expediting dependency appeals: strategies to...

Expediting DependencyAppeals:

Strategies to Reduce Delay

By

Ann L. Keith

and

Carol R. Flango

© 2002 The National Center for State Courts300 Newport Avenue (23185)P.O. Box 8798Williamsburg, VA 23187-8798Web site: www.ncsconline.org

ISBN 0-89656-197-6

This document was developed by The National Center for State Courts under a grant from theState Justice Institute (No. SJI-00-N-209). The points of view expressed do not necessarily

represent the official position or policies of The National Center for State Courts or the StateJustice Institute

ii

Advisory CommitteeTHE HONORABLE EVELYN LUNDBERG STRATTON, CHAIR

JusticeThe Supreme Court of Ohio

30 East Broad St., Columbus, OH 43266-0419

National Center for State Courts

State Justice InstituteOLIVIA GRANT

SJI Project Monitor1650 King St., Suite 600

Alexandria, VA 22314

JUSTICE CHARLOTTE ANNE PERRETTA

Commonwealth of MassachusettsThe Appeals Court1500 New CourthouseBoston, MA 02108

NCJFCJ MEMBERS:

MARY V. MENTABERRY

DirectorPermanency Planning for Children DepartmentNational Council of Juvenile and Family Court JudgesP.O. Box 8970Reno, NV 89507

THE HONORABLE SHARON MCCULLY

Third District Juvenile Court450 S. State St., Suite 209Salt Lake City, UT 84114-04431

CAROL R. FLANGO

Project Director

ANN L. KEITH

Court Research Associate

DAWN RUBIO

Senior Court Management Consultant

TED RUBIN

Consultant

TONI KNORR

Program Specialist

DEBORAH SIEGEL

Intern

LESLIE D. GRADET

National Conference of Appellate Court ClerksMaryland Court of Special Appeals361 Rowe Blvd.Annapolis, MD 21301

CY GURNEY, MSWRegional AdministratorNorth Carolina Guardian ad Litem Services DivisionSuperior Court Judges ChambersDurham County Judicial Building, 6th Floor201 E. Main St.Durham, NC 27701ALEXANDER MCNEIL

Court AdministratorThe Appeals Court1500 New CourthouseBoston, MA 02108

EDWARD MCSWEENEY

Staff AttorneyVermont Supreme Court109 State StreetMontpelier, VT 05609-0801

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Acknowledgments

This report on expediting dependency appeals is the result of a collaboration between TheNational Center for State Courts and the State Justice Institute, with information, contribu-

tions, and assistance from the appellate courts in all fifty states, whose contact information islocated in Appendix A.

The project’s advisory committee included representatives from state supreme courts,intermediate appellate courts, a juvenile court, and the National Council of Juvenile and FamilyCourt Judges. The committee met to analyze surveys of the state courts and to develop a processfor appellate courts to use when implementing an expedited procedure for dependency appeals.In addition to the committee members and state court contacts, the following individuals contrib-uted their expertise and experience toward this effort: Chief Judge Judith S. Kaye of the New YorkCourt of Appeals, who contributed suggestions to the process for expediting dependency appealsand included the project on the Conference of Chief Justice’s Child Welfare Committee’s agenda,and Connie Crim, Clerk to Justice Evelyn Lundberg Stratton, Supreme Court of Ohio, who assistedwith the coordination and communication between The National Center and Justice Stratton. Theauthors would also like to express their appreciation to Associate Justice Charlotte Anne Perretta;Chief Judge Christopher Armstrong; Alex McNeil, Court Administrator; Ashley Ahearn, Clerk ofCourt; and Chris Micchia, Assistant Clerk, of the Appeals Court of the Commonwealth of Massa-chusetts, for their contributions and hospitality during the project’s site visit.

Dr. Victor E. Flango, Vice-President of Research of The National Center, presented the im-portance of outcome measures to the project’s committee and participated in the site visit to theAppeals Court of the Commonwealth of Massachusetts. Bill Hewitt, Senior Court Research Associ-ate at The National Center, contributed ideas and suggestions to the project regarding transcriptand record production. The National Center’s Education and Technology Studio’s Ray Foster andKevin Mittler answered technical questions about courtroom technology for the committee duringtheir meeting in Williamsburg. Sara Lewis and Chuck Campbell copyedited the final publicationand coordinated its printing. Pam Petrakis assisted with the formatting and organization of thefinal draft.

Finally, we are very grateful for the State Justice Institute’s support and to Olivia Grant,Project Monitor, for her help, guidance, and enduring patience to see this project to completion.

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Table of Contents

Foreword ................................................................................................................................... ixExecutive Summary ...................................................................................................................xiIntroduction .............................................................................................................................. 1Project Overview ........................................................................................................................ 3

Survey of Courts that Are Expediting Dependency Appeals ................................................. 3Expedited Dependency Appeal Case Types .......................................................................... 5Legal Process for the Expedition of Dependency Appeals by State ....................................... 6

Promising Practices in Expediting Permanency: Eight Steps ...................................................... 7Assess the Appellate Environment ...................................................................................... 7Appoint a Leader .............................................................................................................. 10Assemble a Task Force ...................................................................................................... 10Develop a Plan ................................................................................................................. 10Draft a Rule ...................................................................................................................... 11Implement Internal Operating Procedures ....................................................................... 11Consider Strategies to Improve the Appellate Process ....................................................... 12

u Notice of Appeal ................................................................................................ 12u Transcripts and the Record ............................................................................... 12u Computer-Aided Transcription (CAT) ................................................................ 13u Electronic Filing of Records ............................................................................... 13u Briefing ............................................................................................................. 14u Oral Argument and Conferencing ...................................................................... 15u Decisions .......................................................................................................... 15u Posting of Decisions .......................................................................................... 15u Other Ideas ....................................................................................................... 15

Review and Refine the Process ......................................................................................... 16Expectations for the Trial Courts ...................................................................................... 16

State Court Highlights .............................................................................................................. 19Georgia ............................................................................................................................. 19Iowa ................................................................................................................................. 20Massachusetts .................................................................................................................. 22Minnesota ........................................................................................................................ 25New York .......................................................................................................................... 27Ohio ................................................................................................................................. 28Vermont ........................................................................................................................... 29Virginia ............................................................................................................................. 33

Appendix A: State and Trial Court Contacts .............................................................................. 35Appendix B: Survey .................................................................................................................. 39Appendix C: Telephone Process for Expediting Dependency Appeals ........................................ 47Appendix D: State Statutes and Court Rules ............................................................................. 53Appendix E: Iowa’s Petition and Response Forms .................................................................... 63

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Foreword

We are very pleased to present the final report on Expediting Dependency Appeals:Strategies to Reduce Delay. This project has been exciting and rewarding, as we have studied

what different states are doing to expedite appeals while, at the same time, challenging the statesto get started now if they do not have such an effort already under way.

The federal government enacted the Adoption and Safe Families Act (ASFA) in 1997 toreduce the length of time courts take to find permanent homes for children removed from thecustody of their birth parents. The goal is to prevent these children from languishing in the fostercare system. Although the focus of the ASFA legislation is on the trial court level, the appealsprocess is part of the permanency process. An appeal may considerably extend a child’s place-ment in foster care. While several months or a year may seem a reasonable period for an appealsprocess to an adult, it is an eternity in the life of a child.

Because we recognized the delay in permanency an appeal can cause, we wanted to studythe efforts states have already undertaken. How did they get started? What were their roadblocks?How did they succeed?

This report is the result of that research and, hopefully, a useful tool that you can use tostart your efforts or improve your existing plan. It is a labor of love because the lives of thesechildren are so precious and their moments in childhood must not be wasted.

Please join me in meeting this challenge.

Evelyn L. StrattonJusticeOhio Supreme Court

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Executive Summary

Timeliness is a consideration in the resolution of court disputes, but it must be considered aperformance goal by all courts when children are involved and forced to remain in unstable,

and perhaps violent, situations. As trial courts become more cognizant of children’s needs, theyhave reduced their time standards for dependency cases. Only recently, however, has attentionturned to appeals involving children. Permanency for a child cannot be achieved if the child’s caseis awaiting appellate resolution. This project examined the effectiveness of expediting appeals fordependency cases (i.e., child abuse and neglect, children in need of special assistance, foster care,adoption) in state courts. It examined the procedures in those appellate courts that have stream-lined the appellate process for handling dependency cases and, with this publication, is makingthese findings available for other courts’ consideration.

Staff surveyed all forty-three state appellate courts that have expedited appeals for depen-dency cases and studied several courts with exemplary practices in-depth. The first section of thisreport describes all expedited appeals procedures for dependency cases in state courts and re-views their implementation process. The second section reports on the appellate court processesfor expediting dependency appeals in Georgia, Iowa, Massachusetts, Minnesota, New York, Ohio,Vermont, and Virginia. The project also provides eight steps any appellate court can follow toimplement an expedited appeals process. It is important to note that, while most state appellatecourts are expediting some type of dependency appeals, there are other case types they may alsorequire expedition. This guide is intended to make the implementation process comprehensiveand less difficult. Finally, a copy of all the state rules and statutes for expediting dependencyappeals is provided in an appendix with Web site addresses to access more information aboutparticular states. A particularly useful strategy in implementing an expedited process is for arepresentative from one appellate state court to contact an appellate state court representative inanother state that has a statute or court rule that may be adapted for use in the state without anexpedited process.

This report is the first source of comprehensive information on expedited appeals fordependency cases. It helps answer questions on what the state appellate courts can do to expeditethose cases involving children and provides needed information for courts interested in institut-ing the process, or in reforming and improving present practices. The report also hopes to raisethe awareness of state trial courts of their responsibilities in quickly preparing these cases for theappellate courts.

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1

Introduction

“Cases involving termination of parental rights and adoption issues areabout the lives of children, rather than contracts, insurance, businessdisputes, or water rights. The legal system views these cases as numbers ona docket. However, to a child, waiting for a resolution seems like forever—an eternity with no real family and no sense of belonging.”1

Timeliness is a consideration in the resolution of all court disputes, but it is particularly impor-tant when children are involved and forced to remain in unstable, and perhaps violent, situa-

tions. It is important for a child’s concept of time to either restore stability to a family or establishpermanency by another means. “The child’s sense-of-time guideline would require decision-makers to act with ‘all deliberate speed’ to maximize each child’s opportunity to restore stabilityto an existing relationship or to facilitate the establishment of new relationships to ‘replace oldones.’”2 The timely resolution of disputes, especially in cases involving children, should be con-sidered a performance goal by all trial and appellate courts handling family issues. Timely caseresolution requires aggressive case management. From intake to final appeal, courts need toassign, schedule, and track a child’s progress through the court system.

As trial courts become more cognizant of children’s needs, they have tightened the timeframes for moving dependency cases through the system.3 Only recently, however, has attentionturned to appeals involving children. Permanency for a child cannot be achieved if the child’s caselanguishes in the appellate system.

In addition to efficiently and effectively handling hearings, reducing continuances, andusing differentiated case management at the trial level, the appellate process must be reviewedand streamlined to reduce delay. Establishing time frames for processing these appeals helpsensure that there is no impediment to permanency for children. Techniques to expedite the ap-pellate process include requiring that child welfare cases are briefed and decided promptly andensuring that problems that arise during the process are dealt with quickly and fairly, with consis-tent application of explicit policies. The pace for dependency appeals is determined by the time ittakes to prepare the transcript, brief the case, schedule arguments, and handle continuances, aswell as by the workload of the appellate court.4

The appellate process, like many current lower court practices, is steeped in tradition.While many of the traditions work very well for the vast majority of appeals, the same traditions

1 Justice Evelyn Lundberg Stratton, Supreme Court of Ohio, Expediting the Adoption Process at the Appellate Level, 28 CAP. L.R. 121,121 (1999).2 National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Practice in Child Abuse and Neglect Cases,1995 and ABA, Center on Children and the Law, Timely Judicial Decisionmaking, 1999.3 Rauber, England, Hemrich, Court Improvement Progress Report 1999, ABA Center on Children and the Law.4 The Vermont State Initiative on Protecting Abused and Neglected Children: A Plan to Achieve Permanency for Abused and NeglectedChildren in State Custody, August 1997. See also State Justice Institute and NCSC, Appellate Court Performance Standards andMeasures, June 1999.

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may damage children involved in dependency5 and neglect appeals. Some appellate courts aresetting aside some established procedures and developing special methods to expedite depen-dency cases. Appeals concerning relinquishment, adoption, dependency, and abuse and neglectcases are being expedited in many courts by limiting time extensions and setting specific timegoals to ensure the appeal is resolved within a prescribed, short period of time.6

Other SJI-funded projects, such as Time on Appeal 7 and the NCSC Court Statistics Project,8

cover civil and criminal appeals as well as dependency cases, but have not examined the specialtime requirements of dependency cases. This research project focused on how appellate courtshandle dependency and child abuse and neglect cases by examining these questions:

• How did appellate courts that expedite dependency appeals design their process?

• How well is the expedited appeals system working?

• Are children moving through the entire court system more quickly because of the expe-dited appellate process?

This project examined the practices that state appellate courts use to expedite dependencyappeals. Project staff examined working systems through a survey of appellate courts in eachstate.9 The research findings are now available for other courts to examine as they consider settingup or improving their own system.

5 Dependency cases include child abuse and neglect, Child in Need of Assistance (CHINA), custody, termination of parental rights (TPR),and adoption cases.6 See pp 8-9 for NCJFCJ and ABA suggested guidelines for dependency appeals.7 ROGER A. HANSON, TIME ON APPEAL, NCSC (1996).8 NCSC COURT STATISTICS PROJECT, NCSC STATE COURT CASELOAD STATISTICS (2001).9 See Appendix B for a sample of the survey.

Expediting Dependency Appeals

3

Project Overview

The National Center for State Courts’ staff used a comprehensive process to determine thestatus of expediting dependency appeals in the state courts. The advisory committee chair,

Justice Stratton of the Supreme Court of Ohio, requested that each state’s chief justice appoint acontact person to the project. Follow-up letters were sent to the chief justices to thank them forappointing a contact person or to remind them to make an appointment. National Center staffcontacted fourteen supreme court justices, nine clerks of court, eight attorneys, seven appellatejudges, five court improvement coordinators, four juvenile and family court judges, and othercourt personnel as illustrated in Chart A. These contacts were used throughout the project.

Survey of Courts that Are Expediting Dependency Appeals

Project staff examined the system models that various states use to expedite appeals. Thepolicy, legislation, or other guidelines state legislatures and local court systems use to establishtheir system models were also identified.

After studying the models and how they were implemented, the project conducted a tele-phone survey to examine the different procedures used by an appellate court in each state forexpediting dependency appeals.10 These procedures included the different time segments for anappellate case; the screening system used at the appellate court level with dependency cases; theassignment of dependency cases to a differentiated track, rather than handling all cases in thesame manner; production of regular case flow reports; appointment of parents’ counsel to firstreview the merits of appeals, rather than just to pursue appeals; use of status conferences; the useof settlement conferences and mediation; and procedures used for handling frivolous appeals.11

Extensive telephone surveys were completed on the expedition process, and the contactperson verified the accuracy of the document. Forty-two states reported at least some aspects of anexpedited appellate procedure. Seven states reported not having any type of expedited appellateprocedure, and one state (Delaware) reported that an expedited procedure is pending implemen-tation. See Chart B for the status of expedited procedures as of April 2002 in the fifty states.

The advisory committee met to analyze the survey and site visit data and developed out-lines for an appellate court guide to establishing expedited dependency appeals. The final productwas distributed to the state appellate courts and project contacts.12

10 A copy of the survey is included in Appendix B.11 In certain states, there appears to be a practice of automatically filing an appeal whenever the trial court terminates parental rights. Insome studies of appeals, it is felt that many of these appeals are frivolous and that this practice severely increased the length and uncertaintyof permanent placements for children.12 Appendix C contains “A Process for Expediting Dependency Appeals,” which is also available in pamphlet form from The National Center.

4

4

4

5

7

8

9

14

0 10 20 30 40 50

Other

Juvenile/Family Court Judge

CIP Coordinator

Appellate Judge

Attorney

Clerk of Court

Supreme Court Justice

Number of Contacts

Chart A - Primary State Contacts for Information on Expedited Appeals State Contacts for Information on Expedited Appeals

Chart B - Status of Expedited Procedures as of April 2002

Reports Aspects of an Expedited Appellate Procedure – 42 StatesDoes Not Have Any Aspects of an Expedited Appellate Procedure – 7 StatesPending Expedited Appellate Procedure – 1 State (Delaware)


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Expedited Dependency Appeal Case Types

Case types that may be classified as dependency appeals include termination of parentalrights, abuse and neglect, adoption, custody, children in need of assistance, domestic violenceactions with issues custody issues, guardianship of a minor, and visitation appeals. Chart C illus-trates the types of cases expedited in each state. Many states expedite more than one case type. Infact, most states expedite two or more case types, and many expedite any appeal that involves achild-related issue, as illustrated in Chart D.

Chart C - Expedited Dependency Appeal Case Types

13

14

19

19

29

37

0 10 20 30 40 50

Other

CHINS

Custody

Adoption

Abuse & Neglect

TPR

Cas

e T

ypes

Number of States

Number of Appeal Types by State

7

10

56

9

5

7

0

2

4

6

8

10

12

None One Two Three Four Five Six or More

Number of Appeal Types

Num

ber

of S

tate

s

Chart D - Number of Dependency Appeal Types Expedited by State

Project Overview

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Legal Process for the Expedition of Dependency Appeals byState

The legal process each state uses to expedite dependency appeals may be an internal oper-ating procedure (IOP), court rule, or statute (see Chart E).13 Georgia has a constitutional amend-ment that governs the expedition of termination of parental rights, custody, children in need ofassistance, and abuse and neglect appeals. States that use an internal operating procedure (twenty-one states) report that the process is more flexible and that specific aspects of the process may beassigned to specific individuals. States that have formalized an expedited process with a court rule(twenty-three states), statute (fifteen states), or constitutional amendment (one state) chose thoseoptions to ensure that appeals are routinely and formally expedited by law. However, many of therules and statutes are written in vague terms; for example, “a termination of parental rightsappeal should be expedited,” without guidance as to how the expedition should be conducted.

21

23

151

IOP

Court Rule

Statute

Const. Amend.

Chart E - Legal Process for Expedition of Dependency Appeals by State

13 Some states have more than one legal process. For example, Georgia has a constitutional amendment, state statute, and internaloperating procedures.


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Promising Practices in Expediting Permanency:Eight Steps

Interviews with state contacts revealed diverse strategies that appellate courts have implementedto expedite dependency appeals. The project’s committee met to discuss the results from the

telephone interviews and the committee members’ experiences within their own appellate courts.The committee designed a process for expediting dependency appeals that includes the success-ful strategies reported by the states. The committee also produced a guidebook, A Process forExpediting Dependency Appeals, which may be obtained from The National Center for StateCourts.14

The recommended process for expediting dependency appeals involves eight steps: Assessthe Appellate Environment, Appoint a Leader, Assemble a Task Force, Develop a Plan, Draft a Rule,Implement Internal Operating Procedures, Consider Strategies to Improve the Appellate Process,and Review and Refine the Appellate Process.

I. Assess the Appellate Environment

The first step in establishing a procedure for expediting appeals is to assess the appellateenvironment. Before making changes to appellate procedures, courts should examine how theyare currently handling dependency appeals in the state. The court should identify what they aredoing well to reduce permanency delay for children seeking permanent placement.

After identifying positive steps the state has made to reduce delay, the courts need to iden-tify and assess any roadblocks and causes of delay. Specifically, the courts should ask what steps inthe appellate process are causing delay for children seeking permanent placement. This may beaccomplished by examining case flow statistics and making comparisons with the ABA and NCJFCJsuggested guidelines for each step of the appeal.15

Finally, the appellate courts must establish and create an awareness of the need for changein the process for handling dependency cases. Courts may publish case flow statistics and otherfindings from their assessment of the appellate environment. They may also consider writingarticles describing the consequences of appellate delay.16

14 See Appendix C for an outline of A Process for Expediting Dependency Appeals.15 See Suggested Guidlelines on pp 8-9 .16 See Justice Evelyn Lundberg Stratton, Supreme Court of Ohio, Expediting the Adoption Process at the Appellate Level, 28 CAP. L.R. 121(1999).

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Promising Practices in Expediting Permanency

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II. Appoint a Leader

Once an assessment of appellate procedures is complete and an awareness of the need toexpedite dependency appeals is established, the state should appoint a leader to create expeditedprocedures. A leader must be passionate about expediting dependency cases. The leader may be ajustice,17 an appellate judge,18 a court administrator,19 a staff attorney,20 or a court improvementproject leader,21 but it is crucial that the leader have the authority to create change and account-ability for the process. The leader must also be able to convene a task force with all stakeholdersin the appellate process.

III. Assemble a Task Force

Once installed, the leader will assemble a task force. The task force should represent allstakeholders in the appellate process and those involved in dependency cases. An ideal task forcewould include the following members:

• Justice or appellate judge

• Clerks, at both the trial and appellate levels

• Court administrator

• Trial judge

• Court improvement project leader

• Attorneys for the state and parents

• Guardians ad Litem

• Court-appointed special advocates (CASAS)

• Court reporters or transcribers

• Legislators (if the task force actions require legislation)

IV. Develop a Plan

The first goal of the task force will be to develop a plan for expedition. The task force willneed to identify sources of delay, which may be spearheaded by the findings during the Assess theAppellate Environment stage. After the sources are identified, the task force should examine waysto reduce delay (see Consider Strategies to Improve).

17 For example, Justice Evelyn Lundberg Stratton, Ohio Supreme Court.18 For example, Justice Charlotte Anne Perretta, Commonwealth of Massachusetts, The Appeals Court, and Judge Gayle Nelson Vogel of theIowa Court of Appeals.19 For example, Sandra Mengel, Chief Deputy Clerk of the Court of Appeals, Michigan Court of Appeals.20 For example, Ed McSweeney, Staff Attorney,Vermont Supreme Court.21 For example, Lilia Hopper, Court Improvement Project Director, Virginia.


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An important consideration in choosing expedition strategies is how to make the processuniform throughout the state. The courts should use the same forms and rules in each appellatedistrict to facilitate case flow. Structural issues should also be addressed to ensure that the intermedi-ate appellate courts in a state have similar procedures.

Because the task force comprises representatives of all stakeholders, they should be ableto encourage cooperation from their colleagues in implementing new procedures. To facilitatethis goal, the representatives will need to improve communication between the court and thosewho process dependency appeals. Suggestions to encourage communication include distributinga newsletter on the status of appeals at regular intervals, holding brown-bag status meetings, andasking for feedback and suggestions.

The task force should conduct regular meetings during the development stage and after-ward to refine the process. Each member may be assigned specific tasks, as homework to becompleted before the next meeting, to keep the process moving. One homework assignment maybe to look at other states for examples of what does and does not work in their expedited proce-dures.

Finally, the task force should develop outcome measures to analyze how the strategiesreduce delay. Once the expedited process is implemented, the task force will need to continue toassess and measure the process at regular intervals to ensure that it is effective. Keeping courtstatistics on how quickly courts are processing dependency cases is also recommended.

V. Draft a Rule

After the task force identifies the strategies that it will implement to reduce delay, it willneed to draft a rule to formalize the procedure. The task force may review or copy rules andstatutes in effect in other states.22 Drafting a statute or court rule gives the force of law and perma-nency to the expedited process.

VI. Implement Internal Operating Procedures

In addition to court rules and state statutes, the task force should draft internal operatingprocedures (IOPs) to make the statutes or rules effective and workable. IOPs are informal rules orguidelines that the court uses to process appeals. They may specifically assign tasks to certainpersons:

Some examples:

“Mr. Smith will contact the trial court thirty days after the notice of appeal is filed tocheck on the status of the transcripts.”

“Judge Jones will write a screening memo on the appeal within five days of the filingof the notice of appeal.”

22 See List of State Statutes and Court Rules, Appendix D,


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VII. Consider Strategies to Improve the Appellate Process

The state appellate courts offered the following strategies to decrease delay at each stage ofthe appellate process, beginning with Notice of Appeal and ending with Posting of Decisions. It isrecommended that a state task force review these strategies for those that best suit their appellatecourt’s individual needs. Initially, a task force may want to concentrate on one area of the appel-late process to measure whether a strategy is effective, and add new strategies to refine the pro-cess.

Notice of Appeal• A universal suggestion to improve the appellate process is to invest in an efficient, com-

puterized case management system that can track an appeal from the trial level to thecourt of last resort.

• The clerks from the trial and appellate courts need to coordinate procedures and striveto transfer the record from the trial court to the appellate court expeditiously.

• Both the party and attorney should sign the notice of appeal. Often, an attorney willautomatically initiate an appeal without consulting the client. Requiring the party’s sig-nature reduces the number of appeals because they are not automatically filed.

• Attorneys should indicate on the notice of appeal that the appeal is a dependency matter.

• The transcript should be ordered at the same time the notice of appeal is filed.

• Courts should make sure that appellate mediation does not freeze appellate timelinesand delay the appeal.

Transcripts and the Record

In many states, assembling the record and preparing transcripts is a primary cause ofdelay in expediting dependency appeals. Often, the appellate court has no control over depen-dency case transcripts, and these transcripts are not usually given priority by the trial court.

The National Council of Juvenile and Family Court Judges’ proposed appellate time linessuggest that the trial court transmit the record to the appellate court within a maximum of thirtydays. The American Bar Association’s proposed appellate time lines recommend that the trialcourt transmit the record to the appellate court within a maximum of twenty days.

In The National Center for State Courts’ survey of appellate courts, four states reported thatthe record is completed in less than thirty days. Nine states reportedly take thirty days; twenty-onestates range from thirty to sixty days from notice of appeal to complete record; seven states aver-age sixty to ninety days; and two states reported that the record takes more than ninety days tocomplete (seven states did not report an average time). Most states have a mandatory productiontime frame by rule, but the time may be extended by motion. In some cases, multiple extensions


13

may be granted, further extending delay. Some states report that extensions are regularly andleniently granted, while other states only grant extensions under extraordinary circumstances andcarefully scrutinize extension requests in dependency cases.

Computer-Aided Transcription (CAT)

Courts have had access to computer-aided transcription (CAT) since 1981. Today, CAT hasevolved into an affordable and reliable technology, and reporter skills in using CAT have increasedas the technology improves.

CAT uses a computer to automate the reading-and-translating process of shorthand steno-type notes into English. Court reporters record the spoken words by making keystrokes on astenotype machine, producing the shorthand notes. The keystrokes are recorded on both thetraditional folded paper tape and on an electronic storage disk. The disk is removed from thestenotype machine and inserted into a computer’s disk drive. CAT software converts the steno-graphic notes into English written text. The reporter then edits the transcript to ensureaccuracy. 23

CAT systems connected to a computer are now capable of simultaneously translating thereporter’s shorthand notes into English at the same time as they are written. The production ofthis simultaneous record is called “real-time translation.” Real-time transcripts are shown on ascreen as they are recorded by the court reporter and are available for all courtroom participantsto see as they are produced. The ability to produce a usable typed transcript very quickly throughCAT technology should make it possible to prepare a complete record in a matter of days or evenhours.24

Real-time reporting software is a standard feature on all CAT programs, but requires moreskill on behalf of the reporter. The National Court Reporters Association (NCRA) requires that real-time reporters be tested and certified as real-time reporters. “Reporters need to consistently reacha 96 percent accuracy rate in translation before they are truly qualified for real-time.”25

Electronic Filing of Records

The record includes the trial transcript, an index to the record, a chronological list of all ofthe events in the trial court, the pleadings of the parties, and any written decisions prepared by thetrial judge. The record may also include motion papers filed in the trial court, exhibits admitted oroffered for admission into evidence, and other documents.26

23 Richard B. Hoffman & Barry Mahoney, MANAGING CASEFLOW IN STATE INTERMEDIATE APPELLATE COURTS: WHAT MECHANISMS, PRACTICES, AND PROCEDURES AN

WORK TO REDUCE DELAY?, The Justice Management Institute, 24 - 28 (2001).24 Id.25 William E. Hewitt & Jill B. Levy, COMPUTER-AIDED TRANSCRIPTION: CURRENT TECHNOLOGY AND COURT APPLICATIONS, The National Center for State Courts,48 (1994).26RICHARD B. HOFFMAN & BARRY MAHONEY, MANAGING CASEFLOW IN STATE INTERMEDIATE APPELLATE COURTS: WHAT MECHANISMS, PRACTICES, AND PROCEDURES CAN

WORK TO REDUCE DELAY?, The Justice Management Institute, 24 - 28 (2001).


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The trial court clerk’s staff usually compiles the record. The court clerk’s office prepareseither the original or copies of court documents in a file jacket or box, and mails the package tothe appellate court clerk. This process is another source of delay because it is time-consuming, islabor intensive, and requires substantial mailing, copying, and storage costs. Electronic recordkeeping substantially reduces delay in producing the trial record because it is in digital form.27

An advantage of a digital record is that it can be easily and inexpensively stored and trans-mitted.28 Judges, counsel, and even a jury during deliberations may readily access the recordduring and after trial. However, using an electronic record requires the recognition of issuesregarding privacy, document certification, uniform standards, and system integration. For ex-ample:

• What are the obligations of the court when records are easily available on a desktopcomputer as opposed to manually digging through court records?

• Where is the balancing point between the Freedom of Information Act and the individualright of privacy?

• How do we know a document is authentic?

• What about lawyers who need to file documents with multiple courts, all demandingdifferent formats?29

Additional strategies to improve the timeliness of transcript production include:

• The court may require the clerk, instead of the parties or attorneys, to order the tran-scripts when the notice of appeal is filed, thereby streamlining the procedure and mak-ing it more automatic.

• The state courts should assess funding barriers to transcript production that affect thepurchase of technology and the hiring and salaries of reporters and transcribers.

• The courts may devise penalties for attorneys, reporters, and transcribers who do notmeet time lines for transcript production.

• Some courts waive the transcript if the appeal is solely based on a legal issue by using asummary process, requiring the attorneys to file an agreed statement of the facts, orordering only portions of the record that apply to the legal issue.

Briefing

Briefing schedules may be shortened for dependency appeals. For example, Oklahoma’sbriefing schedule for expedited appeals is twenty days for the appellant’s brief, fifteen days for theappellee’s brief, and ten days for a reply brief. Extensions to the briefing schedule should belimited and granted in only extraordinary circumstances. Attorneys and briefing schedules should

27 Id.28 Frederic I. Lederer, The Courtroom as a Stop On the Information Superhighway, 4 Aust. J. L. Reform 71 (1997).29 Id.


15

be monitored, with the court following through and enforcing timelines. Courts may further re-duce delay by setting an appeal for argument or conference on the same day the appeal is fullybriefed.

Oral Argument and Conferencing

The preparation and hearing of an oral argument can be time-consuming. Courts maygrant oral argument only when there are significant legal questions at issue. Oral argument shouldbe set as soon as the appeal is fully briefed, and dependency appeals should get priority in sched-uling oral arguments and conferencing. Some courts save spaces on their calendar for expeditedcases.

Decisions

In some cases, decisions may be issued straight from the bench. If that is impracticable,justices can vote on the case the day it is argued or conferenced to reduce delay. Dependencyappeals should be drafted before all other opinions, and time limits may be placed on judges’writing of opinions.

A specialized editor may be assigned to edit dependency opinions. An editor or clerk that isfamiliar with writing dependency opinions may finish the editing process faster than one whorarely works on a dependency appeal.

Posting of Decisions

Appellate courts should give trial courts clear, concise direction on when an appeal isremanded or rescripted. The appellate court must give the attorneys and trial court immediatenotice about the status of the case.

Other Ideas• Assign a staff attorney to micromanage dependency appeals on a weekly basis from

notice of appeal to decision.

• Develop a tracking system for dependency appeals.

• Route dependency appeals in a red envelope to give all involved parties notice that theappeal is involved in an expedited process.

• Include regularly updated photos of the child in the court file to show the passage oftime.

• Devise and implement penalties for delay. For example, if the case is not briefed in atimely manner, the court may dismiss the appeal. The court may also award fines todelinquent reporters, transcribers, and attorneys, or they may be removed from theappointment list. The wages of delinquent actors in the process may be withheld.


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VIII. Review and Refine the Process

The state task force may request funding to ensure that the expedited process is effective.Funds may be used to support a staff person at the appellate level who acts as a central contact toenforce rules and internal operating procedures. Likewise, funding may support a staff person atthe trial court level to track cases preparing for appeal. Funding specialized court-appointed attor-neys at the appellate level to expedite dependency appeals may increase the efficiency and qualityof dependency appeals.

Evaluation of the expedited process at regular intervals is critical to ensure success. Thetask force should uniformly collect and use statistical data to analyze outcome measures. The taskforce can measure and refine internal operating procedures using this data. Outcomes and evalu-ations should be shared with stakeholders and the community to promote the importance ofexpediting permanency for children.

Training in the expedited procedures should involve all stakeholders: justices, judges, at-torneys, guardians ad litem, CASAs, court administrators, and clerks. Training may be expandedto take place at national committee meetings that encourage communication among these stake-holders, including conferences of the Conference of Chief Justices, the Conference of State CourtAdministrators, the National Conference of Appellate Court Clerks, the National Center for StateCourts’ Education and Technology Center’s online education program, the National Associationfor Court Management, the National Association of State Judicial Educators, and the guardians adlitem and CASAs associations.

Mentor and partner relationships with similarly situated states may be established forsharing information. For example, over fifty judges from Iowa, Minnesota, and Wisconsin met at atristate seminar to discuss the expedition of dependency appeals.

Expectations for the Trial Courts30

During the process of developing a guide for states to implement an expedited procedurefor dependency appeals, the committee recognized several functions of the trial courts that can bestreamlined to assist in expedition. The following is a list of trial court expectations that may beused in a partnership between the trial and appellate courts to develop procedures that are moreefficient.

• Trial courts should use the one-family/one-judge model so dependency cases do notspend time between several trial judges, who each spend time learning about the case.

• Trial courts should use best trial court practices to avoid appeals on matters of trialcourt procedure.

• Courts should establish and enforce timelines for dependency trials.

• Courts should encourage mediation.

30 Developed by Judge Sharon McCully, Third District Juvenile Court, Salt Lake City, Utah.


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• Judges should make decisions from the bench instead of taking cases on advisement.

• Trial judges must fully describe their reasoning and findings in cases to avoid appeal.

• Attorneys should be required to prepare findings and conclusions of law.

• Final orders should be signed and distributed as soon as they are prepared.

• Court clerks should be alerted to the need to expedite the processing of notices of appealand records in dependency cases.

• A specific clerk should be assigned to prepare dependency files for appeal.

• Trial court counsel should be encouraged to remain on the case for the appeal to avoidtime being spent by a new attorney researching the case.

• Both trial courts and appellate courts must comply strictly with all time requirementsfor each step of the process.


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State Court Highlights

Some specific illustrations of how states are expediting dependency appeals are described be-low: Georgia, Iowa, Massachusetts, Minnesota, New York, Ohio, Vermont, and Virginia.

Georgia31

The appellate courts of Georgia are required to expedite appeals both constitutionally andstatutorily. Additionally, the Court of Appeals of Georgia has internal operating procedures, whichrequire expedition in certain cases. The constitutional mandate is found in Article VI, Section IX,Paragraph II of the Georgia State Constitution and requires:

The Supreme Court and the Court of Appeals shall dispose of every case atthe term for which it is entered on the court’s docket for hearing or at thenext term.

If the appellate court fails to dispose of an appeal within the two terms, the trial court’sdecision is affirmed by operation of law, and the court loses jurisdiction to hear the appeal.32 Todate, the court of appeals has never allowed a case to be affirmed by operation of law. Dependingon exactly when a case is docketed, the appellate courts would have a minimum of five and a halfto six months or ten and a half to eleven months to dispose of an appeal.

Georgia has a statutory requirement for disposing of appeals. In civil cases in which thestate is a plaintiff, the appellate court shall give preference to such cases over all other cases stillpending.33 This statute affects dependency cases that involve child abuse and neglect, children inneed of assistance, and some termination of parental rights and custody appeals.

Finally, Georgia has initiated internal operating procedures that require the expedition ofcases involving child custody (termination of parental rights, custody, children in need of assis-tance, and abuse and neglect), but there are no specific guidelines for the process. In generalterms, dependency appeals are given priority.34 The standard briefing schedule is twenty days forthe appellant’s brief, forty days for the appellee’s brief, and ten days for the appellant’s reply brief.The briefing schedule is not shortened for dependency cases. Courts may grant one extension ofup to twenty days. Oral argument is waived in 80 percent of the appeals, and written opinions arepublished four to five months after cases are fully briefed.

31 Written correspondence with James F. Morris, Presiding Judge, Juvenile Court of Cobb County, Marietta, and William L. Martin III,Administrator/Clerk, Court of Appeals of Georgia.32 The appellate courts in Georgia have three terms a year.33 OCGA §9-10-1.34 Internal Operations Manual, Section XV (P), p. 41.

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Iowa35

Iowa implemented new expedited procedures for termination of parental rights (TPR)appeals in January 2002. The state decided to focus on termination of parental rights appealswhen writing new legislation, which can be expanded to include other classes of dependencyappeals at a later date. TPR appeals are transferred directly to the Iowa Court of Appeals. Thesecases are given the highest priority at all stages of the appellate process. There are expediteddocketing and briefing schedules, and the parties are usually not given extensions of time.

Judge Gayle Nelson Vogel assembled the Iowa Court Improvement Project’s Termination ofParental Rights Expedited Appeals Task Force, which included approximately fifteen people repre-senting all disciplines: appellate judges, juvenile judges, attorneys representing parents, attorneysrepresenting children, assistant attorneys general, and county attorneys. The task force met oncea month for nine months for six to eight hours at a time to develop a proposal to expedite depen-dency appeals. The task force had about 90 percent attendance at every meeting. An agenda wasprepared for each meeting and each member was given a task to complete before the next meet-ing. The key to the success of the task force was the enthusiasm engendered by the possibility ofrevamping the appellate procedure to expedite the time families must wait for an appeal.

The proposal took nine months to draft and was sent to an oversight committee of theCourt Improvement Project, who studied the proposal for approximately two months. Then theproposal was sent to the Iowa Supreme Court, who reviewed it for approximately six months,while sending some revisions back and forth to the task force. The legislature approved and imple-mented the new procedures from the task force’s proposal in January 2002.

Iowa recently implemented a computerized court management system, which handlesdockets. The new expedited process uses an expedited docket that is incorporated into the com-puter system. The clerk of the supreme court monitors the cases through the software.

In the past, the attorney general’s office handled most appeals for the state, and the appel-late defender’s office handled all indigent appeals. Using the new procedure, the trial counsel willhandle the appeals to save time, but the procedure will allow the trial counsel to withdraw fromthe case under extraordinary circumstances. The juvenile judges are educated that withdrawalsshould be granted very sparingly, and appointing alternate counsel will not extend the time limita-tions on the appellate procedures.

Court reporters are well trained, and the clerk of court does not allow delays in transcriptproduction. It usually takes less than thirty days to complete a transcript. Court Rule 17 requiresthat court reporters give priority to transcription of proceedings in dependency cases over othercivil transcripts.

35 Hon. Gayle Nelson Vogel, Judge, Iowa Court of Appeals, state contact.


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The former expedited appellate schedule, which halved the regular briefing schedule forcustody, adoption, TPR, juvenile proceedings affecting child placement, and lawyer disciplinarymatters, allowed thirty days to file the notice of appeal and twenty days to docket the appeal; theappellant’s brief was submitted in twenty-five days, the appellee’s brief in fifteen, and the replybrief in seven. The total appellate time frame from notice of appeal to the appeal being fullybriefed averaged five months. The new procedure totals forty-five days. After the entry of the TPRorder, the notice of appeal must be filed within fifteen days, the petition filed within fifteen days,and the response submitted within fifteen days.

Fifteen days after the termination of parental rights order, the appellant and appellant’scounsel must sign the notice of appeal and order the transcript. The certificate for ordering thetranscript is included in the notice of appeal.

Fifteen days from the filing of the notice of appeal, the appellant files a petition, rather thanfiling a brief. Attorneys file a fill-in-the-blanks form with required attachments with the clerk of thesupreme court and an information copy with the clerk of the district court. The form is preparedby the trial counsel and must not exceed fifteen pages (the old rule allowed fifty pages). The formincludes the following information:

• The nature of the case and relief sought

• The date of the TPR order

• A concise statement of material facts

• Legal issues presented and how they were preserved for appeal

• Supporting legal authority, not a written argument

• Attachments: petition for termination and ruling(s) on petition

The appellee has fifteen days after the filing of the petition to file an optional response. Theresponse is filed with the clerk of the supreme court and is also limited to fifteen pages. Theresponse form is completed and submitted to correct factual assertions in the petition. Copies ofboth the petition and response are located in Appendix E.

Within thirty days of the filing of the notice of appeal, the case is docketed with the Su-preme Court. The record transmission, which is certified by the trial court clerk, must be com-plete at this time and includes the TPR court file and exhibits; the child in need of assistance courtfile and exhibits, only if they were received in the TPR proceeding; and the transcript of the TPRhearing.

The appellate court judges will affirm, reverse, remand, or set the appeal for full briefing.Further review by the supreme court is available, but not based on a refusal to grant full briefing.Currently, the Iowa Supreme Court only grants further review in about 5 percent of all cases andtakes approximately seventy-five days to decide if further review is granted.


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Massachusetts36

Created in 1972, the Massachusetts Court of Appeals is a court of general appellate juris-diction. Most appeals come from the departments of the trial court, and some are transferred tothe supreme judicial court. Twenty-five justices serve on the appeals court, and, like most inter-mediate appellate courts, usually sit in panels of three. Every justice sits with every other justiceduring the court year.

During recent years, there has been a dramatic increase in appeals involving the care andprotection of children, termination of parental rights, and related cases. The Department of SocialServices (DSS) files virtually all of these appeals. During fiscal year 2000, ninety-six such appealswere filed, a sharp increase over 1999’s sixty-eight cases, and more than triple the number filedonly four years ago.

For twenty years, the Massachusetts Court of Appeals has given dependency cases (adop-tion, termination of parental rights, custody, abuse and neglect, and removal) priority once briefsare submitted. Now the court expedites DSS cases during all phases of the appellate process.During a court meeting in 1997, the justices shared their concern that too many extensions werebeing granted in dependency cases and decided to select one justice to rule on all of the motionsin juvenile appeals. Associate Justice Charlotte Anne Perretta volunteered to lead the process forexpediting dependency appeals. Clerks were told that all dependency cases were to be assigned toJustice Perretta. Two justices are now assisting Justice Perretta with this process.

Upon the completion of briefing, the justice promptly screens a DSS case’s briefs andrecord to determine whether it is suitable for summary disposition by a three-justice panel. A caseis marked either “A” or “B” at screening. “A” appeals raise legal issues and require a publishedopinion and oral argument. Cases that warrant full argument are routinely scheduled on the nextavailable calendar. “B” appeals do not require oral argument. They go to a staff attorney, whoreviews and, if necessary, requests more information, prepares a staff memo and order, and sendsthe case to a three-judge panel. If any one of the three justices disagrees with the decision, thecase is moved to the “A” list. If all three justices agree with the order, the case is then sent to an in-house editor, who is an attorney in a specialized position, to edit the order. The time to rescript(when the appellate court’s written decision, usually unsigned, is sent down to the trial court) fortype “B” cases is twenty-eight days after the justices have reviewed the order. Massachusetts has a130-day guideline from oral argument to release for all appeals, but expedited dependency ap-peals usually take no more than 45 to 50 days.

Expediting Appeals for Child Welfare Cases

The Massachusetts Court of Appeals initiated a process to expedite the appeals of casesinvolving children. Justice Perretta developed the process and screens these cases. The processinvolves the following steps:

36 Based on a site visit to the Commonwealth of Massachusetts Appeals Court, and discussions with Justice Charlotte Ann Perretta andAlexander McNeil, Court Administrator (April 2001).


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1. Parents are required to sign a notice of appeal. Attorneys were filing appeals auto-matically, and requiring the parental signature cut down on the number of appeals.

2. The clerk of court orders the trial court transcript, not waiting until the partiesrequest the transcript. Transcripts are paid for by the state.

3. The court meets with the house counsel for the DSS. The court also meets with theCommittee for Public Counsel Services, which appoints counsel for the indigent.

4. One justice promptly screens all cases to determine whether they are suitable forsummary disposition. This “one-judge” procedure helps to ensure predictabilityand consistency in case identification. To avoid possible conflicts of interest, thescreening justice does not sit on the decision panel.

5. The screening justice writes a screening memo.

6. The court sets briefing deadlines, which are not reduced for dependency appeals,and motions for time extensions are rarely granted. The appellate clerk keeps arunning list of outstanding briefs. If a particular attorney is chronically late in filingbriefs, Justice Perretta will ask Child Protective Services to remove the attorneyfrom the active list. This has improved the timeliness of briefs.

7. Child welfare cases are civil cases. Court Rule 128 applies to civil cases. This ruleallows nonpublished opinions, if no new law is created and the decision is based onthe facts of the case. No oral argument is required.

8. All cases go through an editing process. One staff attorney is assigned to edit all thechild welfare cases, expediting the process and improving consistency.

9. Cases receive pseudonyms, so cases do not read “In re Minor Child” or “In Adoptionof Jane Doe.” Unique names reduce research time because individual cases aremore easily identified and found in automated or manual searches.

10. The court encourages attorneys to request transcripts when they know they willappeal and encourages them to monitor the production process.

11. The clerk of the appeals court runs continuous checks on the cases as a back-upsystem.

The justice rarely grants continuances. A small bar practices in the area of children’s casesand Justice Perretta knows all the attorneys. The court offers a certified day of training for the barand educates trial judges on how to make findings and decisions more affirmable. The court oflast resort has a standing committee on causes of delay that meets every three months and pro-poses solutions. The two levels of appellate courts work together to expedite child welfare cases.


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Analysis of Data for Time Lines

The Massachusetts Court of Appeals was selected for an intense site visit to discover howthe court expedites dependency appeals. Staff compared the time for appeals in 1996—the lastyear before the expedition process began—with 1999, which is the latest year for data. Time fromdate of entry to date of rescript has decreased by an average of 2.1 months between 1996 and1999 since the implementation of the judicial screening procedure.

Massachusetts:Time from Date of Entry to Date of Rescript for Child Dependency Cases

0

50

100

150

200

250

300

350

400

1996 - 41 Cases 1999 - 59 Cases

Mean

Median

Comparison of Events in the Appellate Process


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The time from notice of appeal (NOA) to a case being ready for hearing was reduced 4.6months after the implementation of the screening justice. The time from ready-to-disposition anddisposition-to-rescript increased in 1999. This increase may be caused by the justices spendingmore time on the more difficult cases flagged for expedition by the screening justice. Thus, themore complex appeals receive more time, but the overall time spent on dependency appeals isreduced. While cases are taking longer from the time they are ready for decision to rescript, theoverall appeal-handling time has decreased by 2.1 months.

Obstacles to Expedition

More appellate-level certified child welfare counsel are needed, and the court has bothincreased the number of attorneys available to handle these cases and placed limits on the num-ber of appeals an attorney can handle simultaneously, thus reducing the requests for extensions.A subcommittee issued a report with proposed amendments to the Massachusetts Rules of Appel-late Procedure and the Interim Supplemental Rules of Appellate Procedure in Care and ProtectionCases. The subcommittee’s goals included:

• Provide a uniform appeal period for child welfare cases

• Establish a procedure for filing a notice of appeal, which would aid in dealing with theproblems posed by missing clients

• Establish a procedure for the appointment of appellate counsel, which makes it clearthat trial counsel continues to be responsible for further trial court proceedings

• Expedite the assembly of the record

• Provide notice to the trial court when appeals are entered in the appellate courts

Like many states, assembling the record and preparing transcripts are the primary delayproblems. The appellate court has no control over dependency case transcripts, which currentlyare not given priority by the trial court.

Minnesota37

The initial recommendation to expedite child protection appeals in Minnesota came fromthe Supreme Court Foster Care and Adoption Task Force of the state’s Court Improvement Com-mittee. The actual proposed court rule was drafted by a separate committee, the Supreme CourtJuvenile Protection Rules Committee, which was responsible for redrafting the entire set of Juve-nile Protection Rules to comply with the federal Adoption and Safe Families Act. This twenty-two-person, multidisciplinary committee consisted of trial court judges, appellate court judges, guard-ians ad litem, parent and child attorneys, court attorneys, child protection social workers, andprivate attorneys from across the state. The committee met at least monthly during the periodfrom September 1997 through February 1999 with the goal of bringing the rules into compliancewith the federal and state statutory revisions that have been enacted since the 1982 promulgationof the rules. During the initial drafting phase, six subcommittees met to prepare preliminary

37 Telephone interview with Rick Slowes, Commissioner, Minnesota Supreme Court (Mar. 29, 2001).


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drafts of rules regarding the following issues: time lines for decision making, discovery, termina-tion of parental rights, alternative dispute resolution, runaway and habitual truant matters, andapplication of the Indian Child Welfare Act.

Throughout its deliberations, the Supreme Court Juvenile Protection Rules Committeekept in mind the following key values and considerations:

• The purposes of child protection matters, including, in particular, the need to establishsafe and permanent homes for children in a timely manner

• The rights of parties

• The need to comply with federally mandated expedited time lines for making decisionsregarding permanency

• The desire to reflect best practices as expressed in the Resource Guidelines for Improv-ing Court Practice in Child Abuse and Neglect Cases published by the National Asso-ciation of Family and Juvenile Court Judges

• The desire to recommend fiscally neutral amendments

More than 800 stakeholders reviewed several drafts of the proposed rules, and recom-mendations were incorporated into the proposal, which was submitted to the Minnesota SupremeCourt in November 1999. In December 1999, the supreme court issued an order promulgatingthe Rules of Juvenile Protection Procedure, and they went into effect on March 1, 2001.

Minnesota’s approach to expediting dependency appeals covers adoption, termination ofparental rights, custody, children in need of assistance, and abuse and neglect cases. This state’scourt rule requires the appellate court to issue a decision within sixty days of the date the case isdeemed submitted under the Rules of Civil Appellate Procedure. Minnesota’s Juvenile ProtectionRule 82 expressly provides for an expedited appeal process by 1) requiring all appeals to be filedwithin thirty days from the filing of the order (rather than from the date of service of the orderupon an adverse party), and 2) mandating that the appellate decision be issued within sixty daysof receipt (rather than the normal ninety days for other types of cases). Because Court Rule 82.05requires cases to be filed within thirty days, transcripts are generally received within the thirty-daylimit. The briefing schedule allows each party thirty days to file a brief and ten days to file a replybrief for a total of seventy days after the delivery of the transcript. This is the same schedule usedfor all civil cases. In dependency cases, oral argument is waived only 20 percent of the time. Rule82.06 provides that opinions in child protection cases must be issued within sixty days of the datethe case is deemed submitted, and the opinions must be circulated to all court of appeals judgesduring a ten-day review period. The maximum length of time between notice of appeal and thecase being fully briefed is one hundred days. The maximum length of time between the case beingfully briefed and issuance of decision is ninety days.


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New York38

In New York, where a stay is granted pursuant to the Family Court Act §§1112,1114, anappeal is handled on an expedited basis as an emergency matter by the New York Supreme Court,Appellate Division, and Court of Appeals. Transcripts are completed on an overnight or rush basis,briefing schedules are shortened, and arguments and decisions are made on an expedited basis.Appeals that do not involve emergency stays may also be processed on an expedited basis. Forexample, in the Appellate Division, Third Department, appeals are scheduled for argument withinninety days of perfection, with a shorter schedule applied to dependency and other child-relatedcases. In the fourth department, perfected appeals may be argued within two months. Depen-dency abuse and neglect appeals in all divisions are automatically given preference and are closelymonitored. All family court appeals, regardless of category, have the benefit of a simplified pro-cess. Printed cases and briefs are not required.39

The Legal Issues Subcommittee and the Appellate Division, Fourth Department, have con-ducted a joint project enforcing appellate scheduling preferences for expediting appeals. The projectincreased the dismissal rates for abandoned appeals and increased court communication regard-ing case status. As a result, time for appeal has been reduced by more than one year.

The subcommittee, led by Supervising Judge Sharon Townsend, included clerks in theAppellate Division, Fourth Department, and the Erie County Family Court, attorneys from legalservices, and experienced appellate attorneys. The subcommittee identified specific areas of theappellate process that cause delay for children in foster care and implemented new procedures toexpedite the appeals.

A cause of delay was a lack of communication between the courts and parties about theexistence and status of appeals, as well as an inconsistent method for referencing appeals: “Forexample, the Family Court has been listing appeals based upon the information derived from thecaptions on the Notice of Appeal; the appellate Division, Fourth Department redacts the surnamesto an initial letter for confidentiality reasons; and litigant agencies have their own systems.”40

Strategies to improve communication include:

• The Erie County Family Court [Records Manager] will uniformly record filed appeals inthe style of the caption of the order appealed from.

• [The Manager] will create a master list of pending appeals, which will be e-mailed monthlyto the appellate division, fourth department clerk, and agency attorneys.

• The master list will include a column reflecting the disposition of the appeal and will beupdated monthly.41

38 Janet R. Fink, Deputy Counsel, State of New York, state contact, and Judge Sharon Townsend, Erie County Family Court.39 Family Court Act §1116.40Appeals Project Report: Erie County Family Court Improvement Project Legal Issues Subcommittee.41 Although names have been removed from the text of the strategies in this document, Erie County writes-in specific names of those whoare responsible for each step of the process, which is an effective way of personalizing internal operating procedures.


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The backlog caused by unperfected appeals that were not disposed of by an appellate orderwas another cause of delay in New York. Strategies to decrease the backlog include eliminatingappeals that have been administratively dismissed after nine months, but which remain withinthe one-year vacatur period, by bringing motions to dismiss such appeals in the appellate division,on notice to the appellant. Another solution is to allow the family court to make a case-by-casedetermination upon review of prospective adoptions. If the family court determines that an im-pediment to the child’s adoption exists, a request will be made to the appellate division to clarifythe child’s status.

Ohio

After reviewing statutes and court rules from other states and from Ohio appellate dis-tricts,42 Justice Stratton of the Ohio Supreme Court drafted a court rule for the Ohio Rules ofAppellate Procedure and an amendment to the Rules of Practice for the Supreme Court of Ohio.These two rules expedited cases involving termination of parental rights or adoption of a minorchild. The project was funded through a grant by the Dave Thomas Adoption Foundation to theDave Thomas Center for Adoption Law at Capital University Law School.43

The rules were informally circulated to the Ohio Association of Probate Court Judges, theOhio Association of Juvenile and Family Court Judges, the Columbus Bar Association Family LawCommittee and Juvenile Law Committee, the Ohio State Bar Association Family Law Committee,the Public Children Services Association of Ohio, and the Expedited Adoption Advisory Committeeof the National Council of Juvenile and Family Court Judges, adoption groups, and other stake-holders that would be impacted by the rule for comment and discussion. Once the commentswere returned and the rules edited, they were sent to the Rules Committee of the Ohio SupremeCourt. The rules were placed on the docket and voted on. The time span from the vote to publica-tion was sixty days. Two months later, the supreme court amendments were adopted by the su-preme court. The appellate court rule went to the Ohio state legislature and was adopted as well.The entire implementation process took eighteen months to complete.

Both the appellate rule and the amended supreme court rules expressly shorten the timeallowed to complete the stages of the appeals process (See List of State Statutes and Court Rules).For example, in an expedited appeal, the court reporter must “give priority” to preparation of therecord, and the briefing schedules are reduced for expedited appeals. “The briefing schedule foradoption and parental rights cases follows the twenty/twenty/ten schedule set for regular appeals;[a]ppellant serves and files [a] brief twenty days after the clerk mails the notice of appeal toappellee, who serves and files twenty days later, and appellant serves and files the optional replybrief ten days after that.”44 The appellate court rule restricts the granting of extensions and re-

42 Three appellate judicial districts have local rules that provide an expedited review and determination of matters involving children. TheSecond 2 (SECOND DIST., OHIO, APP. J. R. 2.8), Fourth (FOURTH DIST., OHIO, APP. J. R. 13), and Fifth (FIFTH DIST., OHIO, APP. J. R. 7) Appellate Districtsgive priority to appeals involving custody and parental rights.43 See Justice Evelyn Lundberg Stratton, Supreme Court of Ohio, Expediting the Adoption Process at the AppellateLevel, 28 CAP. L.R. 121(1999).44 Susan C. Wawrose, “Can We Go Home Now?:” Expediting Adoption and Termination of Parental Rights Appeals in Ohio State Courts, 4 J. APP. PRACT. & PROC. (Forthcoming Spring 2002) [hereinafter Wawrose]; Ohio R. app. P. 18(A).


29

quires prompt oral arguments.45 Oral arguments must be heard within thirty days after the briefsare submitted.46 The appellate court rules reduce the time for filing judgment entry to thirty daysfrom a guideline of sixty days for non-expedited appeals, and the supreme court rule reduced thetime for an appellant to file the notice of appeal and accompanying memorandum in support ofjurisdiction from forty-five days for a non-expedited appeal to twenty days.

Ohio’s appellate districts must expedite termination of parental rights and adoption ap-peals, but the state has recognized that there is an inconsistency in how the courts implement,interpret, and respond to the rules.47 However, the state is evaluating data regarding terminationof parental rights and adoption appeals from the twelve appellate districts and the supreme courtto address this concern.

Vermont48

The Supreme Court of Vermont received a federal grant to assess its child abuse and ne-glect proceedings in December 1995. The Vermont Supreme Court formed an advisory commit-tee, which asked The National Center for State Courts to conduct an assessment of the proceed-ings. The National Center’s report, completed in February 1997, found that the Vermont SupremeCourt took ten to thirty months to resolve children in need of assistance (CHINS) and terminationof parental rights (TPR) appeals, with an average of fourteen months. The advisory committeedelivered a final report recommending that the supreme court set a goal for resolving 95 percentof CHINS/TPR appeals within four months of the filing of the notice of appeal.

The staff attorney team of the Vermont Supreme Court delivered a memorandum to thesupreme court detailing problems that cause delay in each aspect of the appeals process andmaking specific recommendations for addressing those problems. After obtaining feedback fromvarious court personnel, including judges, the staff attorney team refined the recommendationsfor expediting CHINS/TPR appeals. The staff attorney team consulted with those persons whowould be directly affected by the changes in appellate procedures: trial court clerks, reporters andtranscribers, attorneys working for the defender general, assigned conflict counsel, the attorneygeneral, and the state’s attorneys. Changes in the internal operating procedures of the court com-menced in the spring of 1998.

Based on comments from attorneys, clerks, reporters, and transcribers, the internal oper-ating procedures are regularly refined. Proposed rules are sent to the Civil Rules Committee forreview and comment. Vermont identified potential problems and used them to structure an out-line of solutions, which is an effective strategy that other courts could use to identify and solvesources of delay in the appellate process.

45 Ohio App. R. 11.2 (c)(3), (4).46 Ohio App. R. 11.2 (c).47 See Wawrose, supra, and Survey Regarding Implementation of Ohio Appellate Rule 11.2 (unpublished results of survey conducted byConnie R. Crim, law clerk to Justice Stratton) (March 2001) (copy on file with author).48 Ed McSweeney, Chief Staff Attorney, Vermont Supreme Court, Permanency Partnership Forum VI, March 11-15, 2002, Washington, DC.


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Problem 1:

Transcripts not being ordered within ten days of the filing of the notice of appeal, as required byrule, because of delays in appellants seeking and obtaining assigned appellate counsel and be-cause of delays in the trial court clerks forwarding information that would allow the supremecourt to begin processing the appeals.

Solution:

Amend statute so that appellants in CHINS/TPR cases who had been assigned trial counsel neednot seek court approval for assigned appellate counsel.

Amend rule so that transcript order in CHINS/TPR cases must be filed along with notice of appeal.

Require trial court clerks to send the Supreme Court a copy of the notice of appeal and docketsheet within one day of filing the notice of appeal in CHINS/TPR cases.

Problem 2:

Delays in production of transcripts by reporters and transcribers.

Solution:

Establish firm one-month deadline for completing CHINS/TPR transcripts, which take highestpriority. Reporters may not take notes in CHINS/TPR hearings unless they can guarantee that theywill be able to complete transcripts of those hearings within one month of transcript order. Iftranscripts are not done within thirty days of order, they are pulled out of court until transcriptsare done.

Require trial court clerks to send tapes to transcribers within one day of receiving copy of tran-script orders.

Problem 3:

Additional transcripts ordered by appellate counsel weeks after trial counsel has made originaltranscript order.

Solution:

Ask the defender general to institute a new policy requiring that transcripts of all CHINS/TPRhearings be ordered at the outset by trial counsel, unless they are sure that certain transcripts willnot be necessary for an appeal.

Problem 4:

Delays in briefing caused by numerous stipulations and motions for extensions of time.


31

Solution:

Amend rules so that parties in CHINS/TPR appeals may not stipulate to extensions of time, whichwill be granted only upon a showing of extraordinary circumstances.

Problem 5:

Delays in screening cases and setting them in order for argument and decision.

Solution:

Immediately upon completion of briefing, CHINS/TPR cases are designated as three-justice orfive-justice cases and placed on the calendar for the next upcoming term.

Problem 6:

Delays in deciding cases.

Solution:

CHINS/TPR cases are given highest priority. Three-justice cases are drafted before argument andissued within one day of argument. Five-justice cases are drafted immediately following argumentand take highest priority regarding circulation and issuance.

Problem 7:

Cases falling through the cracks or getting stalled for some period of time before delays are no-ticed.

Solution:

Designate rotating staff attorney as responsible for tracking CHINS/TPR cases on a weekly basis.

A Summary of Specific Procedures for Expediting CHINS/TPR Cases in Vermont49

Initial Communications

Transcribers and reporters were informed orally and in writing that they must prioritizeCHINS/TPR transcripts and of the consequences of not doing so. The staff attorney team met withrepresentatives from the offices of defender general, assigned conflict counsel, attorney general,and state’s attorneys regarding the proposed rule changes, the new agenda for expediting CHINS/TPR cases, and the consequences of not abiding by the new procedures. The court administrator’soffice assured the advisory committee that family court clerks and managers were made aware ofnew procedures for expediting CHINS/TPR cases, and that they will 1) not allow reporters to takenotes at CHINS/TPR proceedings unless the reporters can guarantee production of the transcriptswithin thirty days; 2) remove reporters from court if CHINS/TPR transcripts are not done within

49 Id.


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thirty days of the filing of the notice of appeal; 3) check that the transcript order is filed along witheach notice of appeal in CHINS/TPR cases; 4) send tapes to transcribers the same day the tran-script is ordered; 5) send the supreme court a copy of the notice of appeal and docket sheet withinone day of the filing of the notice of appeal; and 6) send the supreme court the complete file assoon as possible.

Changes in Internal Operating Procedures (IOPs)

A staff attorney, on a three-month rotation schedule, is responsible for tracking CHINS/TPR cases weekly. The staff attorney “micromanages” the appeal by drafting progress orders;calling trial court clerks, reporters, transcribers, and attorneys when necessary to ensure thattranscripts are ordered and completed, and that briefs are submitted, in a timely manner; ensur-ing that cases are promptly designated as three-justice or five-justice appeals and then set forargument or conference; and seeing that decisions are drafted, circulated, and issued.

The docket clerk provides the staff attorney with a copy of every CHINS/TPR notice ofappeal that is filed. The staff attorney tracks each appeal weekly through every stage of the appel-late process, noting progress on individual sheets for each case, which are contained in a three-ring binder. The staff attorney handles all motions filed in pending CHINS/TPR appeals.

Upon the completion of briefing, the staff attorney circulates a short memorandum on theappeal among the justices for the designation of a three- or five-justice appeal. The appeal is setfor the next term, even if it has to be added on to a calendar of cases that is already scheduled. Forfive-justice cases and add-on three-justice cases, justices are given the assignment by rotation.

CHINS/TPR cases are given the highest priority for drafting, circulating, resolving, andissuing a decision.

Rule Amendments

1. Rule amended to require appellants in CHINS/TPR cases to indicate on the noticeof appeal that the appeal is from a CHINS/TPR order.

2. Rule amended to require appellants in CHINS/TPR cases to file the transcript orderat the same time the notice of appeal is filed.

3. Rule amended to prohibit parties from stipulating to an extension of time for brief-ing CHINS/TPR appeals.

4. Rule amended to require a showing of extraordinary circumstances before allow-ing an extension of time for briefing in CHINS/TPR cases.

5. Statute amended so that appellants in CHINS/TPR cases need not seek assignedappellate counsel.


33

Virginia50

In 1986, Virginia adopted a statute that requires that circuit courts try termination ofparental rights cases within ninety days of filing. “While the Virginia statute requires that a denovo appeal to the circuit court be tried within 90 days of perfecting the appeal, attorneys for theagency reported in site visits that an appeal can take up to six months, with an appeal from thecircuit court to the court of appeals taking up to another year.”51 The state has trained its circuitjudges who hear de novo appeals to assist them in understanding the need and purpose of expe-dited appeals in these cases.

A statute went into effect July 1, 1998, stating that termination of parental rights appealsshould take precedence on the court of appeals docket. Lelia Hopper, the court improvementproject director, presented a proposal to the Virginia legislature that was approved by the JudicialCouncil of Virginia, led by the Chief Judge Fitzpatrick of the court of appeals.52 Judge Fitzpatricksaid that termination of parental rights cases should be expedited just as workmen’s compensa-tion cases are currently. The bill passed through the Judicial Council of Virginia, was signed by thegovernor, and approved July 1, 1998. The entire process took five to six months to implement.Code §16.1-283(d) provides: “When an appeal is taken in a case involving termination of parentalrights brought under §16.1-283, the circuit court shall hold a hearing on the merits of the casewithin 90 days of the perfecting of the appeal. An appeal of the case to the Court of Appeals shalltake precedence on the docket of the court.”

The 1998 statute was the focus of a court improvement project study, which looked atapproximately 100 cases over the past five years. The Virginia court system includes juvenile anddomestic relations courts, which are not courts of record. Parties have a de novo appeal of right tothe circuit court, which tries the case as if it were never heard before. Parties then have an appealof right to the court of appeals. Finally, the Virginia Supreme Court may hear a case if it is grantedcertiorari–a rarity. Appeals at the court of appeals level were the focus of the court improvementproject study.

In Virginia, attorneys have to provide reporters, and attorneys are permitted sixty to ninetydays to complete the record. After the record is received (sixty to ninety days after the notice ofappeal), the appellant has forty days to file a brief, the appellee has twenty-five days to file aresponse brief, and the appellant has fourteen days for a reply brief. The briefing schedule is notshortened for termination of parental rights cases, but the court of appeals avoids approvingextensions with regularity. In one hundred cases, six were granted an extension for an openingbrief. Cases are reviewed in the court of appeals to determine if the case can be summarily af-firmed without oral argument or affirmed with oral argument by the chief staff attorney’s office.There are no formal time limits for written decisions. By rule, parties take 169 days from the filing

50 Telephone interview with Lelia Hopper, Court Improvement Project Director and Ginny Powell, Research Analyst, Court ImprovementProgram – Foster Care and Adoption Office of the Executive Secretary, Supreme Court of Virginia (March 12, 2001).51 LANCOUR ET AL., supra note10, at 15.52 Telephone interview with Lelia Hopper, Court Improvement Project Director and Ginny Powell, Research Analyst, Court ImprovementProgram – Foster Care and Adoption Office of the Executive Secretary, Supreme Court of Virginia (March 12, 2001).


34

of the notice of appeal and the case being fully briefed. The court improvement project studyfound that a dismissed case may take 100 days to complete after the records are received. If a caseis summarily affirmed, it takes less time. Affirmed cases take the most time.

The court improvement project’s staff in the Office of the Executive Secretary conducted astudy on expedited appeals and issued several recommendations.53

1) Courts should differentiate termination of parental rights cases from other casetypes to enhance prioritization.

2) Courts should implement routine, preferential case-handling procedures.

3) Courts should consider ongoing refinements to procedures that affect terminationof parental rights and other dependency case appeals.Expediting DependencyAppealsState Court Highlights

53 Court Improvement Program - Foster Care and Adoption Office of the Executive Secretary, Supreme Court of Virginia,FINAL REPORT: EXPEDITING APPEALS IN THE COURT OF APPEALS OF VIRGINIA: AN ANALYSIS OF TIME FRAMES IN TERMINATION OF PARENTAL RIGHTS CASES. (December2001).


35

Appendix A: State and Trail Court Contacts

36

Expediting Dependency

37

Aendix A

38


39

Appendix B: Telephone Survey

Name:

Date:

Interviewer:

Telephone Survey Protocol

Good morning/good afternoon, my name is ________________________________. The

National Center for State Courts is examining states that currently expedite appeals in dependency

cases, looking for promising practices and ideas to share with those states that are in the preliminary

stages of planning an expedited process. Dependency cases are known by different names in

different states. For example, dependency cases may be labeled as child abuse or neglect cases,

children in need of assistance, or termination of parental rights cases, and may include adoption.

For our interview, we will use the generic term, dependency. Chief Justice

____________________of the _____[state]_____________ Supreme Court, gave us your

name and number as a contact, as someone who is knowledgeable about the process your state

uses to expedite appeals in dependency cases.

A. QUESTIONS ON SETTING UP THE PROCESS

1. Your state supreme court indicated that you have expedited dependency case ap-peals. What is the scope of your expedited process?

40

Does it cover:

Ø AdoptionØ Termination of Parental RightsØ CustodyØ Children in Need of AssistanceØ Abuse or NeglectØ Other________________________________

2. Does your court have automatic appeals for Termination of Parental Rights cases?

3. When does the case usually go up to the appellate court?

ü Adjudicationü Dispositionü Permanency Planü TPRü Adoption

4. Approximately, how many dependency appeals do you have a year?

5. What other types of cases are given priority by rule or statute for expedition ofappeals?

6. What was the legal process for making the rule or legislation for dependency cases?

Ø Court RuleØ Court Rule Approved by LegislatureØ StatuteØ Internal Operating Procedures

7. Who initiated the rule or law change for expediting these cases?

Ø Court Improvement Plan CommitteeØ LegislatureØ BAR AssociationØ A JudgeØ Other ________________________________


41

8. Do you have separate internal operating procedures (IOPs) for dealing with depen-dency appeals?

Ø Cases are tracked soonerØ Cases are prioritized for oral argument or conferenceØ Drafting and issuance of decisionØ Other_______________________

9. Who wrote the rule, law, or internal operating procedure (IOP) for your court?

10. Can you briefly describe the different steps your court went through to get the expe-dited process in place? Who were the key players or stakeholders involved in theprocess? (on back)

11. How long did it take to complete the adoption of the expedition process?

12. Does the expedited rule or law place stronger requirements on the trial court than applies to other types of cases?

B. PROCEDURAL QUESTIONS: APPELLATE CASE FLOW MANAGEMENT

13. Are the appellate court and supreme court processes different?*

a. If so, how are they different?

b. Is the docketing process different in the two types of courts?

c. Are all appeals in the intermediate court of appeals granted automatically or isthere a certiorari process?

d. Does the supreme court hear many of these cases or are they usually dis-missed and returned to the lower court?

Entry of Case into Docket System

14. What is your court’s mechanism for getting a dependency case on the docket?

a. Who classifies a case as a dependency case?

Ø The PartiesØ Court Staff when reviewing filingsØ Court LawyersØ Court ClerksØ Other_____________________

b. Does the court leave open spaces on the calendar for these cases?

c. Does the court use an expedition docket sheet? (If yes, ask for sample.)

* Twelve states do not have an IAC: D.C., DE, ME, MT, ND, NH, NV, RI, SD, VT, WV, WY.

Appendix B

42

d. Do you have a back-up system to ensure dependency cases are expedited? Ifyes, how does it work?

e. In prioritizing a dependency case, how often is another case that has alreadybeen set for oral argument or conferencing rescheduled for a later date?

Ø AlwaysØ OftenØ SeldomØ Never

15. Does the trial attorney usually prepare the appeal, or is there a different attorney atthe appellate level?

a. Does the process usually involve court-appointed attorneys?

Completion of the Record (Transcript)

16. How do you ensure that the production of the trial court transcripts is not delayed?

a. Are transcripts done by reporters or transcribers (tapes)?

b. What system is used?

Ø Private reporter or transcriber companyØ Reporters and transcribers work directly for the trial courtØ Other__________________________

c. Do trial courts give dependency case transcripts priority? If yes, is there a courtrule giving dependency case transcripts priority above other transcripts?

d. About how long does it take to complete transcripts?

e. What are the principal causes for delays in completing transcripts?

Briefing

17. How long is your briefing schedule?

a. Do you shorten the briefing schedule for dependency appeals?

b. What system or standard do you have in place for allowing motions to extendtime lines?

c. Is there any system in place for dealing with transcribers, reporters, and attor-neys who do not meet deadlines?

Ø FinesØ Dismissal of Case


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Ø Other___________________________

Tracking

18. Are cases designated for review by the full court or a panel of the court?

a. If so, what is the size of the panel?

19. When are they designated as such?

20. Does designation of review by the full court delay the case?

Setting for Argument or Conferencing

21. How is the case set for hearing or conferencing?

22. Does your court have a waiver of oral argument?

a. If oral argument is waived, how frequently does this occur? (Estimate per-centage)

b. Is there oral argument in these cases? (Estimate percentage)

23. In practice, which official(s) may grant a continuance that extends the time line foran appeal?

24. Please, estimate the percentage of these appeals where a continuance is granted?

Drafting/Circulating/Issuing Decision

25. How are cases assigned and written?

a. Are cases fast-tracked internally?

b. Are there time limits for written decisions?

26. What kinds of decisions are usually made for these cases?

Ø Written OpinionØ MemorandumØ OrderØ Other__________________________

27. How is the decision circulated?

28. How are motions for reconsideration handled?

a. Are they fast-tracked?

29. Does the appellate court require arbitration/mediation or an ADR method in de-pendency cases?

a. What type of ADR is used?

Appendix B

44

b. How is arbitration made available to the parties?

c. How soon does arbitration take place?

d. Who is the arbitrator for these cases?

e. Estimate the percentage of cases where arbitration takes place?

i. What percentage of cases does it resolve fully?

ii. What percentage of cases does it resolve partially?

C. EVALUATION QUESTIONS

30. What aspects of expediting dependency case appeals do your courts still want toimprove? Do you have any suggestions for improving the process?

31. What do you think the impact of expediting dependency appeals has been on thefollowing court clients and officers?

a. Children _________________________________

b. Parents/Guardians_________________________

c. Guardians ad litem/CASAS___________________

d. Attorneys_________________________________

e. Judges___________________________________

1) Appellate_______________________________

2) Trial___________________________________

f. Clerks___________________________________

g. Reporters/Transcribers ______________________

32. What is the average length of time between notice of appeal and the case being fullybriefed?

a. What is the average amount of time between the case being fully briefed andissuance of decision?

33. Please, explain how, in your opinion, the expedition of dependency cases affects thequality of decisions for these cases.

34. Has your court conducted any studies on expeditiousness? If so, can you send us acopy of the study?

35. Would information from this project on how other courts expedite appeals be help-ful to your court?


45

a. What specific information would be most useful?

36. Can you suggest anyone else (e.g., judge, clerk, attorney, court reporter) we shouldinterview to get a more complete picture of how the process is working?

37. Can you provide the citation for your rule or statute and fax or mail us a copy?*Try to obtain a copy before the interview and only ask the question if we have notreceived a copy.

Please remind them to send:

Ø StatuteØ Any StudiesØ Other__________________

We will send you a copy of the interview. Please review it, make changes, and return it to us.Thank you.

Appendix B

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Appendix C: Process for Expediting DependencyAppeals

Assess the Appellate Environment• Establish and create an awareness of the need for change

• Assess the current process for handling dependency appeals

• Assess any roadblocks and causes of delay

Appoint a Leader• Must be passionate about expediting dependency cases

• Must have authority

• Must be accountable

• Must be able to convene a task force with all stakeholders

Assemble a Task Force• Justice or appellate judge

• Clerks, both trial and appellate levels

• Court administrator

• Trial judge

• Court improvement project leader

• Attorneys for state and parents

• GALs/CASAs

• Court reporters and transcribers

• Legislator (if legislation is required)

• Other stakeholders

Develop a Plan• Examine ways to change and improve sources of delay

• Consider how to make the process uniform throughout the state

• Use the same forms and rules in each appellate district

• Address structural issues (e.g., IACs in same state have similar procedures)

• Encourage cooperation from all stakeholders

• Improve communication

• Distribute a newsletter at regular intervals

48

• Hold brown-bag status meetings

• Ask for feedback

• Conduct regular meetings

• Assign specific tasks, as homework, to keep the process moving

• Look at other states for examples of what does and does not work

• Develop outcome measures

• Continue to assess and measure

Draft a Rule• Review or copy rules/statutes in effect in other states

• Contact NCSC for examples/samples

• Draft a statute or court rule to give the force of law and permanency to the expeditedprocess

Implement Internal Operating Procedures• Draft internal operating procedures to make the statute or rule effective and workable

Consider Strategies to Improve Expedition

Notice of Appeal (NOA)

• Use an efficient computerized case management system

• Coordinate clerks from the trial and appellate courts

• Require the party and attorney to sign the NOA

• NOA should indicate appeal is a dependency matter

• Order transcript at the time NOA is filed

• Transfer the record from the trial court to the appellate court expeditiously

• Do not let appellate mediation delay the appeal

Transcripts and the Record

• Require the clerk to order transcripts, not parties

• Use technology to expedite transcript production

• Assess funding barriers to transcript production

• Devise penalties for attorneys, reporters, and transcribers who do not meet time lines

• Waive the transcript if appealing on a legal issue

• Summary process

• File agreed statement of the facts


49

• Use portions of the record

Briefing

• Shorten briefing time lines for dependency appeals

• Limit extensions–grant in only extraordinary circumstances

• Monitor attorneys and briefing schedules

• Follow through and enforce time lines’ guidelines

• Same day the appeal is briefed, set it for argument or conference

Oral Argument and Conferencing

• Grant oral argument only when there are significant legal questions at issue

• Set as soon as appeal is briefed

• Handle dependency appeals first

• Save spaces for expedited cases

Decisions

• Issue decisions from the bench

• Vote on the case the day it is argued or conferenced

• Draft dependency appeals before all other opinions

• Place time limits on judges’ writing

• Assign one specialized editor to edit dependency opinions

• Give dependency appeal titles a pseudonym

Posting of Decisions

• Mandate on remand or rescript

• Give immediate notice back to the lawyers and the trial court

Other Ideas

• Assign a staff attorney to micromanage appeals on a weekly basis from NOA to decision

• Develop a tracking system

• Route dependency appeals in a red envelope

• Include photos of child in file; updated regularly to show the passage of time

• Devise penalties for delay

• Dismiss case

• Fines

• Attorney removed from appointment list

Appendix C

50

• · Wage withholding

Trial Court Expectations

• Use one-family/one-judge model at trial court

• Use best practices to avoid appeals

• Establish time lines for TPR trials

• Use mediation

• Judges should not take cases on advisement

• Trial judges must fully describe reasoning and findings to avoid appeal

• Require attorneys to prepare findings and conclusions of law

• Sign and distribute final orders as soon as prepared

• Alert court clerks to the need to expedite the processing of NOAs and records

• Assign a specific clerk to prepare files for appeal

• Encourage counsel to remain on case for appeal

• Comply strictly with all time requirements for each step of the process

Continue to Review and Refine Process

• Fund a staff person (at the appellate level) as a central contact to enforce rules andinternal operating procedures

• Fund a staff person at the trial court to track cases preparing for appeal

• Fund additional specialized court-appointed attorneys at the appellate level

• Evaluate process at regular intervals

• Collect and use statistics

• Analyze outcome measures

• Measure and refine internal operating procedures

• Share evaluations with stakeholders and the community

• Train all stakeholders

• Justices

• Judges

• Attorneys

• GALs/CASAs

• Court administrators

• Clerks

• Conduct training and encourage communication at national committee meetings, e.g.,


51

• Conference of Chief Justices/Conference of State Court Administrators

• National Conference of Appellate Court Clerks

• The National Center’s Distance Learning Center–online education

• National Association for Court Management

• National Association of State Judicial Educators

• Guardians ad Litem/Court-Appointed Special Advocates associations

• Establish mentor/partner relationships with similarly situated states

Appendix C

53

Appendix D: State Statutes and Court Rules

54


55

Appendix D

56


Iowa Iowa Rules of Appellate Procedures

57

Appendix D

58


59

Appendix D

60


61

Appendix D

62


63

Appendix E: Iowa’s Petition and Response Forms

IN THE SUPREME COURT OF IOWA

IN THE INTEREST OF ) Supreme Court No. _______) Juvenile Court No. ________)) PETITION ON APPEAL [CROSS-

___________, CHILD(REN) ) APPEAL] FROM TERMINATION) OR DISMISSAL ENTERED) PURSUANT TO IOWA CODE) SECTION 232.117

County _______________________ Judge __________________________

The names of the parties involved in this appeal and their designations in juvenile court areshown below in column A. Their respective attorneys names, law firms, addresses, and telephonenumbers are shown below in column B.

Column A Column BParties Attorneys

Appellant(s):

Appellee(s):

1. This Petition on Appeal is filed on behalf of __________________, the mother/father/child/State/Intervenor/other _____________, in the above identified termination of parentalrights proceeding, with respect to child(ren):

64

Child(ren)’s name(s) Date(s) of Birth

________________________ __________________________

________________________ __________________________

________________________ __________________________

________________________ __________________________

2. Parental rights were terminated by the juvenile court pursuant toIowa Code section(s) 232.116(____________) as to the mother and

(Insert specific subsection(s))

Iowa Code section(s) 232.116 (____________) as to the father. (Insert specific subsection(s))

3. Appellant’s attorney, _______________, is/is not the attorney who represented appellant attrial.

4. Are there any other pending appeals involving the child[ren]? ________________

If so, list:

Case Name: _________________________

Supreme Court No.: ______________

Type of Appeal: (e.g. appeal from adjudication/disposition, dissolution)

__________________________________________________________

5. The relevant dates regarding this appeal are the following:

a. Date of adjudication ________________________________________

b. Date of last removal (excluding any trial period at home of less than thirty days)

c. Date of disposition ______________________________________

d. Date(s) of any review hearings _______________________________

e. Date of any permanency hearing _________________________________


65

f. Date(s) termination petition filed/amended _________________________

g. Date(s) of termination hearing _________________________________

h. Date of termination order or dismissal ____________________________

i. Date notice of appeal filed _____________________________________

j. Any other date(s)/hearing(s) material to appeal ______________________

6. Nature of case and relief sought: The Appellant seeks a reversal of the juvenile court order:

a. terminating the parental rights of __________________ with respect to the

child(ren) ________________________________________; OR (Insert name(s))

b. dismissing a petition to terminate the parental rights of ______________with

respect to the child(ren),________________; OR (Insert name(s))

c. OTHER ________________________________________________

7. State the material facts as they relate to the issues presented for appeal:

8. State the legal issues presented for appeal, including a statement of how the issues arose andhow they were preserved for appeal:

Appendix E

66

The issue statement should be concise in nature setting forth specific legal questions. Generalconclusions, such as the trial courts ruling is not supported by law or the facts are not acceptable.Include supporting legal authority for each issue raised, including authority contrary toappellant’s case, if known.

a. Issue I:

Was error preserved? _______ yes ________ no. If yes, state how:

Supporting legal authority for Issue I:

b. Issue II:


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Was error preserved? _____ yes ______ no. If yes, state how:

Supporting legal authority of Issue II:

(Additional issues may be added)

9. I hereby certify that I requested, on the _____ day of ___________, 20___, the clerk of the

trial court to transmit immediately to the clerk of the supreme court:

____ the termination of parental rights court file, including all exhibits;

____ the child in need of assistance court file, including all exhibits, if received as an exhibit or judicially noticed in the termination of parental rights proceeding;

____ the transcript of the termination of parental rights hearing.

The undersigned requests that the appellate court issue an opinion reversing the order ofthe juvenile court in this matter, or, in the alternative, enter an order setting this case for fullbriefing.

______________________ Attorney for Appellant. Name, address, telephone.

Appendix E

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ATTACHMENTS:

-petition to terminate parental rights and any amendments-order, judgment or decree terminating parental rights-any post trial motions and rulings

PROOF OF SERVICE AND CERTIFICATE OF FILING

I certify that on the _____ day of ___________, 20____, I served this document by( ____ mailing) ( ____ personally delivering) a copy to the clerk of district court and to allparties or attorneys whose names and addresses are shown below.

I further certify that on the _____ day of _____________, 20___, I filed this Petitionfor Appeal by ( ____ mailing) ( _____ personally delivering) 7 copies of it to the Clerk of theIowa Supreme Court, Statehouse, Des Moines, Iowa 50319.

_______________________________Signature of person filing and serving petition.Name, address, telephone.

Persons served:

[Court Order August 31, 2001, effective January 1, 2002; November 9, 2001, effective February15, 2002]


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Rule 6.751 — Form 5: Response to Petition on Appeal (Cross-Appeal).

February 2002

IN THE SUPREME COURT OF IOWAIN THE INTEREST OF, CHILD(REN) Supreme Court No. Juvenile Court No. RESPONSE TO

PETITIONON APPEAL (CROSS-APPEAL)

1. This Response to the Petition on Appeal is filed on behalf of, the mother/father/child/State/Intervenor/other, in the above-identified termination of parental rights proceeding.

2. The appellee’s attorney, is/is not the attorney who represented appellee at trial.

3. The relevant date(s) regarding this appeal:

are correctly stated in the Petition on Appeal.

are corrected by appellee as follows:

4. The statement of material facts as they relate to the issues presented for appeal is:

• accurate as set forth by appellant and accepted by the undersigned appellee; OR

• requires additions/corrections, as follows:

5. Appellee’s response to the legal issues presented for appeal are as follows:

a. Issue I:

Appellee states that:

error was preserved as alleged in the Petition on Appeal.

error was not preserved. If so, please explain briefly:

Legal authority for Issue I supporting appellee’s response:

Response to Petition on Appeal (Cross-Appeal) (cont’d)

b. Issue II:

Appellee states that:

error was preserved as alleged in the Petition on Appeal.

error was not preserved. If so, please explain briefly:

Appendix E

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Legal authority for Issue II supporting appellee’s response:

6. The undersigned requests the appellate court issue an opinion affirming the order of the juve-nile court in this matter.

Attorney for appellee.Name, address, telephone.

PROOF OF SERVICE AND CERTIFICATE OF FILING

I certify that on the day of , 20 , I served this document by ( mailing) ( personally delivering) acopy to all parties or attorneys whose names and addresses are shown below.

I further certify that on the day of , 20 , I filed this Response to Petition on Appeal by (mailing) (personally delivering) seven copies of it to the Clerk of the Iowa Supreme Court, Statehouse, DesMoines, Iowa 50319.

Signature of person filing and serving response.Name, address, telephone.

Persons served:


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