PHOENIX H. Policy
Checklist for Filing a Phoenix H. Brief:
Step 1 – Contact trial counsel to determine what issues, if any, they wanted to flag on appeal.
Step 2 – Email a draft brief to the CAP staff attorney assigned to your case, at least, seven days prior to the AOB filing deadline. The draft brief must include:
- statement of case,
- statement of facts,
- section on the Indian Child Welfare Act,
- applicable law, and
- declaration of appellate counsel.
In your email to CAP, please indicate the following:
- Filing deadline for AOB. If the deadline is in less than seven days, please share whether a request for an extension of time has been or will be filed with the Court.
- Your efforts to reach trial counsel.
- Your efforts to reach your client.
- A brief analysis of issues you considered prior to preparing a no-merits brief.
Step 3 – Contact your client to share your assessment. When filing a Phoenix H. brief, counsel must inform appellant in writing that:
- counsel has concluded there are no arguable issues to be raised on appeal;
- appellant may attempt to file a brief in propria persona within 30 days (which applies to all divisions);
- the Court has the discretion to permit or not permit the actual filing of the pro per brief depending on whether the Court concludes the brief shows good cause that an arguable issue does, in fact, exist; the Court is not required to permit the appellant to pursue an appeal that has no arguable merit. (In re Phoenix H.(2009) 47 Cal.4th 835, 844-845), and
- if the appellant does not submit to the Court a pro per brief containing an arguable issue within 30 days after the filing of a Phoenix H. brief, the Court will dismiss the appeal.
Step 4 – Counsel must also affirmatively represent to the Court in the declaration accompanying the Phoenix H. brief:
- that counsel has specifically communicated all of the required information above to appellant in writing; and
- the date of that communication.