In re S.C.

• Decision Date: 07 April 2006
• Docket Number: No. C046784.,C046784.
• Citation: 41 Cal.Rptr.3d 453,138 Cal.App.4th 396
• Court: California Court of Appeals Court of Appeals
• Parties: In re S.C., a Person Coming Under the Juvenile Court Law. Sacramento County Department of Health and Human Services, Plaintiff and Respondent, v. Kelly E., Defendant and Appellant.

41 Cal.Rptr.3d 453

138 Cal.App.4th 396

In re S.C., a Person Coming Under the Juvenile Court Law.

Sacramento County Department of Health and Human Services, Plaintiff and Respondent, v. Kelly E., Defendant and Appellant.

No. C046784.

Court of Appeal, Third District.

April 7, 2006.

Julie Lynn Wolff, Sacramento, for Defendant and Appellant.

Robert A. Ryan, Jr., County Counsel and Nanci A. Porter, Deputy County Counsel, for Plaintiff and Respondent.

SCOTLAND, P.J.

This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be.

In 76,235 words, rambling and ranting over the opening brief's 202 pages, appellant's counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy — for example, gratuitously and wrongly insulting her client's daughter (the minor in this case) by, among other things, stating the girl's developmental disabilities make her "more akin to broccoli" and belittling her complaints of sexual molestation by characterizing them as various "versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience."

The Presiding Justice of this court deserves some blame because he granted the request by appellant's counsel, Julie Lynn Wolff, to file an opening brief exceeding the page limitation. Effective January 1, 2005, computer produced briefs in juvenile dependency appeals "must not exceed 25,500 words, including footnotes." (Cal. Rules of Court, rules 33(b)(1), 37.3; further rule references are to the California Rules of Court.) However, "[o]n application, the presiding justice may permit a longer brief for good cause." (Rule 33(b)(5).)

This court does not receive many requests for permission to file oversized briefs and, until now, it has been the practice of the Presiding Justice to accept, as credible, an appellate counsel's declaration under penalty of perjury that good cause exists to file a brief exceeding the word limitation. This has been so in part due to the perhaps naive view that appellate counsel will adhere to the duty of an attorney "never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." (Bus. & Prof. Code, § 6068.) In addition, as a practical matter, in cases where the requested oversized brief is not submitted with the application, it would be difficult to assess the justification for exceeding the word limit without undertaking a review of the appellate record (an exercise that in most cases would require significant time and effort). Therefore, the Presiding Justice took appellant's counsel at her word and granted the application to file an oversized brief based on her representations that, in retrospect, appear to be the product of a passionate, yet unobjective, assessment of what occurred in the juvenile court. Having reviewed the issues raised in the opening brief, and having examined the record, we now can say that nothing in this case required the filing of an oversized brief, and surely nothing required filing such an unprofessional and, in many respects, virulent brief of 76,235 words.

These comments are harsh but deservedly so. An opening brief like the one filed in this case has many consequences. For starters, it undoubtedly is costly to the client to file such a brief that is long on words but short on substance. And by attacking the integrity of individuals involved in this case, the brief in effect falsely tells the client that she has been the victim of a grave injustice perpetrated by a corrupt system. In reviewing the case, this court will be able to see through such hyperbole. But having heard the message from her counsel, the client might give up on the system and not take the steps necessary to be able to reunify with her daughter. There also is a cost to those who have been so personally attacked by the brief. Everyone who toils in the juvenile courts recognizes that dependency proceedings often involve difficult and contentious matters pertaining to family relationships, and that emotions can run high. However, this does not mean they all have developed such thick skins that unjustified personal attacks against them create no harm. Certainly, portraying appellant's developmentally disabled daughter in such a cruel way undermines, rather than advances, appellant's relationship with her daughter, when a positive relationship is necessary to achieve appellant's goal of reunification with her.

Another cost of the opening brief in this case is the need for respondent to file its own oversized brief, at undoubtedly great cost, to respond to every argument and show why, in the words of respondent's counsel, the opening brief "misstates the facts or includes facts not in the record, misstates the law, and/or fails to prove the claims made in [the opening brief]." In addition, the nature of the opening brief has caused this court to spend more time than it would have taken if the brief had not been so overwrought and over the top.

Lastly, the experience in dealing with appellant's opening brief in this case will have consequences for counsel in other cases who feel the need to request an exception to the word limitation. It should come as no surprise that the Presiding Justice will now take a more cautious approach in ruling on those requests. Counsel will be required to demonstrate with specificity why it is necessary for their briefs to exceed the word limit established by the California Rules of Court.

FACTS AND PROCEDURAL BACKGROUND

Rules 14(a)(2)(C) and 33(a) state that an appellant "must," in the opening brief, "[p]rovide a summary of the significant facts limited to matters in the record."

Here, appellant's counsel devotes only six and one-half pages of her 202-page brief to what she calls a "COMBINED STATEMENT OF FACTS AND HISTORY OF THE CASE." The statement is a chronological description of events that occurred in the juvenile court. Nowhere in it is there a summary of the significant facts contained in the record. The only reference to the substance of a witness's testimony is the following argumentative assertion by counsel about an expert called as a witness by the minor's attorney: "[T]he sole purpose minor's counsel could reasonably have in endeavoring to introduce this testimony in these proceedings, was to allow Dr. Miller to pontificate about CSAAS [the Child Sexual Abuse Accommodation Syndrome], and to tell the Judge what to find true."

In the contention portions of the brief, appellant's counsel does recite some of the facts. However, they are only those facts that are favorable to her client, thus violating another established rule of appellate practice. An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.)

Without any assistance from appellant's counsel, we summarize the significant facts in the light most favorable to the judgment. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198.)

In December 2003, the Sacramento County Department of Health and Human Services filed a juvenile dependency petition on behalf of the 15-year-old minor, who has Down's syndrome with an IQ of 44 and functions at the level of a child six or seven years of age. The petition alleged that the minor had been sexually molested by her stepfather, including at least one act of sexual intercourse, and that appellant knew of the molestations but did not take any appropriate action to protect the minor. (Welf. & Inst.Code, § 300, subds. (b) & (d).) The social worker's report prepared for the hearing set forth the following information:

While at school, the minor had told staff that her stepfather watches pornographic movies and "makes noises" as he looks at pictures on the Internet of naked girls with their legs spread open, including pictures of a young girl who appeared to be the minor's age. While talking with a law enforcement officer who was summoned to question her, she told the officer that her stepfather had "`put his thing inside her thing and banged it against her'" and that she asked him to stop because it hurt her. When asked what "things" meant, she circled the penis of the male and the vaginal area of the female on a drawing of the human anatomy. According to the school principal, the minor had never exhibited sexualized behavior at the school, was "one of the highest functioning students," and was a "proper and well-behaved child" who "has never lied" at school.

The minor was transported to a medical center for examination, which was difficult to perform since the minor refused to cooperate. Consequently, the examination could neither confirm nor negate sexual molestation, although there was "no obvious trauma indicative of sexual abuse."

When interviewed by the social worker, the minor said that she had been sexually molested by her stepfather. She described one incident when she was taking a shower at home. Her stepfather came into the bathroom, "touched her private parts," and "put his private part inside her private part." When asked if she had said anything to her mother about the incident, the minor replied, "`Don't worry about it. It won't happen again.'"

Several days later, the social worker reinterviewed the minor, who again said that she had been sexually molested by the stepfather while her mother was not at home. However, when later...