Expediting Dependency Appeals

Expediting Dependency Appeals:

Strategies to Reduce Delay

Ann L. Keith

and

Carol R. Flango

ISBN 0-89656-197-6

This document was developed by The National Center for State Courts under a grant from the State 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 State Justice Institute

ii Advisory Committee THE HONORABLE EVELYN LUNDBERG STRATTON, CHAIR Justice The Supreme Court of Ohio 30 East Broad St., Columbus, OH 43266-0419

LESLIE D. GRADET JUSTICE CHARLOTTE ANNE PERRETTA National Conference of Appellate Court Clerks Commonwealth of Massachusetts Maryland Court of Special Appeals The Appeals Court 361 Rowe Blvd. 1500 New Courthouse Annapolis, MD 21301 Boston, MA 02108

CY GURNEY, MSW NCJFCJ MEMBERS: Regional Administrator MARY V. MENTABERRY North Carolina Guardian ad Litem Director Services Division Permanency Planning for Children Superior Court Judges Chambers Department Durham County Judicial Building, 6th Floor National Council of Juvenile and 201 E. Main St. Family Court Judges Durham, NC 27701 P.O. Box 8970 ALEXANDER MCNEIL Reno, NV 89507 Court Administrator THE HONORABLE SHARON MCCULLY The Appeals Court Third District Juvenile Court 1500 New Courthouse 450 S. State St., Suite 209 Boston, MA 02108 Salt Lake City, UT 84114-04431 EDWARD MCSWEENEY Staff Attorney Vermont Supreme Court 109 State Street Montpelier, VT 05609-0801

National Center for State Courts

CAROL R. FLANGO TED RUBIN Project Director Consultant

ANN L. KEITH TONI KNORR Court Research Associate Program Specialist

DAWN RUBIO DEBORAH SIEGEL Senior Court Management Consultant Intern

State Justice Institute OLIVIA GRANT SJI Project Monitor 1650 King St., Suite 600 Alexandria, VA 22314 iii

Acknowledgments

his report on expediting dependency appeals is the result of a collaboration between The TNational Center for State Courts and the State Justice Institute, with information, contributions, and assistance from the appellate courts in all fifty states, whose contact information is located 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 Family Court Judges. The committee met to analyze surveys of the state courts and to develop a process for 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 contributed their expertise and experience toward this effort: Chief Judge Judith S. Kaye of the New York Court of Appeals, who contributed suggestions to the process for expediting dependency appeals and 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 assisted with the coordination and communication between The National Center and Justice Stratton. The authors would also like to express their appreciation to Associate Justice Charlotte Anne Perretta; Chief Judge Christopher Armstrong; Alex McNeil, Court Administrator; Ashley Ahearn, Clerk of Court; 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 importance of outcome measures to the project’s committee and participated in the site visit to the Appeals 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 transcript and record production. The National Center’s Education and Technology Studio’s Ray Foster and Kevin Mittler answered technical questions about courtroom technology for the committee during their meeting in Williamsburg. Sara Lewis and Chuck Campbell copyedited the final publication and coordinated its printing. Pam Petrakis assisted with the formatting and organization of the final 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.

Table of Contents

Foreword ...... ix Executive Summary ...... xi Introduction ...... 1 Project Overview ...... 3 Survey of Courts that Are Expediting Dependency Appeals ...... 3 Expedited Dependency Appeal Case Types ...... 5 Legal Process for the Expedition of Dependency Appeals by State ...... 6 Promising Practices in Expediting Permanency: Eight Steps ...... 7 Assess the Appellate Environment ...... 7 Appoint a Leader ...... 10 Assemble a Task Force ...... 10 Develop a Plan ...... 10 Draft a Rule ...... 11 Implement Internal Operating Procedures ...... 11 Consider Strategies to Improve the Appellate Process ...... 12 N Notice of Appeal ...... 12 N Transcripts and the Record ...... 12 N Computer-Aided Transcription (CAT) ...... 13 N Electronic Filing of Records ...... 13 N Briefing ...... 14 N Oral Argument and Conferencing ...... 15 N Decisions ...... 15 N Posting of Decisions ...... 15 N Other Ideas ...... 15 Review and Refine the Process ...... 16 Expectations for the Trial Courts ...... 16 State Court Highlights ...... 19 Georgia ...... 19 Iowa ...... 20 Massachusetts ...... 22 Minnesota ...... 25 New York ...... 27 Ohio ...... 28 Vermont ...... 29 Virginia ...... 33 Appendix A: State and Trial Court Contacts ...... 35 Appendix B: Survey ...... 39 Appendix C: Telephone Process for Expediting Dependency Appeals...... 47 Appendix D: State Statutes and Court Rules ...... 53 Appendix E: Iowa’s Petition and Response Forms ...... 63

vii

Foreword

e are very pleased to present the final report on Expediting Dependency Appeals: WStrategies 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 states to 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 to reduce the length of time courts take to find permanent homes for children removed from the custody of their birth parents. The goal is to prevent these children from languishing in the foster care system. Although the focus of the ASFA legislation is on the trial court level, the appeals process is part of the permanency process. An appeal may considerably extend a child’s placement in foster care. While several months or a year may seem a reasonable period for an appeals process 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 study the 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 to start your efforts or improve your existing plan. It is a labor of love because the lives of these children are so precious and their moments in childhood must not be wasted. Please join me in meeting this challenge.

Evelyn L. Stratton Justice Ohio Supreme Court

ix Executive Summary

imeliness is a consideration in the resolution of court disputes, but it must be considered a Tperformance 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, they have reduced their time standards for dependency cases. Only recently, however, has attention turned to appeals involving children. Permanency for a child cannot be achieved if the child’s case is awaiting appellate resolution. This project examined the effectiveness of expediting appeals for dependency 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 streamlined the appellate process for handling dependency cases and, with this publication, is making these findings available for other courts’ consideration. Staff surveyed all forty-three state appellate courts that have expedited appeals for dependency cases and studied several courts with exemplary practices in-depth. The first section of this report describes all expedited appeals procedures for dependency cases in state courts and reviews their implementation process. The second section reports on the appellate court processes for 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 to implement an expedited appeals process. It is important to note that, while most state appellate courts are expediting some type of dependency appeals, there are other case types they may also require expedition. This guide is intended to make the implementation process comprehensive and less difficult. Finally, a copy of all the state rules and statutes for expediting dependency appeals is provided in an appendix with Web site addresses to access more information about particular states. A particularly useful strategy in implementing an expedited process is for a representative from one appellate state court to contact an appellate state court representative in another state that has a statute or court rule that may be adapted for use in the state without an expedited process. This report is the first source of comprehensive information on expedited appeals for dependency cases. It helps answer questions on what the state appellate courts can do to expedite those 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 raise the awareness of state trial courts of their responsibilities in quickly preparing these cases for the appellate courts.

xi Introduction

“Cases involving termination of parental rights and adoption issues are about the lives of children, rather than contracts, insurance, business disputes, or water rights. The legal system views these cases as numbers on a docket. However, to a child, waiting for a resolution seems like forever— an eternity with no real family and no sense of belonging.”1 imeliness is a consideration in the resolution of all court disputes, but it is particularly impor- Ttant when children are involved and forced to remain in unstable, and perhaps violent, situations. It is important for a child’s concept of time to either restore stability to a family or establish permanency 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 stability to an existing relationship or to facilitate the establishment of new relationships to ‘replace old ones.’”2 The timely resolution of disputes, especially in cases involving children, should be considered a performance goal by all trial and appellate courts handling family issues. Timely case resolution requires aggressive case management. From intake to final appeal, courts need to assign, 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 time frames for moving dependency cases through the system.3 Only recently, however, has attention turned to appeals involving children. Permanency for a child cannot be achieved if the child’s case languishes in the appellate system. In addition to efficiently and effectively handling hearings, reducing continuances, and using differentiated case management at the trial level, the appellate process must be reviewed and streamlined to reduce delay. Establishing time frames for processing these appeals helps ensure that there is no impediment to permanency for children. Techniques to expedite the appellate process include requiring that child welfare cases are briefed and decided promptly and ensuring 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 it takes to prepare the transcript, brief the case, schedule arguments, and handle continuances, as well 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 Neglected Children in State Custody, August 1997. See also State Justice Institute and NCSC, Appellate Court Performance Standards and Measures, June 1999. 1 Expediting Dependency Appeals may damage children involved in dependency5 and neglect appeals. Some appellate courts are setting aside some established procedures and developing special methods to expedite dependency cases. Appeals concerning relinquishment, adoption, dependency, and abuse and neglect cases are being expedited in many courts by limiting time extensions and setting specific time goals 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 special time requirements of dependency cases. This research project focused on how appellate courts handle 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 expedited appellate process? This project examined the practices that state appellate courts use to expedite dependency appeals. Project staff examined working systems through a survey of appellate courts in each state.9 The research findings are now available for other courts to examine as they consider setting up 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. 2 Project Overview

he National Center for State Courts’ staff used a comprehensive process to determine the Tstatus 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 a contact person to the project. Follow-up letters were sent to the chief justices to thank them for appointing a contact person or to remind them to make an appointment. National Center staff contacted fourteen supreme court justices, nine clerks of court, eight attorneys, seven appellate judges, five court improvement coordinators, four juvenile and family court judges, and other court 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. The policy, legislation, or other guidelines state legislatures and local court systems use to establish their system models were also identified. After studying the models and how they were implemented, the project conducted a telephone survey to examine the different procedures used by an appellate court in each state for expediting dependency appeals.10 These procedures included the different time segments for an appellate case; the screening system used at the appellate court level with dependency cases; the assignment of dependency cases to a differentiated track, rather than handling all cases in the same manner; production of regular case flow reports; appointment of parents’ counsel to first review the merits of appeals, rather than just to pursue appeals; use of status conferences; the use of settlement conferences and mediation; and procedures used for handling frivolous appeals.11 Extensive telephone surveys were completed on the expedition process, and the contact person verified the accuracy of the document. Forty-two states reported at least some aspects of an expedited appellate procedure. Seven states reported not having any type of expedited appellate procedure, and one state (Delaware) reported that an expedited procedure is pending implementation. 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 product was 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. In some studies of appeals, it is felt that many of these appeals are frivolous and that this practice severely increased the length and uncertainty of 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. 3 Expediting Dependency Appeals Chart A - Primary State Contacts for Information on Expedited Appeals State Contacts for Information on Expedited Appeals

Supreme Court Justice 14 Clerk of Court 9 Attorney 8 Appellate Judge 7 CIP Coordinator 5 Juvenile/Family Court Judge 4 Other 4

0 10 20 30 40 50 Number of Contacts

Chart B - Status of Expedited Procedures as of April 2002

Reports Aspects of an Expedited Appellate Procedure – 42 States Does Not Have Any Aspects of an Expedited Appellate Procedure – 7 States Pending Expedited Appellate Procedure – 1 State (Delaware)

4 Project Overview Expedited Dependency Appeal Case Types

Case types that may be classified as dependency appeals include termination of parental rights, abuse and neglect, adoption, custody, children in need of assistance, domestic violence actions 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. In fact, most states expedite two or more case types, and many expedite any appeal that involves a child-related issue, as illustrated in Chart D. Chart C - Expedited Dependency Appeal Case Types

TPR 37

Abuse & Neglect 29

Adoption 19

Custody 19 Case Types CHINS 14

Other 13

0 10 20 30 40 50 Number of States

Chart D - Number of Dependency Appeal Types Expedited by State

Number of Appeal Types by State

12 10 9

s 10 e

t 7 a t 8 7 S

f 6 o 5 5

r 6 e b

m 4 u N 2 0 None One Two Three Four Five Six or More Number of Appeal Types

5 Expediting Dependency Appeals Legal Process for the Expedition of Dependency Appeals by State

The legal process each state uses to expedite dependency appeals may be an internal operating procedure (IOP), court rule, or statute (see Chart E).13 Georgia has a constitutional amendment that governs the expedition of termination of parental rights, custody, children in need of assistance, 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 be assigned 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 those options to ensure that appeals are routinely and formally expedited by law. However, many of the rules and statutes are written in vague terms; for example, “a termination of parental rights appeal should be expedited,” without guidance as to how the expedition should be conducted.

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

1 15 IOP 21 Court Rule Statute Const. Amend. 23

13 Some states have more than one legal process. For example, Georgia has a constitutional amendment, state statute, and internal operating procedures. 6 Promising Practices in Expediting Permanency: Eight Steps

nterviews with state contacts revealed diverse strategies that appellate courts have implemented Ito 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 for Expediting Dependency Appeals, which may be obtained from The National Center for State Courts.14 The recommended process for expediting dependency appeals involves eight steps: Assess the 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 appellate environment. Before making changes to appellate procedures, courts should examine how they are currently handling dependency appeals in the state. The court should identify what they are doing 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 identify and assess any roadblocks and causes of delay. Specifically, the courts should ask what steps in the appellate process are causing delay for children seeking permanent placement. This may be accomplished by examining case flow statistics and making comparisons with the ABA and NCJFCJ suggested guidelines for each step of the appeal.15 Finally, the appellate courts must establish and create an awareness of the need for change in the process for handling dependency cases. Courts may publish case flow statistics and other findings from their assessment of the appellate environment. They may also consider writing articles 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). 7 Expediting Dependency Appeals

8 Promising Practices in Expediting Permanency

9 Expediting Dependency Appeals II. Appoint a Leader

Once an assessment of appellate procedures is complete and an awareness of the need to expedite dependency appeals is established, the state should appoint a leader to create expedited procedures. A leader must be passionate about expediting dependency cases. The leader may be a justice,17 an appellate judge,18 a court administrator,19 a staff attorney,20 or a court improvement project 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 stakeholders in the appellate process. III. Assemble a Task Force

Once installed, the leader will assemble a task force. The task force should represent all stakeholders in the appellate process and those involved in dependency cases. An ideal task force would 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 will need to identify sources of delay, which may be spearheaded by the findings during the Assess the Appellate Environment stage. After the sources are identified, the task force should examine ways to 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 the Iowa 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. 10 Promising Practices in Expediting Permanency An important consideration in choosing expedition strategies is how to make the process uniform throughout the state. The courts should use the same forms and rules in each appellate district to facilitate case flow. Structural issues should also be addressed to ensure that the intermediate appellate courts in a state have similar procedures. Because the task force comprises representatives of all stakeholders, they should be able to encourage cooperation from their colleagues in implementing new procedures. To facilitate this goal, the representatives will need to improve communication between the court and those who process dependency appeals. Suggestions to encourage communication include distributing a newsletter on the status of appeals at regular intervals, holding brown-bag status meetings, and asking 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 be completed before the next meeting, to keep the process moving. One homework assignment may be to look at other states for examples of what does and does not work in their expedited procedures. Finally, the task force should develop outcome measures to analyze how the strategies reduce delay. Once the expedited process is implemented, the task force will need to continue to assess and measure the process at regular intervals to ensure that it is effective. Keeping court statistics 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 will need to draft a rule to formalize the procedure. The task force may review or copy rules and statutes in effect in other states.22 Drafting a statute or court rule gives the force of law and permanency to the expedited process. VI. Implement Internal Operating Procedures

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

Some examples:

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

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

22 See List of State Statutes and Court Rules, Appendix D, 11 Expediting Dependency Appeals VII. Consider Strategies to Improve the Appellate Process

The state appellate courts offered the following strategies to decrease delay at each stage of the appellate process, beginning with Notice of Appeal and ending with Posting of Decisions. It is recommended that a state task force review these strategies for those that best suit their appellate court’s individual needs. Initially, a task force may want to concentrate on one area of the appellate process to measure whether a strategy is effective, and add new strategies to refine the process. Notice of Appeal • A universal suggestion to improve the appellate process is to invest in an efficient, computerized case management system that can track an appeal from the trial level to the court of last resort. • The clerks from the trial and appellate courts need to coordinate procedures and strive to 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 will automatically initiate an appeal without consulting the client. Requiring the party’s signature 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 timelines and delay the appeal. Transcripts and the Record In many states, assembling the record and preparing transcripts is a primary cause of delay in expediting dependency appeals. Often, the appellate court has no control over dependency 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 lines suggest that the trial court transmit the record to the appellate court within a maximum of thirty days. The American Bar Association’s proposed appellate time lines recommend that the trial court 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 that the record is completed in less than thirty days. Nine states reportedly take thirty days; twenty-one states range from thirty to sixty days from notice of appeal to complete record; seven states average sixty to ninety days; and two states reported that the record takes more than ninety days to complete (seven states did not report an average time). Most states have a mandatory production time frame by rule, but the time may be extended by motion. In some cases, multiple extensions

12 Promising Practices in Expediting Permanency may be granted, further extending delay. Some states report that extensions are regularly and leniently granted, while other states only grant extensions under extraordinary circumstances and carefully scrutinize extension requests in dependency cases. Computer-Aided Transcription (CAT)

Courts have had access to computer-aided transcription (CAT) since 1981. Today, CAT has evolved into an affordable and reliable technology, and reporter skills in using CAT have increased as the technology improves. CAT uses a computer to automate the reading-and-translating process of shorthand stenotype notes into English. Court reporters record the spoken words by making keystrokes on a stenotype machine, producing the shorthand notes. The keystrokes are recorded on both the traditional folded paper tape and on an electronic storage disk. The disk is removed from the stenotype 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 ensure accuracy. 23 CAT systems connected to a computer are now capable of simultaneously translating the reporter’s shorthand notes into English at the same time as they are written. The production of this simultaneous record is called “real-time translation.” Real-time transcripts are shown on a screen as they are recorded by the court reporter and are available for all courtroom participants to see as they are produced. The ability to produce a usable typed transcript very quickly through CAT technology should make it possible to prepare a complete record in a matter of days or even hours.24 Real-time reporting software is a standard feature on all CAT programs, but requires more skill 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 reach a 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 of the events in the trial court, the pleadings of the parties, and any written decisions prepared by the trial judge. The record may also include motion papers filed in the trial court, exhibits admitted or offered 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). 13 Expediting Dependency Appeals The trial court clerk’s staff usually compiles the record. The court clerk’s office prepares either the original or copies of court documents in a file jacket or box, and mails the package to the appellate court clerk. This process is another source of delay because it is time-consuming, is labor intensive, and requires substantial mailing, copying, and storage costs. Electronic record keeping 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 record during and after trial. However, using an electronic record requires the recognition of issues regarding privacy, document certification, uniform standards, and system integration. For example: • What are the obligations of the court when records are easily available on a desktop computer as opposed to manually digging through court records? • Where is the balancing point between the Freedom of Information Act and the individual right of privacy? • How do we know a document is authentic? • What about lawyers who need to file documents with multiple courts, all demanding different 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 transcripts when the notice of appeal is filed, thereby streamlining the procedure and making it more automatic. • The state courts should assess funding barriers to transcript production that affect the purchase of technology and the hiring and salaries of reporters and transcribers. • The courts may devise penalties for attorneys, reporters, and transcribers who do not meet time lines for transcript production. • Some courts waive the transcript if the appeal is solely based on a legal issue by using a summary process, requiring the attorneys to file an agreed statement of the facts, or ordering only portions of the record that apply to the legal issue. Briefing Briefing schedules may be shortened for dependency appeals. For example, Oklahoma’s briefing schedule for expedited appeals is twenty days for the appellant’s brief, fifteen days for the appellee’s brief, and ten days for a reply brief. Extensions to the briefing schedule should be limited 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. 14 Promising Practices in Expediting Permanency be monitored, with the court following through and enforcing timelines. Courts may further reduce delay by setting an appeal for argument or conference on the same day the appeal is fully briefed. Oral Argument and Conferencing

The preparation and hearing of an oral argument can be time-consuming. Courts may grant oral argument only when there are significant legal questions at issue. Oral argument should be set as soon as the appeal is fully briefed, and dependency appeals should get priority in scheduling oral arguments and conferencing. Some courts save spaces on their calendar for expedited cases. 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. Dependency appeals 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 is familiar with writing dependency opinions may finish the editing process faster than one who rarely works on a dependency appeal. Posting of Decisions

Appellate courts should give trial courts clear, concise direction on when an appeal is remanded or rescripted. The appellate court must give the attorneys and trial court immediate notice 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 the appeal is involved in an expedited process. • Include regularly updated photos of the child in the court file to show the passage of time. • Devise and implement penalties for delay. For example, if the case is not briefed in a timely manner, the court may dismiss the appeal. The court may also award fines to delinquent reporters, transcribers, and attorneys, or they may be removed from the appointment list. The wages of delinquent actors in the process may be withheld.

15 Expediting Dependency Appeals 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 to enforce rules and internal operating procedures. Likewise, funding may support a staff person at the trial court level to track cases preparing for appeal. Funding specialized court-appointed attorneys at the appellate level to expedite dependency appeals may increase the efficiency and quality of dependency appeals. Evaluation of the expedited process at regular intervals is critical to ensure success. The task force should uniformly collect and use statistical data to analyze outcome measures. The task force can measure and refine internal operating procedures using this data. Outcomes and evaluations should be shared with stakeholders and the community to promote the importance of expediting permanency for children. Training in the expedited procedures should involve all stakeholders: justices, judges, attorneys, guardians ad litem, CASAs, court administrators, and clerks. Training may be expanded to take place at national committee meetings that encourage communication among these stakeholders, including conferences of the Conference of Chief Justices, the Conference of State Court Administrators, the National Conference of Appellate Court Clerks, the National Center for State Courts’ Education and Technology Center’s online education program, the National Association for Court Management, the National Association of State Judicial Educators, and the guardians ad litem and CASAs associations. Mentor and partner relationships with similarly situated states may be established for sharing information. For example, over fifty judges from Iowa, Minnesota, and Wisconsin met at a tristate 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 procedure for dependency appeals, the committee recognized several functions of the trial courts that can be streamlined to assist in expedition. The following is a list of trial court expectations that may be used in a partnership between the trial and appellate courts to develop procedures that are more efficient. • Trial courts should use the one-family/one-judge model so dependency cases do not spend 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 trial court 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. 16 Promising Practices in Expediting Permanency • 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 appeal and 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 avoid time being spent by a new attorney researching the case. • Both trial courts and appellate courts must comply strictly with all time requirements for each step of the process.

17 18 State Court Highlights

ome specific illustrations of how states are expediting dependency appeals are described be- Slow: Georgia, Iowa, Massachusetts, Minnesota, New York, Ohio, Vermont, and Virginia. Georgia31 The appellate courts of Georgia are required to expedite appeals both constitutionally and statutorily. Additionally, the Court of Appeals of Georgia has internal operating procedures, which require 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 at the term for which it is entered on the court’s docket for hearing or at the next term. If the appellate court fails to dispose of an appeal within the two terms, the trial court’s decision is affirmed by operation of law, and the court loses jurisdiction to hear the appeal.32 To date, the court of appeals has never allowed a case to be affirmed by operation of law. Depending on exactly when a case is docketed, the appellate courts would have a minimum of five and a half to 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 the state is a plaintiff, the appellate court shall give preference to such cases over all other cases still pending.33 This statute affects dependency cases that involve child abuse and neglect, children in need of assistance, and some termination of parental rights and custody appeals. Finally, Georgia has initiated internal operating procedures that require the expedition of cases involving child custody (termination of parental rights, custody, children in need of assistance, and abuse and neglect), but there are no specific guidelines for the process. In general terms, dependency appeals are given priority.34 The standard briefing schedule is twenty days for the 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 of up to twenty days. Oral argument is waived in 80 percent of the appeals, and written opinions are published 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. 19 Expediting Dependency Appeals 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 appeals when writing new legislation, which can be expanded to include other classes of dependency appeals at a later date. TPR appeals are transferred directly to the Iowa Court of Appeals. These cases are given the highest priority at all stages of the appellate process. There are expedited docketing 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 of Parental Rights Expedited Appeals Task Force, which included approximately fifteen people representing all disciplines: appellate judges, juvenile judges, attorneys representing parents, attorneys representing children, assistant attorneys general, and county attorneys. The task force met once a month for nine months for six to eight hours at a time to develop a proposal to expedite dependency appeals. The task force had about 90 percent attendance at every meeting. An agenda was prepared for each meeting and each member was given a task to complete before the next meeting. The key to the success of the task force was the enthusiasm engendered by the possibility of revamping 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 the Court Improvement Project, who studied the proposal for approximately two months. Then the proposal 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 implemented the new procedures from the task force’s proposal in January 2002. Iowa recently implemented a computerized court management system, which handles dockets. The new expedited process uses an expedited docket that is incorporated into the computer 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 appellate defender’s office handled all indigent appeals. Using the new procedure, the trial counsel will handle the appeals to save time, but the procedure will allow the trial counsel to withdraw from the case under extraordinary circumstances. The juvenile judges are educated that withdrawals should 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 transcript production. It usually takes less than thirty days to complete a transcript. Court Rule 17 requires that court reporters give priority to transcription of proceedings in dependency cases over other civil transcripts.

35 Hon. Gayle Nelson Vogel, Judge, Iowa Court of Appeals, state contact. 20 State Court Highlights The former expedited appellate schedule, which halved the regular briefing schedule for custody, adoption, TPR, juvenile proceedings affecting child placement, and lawyer disciplinary matters, allowed thirty days to file the notice of appeal and twenty days to docket the appeal; the appellant’s brief was submitted in twenty-five days, the appellee’s brief in fifteen, and the reply brief in seven. The total appellate time frame from notice of appeal to the appeal being fully briefed averaged five months. The new procedure totals forty-five days. After the entry of the TPR order, 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’s counsel must sign the notice of appeal and order the transcript. The certificate for ordering the transcript is included in the notice of appeal. Fifteen days from the filing of the notice of appeal, the appellant files a petition, rather than filing a brief. Attorneys file a fill-in-the-blanks form with required attachments with the clerk of the supreme court and an information copy with the clerk of the district court. The form is prepared by the trial counsel and must not exceed fifteen pages (the old rule allowed fifty pages). The form includes 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. The response is filed with the clerk of the supreme court and is also limited to fifteen pages. The response form is completed and submitted to correct factual assertions in the petition. Copies of both 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 complete at this time and includes the TPR court file and exhibits; the child in need of assistance court file and exhibits, only if they were received in the TPR proceeding; and the transcript of the TPR hearing. 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 and takes approximately seventy-five days to decide if further review is granted.

21 Expediting Dependency Appeals Massachusetts36

Created in 1972, the Massachusetts Court of Appeals is a court of general appellate jurisdiction. Most appeals come from the departments of the trial court, and some are transferred to the supreme judicial court. Twenty-five justices serve on the appeals court, and, like most intermediate appellate courts, usually sit in panels of three. Every justice sits with every other justice during the court year. During recent years, there has been a dramatic increase in appeals involving the care and protection of children, termination of parental rights, and related cases. The Department of Social Services (DSS) files virtually all of these appeals. During fiscal year 2000, ninety-six such appeals were filed, a sharp increase over 1999’s sixty-eight cases, and more than triple the number filed only four years ago. For twenty years, the Massachusetts Court of Appeals has given dependency cases (adoption, termination of parental rights, custody, abuse and neglect, and removal) priority once briefs are 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 were being granted in dependency cases and decided to select one justice to rule on all of the motions in juvenile appeals. Associate Justice Charlotte Anne Perretta volunteered to lead the process for expediting dependency appeals. Clerks were told that all dependency cases were to be assigned to Justice 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 and record to determine whether it is suitable for summary disposition by a three-justice panel. A case is marked either “A” or “B” at screening. “A” appeals raise legal issues and require a published opinion and oral argument. Cases that warrant full argument are routinely scheduled on the next available calendar. “B” appeals do not require oral argument. They go to a staff attorney, who reviews and, if necessary, requests more information, prepares a staff memo and order, and sends the case to a three-judge panel. If any one of the three justices disagrees with the decision, the case 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) for type “B” cases is twenty-eight days after the justices have reviewed the order. Massachusetts has a 130-day guideline from oral argument to release for all appeals, but expedited dependency appeals 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 cases involving children. Justice Perretta developed the process and screens these cases. The process involves the following steps:

36 Based on a site visit to the Commonwealth of Massachusetts Appeals Court, and discussions with Justice Charlotte Ann Perretta and Alexander McNeil, Court Administrator (April 2001). 22 State Court Highlights 1. Parents are required to sign a notice of appeal. Attorneys were filing appeals automatically, 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 parties request 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 the Committee for Public Counsel Services, which appoints counsel for the indigent. 4. One justice promptly screens all cases to determine whether they are suitable for summary disposition. This “one-judge” procedure helps to ensure predictability and consistency in case identification. To avoid possible conflicts of interest, the screening 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 a running list of outstanding briefs. If a particular attorney is chronically late in filing briefs, Justice Perretta will ask Child Protective Services to remove the attorney from 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 rule allows nonpublished opinions, if no new law is created and the decision is based on the 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 the child welfare cases, expediting the process and improving consistency. 9. Cases receive pseudonyms, so cases do not read “In re Minor Child” or “In Adoption of Jane Doe.” Unique names reduce research time because individual cases are more easily identified and found in automated or manual searches. 10. The court encourages attorneys to request transcripts when they know they will appeal and encourages them to monitor the production process. 11. The clerk of the appeals court runs continuous checks on the cases as a back-up system. The justice rarely grants continuances. A small bar practices in the area of children’s cases and Justice Perretta knows all the attorneys. The court offers a certified day of training for the bar and educates trial judges on how to make findings and decisions more affirmable. The court of last 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.

23 Expediting Dependency Appeals Analysis of Data for Time Lines The Massachusetts Court of Appeals was selected for an intense site visit to discover how the court expedites dependency appeals. Staff compared the time for appeals in 1996—the last year before the expedition process began—with 1999, which is the latest year for data. Time from date of entry to date of rescript has decreased by an average of 2.1 months between 1996 and 1999 since the implementation of the judicial screening procedure.

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

400 350

300

250 200 Mean Median 150 100

50 0 1996 - 41 Cases 1999 - 59 Cases

Comparison of Events in the Appellate Process

24 State Court Highlights The time from notice of appeal (NOA) to a case being ready for hearing was reduced 4.6 months after the implementation of the screening justice. The time from ready-to-disposition and disposition-to-rescript increased in 1999. This increase may be caused by the justices spending more time on the more difficult cases flagged for expedition by the screening justice. Thus, the more complex appeals receive more time, but the overall time spent on dependency appeals is reduced. While cases are taking longer from the time they are ready for decision to rescript, the overall 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 both increased the number of attorneys available to handle these cases and placed limits on the number 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 Protection Cases. 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 the problems posed by missing clients • Establish a procedure for the appointment of appellate counsel, which makes it clear that 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 delay problems. The appellate court has no control over dependency case transcripts, which currently are not given priority by the trial court. Minnesota37

The initial recommendation to expedite child protection appeals in Minnesota came from the 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 Court Juvenile 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, guardians ad litem, parent and child attorneys, court attorneys, child protection social workers, and private attorneys from across the state. The committee met at least monthly during the period from September 1997 through February 1999 with the goal of bringing the rules into compliance with the federal and state statutory revisions that have been enacted since the 1982 promulgation of 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). 25 Expediting Dependency Appeals drafts of rules regarding the following issues: time lines for decision making, discovery, termination of parental rights, alternative dispute resolution, runaway and habitual truant matters, and application of the Indian Child Welfare Act. Throughout its deliberations, the Supreme Court Juvenile Protection Rules Committee kept in mind the following key values and considerations: • The purposes of child protection matters, including, in particular, the need to establish safe 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 decisions regarding 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 recommendations were incorporated into the proposal, which was submitted to the Minnesota Supreme Court in November 1999. In December 1999, the supreme court issued an order promulgating the Rules of Juvenile Protection Procedure, and they went into effect on March 1, 2001. Minnesota’s approach to expediting dependency appeals covers adoption, termination of parental rights, custody, children in need of assistance, and abuse and neglect cases. This state’s court rule requires the appellate court to issue a decision within sixty days of the date the case is deemed submitted under the Rules of Civil Appellate Procedure. Minnesota’s Juvenile Protection Rule 82 expressly provides for an expedited appeal process by 1) requiring all appeals to be filed within thirty days from the filing of the order (rather than from the date of service of the order upon an adverse party), and 2) mandating that the appellate decision be issued within sixty days of receipt (rather than the normal ninety days for other types of cases). Because Court Rule 82.05 requires cases to be filed within thirty days, transcripts are generally received within the thirty-day limit. The briefing schedule allows each party thirty days to file a brief and ten days to file a reply brief for a total of seventy days after the delivery of the transcript. This is the same schedule used for all civil cases. In dependency cases, oral argument is waived only 20 percent of the time. Rule 82.06 provides that opinions in child protection cases must be issued within sixty days of the date the case is deemed submitted, and the opinions must be circulated to all court of appeals judges during a ten-day review period. The maximum length of time between notice of appeal and the case being fully briefed is one hundred days. The maximum length of time between the case being fully briefed and issuance of decision is ninety days.

26 State Court Highlights New York38

In New York, where a stay is granted pursuant to the Family Court Act §§1112,1114, an appeal 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. For example, in the Appellate Division, Third Department, appeals are scheduled for argument within ninety days of perfection, with a shorter schedule applied to dependency and other child-related cases. 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 closely monitored. All family court appeals, regardless of category, have the benefit of a simplified process. Printed cases and briefs are not required.39 The Legal Issues Subcommittee and the Appellate Division, Fourth Department, have conducted a joint project enforcing appellate scheduling preferences for expediting appeals. The project increased the dismissal rates for abandoned appeals and increased court communication regarding 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 the Appellate Division, Fourth Department, and the Erie County Family Court, attorneys from legal services, and experienced appellate attorneys. The subcommittee identified specific areas of the appellate process that cause delay for children in foster care and implemented new procedures to expedite the appeals. A cause of delay was a lack of communication between the courts and parties about the existence and status of appeals, as well as an inconsistent method for referencing appeals: “For example, the Family Court has been listing appeals based upon the information derived from the captions on the Notice of Appeal; the appellate Division, Fourth Department redacts the surnames to 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 in the style of the caption of the order appealed from. • [The Manager] will create a master list of pending appeals, which will be e-mailed monthly to the appellate division, fourth department clerk, and agency attorneys. • The master list will include a column reflecting the disposition of the appeal and will be updated 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 who are responsible for each step of the process, which is an effective way of personalizing internal operating procedures. 27 Expediting Dependency Appeals The backlog caused by unperfected appeals that were not disposed of by an appellate order was another cause of delay in New York. Strategies to decrease the backlog include eliminating appeals that have been administratively dismissed after nine months, but which remain within the 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-case determination upon review of prospective adoptions. If the family court determines that an impediment to the child’s adoption exists, a request will be made to the appellate division to clarify the child’s status. Ohio

After reviewing statutes and court rules from other states and from Ohio appellate districts,42 Justice Stratton of the Ohio Supreme Court drafted a court rule for the Ohio Rules of Appellate 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 minor child. The project was funded through a grant by the Dave Thomas Adoption Foundation to the Dave Thomas Center for Adoption Law at Capital University Law School.43 The rules were informally circulated to the Ohio Association of Probate Court Judges, the Ohio Association of Juvenile and Family Court Judges, the Columbus Bar Association Family Law Committee and Juvenile Law Committee, the Ohio State Bar Association Family Law Committee, the Public Children Services Association of Ohio, and the Expedited Adoption Advisory Committee of the National Council of Juvenile and Family Court Judges, adoption groups, and other stakeholders that would be impacted by the rule for comment and discussion. Once the comments were returned and the rules edited, they were sent to the Rules Committee of the Ohio Supreme Court. The rules were placed on the docket and voted on. The time span from the vote to publication was sixty days. Two months later, the supreme court amendments were adopted by the supreme 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 time allowed 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 the record, and the briefing schedules are reduced for expedited appeals. “The briefing schedule for adoption 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 to appellee, who serves and files twenty days later, and appellant serves and files the optional reply brief 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. The Second 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 Districts give 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). 28 State Court Highlights quires prompt oral arguments.45 Oral arguments must be heard within thirty days after the briefs are submitted.46 The appellate court rules reduce the time for filing judgment entry to thirty days from a guideline of sixty days for non-expedited appeals, and the supreme court rule reduced the time for an appellant to file the notice of appeal and accompanying memorandum in support of jurisdiction from forty-five days for a non-expedited appeal to twenty days. Ohio’s appellate districts must expedite termination of parental rights and adoption appeals, 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 termination of parental rights and adoption appeals from the twelve appellate districts and the supreme court to address this concern. Vermont48

The Supreme Court of Vermont received a federal grant to assess its child abuse and neglect proceedings in December 1995. The Vermont Supreme Court formed an advisory committee, which asked The National Center for State Courts to conduct an assessment of the proceedings. The National Center’s report, completed in February 1997, found that the Vermont Supreme Court took ten to thirty months to resolve children in need of assistance (CHINS) and termination of parental rights (TPR) appeals, with an average of fourteen months. The advisory committee delivered a final report recommending that the supreme court set a goal for resolving 95 percent of 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 the supreme court detailing problems that cause delay in each aspect of the appeals process and making specific recommendations for addressing those problems. After obtaining feedback from various court personnel, including judges, the staff attorney team refined the recommendations for expediting CHINS/TPR appeals. The staff attorney team consulted with those persons who would be directly affected by the changes in appellate procedures: trial court clerks, reporters and transcribers, attorneys working for the defender general, assigned conflict counsel, the attorney general, 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 operating procedures are regularly refined. Proposed rules are sent to the Civil Rules Committee for review and comment. Vermont identified potential problems and used them to structure an outline of solutions, which is an effective strategy that other courts could use to identify and solve sources 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 by Connie 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. 29 Expediting Dependency Appeals Problem 1: Transcripts not being ordered within ten days of the filing of the notice of appeal, as required by rule, because of delays in appellants seeking and obtaining assigned appellate counsel and because of delays in the trial court clerks forwarding information that would allow the supreme court to begin processing the appeals. Solution: Amend statute so that appellants in CHINS/TPR cases who had been assigned trial counsel need not 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 docket sheet 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 highest priority. Reporters may not take notes in CHINS/TPR hearings unless they can guarantee that they will be able to complete transcripts of those hearings within one month of transcript order. If transcripts are not done within thirty days of order, they are pulled out of court until transcripts are done. Require trial court clerks to send tapes to transcribers within one day of receiving copy of transcript orders. Problem 3: Additional transcripts ordered by appellate counsel weeks after trial counsel has made original transcript order. Solution: Ask the defender general to institute a new policy requiring that transcripts of all CHINS/TPR hearings be ordered at the outset by trial counsel, unless they are sure that certain transcripts will not be necessary for an appeal. Problem 4: Delays in briefing caused by numerous stipulations and motions for extensions of time.

30 State Court Highlights Solution: Amend rules so that parties in CHINS/TPR appeals may not stipulate to extensions of time, which will 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 or five-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 and issued within one day of argument. Five-justice cases are drafted immediately following argument and 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 noticed. 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 prioritize CHINS/TPR transcripts and of the consequences of not doing so. The staff attorney team met with representatives 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’s office assured the advisory committee that family court clerks and managers were made aware of new procedures for expediting CHINS/TPR cases, and that they will 1) not allow reporters to take notes at CHINS/TPR proceedings unless the reporters can guarantee production of the transcripts within thirty days; 2) remove reporters from court if CHINS/TPR transcripts are not done within

49 Id. 31 Expediting Dependency Appeals thirty days of the filing of the notice of appeal; 3) check that the transcript order is filed along with each notice of appeal in CHINS/TPR cases; 4) send tapes to transcribers the same day the transcript is ordered; 5) send the supreme court a copy of the notice of appeal and docket sheet within one day of the filing of the notice of appeal; and 6) send the supreme court the complete file as soon 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 that transcripts are ordered and completed, and that briefs are submitted, in a timely manner; ensuring that cases are promptly designated as three-justice or five-justice appeals and then set for argument 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 of appeal that is filed. The staff attorney tracks each appeal weekly through every stage of the appellate 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 the appeal among the justices for the designation of a three- or five-justice appeal. The appeal is set for the next term, even if it has to be added on to a calendar of cases that is already scheduled. For five-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, and issuing a decision. Rule Amendments 1. Rule amended to require appellants in CHINS/TPR cases to indicate on the notice of appeal that the appeal is from a CHINS/TPR order. 2. Rule amended to require appellants in CHINS/TPR cases to file the transcript order at the same time the notice of appeal is filed. 3. Rule amended to prohibit parties from stipulating to an extension of time for briefing CHINS/TPR appeals. 4. Rule amended to require a showing of extraordinary circumstances before allowing an extension of time for briefing in CHINS/TPR cases. 5. Statute amended so that appellants in CHINS/TPR cases need not seek assigned appellate counsel.

32 State Court Highlights Virginia50

In 1986, Virginia adopted a statute that requires that circuit courts try termination of parental rights cases within ninety days of filing. “While the Virginia statute requires that a de novo appeal to the circuit court be tried within 90 days of perfecting the appeal, attorneys for the agency reported in site visits that an appeal can take up to six months, with an appeal from the circuit court to the court of appeals taking up to another year.”51 The state has trained its circuit judges who hear de novo appeals to assist them in understanding the need and purpose of expedited appeals in these cases. A statute went into effect July 1, 1998, stating that termination of parental rights appeals should take precedence on the court of appeals docket. Lelia Hopper, the court improvement project director, presented a proposal to the Virginia legislature that was approved by the Judicial Council of Virginia, led by the Chief Judge Fitzpatrick of the court of appeals.52 Judge Fitzpatrick said 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 the governor, 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 parental rights brought under §16.1-283, the circuit court shall hold a hearing on the merits of the case within 90 days of the perfecting of the appeal. An appeal of the case to the Court of Appeals shall take precedence on the docket of the court.” The 1998 statute was the focus of a court improvement project study, which looked at approximately 100 cases over the past five years. The Virginia court system includes juvenile and domestic relations courts, which are not courts of record. Parties have a de novo appeal of right to the circuit court, which tries the case as if it were never heard before. Parties then have an appeal of right to the court of appeals. Finally, the Virginia Supreme Court may hear a case if it is granted certiorari–a rarity. Appeals at the court of appeals level were the focus of the court improvement project study. In Virginia, attorneys have to provide reporters, and attorneys are permitted sixty to ninety days to complete the record. After the record is received (sixty to ninety days after the notice of appeal), the appellant has forty days to file a brief, the appellee has twenty-five days to file a response brief, and the appellant has fourteen days for a reply brief. The briefing schedule is not shortened for termination of parental rights cases, but the court of appeals avoids approving extensions with regularity. In one hundred cases, six were granted an extension for an opening brief. Cases are reviewed in the court of appeals to determine if the case can be summarily affirmed 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 Improvement Program – 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 Improvement Program – Foster Care and Adoption Office of the Executive Secretary, Supreme Court of Virginia (March 12, 2001). 33 Expediting Dependency Appeals of the notice of appeal and the case being fully briefed. The court improvement project study found that a dismissed case may take 100 days to complete after the records are received. If a case is 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 a study on expedited appeals and issued several recommendations.53 1) Courts should differentiate termination of parental rights cases from other case types to enhance prioritization. 2) Courts should implement routine, preferential case-handling procedures. 3) Courts should consider ongoing refinements to procedures that affect termination of parental rights and other dependency case appeals.Expediting Dependency AppealsState 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. (December 2001). 34 Appendix A: State and Trail Court Contacts

35 Expediting Dependency

36 Aendix A

37 Expediting Dependency Appeals

38 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 appeals. What is the scope of your expedited process?

39 Expediting Dependency Appeals Does it cover:

Ø Adoption Ø Termination of Parental Rights Ø Custody Ø Children in Need of Assistance Ø Abuse or Neglect Ø 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 Adjudication ü Disposition ü Permanency Plan ü TPR ü 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 of appeals? 6. What was the legal process for making the rule or legislation for dependency cases?

Ø Court Rule Ø Court Rule Approved by Legislature Ø Statute Ø Internal Operating Procedures

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

Ø Court Improvement Plan Committee Ø Legislature Ø BAR Association Ø A Judge Ø Other ______

40 Appendix B 8. Do you have separate internal operating procedures (IOPs) for dealing with dependency appeals?

Ø Cases are tracked sooner Ø Cases are prioritized for oral argument or conference Ø Drafting and issuance of decision Ø 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 expedited process in place? Who were the key players or stakeholders involved in the process? (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 is there a certiorari process? d. Does the supreme court hear many of these cases or are they usually dismissed 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 Parties Ø Court Staff when reviewing filings Ø Court Lawyers Ø Court Clerks Ø 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. 41 Expediting Dependency Appeals d. Do you have a back-up system to ensure dependency cases are expedited? If yes, how does it work? e. In prioritizing a dependency case, how often is another case that has already been set for oral argument or conferencing rescheduled for a later date?

Ø Always Ø Often Ø Seldom Ø Never 15. Does the trial attorney usually prepare the appeal, or is there a different attorney at the 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 company Ø Reporters and transcribers work directly for the trial court Ø Other______c. Do trial courts give dependency case transcripts priority? If yes, is there a court rule 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 extend time lines? c. Is there any system in place for dealing with transcribers, reporters, and attorneys who do not meet deadlines?

Ø Fines Ø Dismissal of Case

42 Appendix B 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 percentage) 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 for an 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 Opinion Ø Memorandum Ø Order Ø 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 dependency cases? a. What type of ADR is used?

43 Expediting Dependency Appeals 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 to improve? Do you have any suggestions for improving the process? 31. What do you think the impact of expediting dependency appeals has been on the following 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 fully briefed? a. What is the average amount of time between the case being fully briefed and issuance of decision? 33. Please, explain how, in your opinion, the expedition of dependency cases affects the quality of decisions for these cases. 34. Has your court conducted any studies on expeditiousness? If so, can you send us a copy of the study? 35. Would information from this project on how other courts expedite appeals be help- ful to your court?

44 Appendix B a. What specific information would be most useful? 36. Can you suggest anyone else (e.g., judge, clerk, attorney, court reporter) we should interview 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 not received a copy. Please remind them to send:

Ø Statute Ø Any Studies Ø Other______We will send you a copy of the interview. Please review it, make changes, and return it to us. Thank you.

45 46 Appendix C: Process for Expediting Dependency Appeals 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 47 Expediting Dependency Appeals • 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 expedited process 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 48 Appendix C • 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

49 Expediting Dependency Appeals • · 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 and internal 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.,

50 Appendix C • 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

51 52 Appendix D: State Statutes and Court Rules

53 Expediting Dependency Appeals

54 Appendix D

55 Expediting Dependency Appeals

Iowa Iowa Rules of Appellate Procedures

56 Appendix D

57 Expediting Dependency Appeals

58 Appendix D

59 Expediting Dependency Appeals

60 Appendix D

61 Expediting Dependency Appeals

62 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 are shown below in column A. Their respective attorneys names, law firms, addresses, and telephone numbers are shown below in column B.

Column A Column B Parties 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 parental rights proceeding, with respect to child(ren):

63 Expediting Dependency Appeals

Child(ren)’s name(s) Date(s) of Birth ______

2. Parental rights were terminated by the juvenile court pursuant to Iowa 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 at trial.

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 ______

64 Appendix E 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 and how they were preserved for appeal:

65 Expediting Dependency Appeals The issue statement should be concise in nature setting forth specific legal questions. General conclusions, 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 to appellant’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:

66 Appendix E

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 of the juvenile court in this matter, or, in the alternative, enter an order setting this case for full briefing.

______Attorney for Appellant. Name, address, telephone.

67 Expediting Dependency Appeals 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 all parties or attorneys whose names and addresses are shown below.

I further certify that on the _____ day of ______, 20___, I filed this Petition for Appeal by ( ____ mailing) ( _____ personally delivering) 7 copies of it to the Clerk of the Iowa 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 February 15, 2002]

68 Appendix E Rule 6.751 — Form 5: Response to Petition on Appeal (Cross-Appeal). February 2002 IN THE SUPREME COURT OF IOWA IN 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: 69 Expediting Dependency Appeals Legal authority for Issue II supporting appellee’s response: 6. The undersigned requests the appellate court issue an opinion affirming the order of the juvenile 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) a copy 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, Des Moines, Iowa 50319.

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

Persons served: