When one party has appealed a final order in a dependency and neglect case, the decision by the Guardian ad Litem (“GAL”) or Counsel for Youth (“CFY”) to collaborate with another aligned party in the briefing process should not be undertaken lightly. Rather, the decision requires an assessment of the child(ren)’s independent interests, the issues being raised on appeal, as well as practical considerations such as how effective the collaboration will be.
Simply because a GAL or CFY was aligned with one party at the trial court level does not necessarily mean that collaboration is necessary or appropriate on appeal. A GAL has legal and ethical obligations to independently represent the best interests of the child throughout every phase of the proceeding, including appeals. C.R.S. § 19-3-203(2-4).[1] Similarly, a CFY will need to ensure that the youth’s position is directly represented at all stages of a case including an appeal. C.R.S. § 13-91-103(2.5) (effective Jan. 9, 2023).
The appellate rules governing a dependency and neglect encourage, but do not require, coordination amongst appellees. Specifically, the Rule provides, “In cases involving more than one appellee, the court encourages coordination among appellees to avoid repetition within the answer brief. A joint answer brief may, but is not required to, be filed by appellees.” C.A.R. 3.4(g)(7). While Rule 3.4 does not include similar language for when appellants are aligned, the considerations for coordination are similar.
Thus, whether the GAL or CFY is on the side of the appellant or the appellee, the child’s attorney should actively consider whether coordination with an aligned party is proper in a particular case, rather than always default to one approach or another. Coordination can take many different forms such as: 1) joint briefing (more below); 2) filing separate briefs with reference to certain sections in the other party’s brief; or 3) in rare cases, the filing of a notice of joining the other party’s brief. The most important factor for the child’s attorney to consider in determining which approach to take is what form of briefing will best represent the interest of the child on appeal.
However it is undertaken, the process of joint briefing in a case requires fluidity and flexibility. Joint briefing can occur when the aligned parties agree to split up drafting certain sections of the brief, and then review and revise the sections drafted by the other party to get to a final version. Or joint briefing could mean that one party takes a lead role in drafting the brief, and the other attorney provides substantive comments and edits after an initial draft is completed. Although the process can take many forms, any attorney who simply signs onto another party’s brief without having reviewed a draft of the brief in advance may be considered ineffective.
Regardless of the process utilized, joint briefing presents some challenges which must be assessed well in advance of the deadline for the brief. For instance, the GAL or CFY should determine whether their working relationship with the attorney for the aligned party is one in which a collaborative process will be effective, and whether the other attorney’s work product is of a quality that joint briefing will be more efficient than drafting a solo brief. Additionally, the GAL or CFY and the attorney for the aligned party must come to an agreement that a draft(s) will be exchanged in sufficient time before the deadline to allow real collaboration to occur. Regardless of the process, when participating in a joint brief, the GAL or CFY should always reserve a block of time prior to the deadline for an appeal brief to meaningfully contribute to the brief and ensure that the child(ren)’s separate interests are considered and incorporated
Currently, it remains the trial court GAL or CFY’s choice as to whether to participate in the related appellate case or hand the case off to an appellate specialist. However, the OCR strongly recommends that trial court GALs and CFYs consider having an appellate specialist take over the appeals case, particularly if any of the following factors exists: 1) the trial court attorney is not familiar with the appellate process or relevant law; 2) the trial court GAL does not have sufficient time to devote to the appeals case given their other work obligations; or 3) any other reason not specifically described. OCR’s appellate list can be found at OCR’s Attorney Center. Furthermore, if a trial court GAL or CFY has questions about whether they should remain on a particular case as the child’s appellate attorney, we ask that the attorney contact our appellate strategies staff member, Anna Ulrich (aulrich@coloradochildrep.org) to discuss the best path forward for the child or youth. And because of the shortened time frames involved in a dependency and neglect appeal, it is imperative that trial court GALs and CFYs prioritize the tasks required for appellate representation.
[1] Pursuant to the contract with OCR, an attorney for the children or youth in a dependency and neglect case agrees to ensure that the child’s interests are represented on appeal by either: “(i) personally filing a pleading, (ii) formally joining another party’s pleading in a manner that represents the Child(ren)/Youth’s best interests or (iii) arranging for substitute appellate counsel from the OCR’s approved list of attorneys within two days of receipt of the Notice of Appeal/Designation of Record.” Additionally, the attorney agrees to provide OCR with copies of all appellate petitions, responses, replies, and briefs Contractor submits/files, including those pleadings that Contractor submits/files jointly with another party. Finally, the attorney agrees to inform OCR of scheduled oral argument(s) and pending petition(s) for certiorari with the Colorado Supreme Court and/or the United States Supreme Court.