In In re A.R., the Supreme Court today holds that a late notice of appeal from an order terminating parental rights does not always leave the aggrieved parent without remedy.

The court says, “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.”  But, because “dependent children have a critical interest in avoiding unnecessary delays to their long-term placement,” relief is to be granted only when the parent “act[s] promptly.”

The court’s unanimous opinion by Justice Leondra Kruger notes that terminating parental rights is “widely recognized as ranking ‘among the most severe forms of state action.’ ”  It also cites two legislative measures to protect against wrong termination decisions — a broad right to counsel in many dependency matters, including a specific right to “competent counsel,” and the right to appeal.

Relief is to be sought in the Courts of Appeal, the court says, but it leaves to those courts’ “substantial discretion” the “specific procedures” for relief applications, subject to possible future directives from the Legislature by statute or from the Judicial Council by rule of court.

The opinion seems to bury the lede.  A late notice of appeal is generally something from which there can be no relief, regardless of reason.  For example, in accord with Supreme Court precedent, rule 8.60(d) provides that “a reviewing court may relieve a party from default for any failure to comply with these rules [i.e., rules about appeals from the superior court], except the failure to file a timely notice of appeal . . . .”  (Emphasis added.)  However, it’s not until a footnote near the end of the opinion that the court says that “section 317.5 [providing the right to “competent counsel” in dependency proceedings] and the habeas corpus law provide the necessary authorization to override the interests in finality reflected by the jurisdictional rule.”

The court reverses the First District, Division One, Court of Appeal, which had dismissed the appeal in the case.  It also disapproves a 2019 opinion and two 1992 opinions of the Fourth District, Division Two, a 2015 opinion of the Second District, Division One, a 2004 opinion of the First District, Division Four, a 1994 opinion of the First District, Division Five, and a 1989 opinion of the First District, Division Two.