Ten Steps to Writing Better Briefs in Dependency and Neglect Appeals August 3, 2016 Judge Daniel M. Taubman Colorado Court of Appeals

I. Outline Your Brief A.Review the rules. B.Brainstorm. C.Draft summary of your argument. D.Have the issues been preserved for appeal? E.Relief requested.

II. Develop Your Theme or Story A.Tell a story. B.Use initials for parties and children. C.Explain the why and how. D.Ensure that the record supports your story.

III. Choose Issues to Appeal and their Order of Presentation A.Are there threshold issues? 1.e.g., standing or mootness B.Consider strongest issue first. C.Put issues in chronological order. D.Group issues. 1.e.g., all evidentiary issues together E.Should the appellee reframe the issues? 1.reorder 2.regroup 3.restate

IV. Draft a Persuasive Statement of Issues A.Use a straightforward direct statement. The trial court erred by concluding J.P. failed to comply with his treatment plan. B.Use a brief legal statement followed by a question. The trial court must approve an appropriate treatment plan to meet a child’s needs. See K.D. v. People, 139 P.3d 695, 699 (Colo. 2006). Did trial court err in approving a treatment plan for J.P. that did not meet his needs because it failed to provide for adequate mental health treatment? C.Don’t use “whether.”

V. Describe the Case A.Nature of the Case 1.Remember most judges have limited familiarity with dependency and neglect statutes and cases. 2.Judges may be reluctant to set aside a termination order out of concern that doing so will upset the status quo for a child. B.Course of Proceedings 1.How was case resolved — trial, dispositional order, summary judgment? C.What did the trial court or juvenile court decide? 1.Explain the basis of the ruling, especially if it is a bench ruling.

VI. Enhance Your Credibility Through Your Statement of Facts A.State facts neutrally but cast your client in a favorable light. B.Be accurate, and cite to the record. C.Do not serially describe witnesses’ testimony. D.As the appellee, it’s okay to agree with the appellant’s statement of facts. E.Facts should be consistent with your theme or story. F.Facts you discuss depend on prior proceedings. 1.Summary judgment 2.Dispositional order adopting a treatment plan 3.Termination hearing

VII. Summarize the Argument A.Be succinct – explain rationale of each argument. C.A.R. 3.4(f)(1)(H) B.Be persuasive.

VIII. How Appellants Can Address Each Issue Effectively A.Tips for Appellant 1.Set forth standard of review; preservation of issue. 2.Set forth law applicable to each issue. 3.Apply the rules for issue to facts of your case. 4.Emphasize Colorado appellate cases on point. 5.State whether issue is one of first impression.

IX. How Appellees Can Address Each Issue Effectively B.Tips for Appellee 1.Agree with appellant re law when possible. 2.State additional or different law when necessary. 3.Agree with appellant that issue is one of first impression or state that it is when appellant hasn’t done so. 4.You may defend the trial court’s judgment on any ground. 5.Consider attaching documents.

X. Getting to the Finish Line A.State specifically relief you are requesting 1.For example, do you want trial court to make new findings, or hold a new termination hearing, or do you want the appellate court to reverse an order terminating parental rights? B.If you challenge the grant of summary judgment, do you want appellate court to reverse for trial based on disputed facts or rule in your favor based on the law? C.Consider filing a Petition for Rehearing 1.Optional 2.Useful to correct factual errors, points overlooked D.Should you file a cert petition?