child that may
need to be protected by the institution of other administrative or judicial
proceedings. . . .”
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causes might be contrary to, rather than in, the child’s best interests”].) On appeal,
as much as in writ proceedings or before the trial court, the client’s best interests
remain the lodestar for counsel. When the client is a child, the rule is no different.
Thus, we reject the department’s argument that appellate counsel has an ethical
duty to pursue any nonfrivolous arguments on appeal, to the exclusion of a motion
to dismiss.
The Court of Appeal concluded that hearing a motion to dismiss the appeal
based on appellate counsel’s best-interests assessment would violate the
proscription against consideration of postjudgment evidence on appeal. (See In re
Zeth S., supra, 31 Cal.4th at p. 413.) This conclusion reads too much into our
holding in Zeth S. There, we held that for an appellate court routinely to solicit
postjudgment evidence in order to reopen and reconsider trial court findings and
reverse the trial court’s judgment “would violate both the generally applicable
rules of appellate procedure, and the express provisions of section 366.26 which
strictly circumscribe the timing and scope of review of termination orders, for the
very purpose of expediting the proceedings and promoting the finality of the
juvenile court’s orders and judgment.” (In re Zeth S., at p. 413.) For these
reasons, an appellate court should not consider postjudgment evidence going to the
merits of an appeal and introduced for the purposes of attacking the trial court’s
judgment. But these same concerns militate in favor of permitting motions to
dismiss to be brought and heard, and distinguish this case from Zeth S. in three
respects. First, the generally applicable appellate rules authorize such a motion,
and appellate courts routinely consider limited postjudgment evidence in the
context of such motions. (Cal. Rules of Court, rule 41(a)(2); see, e.g., TMS, Inc. v.
Aihara (1999) 71 Cal.App.4th 377, 378-379; In re Melissa S. (1986) 179
Cal.App.3d 1046, 1053-1054.) Second, the limited issue involved in a motion to
dismiss, whether a child should be permitted to abandon a challenge to the trial
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court ruling, is distinct from the broader issues resolved by the trial court, and
consideration of circumscribed evidence in this context does not give rise to the
vice we condemned in Zeth S.—an appellate court’s use of new evidence outside
the record to second-guess the trial court’s resolution of issues properly committed
to it by the statutory scheme. (See In re Zeth S., at pp. 409-410.) Third, the
beneficial consequence of motions to dismiss, where granted, will be to
“expedit[e] the proceedings and promot[e] the finality of the juvenile court’s
orders and judgment” (id. at p. 413)—precisely the policy advanced by our ruling
in Zeth S.
The Court of Appeal also expressed concern that allowing such a motion
would leave appellate counsel’s clients “with no recourse, their right of appeal
having been abandoned.” Not so. A motion to dismiss cannot be brought
unilaterally, without client consent, as we discuss post. Nor is such a motion to be
granted automatically; instead, as noted ante, motions to dismiss are directed to
the sound discretion of the Court of Appeal. Thus, the right of appeal will be
relinquished only with client consent and after the exercise of judicial oversight.
In lieu of a motion to dismiss, the Court of Appeal suggested that appellate
counsel who identifies no good faith argument for reversal can file a Sade C. brief.
(In re Sade C., supra, 13 Cal.4th 952.) But appellate counsel properly can notify
the court that she has found no arguable issues only when that is in fact the case.
The appellate counsel who believes arguable issues exist, but that to pursue them
would not be in the client’s best interests, cannot properly file a Sade C. brief.
Instead, counsel’s proper course of action is to file an authorized motion to
dismiss.
In re Karen G., supra, 121 Cal.App.4th 1384, presents an example of such
a motion. After the juvenile court ordered a child returned to her mother, both the
social services agency and the child’s trial counsel filed notices of appeal, and
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appellate counsel was appointed for the child. The social services agency
subsequently reversed its position and moved to dismiss its appeal based on
changed circumstances. The Court of Appeal granted the social services agency’s
motion, whereupon the child’s appellate counsel moved to dismiss the child’s
appeal based on the changed circumstances. Though framed in terms of mootness,
the motion effectively asked for dismissal because opposing the child’s placement
with her mother was no longer in the child’s best interests. (See id. at pp. 1389-
1390.) The Court of Appeal took judicial notice of the juvenile court’s six-month-
review order, which reflected the social services agency’s changed position and
the mother’s improved performance, and granted the motion to dismiss. (Id. at pp.
1390-1391; see also In re Harry N. (2001) 93 Cal.App.4th 1378, 1394 [motion by
child’s appellate counsel to dismiss appeal and remand for new best interests
hearing].) As Karen G. demonstrates, a motion to dismiss can be an appropriate
way to end dependency proceedings and bring closure for a child.
II. When May Appellate Counsel Exercise the Power to Seek
Dismissal of an Appeal Based on a Child’s Best Interests?
We determine next the circumstances in which appellate counsel may
exercise the power to move for dismissal based on the child’s best interests. This
question requires resolution of a series of related questions: Who is charged with
assessing and deciding whether the best interests of the child warrant a motion to
dismiss? How does one determine that the child’s best interests warrant such a
motion? Who may authorize a motion to dismiss based on best interests?
In answering these questions, we begin with the principle that dismissal of
an appeal requires client consent. An “attorney is authorized by virtue of his
employment to bind the client in procedural matters arising during the course of
the action but he may not impair the client’s substantial rights or the cause of
action itself.” (Linsk v. Linsk (1969) 70 Cal.2d 272, 276; see also Blanton v.
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Womancare, Inc. (1985) 38 Cal.3d 396, 404-405.) The dismissal of an appeal
curtails the client’s right to any relief an appeal might afford. Though a
procedural step, it relinquishes a client’s substantial right and cannot be taken
without client consent. (See Wuest v. Wuest (1942) 53 Cal.App.2d 339, 345.)
Thus, appellate counsel qua appellate counsel cannot unilaterally move to dismiss
an appeal.5
Who then is the client? That is, who has the power to evaluate the child’s
best interests and authorize a motion to dismiss? In civil matters, the answer is
clear. With rare exceptions, a child who is a party to a suit must appear through a
guardian ad litem or similar representative. (Code Civ. Proc., § 372.) Section 372
“represents a recognition by the Legislature that whenever a minor is involved in
litigation, his rights cannot be protected unless a guardian ad litem or a similar
representative acts for him. The guardian ad litem is an officer of the court, and he
has the right to control the lawsuit on the minor’s behalf. Among his powers are
the right to compromise or settle the action [citation], to control the procedural
steps incident to the conduct of the litigation [citation], and, with the approval of
the court, to make stipulations or concessions that are binding on the minor,
provided they are not prejudicial to the latter’s interests [citation].” (De Los
Santos v. Superior Court (1980) 27 Cal.3d 677, 683-684.) A civil guardian ad
litem’s role is “more than an attorney’s but less than a party’s, in that the guardian
oversees any attorney representing minor’s litigation-related interests and may
make tactical and even fundamental decisions affecting the litigation, but always
with the interest of the minor in mind.” (County of Los Angeles v. Superior Court

5
But see post at pages 17-18, footnote 9 (discussing situation where attorney
is both appellate counsel and guardian ad litem).
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(2001) 91 Cal.App.4th 1303, 1311, italics omitted; accord, In re Christina B.
(1993) 19 Cal.App.4th 1441, 1454.) Thus, in the civil context, the child’s section
372 guardian ad litem would be responsible for authorizing a motion to dismiss an
appeal after evaluating the child’s interests.
These principles do not automatically extend to the dependency context.
“Dependency proceedings in the juvenile court are special proceedings governed
by their own rules and statutes. ([Welf. & Inst. Code,] § 300 et seq.; Cal. Rules of
Court, rule 1440 et seq.) Unless otherwise specified, the requirements of the Civil
Code and the Code of Civil Procedure do not apply.” (In re Jennifer R. (1993) 14
Cal.App.4th 704, 711, fn. omitted; accord, In re Shelley J. (1998) 68 Cal.App.4th
322, 328.) However, in the absence of a dispositive provision in the Welfare and
Institutions Code, we may look to these requirements for guidance. (In re Daniel
S. (2004) 115 Cal.App.4th 903, 911.)
The rules governing dependency guardians ad litem are slightly different
than those applicable in civil proceedings. The federal Child Abuse Prevention
and Treatment Act (CAPTA) (42 U.S.C. § 5101 et seq.) authorizes federal funding
of state child protective services programs subject to various conditions. Among
those conditions, a state must ensure appointment of a specially trained guardian
ad litem in every judicial proceeding involving an abused or neglected child. (42
U.S.C. § 5106a(b)(2)(A)(xiii).) The CAPTA guardian ad litem is responsible for
both evaluating “the situation and needs of the child” and “mak[ing]
recommendations to the court concerning the best interests of the child.” (42
U.S.C. § 5106a(b)(2)(A)(xiii)(I) & (II).)6 Under the implementing regulations,

6
To receive CAPTA funds, a state must submit a grant plan that describes,
inter alia, “provisions and procedures requiring that in every case involving an
abused or neglected child which results in a judicial proceeding, a guardian ad

(footnote continued on next page)
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states are required to ensure appointment of a guardian ad litem who will
“represent and protect the rights and best interests of the child.” (45 C.F.R.
§ 1340.14(g), 55 Fed.Reg. 27639 (July 5, 1990).) Thus, the CAPTA guardian ad
litem is a fiduciary whose role is to investigate the child’s circumstances and
advocate for her best interests.
To ensure CAPTA funding, the Legislature passed Welfare and Institutions
Code section 326.5, which directed the Judicial Council to adopt court rules
governing appointment of CAPTA guardians ad litem.7 The Judicial Council
responded by amending California Rules of Court, rule 1438 and adding
California Rules of Court, rule 1448. Rule 1448(c) requires appointment of a
“CAPTA guardian ad litem . . . for every child who is subject to a juvenile
dependency petition under Welfare and Institutions Code section 300.” Rule
1448(d) mirrors the language of CAPTA, requiring that the CAPTA guardian ad
litem evaluate “the situation and needs of the child” and “make recommendations
to the court concerning the best interest of the child.” (Cal. Rules of Court, rule
1448(d)(1), (2).)

(footnote continued from previous page)
litem, who has received training appropriate to the role, and who may be an
attorney or a court appointed special advocate who has received training
appropriate to that role (or both), shall be appointed to represent the child in such
proceedings—[¶] (I) to obtain first-hand, a clear understanding of the situation and
needs of the child; and [¶] (II) to make recommendations to the court concerning
the best interests of the child.” (42 U.S.C. § 5106a(b)(2)(A)(xiii).)
7
See Senate Committee on Judiciary, Analysis of Senate Bill No. 2160
(1999-2000 Reg. Sess.) as amended March 30, 2000, pages 3-5, 11-12 (legislation
needed to stop loss of federal funding resulting from noncompliance with CAPTA
guardian ad litem provisions); 45 Code of Federal Regulations part 1340.14(g)
(state may satisfy CAPTA by adopting court rule “mandating appointment[] in
every case”).
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The child’s CAPTA guardian ad litem will be either her attorney or, if no
attorney has been appointed, a court-appointed special advocate. (§ 326.5; Cal.
Rules of Court, rules 1438(b), (e), 1448(c).) To comply with CAPTA’s
competency requirements, the Rules of Court impose ongoing training and
education requirements on both attorneys and court-appointed special advocates.
(Cal. Rules of Court, rules 1424(d), 1438(c); see § 102, subd. (d).) Thus, CAPTA
and the state statutes and rules designed to implement its requirements ensure that
each child in a dependency matter will have a trained, independent guardian ad
litem prepared to understand the child’s circumstances and make
recommendations based on an evaluation of the child’s best interests.
We read the CAPTA provisions as extending to appeals. CAPTA’s
requirements apply to every “judicial proceeding” involving an abused or
neglected child, without distinction between proceedings before a juvenile court or
an appellate court. (See 42 U.S.C. § 5106a(b)(2)(A)(xiii).) Nor is there any
discernable policy reason that would warrant reading into the statute an implied
limitation. As this case demonstrates, to have a specially trained advocate
prepared to speak to the child’s best interests may be no less important in the
appellate court than in the juvenile court.
California Rules of Court, rule 1448, the state rule governing appointment
of CAPTA guardians ad litem, does not explicitly address whether its provisions
apply to appeals. Rule 1448(c) provides simply: “A CAPTA guardian ad litem
must be appointed for every child who is subject to a juvenile dependency petition
under Welfare and Institutions Code section 300.” However, because a child
involved in an appeal from a dependency proceeding order is still the subject of a
juvenile dependency petition, CAPTA imposes on state courts a continuing
obligation to ensure that each child has a CAPTA guardian ad litem on appeal.
Given that CAPTA’s requirements extend to appeals, and given the Legislature’s
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manifest intent to ensure state eligibility for CAPTA funds through compliance
with CAPTA’s requirements (§ 326.5), we conclude that rule 1448 requires each
child to have an appointed guardian ad litem on appeal.
What are the implications of these rules for a motion to dismiss? Though
an attorney must zealously advocate for her client, she cannot unilaterally appeal
(Guardianship of Gilman (1944) 23 Cal.2d 862, 864) or bring a motion to dismiss
(ABA Model Code Prof. Responsibility, EC 7-7; ante, at p. 11). A motion to
dismiss requires the authorization of the child or, if the child is incapable of giving
authorization, the authorization of a guardian ad litem acting on the child’s behalf
and in the child’s best interests. (See ABA Model Rules Prof. Conduct, rule 1.14,
coms. [1], [3]; ABA Model Code Prof. Responsibility, EC 7-12.)
In turn, the CAPTA guardian ad litem has a duty to “represent and protect
the rights and best interests of the child.” (45 C.F.R. § 1340.14(g); see also 42
U.S.C. § 5106a(b)(2)(A)(xiii); Cal. Rules of Court, rule 1448(d).) This means that
in the trial court, a CAPTA guardian ad litem who is also the child’s attorney has a
duty to bring an appeal when it is in the child’s best interests to do so. On appeal,
the duties imposed by CAPTA and California Rules of Court, rule 1448 continue.
Thus, the CAPTA guardian ad litem has a continuing duty to advocate for the
child’s best interests, including seeking dismissal of an appeal when it is no longer
in the child’s best interests. When the CAPTA guardian ad litem and appellate
counsel are two different people, the CAPTA guardian ad litem has a duty to
authorize appellate counsel to bring a motion to dismiss when it is in the child’s
best interests and the child is not capable of providing authorization.
Here, trial counsel had been appointed as the children’s CAPTA guardian
ad litem. When trial counsel filed a notice of appeal, the appellate court appointed
a new appellate counsel, but not a new CAPTA guardian ad litem. Thus, trial
counsel continued as the children’s CAPTA guardian ad litem on appeal. (Cf.
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Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496,
1498, fn. 2 [holding that under Code Civ. Proc., § 372, “[a]n appointment in the
trial court . . . suffices to appoint a guardian ad litem for appellate purposes
also”].) Given the children’s ages, a motion to dismiss could be brought only with
the concurrence and authorization of trial counsel in her role as CAPTA guardian
ad litem.8 If trial counsel refused to authorize the motion, appellate counsel would
have the option of either zealously arguing any issues on appeal or seeking to
withdraw.
Appellate counsel argues that section 317, subdivision (d) and California
Rules of Court, rule 1448 limit trial counsel’s CAPTA guardian ad litem service to
the superior court; trial counsel could not serve as CAPTA guardian ad litem in the
absence of a formal appointment by the Court of Appeal; and appellate counsel
should be deemed the children’s CAPTA guardian ad litem on appeal based on the
language of California Rules of Court, former rules 39.1, 39.2 and 39.2A, despite
the lack of any formal appointment. We are not persuaded.
First, nothing in section 317, subdivision (d) or rule 1448 limits trial
counsel’s CAPTA guardian ad litem service to the superior court. Section 317,
subdivision (d) governs only the scope of trial counsel’s appointment as counsel

8
At some point, notwithstanding their formal legal incompetence, children
become capable of giving informed consent to key decisions affecting their
circumstances. (See, e.g., § 317, subd. (f) [child may give informed consent to
invocation of privilege if of sufficient age and maturity]; ABA Stds. for Lawyers
Who Represent Children in Abuse and Neglect Cases (1996) stds. B-3, B-4 (ABA
Standards); cf. Guardianship of Gilman, supra, 23 Cal.2d at p. 864 [incompetent
may authorize dismissal of appeal].) Whether that point has been reached is
generally a factual question, but it is self-evident that the children here, at four
years old and 18 months old on the date investigatory funds were sought, could
not give informed consent. (See In re Mary C., supra, 41 Cal.App.4th at p. 76
[three-year two-month-old child cannot give written informed consent].)
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and does not bear on her appointment as guardian ad litem. Rule 1448
distinguishes between the duties of a CAPTA guardian ad litem, which it defines,
and the duties of a non-CAPTA guardian ad litem. (Cal. Rules of Court, rule
1448(b).) It applies to all “juvenile dependency proceedings” (ibid.), but does not
distinguish between trial and appellate dependency proceedings. Nothing in rule
1448 suggests that the filing of a notice of appeal terminates the appointment of a
child’s CAPTA guardian ad litem or precludes her from continuing to serve during
the course of appellate proceedings.
Second, nothing in the language of rule 1448 requires appointment of a new
CAPTA guardian ad litem. As indicated, California Rules of Court, rule 1448(c)
provides that a CAPTA guardian ad litem must be appointed “for every child who
is subject to a juvenile dependency petition under Welfare and Institutions Code
section 300.” We interpret rule 1448 in light of the clear legislative purpose that
the rules governing CAPTA guardians ad litem should be read to ensure
compliance with CAPTA. As discussed, to comply with CAPTA, California must
provide a child a guardian ad litem throughout the course of dependency
proceedings. Appellate counsel’s insertion of an implied requirement that each
Court of Appeal appoint or reappoint the child’s CAPTA guardian ad litem would
place California in violation of CAPTA in every case (such as this one) where no
appointment occurred. We decline to create such a gap.9

9
On the other hand, nothing in California Rules of Court, rule 1448 prevents
a Court of Appeal from appointing a new CAPTA guardian ad litem. In cases
where a Court of Appeal appoints new appellate counsel, appellate counsel can
demonstrate compliance with CAPTA’s competence requirements, and actual or
potential conflicts do not dictate otherwise, to also appoint appellate counsel as a
child’s appellate CAPTA guardian ad litem may be appropriate. Because here the
Court of Appeal appointed an attorney separate from the children’s guardian ad
litem, we need not decide when a conflict of interest will compel an

(footnote continued on next page)
17

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Finally, California Rules of Court, former rules 39.1A, 39.2 and 39.2A,10
have no bearing on the status of appellate counsel as CAPTA guardian ad litem.
They provided for the filing of a minor’s brief in parental appeals of dependency
rulings—nothing more, nothing less. They offer no reason to conclude that new
appellate counsel takes over trial counsel’s role as CAPTA guardian ad litem in
the absence of an order so stating. Moreover, as pointed out by numerous amici
curiae, any such presumption would be problematic. In order to obtain
appointment as guardian ad litem, a child’s trial counsel must have demonstrated
satisfaction of the state-imposed competency requirements needed to comply with
CAPTA. (Cal. Rules of Court, rule 1438(c).) A child’s appellate counsel may or
may not be able to demonstrate satisfaction of these requirements.
III. When May Appellate Counsel Seek Funds to Investigate a Motion
to Dismiss an Appeal Based on a Child’s Best Interests?
Finally, we turn to the question of the respective roles of a child’s appellate
counsel and his or her CAPTA guardian ad litem before the filing of a motion to
dismiss an appeal. Given that appellate counsel cannot file a motion to dismiss
without the CAPTA guardian ad litem’s authorization, can she seek funds to
independently investigate the child’s circumstances? We conclude she can.

(footnote continued from previous page)
attorney/guardian ad litem to relinquish one role or the other and seek appointment
of a separate attorney or guardian to protect the child’s interests. (See In re
Charles T. (2002) 102 Cal.App.4th 869, 878 [when proceeding switches from
nonadversarial to adversarial, conflicts may preclude attorney from simultaneously
serving as guardian ad litem]; ABA Standards, std. B-2.)
10
These rules were repealed effective January 1, 2005, and the relevant
substance of the portions of the rules relied on by appellate counsel is now found
in California Rules of Court, rule 37.3(b)(4).
18

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The CAPTA guardian ad litem for young children incapable of informed
consent has the final say on whether a motion to dismiss will be filed. But as
appellate counsel correctly points out, the issues of (1) whether a motion to
dismiss a dependency appeal can be authorized only by the CAPTA guardian ad
litem, and (2) what steps an attorney may take in investigating and analyzing those
best interests in order to counsel the child and guardian ad litem, are conceptually
distinct. Though the CAPTA guardian ad litem has the ultimate authority to
sanction a motion to dismiss, appellate counsel has a separate obligation to offer
counsel as part of her duty of zealous representation. (ABA Model Rules Prof.
Conduct, rule 1.4(b).) Nothing in the rules setting out the CAPTA guardian ad
litem’s duties makes her duty to evaluate the child’s circumstances exclusive or
precludes others from evaluating those circumstances; rather, the guardian ad
litem is only one among many invested with the duty to protect the child’s best
interests. (See Berry v. Chaplin (1946) 74 Cal.App.2d 652, 657 [“It is the duty of
the guardian and the attorney to protect the rights of the minor, and it is the duty of
the court to see that such rights are protected”].) There may be cases where
appellate counsel will need to see the child in order to evaluate adequately whether
a motion to dismiss is appropriate and properly counsel the child and advise the
CAPTA guardian ad litem. There may be cases where a visit by appellate counsel,
or by both appellate counsel and the CAPTA guardian ad litem, will reveal
circumstances that cause the CAPTA guardian ad litem, after consultation with
appellate counsel, to revise her view of the child’s best interests and approve a
motion to dismiss. For these reasons, we reject the categorical rule adopted by the
Court of Appeal that would preclude such motions.
That said, it is incumbent on appellate counsel, before requesting funds, to
weigh the cost of delay in the proceedings resulting from any proposed visit
against both the need for additional information in light of the already available
19

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evidence and the position of the CAPTA guardian ad litem. Where the CAPTA
guardian ad litem is apparently set against dismissal, only in a rare case will the
seeking, or granting, of funds be appropriate, and appellate counsel’s burden to
justify the request will be heavy. In contrast, if the CAPTA guardian ad litem is
uncertain about the propriety of dismissal, it may be appropriate for counsel to
seek, and the Court of Appeal to authorize, funds that would allow informed
counseling of the client and guardian ad litem.
In light of these principles, we consider whether the Court of Appeal here
properly denied appellate counsel’s request for funds. Appellate counsel sought
funds to better inform her personal assessment of the children’s best interests. She
conceded that “[t]rial counsel . . . believes that pursuit of the appeal is in the best
interest of the children . . . .” She asserted the authority to file a motion to dismiss
without regard to the wishes of trial counsel, the children’s CAPTA guardian ad
litem. In response to the appellate court’s request for briefing, trial counsel
reiterated her unequivocal opposition to the motion to dismiss.
On this record, the Court of Appeal properly denied appellate counsel’s
request. Appellate counsel demonstrated no circumstances that might require the
CAPTA guardian ad litem to reassess her decision to appeal, nor any possibility
that the issuance of funds would lead the guardian to authorize a motion to
dismiss.
We summarize our conclusions. Appellate counsel has the power to move
to dismiss a dependency appeal based on a child’s best interests, and a Court of
Appeal has the power to consider and rule on that motion, even though it may
involve consideration of postjudgment evidence. Though such a motion requires
the authorization of the child or the CAPTA guardian ad litem, a visit with the
child to evaluate his or her needs may in some circumstances still be appropriate.
Appellate counsel demonstrated no such circumstances here.
20

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DISPOSITION
For the foregoing reasons, we affirm the Court of Appeal’s judgment and
remand the case for further proceedings. We do so without prejudice to appellate
counsel’s renewing her motion under the standards set forth in the opinion. 11
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
CHIN, J.
MORENO, J.
WOODS, J.*

11
During oral argument before this court, the CAPTA guardian ad litem
clarified that she was not opposed to the request for funds and had changed her
mind about the propriety of a motion to dismiss.
*
Associate Justice of the Court of Appeal, Second Appellate District,
Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

21

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Josiah Z.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 118 Cal.App.4th 944
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S125822
Date Filed: July 25, 2005
__________________________________________________________________________________

Court:

Superior
County: Kern
Judge: Peter A. Warmerdam, Juvenile Court Referee

__________________________________________________________________________________

Attorneys for Appellant:

Marin Williamson, under appointment by the Supreme Court, and Michelle R. Trujillo, under appointment
by the Superior Court, for Appellants.

Marvin R. Ventrell, Janet G. Sherwood and Donna Wickham Furth for National Association of Counsel for
Children and Northern California Association of Counsel for Children as Amici Curiae on behalf of
Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

B. C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and
Respondent.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Plaintiff
and Respondent.

Cameryn J. Schmidt, David F. Estep and Marissa Coffey for Children’s Law Center of Los Angeles as
Amicus Curiae on behalf of Plaintiff and Respondent.

Anahita Savarnejad and Darlen Azevedo Kelly for Sacramento Child Advocates, Inc., as Amicus Curiae on
behalf of Plaintiff and Respondent.

William Wesley Patton for Whittier Law School Legal Policy Clinic as Amicus Curiae.

Jonathan B. Steiner; Matthew Zwerling; Elaine Alexander; and Michael Kresser for California Appellate
Project, First District Appellate Project, Appellate Defenders, Inc., and Sixth District Appellate Program as
Amici Curiae.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Marin Williamson
Post Office Box 191091
San Francisco, CA 94119
(415) 777-3478

Michelle R. Trujillo
1616 Baker Street
Bakersfield, CA 93305
(661) 852-0417

Jennifer L. Thurston
Deputy County Counsel
1115 Truxtun Avenue
Bakersfield, CA 93301
(661) 868-3874

---

Opinion Information

Date:	Docket Number:
Mon, 07/25/2005	S125822

Disposition
Jul 25 2005	Opinion: Affirmed

Dockets
Jun 24 2004	Petition for review filed   by counsel for aplt. (Josiah Z.)
Jun 25 2004	Record requested
Jun 30 2004	Received Court of Appeal record   one doghouse
Jul 15 2004	Request for depublication (petition for review pending)   by First District Appellate Project, California Appellate Project - Los Angeles, Appellate Defenders, Inc., and the Sixth District Appellate Program.
Jul 15 2004	Request for depublication filed (another request pending)   by Elaine A. Alexander, Executive Director, Appellate Defenders, Inc.
Jul 15 2004	Note:   Appeal (F044121) is still pending in the Fifth Appellate District. Review is from a Motion Determined by Opinion filed 5/19/2004; modified 6-14-2004 (no change in judgment). [118 Cal.App.4th 944]
Jul 28 2004	Petition for review granted (civil case)   Baxter, J., was recused and did not participate.
Aug 11 2004	Counsel appointment order filed   Upon request of appellants for appointment of counsel, Marin Williamson is hereby appointed to represent appellants on appeal now pending in this court. Appellants' brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 9 2004	Opening brief on the merits filed   Appellants (Josiah Z., et al.)
Sep 30 2004	Received:   letter from Attorney Michelle R. Trujillo
Oct 7 2004	Answer brief on the merits filed   Respondent ( Kern County).
Oct 15 2004	Received:   Respondent's amended proof of service of Answer Brief on the Merits.
Oct 27 2004	Reply brief filed (case fully briefed)   By counsel for appellants. Filed with permission (Over the word limit).
Nov 3 2004	Received application to file Amicus Curiae Brief   WHITTIER LAW SCHOOL LEGAL POLICY CLINIC
Nov 8 2004	Permission to file amicus curiae brief granted   WHITTIER LAW SCHOL LEGAL POLICY CLINIC.
Nov 8 2004	Amicus curiae brief filed   WHITTIER LAW SCHOL LEGAL POLICY CLINIC. Answer due within 20 days.
Nov 15 2004	Response to amicus curiae brief filed   Appellants ( Josiah Z.).
Nov 23 2004	Received application to file Amicus Curiae Brief   CHILDREN'S LAW CENTER OF LOS ANGELES [in support of resp.]
Nov 24 2004	Received application to file Amicus Curiae Brief   SACRAMENTO CHILD ADVOCATES in support of resp.
Nov 24 2004	Received application to file Amicus Curiae Brief   CALIFORNIA STATE ASSOCIATION OF COUNTIES in support of resp.
Nov 24 2004	Received application to file Amicus Curiae Brief   NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN , et al., in support of appellants.
Nov 29 2004	Received:   letter from attorney Michell R. Trujillo ( for minors).
Dec 6 2004	Permission to file amicus curiae brief granted   NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN,et al.
Dec 6 2004	Amicus curiae brief filed   NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN, et al., in suport of appellants. Answer due within 20 days.
Dec 8 2004	Permission to file amicus curiae brief granted   CHILDREN'S LAW CENTER OF LOS ANGELES.
Dec 8 2004	Amicus curiae brief filed   CHILDRNE'S LAW CENTER OF LOS ANGELES in support of respondent. Answer due within 20 days.
Dec 13 2004	Permission to file amicus curiae brief granted   CALIFORNIA STATE ASSOCIATION OF COUNTIES . Answer due within 20 days.
Dec 13 2004	Amicus curiae brief filed   CALIFORNIA STATE ASSOCIATION OF COUNTIES in support of respondent. Answer due within 20 days.
Dec 13 2004	Permission to file amicus curiae brief granted   SACRAMENTO CHILD ADVOCATES, INC. in support of resp. Answer due within 20 days.
Dec 13 2004	Amicus curiae brief filed   SACRAMENTO CHILD ADVOCATES, INC., in support of resp. Answer due within 20 days.
Dec 27 2004	Response to amicus curiae brief filed   By counsel for appellants {Josiah Z.,}.to AC Brief filed by Bational Association of Counsel for Children.
Dec 27 2004	Response to amicus curiae brief filed   By counsel for appellants {Josiah Z., et al.,} to AC Brief filed by Children's Law Center of Los Angeles.
Dec 28 2004	Received application to file Amicus Curiae Brief   late>>California Appellate Project, etal
Jan 5 2005	Permission to file amicus curiae brief granted   CALIFORNIA APPELLATE PROJECT. et al., . Answer due within 20 days.
Jan 5 2005	Amicus curiae brief filed   CALIFORNIA APPELLATE PROJECT, et al.
Jan 21 2005	Response to amicus curiae brief filed   By counsel for appellants to AC brief filed by California Appellate Project et al.,
Jan 25 2005	Received:   applctn for perm, response to ac brief of CAP, & reqt for judicial notice >>ac Children's Law Center of Los Angeles
Feb 10 2005	Order filed   The appllication of amicus Children's Law Center for permission to file Answer to California Appellate Project/Los Angeles et al.'s amicus curiae brief and the Request for Judicial Notice are denied.
May 3 2005	Case ordered on calendar   5/25/05, 9am, S.F.
May 10 2005	Filed:   Request of Respondent (Kern County Department of Human Services) to divide oral argument time. 5/23/05 - received amended proof of service.
May 20 2005	Order filed   The request of counsel for Respondent to allow two counsel to argue on behalf of Respondent at oral argument is hereby granted.
May 20 2005	Order filed   The request of Respondent to allocate to Michelle Trujillo 10 minutes of Respondent's 30-minute allotted time for oral argument is granted.
May 23 2005	Received:   Amended proof of service re respondent's application to divide time. (filed 5/10/05)
May 25 2005	Cause argued and submitted
Jul 25 2005	Opinion filed: Judgment affirmed in full   and remanded. Opinion by Werdegar, J. -- joined by George, C.J., Kennard, Chin, Moreno, JJS., and Woods, J.* *Associate Justice of the Court of Appeal, Second Appellate District, Division Seven.
Aug 3 2005	Received:   Letter from Marin Williamson, counsel for appellants (children) re factual misstatement in opinion filed 7-25-2005, and request for correction.
Aug 3 2005	Filed:   Stipulation for early finality of opinion and immediate issuance of remittitur.
Aug 10 2005	Opinion modified - no change in judgment
Aug 10 2005	Order filed   Opinion modified. The parties' joint request for early finality and issuance of the remittitur is granted. The opinion in this case is final upon issuance of this order, and the remittitur shall issue forthwith. (Cal. Rules of Court, rule 29.4(b)(1)(A).) Baxter, J., was recused and did not participate. Werdegar, J., was absent and did not participate.
Aug 10 2005	Remittitur issued (civil case)   Certified copies sent to Fifth Appellate District
Aug 12 2005	Received:   Request from Fifth District to return the record. -- (Telephone call from Joe Lopez, Deputy Clerk
Aug 15 2005	Returned record   consisting of two doghouses to Fifth District pursuant to telephone request
Aug 19 2005	Received:   Receipt for remittitur from Fifth Appellate District, signed for by Joe Lopez, Deputy Clerk
Aug 31 2005	Compensation awarded counsel   Atty Williamson

Briefs
Sep 9 2004	Opening brief on the merits filed
Oct 7 2004	Answer brief on the merits filed
Oct 27 2004	Reply brief filed (case fully briefed)
Nov 8 2004	Amicus curiae brief filed
Nov 15 2004	Response to amicus curiae brief filed
Dec 6 2004	Amicus curiae brief filed
Dec 8 2004	Amicus curiae brief filed
Dec 13 2004	Amicus curiae brief filed
Dec 13 2004	Amicus curiae brief filed
Dec 27 2004	Response to amicus curiae brief filed
Dec 27 2004	Response to amicus curiae brief filed
Jan 5 2005	Amicus curiae brief filed
Jan 21 2005	Response to amicus curiae brief filed

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