In re Nicole S.

Filed 8/23/19
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re NICOLE S., a Person Coming Under
the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL
SERVICES AGENCY, A154443

Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. HJ08-00915-03)
NICOLE S.,
Defendant and Appellant.

Nicole S., a former nonminor dependent of the juvenile court (Welf. & Inst. Code,
§ 366.32), appeals from an order denying her motion for an award of attorney’s fees
pursuant to Code of Civil Procedure section 1021.5 (section 1021.5). 1 Nicole contends
that the superior court committed an error of law by concluding section 1021.5 fees may
not be awarded in a dependency case. She seeks a fee award for work performed by her
attorneys in a prior writ proceeding before this court, N.S. v. Superior Court (2016)
7 Cal.App.5th 713 (N.S.). We conclude that section 1021.5 fees are not recoverable in a
dependency proceeding and, therefore, affirm the order.

1
When referencing Code of Civil Procedure section 1021.5 we will usually
employ the short-hand “section 1021.5,” but all other statutory references are to the
Welfare and Institutions Code, unless otherwise indicated.

1
 I. BACKGROUND
A. Nicole’s Dependency Case
Nicole became a dependent of the juvenile court in 2008 when she was 13 years
old. The Alameda County Social Services Agency (the Agency) provided reunification
and family maintenance services to the family, but Nicole suffered from emotional and
behavioral problems that made it unsafe for her to live at home. By 2010, Nicole’s
permanent plan was long-term foster care.
In January 2014, the month before Nicole turned 18, the juvenile court held a post-
permanent plan review hearing. At the time, Nicole was enrolled in high school, had an
IEP and was receiving mental health services. The Agency requested that the juvenile
court continue to exercise jurisdiction over Nicole as a nonminor dependent. Under
California’s dependency system, “[a] dependent minor who turns 18 years of age and has
a permanent plan of long-term foster care may, in the court’s discretion, continue under
the court’s jurisdiction as a nonminor dependent. [Citations.] California enacted the
current version of its nonminor dependency statutes to take advantage of increased
federal funding for extended foster care.” (In re H.C. (2017) 17 Cal.App.5th 1261,
1264.) To qualify for extended foster care services, the nonminor must satisfy at least
one of five conditions set forth in section 11403, subdivision (b) (section 11403(b)). The
first four conditions require the nonminor to participate in various education or
employment activities, while the fifth applies if the “nonminor is incapable of doing any
of [these activities] due to a medical condition, and that incapability is supported by
regularly updated information in the case plan of the nonminor.” (§ 11403(b)(1)–(5).)
In Nicole’s case, the Agency recommended that the court find that Nicole
qualified for extended services under section 11403(b)(1) because she had agreed that she
would continue to attend high school or a GED program. The Agency also recommended
that the court continue Nicole’s placement in a Level 14 group home because of her
pattern of unsafe behavior and inability to regulate her emotions even with the assistance
of trained staff. The juvenile court adopted the Agency’s recommendations and Nicole’s
dependency was extended for six months. In June 2014, the Agency reported that Nicole

2
was struggling. She had resumed using methamphetamine; she was on adult probation
after failing to comply with juvenile probation; and she was not in compliance with her
case plan. Nevertheless, the court followed the Agency’s recommendation to continue
the nonminor dependency.
In January 2015, shortly before Nicole turned 19, the court held another review
hearing. At that time, Nicole was pregnant and living in an unapproved home with a
boyfriend who had a history of selling illegal drugs and committing domestic violence
against her; she was on probation after pleading guilty to a string of misdemeanors; she
was not maintaining contact with the Agency; and she had not enrolled in a high school
or GED program. Nevertheless, the Agency recommended that the court find Nicole
qualified for extended services under section 11403(b)(5) because she suffered from a
medical condition that prevented her from satisfying the education or work requirements
set forth in section 11403(b). In support of this recommendation, the Agency reported
that Nicole had a long history of mental health instability, and had previously been
diagnosed with PTSD, ADHD, and a depressive disorder. The court adopted the
Agency’s recommendation and continued Nicole’s dependency. By September, Nicole
had resumed contact with the Agency and provided a letter from her therapist, which
stated that her medical condition impeded her from participating in education or work
activities. She had recently left her boyfriend because of domestic violence and the
Agency was helping her locate housing.
In early 2016, around the time Nicole turned 20, the Agency recommended that
the court dismiss Nicole’s dependency. Since the last status review, the Agency had
secured a residential placement for Nicole, where she could receive treatment for her
addiction and mental health issues. However, Nicole left her placement, failed to
participate in services and had only intermittent contact with the social worker. In April
and May of 2016, the court held several sessions of a contested termination hearing.
During the hearing, the Agency called Nicole and her therapist Ms. Chan as witnesses.
Nicole testified that she believed she qualified for extended foster care services because
there was a medical reason she could not attend school or secure a job. Chan testified she

3
had been treating Nicole for the past year and that she previously sent a letter to the
Agency, which stated that Nicole had a diagnosis that prevented her from participating in
education and employment related activities. County counsel asked Chan to disclose that
diagnosis, but Nicole and Chan asserted the psychotherapist/patient privilege. (Evid.
Code, § 1014.) At that point, the court postponed the hearing, so the parties could brief
and argue the privilege issue.
On June 7, 2016, the juvenile court ordered Ms. Chan to answer County counsel’s
question about Nicole’s diagnosis. The court found that the patient-litigant exception to
the psychotherapist/patient privilege applied because Nicole had put her mental or
emotional condition at issue. (See Evid. Code § 1016). However, the court stayed its
ruling so that Nicole’s appointed counsel could seek appellate review by extraordinary
writ. That same day, her counsel filed notice of his intent to file a writ petition on
Nicole’s behalf.
In December 2016, a different panel of this court granted Nicole’s petition for a
writ of mandate in N.S., supra, 7 Cal.App.5th at p. 725. The N.S. court concluded that
Nicole’s relationship with Chan was protected by a privilege preventing the compelled
disclosure of their confidential communications, and that the juvenile court erred by
concluding that the patient-litigant exception to the privilege applied. The court reasoned
that Nicole did not “put her mental condition at issue” by answering County counsel’s
questions at a contested hearing regarding her eligibility for services, or by submitting
documentation of her condition in accordance with the County’s formal policy requiring
verification that a nonminor dependent satisfies the requirements of section 11403(b)(5).
(Ibid.) Accordingly, the juvenile court was directed to vacate its order requiring Nicole’s
therapist to testify about confidential communications relating to whether Nicole has a
mental condition that satisfies the criterion of section 11403(b)(5). 2

2
The N.S. court emphasized the “limited nature of [its] ruling,” and explicitly
declined to address Nicole’s broad claim that the juvenile court and Agency had no
discretion to dispute documentation from her health care practitioner that she had a

4
 In February 2017, the Agency filed a request in Nicole’s dependency case to
terminate the juvenile court’s dependency jurisdiction over Nicole on the ground that she
had reached the age of 21. (See § 303.) On February 23, the juvenile court held a
termination hearing. Nicole was present and represented by her appointed trial counsel.
The court dismissed Nicole’s case, finding she was no longer within the eligible age
range for status as a nonminor dependent.
On March 22, 2017, the Clerk of the Court of Appeal issued a remittitur in the N.S.
writ matter, certifying that the appellate court’s decision had become final, and indicating
that no costs would be awarded in the proceeding.
B. Nicole’s Request for Attorney’s fees
On April 28, 2017, Nicole filed a motion in her dependency case, requesting an
award of attorney’s fees pursuant to Code of Civil Procedure section 1021.5, which
codifies the private attorney general doctrine exception to the rule that parties in civil
litigation must pay their own attorney’s fees. (Maria P. v. Riles (1987) 43 Cal.3d 1281,
1288 (Maria P.); Trope v. Katz (1995) 11 Cal.4th 274, 278–279.)
Section 1021.5 states: “Upon motion, a court may award attorneys’ fees to a
successful party against one or more opposing parties in any action which has resulted in
the enforcement of an important right affecting the public interest if: (a) a significant
benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a
large class of persons, (b) the necessity and financial burden of private enforcement, or of
enforcement by one public entity against another public entity, are such as to make the
award appropriate, and (c) such fees should not in the interest of justice be paid out of the
recovery, if any. . . .”
In her motion, Nicole requested that the court order the Agency to pay the
attorney’s fees of Bay Area Legal Aid (Bay Legal), whom Nicole had retained to
represent her in the N.S. writ proceeding. Nicole argued she was entitled to a fee award

medical condition limiting her ability to participate in the activities outlined in sub-
sections (1) through (4) of section 11403(b). (N.S., supra, 7 Cal.App.5th at p. 721.)

5
because she enforced an important right that benefited nonminor dependents throughout
the state. She further argued that her two attorneys had achieved an excellent result,
entitling them to hourly fee rates of $600 and $400 respectively, as well as a multiplier of
1.3, for a total of $89,804 for work on the merits of the writ petition. Nicole also
requested an additional $4,000 for work pursuing a fee award.
On the same day Nicole’s attorney’s fee motion was filed, one of her Bay Legal
attorneys also filed a petition under section 388 to change, modify or set aside the
February 2017 order terminating Nicole’s dependency. The petition incorporated a
request that the juvenile court either (1) modify its prior order to include an award of
attorney’s fees to Bay Legal, or (2) re-open the case for the sole purpose of considering
an attorney’s fee motion. According to the petition’s allegations, this requested change
was in Nicole’s best interest because it would compensate her retained counsel for
litigation that enforced an important right and conferred a substantial benefit on her and
the public.
The Agency moved to strike the section 1021.5 motion and the section 388
petition, and it also opposed Bay Legal’s fee request on the merits. The matter was re-
assigned several times due to peremptory challenges by the parties and judicial recusals,
ultimately landing in the general civil department of the Alameda County superior court
where it was decided by Judge Brenda Harbin-Forte.
On March 29, 2018, the court filed a 27-page decision incorporating three related
orders. First, the court granted the Agency’s motion to strike the section 388 petition,
finding it did not have jurisdiction to hear a petition filed after Nicole turned 21 and the
court no longer had jurisdiction over her. Second, the court denied the Agency’s motion
to strike Nicole’s attorney’s fee motion, finding it did have jurisdiction to hear the post-
judgment motion as ancillary to the underlying action. Third, the court denied Nicole’s
motion for attorney’s fees, finding that section 1021.5 does not apply to dependency
cases and that, even if it did, Bay Legal was not entitled to a fee award under the facts
presented.

6
 II. DISCUSSION
Nicole appeals the order denying her attorney’s fees under Code of Civil
Procedure section 1021.5, and the Agency challenges the superior court’s jurisdiction to
enter such an order in the first instance.
A. Jurisdiction and Standard of Review
The Agency contends the superior court lacked jurisdiction to adjudicate Nicole’s
attorney’s fee motion. We must address this claim even though the Agency did not file
an appeal because “ ‘[l]ack of jurisdiction in its most fundamental or strict sense means
an entire absence of power to hear or determine the case, an absence of authority over the
subject matter or the parties.’ ” (Totten v. Hill (2007) 154 Cal.App.4th 40, 46.) As the
lower court correctly explained, after Nicole turned 21 the juvenile court no longer had
subject matter jurisdiction over her. (§ 303.) Moreover, there was no other basis to
conclude that the court retained jurisdiction to entertain Bay Legal’s section 388 petition.
(See In re A.S. (2009) 174 Cal.App.4th 1511, 1515 [jurisdiction to adjudicate section 388
petition is conditioned on the existence of a juvenile court dependent].) However, the
juvenile court did have ancillary jurisdiction to hear Nicole’s motion for attorney’s fees.
(Maria P., supra, 43 Cal.3d at p. 1289.)
“A statutory fee motion under section 1021.5 does not create a new cause of
action. Instead, the motion is ‘a collateral matter, ancillary to the main cause.’
[Citation.] Before a trial court may award fees, section 1021.5 requires that an action
result in the enforcement of an important right and confer a substantial benefit on the
public. Given these statutory requirements, [our Supreme Court has] stated that section
1021.5 motions may not be heard ‘until the benefit is secure, in some cases after
judgment is final.’ [Citations.] Thus, the trial court retains jurisdiction under section
1021.5 to hear an application for fees after the judgment in the underlying action has
become final.” (Maria P., supra, 43 Cal.3d at p. 1289; see also Katz v. Los Gatos-
Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 70.)
Without citing pertinent authority, the Agency takes the view that once the
juvenile court lost subject matter jurisdiction over Nicole, it had no power to act in any

7
way whatsoever. We disagree. In Barry v. State Bar of California (2017) 2 Cal.5th 318,
326 (Barry), our Supreme Court held that a court lacking subject matter jurisdiction over
a claim may nevertheless adjudicate an anti-SLAPP motion and award fees under the
anti-SLAPP statute. In finding that the trial court’s lack of subject matter jurisdiction
was not a bar to an award of attorney’s fees and costs, the Barry court reasoned that a
court may lack “the power to answer one type of question in a case,” but “nonetheless
have the power to answer another type of question.” (Ibid.) Applying Barry leads to the
same conclusion here.
Because the superior court did have jurisdiction to adjudicate the fee motion, we
reach the merits of Nicole’s appeal. The dispositive issue is whether the superior court
erred by concluding that section 1021.5 does not apply in juvenile dependency cases.
Nicole contends that the dependency law does not explicitly or implicitly bar juvenile
courts from awarding fees under section 1021.5. The Agency counters that there is no
statute or case authorizing an award of section 1021.5 fees in a dependency case precisely
because such an award is impermissible. Amici curiae have filed briefs supporting the
respective sides of this argument. Advokids, a non-profit organization that advocates for
foster children in the child welfare system, has filed a brief in support of Nicole’s appeal.
California State Association of Counties (CSAC), a non-profit corporation that
coordinates litigation on behalf of the 58 California counties, has filed a brief in support
of the Agency.
As a general rule, a decision whether to award attorney’s fees under section
1021.5 is reviewed for abuse of discretion. However, when, as here, the appeal turns on
interpretations of statutory language and applicable case authority, which present
questions of law, our standard of review is de novo. (Save our Heritage Organisation of
San Diego (2017) 11 Cal.App.5th 154, 160; Serrano v. Stefan Merli Plastering Co., Inc.
(2011) 52 Cal.4th 1018, 1025–1026.)
B. The Legal Framework
“Dependency proceedings in the juvenile court are special proceedings governed
by their own rules and statutes. [Citations.] ‘Unless otherwise specified, the

8
requirements of the Civil Code and the Code of Civil Procedure do not apply.’
[Citations.] However, in the absence of a dispositive provision in the Welfare and
Institutions Code, we may look to these requirements for guidance.” (In re Josiah Z.
(2005) 36 Cal.4th 664, 678–679 (Josiah Z.).)
In light of these principles, pertinent authority holds that a statute outside the
Welfare and Institutions Code can be applied in a dependency case if it is not explicitly
made inapplicable and if it is consistent with the overall purposes of the juvenile
dependency system. (See e.g. In re M.B. (2011) 201 Cal.App.4th 1057, 1062–1063 [Civ.
Proc. Code, § 527.8 injunctions preventing harassment of employees]; In re M.F. (2008)
161 Cal.App.4th 673, 678–679 [Civ. Proc. Code, § 372 guardian ad litems or other
representatives for minors]; In re Claudia E. (2008) 163 Cal.App.4th 627, 636–637
[Civ. Proc. Code, § 1060 claims for declaratory relief]; In re Mark B. (2007)
149 Cal.App.4th 61, 76–77 [Civ. Proc. Code § 128.7 sanctions for frivolous filings].)
C. Section 1021.5 is Not Explicitly Made Inapplicable to Dependency
Proceedings
By its terms, Code of Civil Procedure section 1021.5 authorizes a court to make a
fee award in “any action which has resulted in the enforcement of an important right
affecting the public interest” if other conditions are met. Thus, on its face, this statute is
not made inapplicable to dependency proceedings. Moreover, we do not find any
dependency statute or rule that explicitly precludes an attorney’s fee award under
section 1021.5.
The Agency argues that section 1021.5 does not apply to dependency cases
because dependency cases are special proceedings and section 1021.5 is located in
Part 2 of the Code of Civil Procedure, which is titled “Of Civil Actions,” instead of
Part 3, which is titled “Of Special Proceedings of a Civil Nature.” Some courts consider
the location of a statutory provision within the Code of Civil Procedure as indicative of
legislative intent regarding whether it should apply in a special proceeding. (In re Mark
B., supra, 149 Cal.App.4th at pp. 76–80; In re David H. (2008) 165 Cal.App.4th 1626,
1640.) However, this factor is not determinative; the pertinent substantive inquiry is

9
whether the statute in question is consistent with the purposes of juvenile dependency
law. (Ibid.)
Moreover, outside the dependency context, settled authority establishes that
section 1021.5 can apply in a special proceeding. (See e.g. In re Head (1986) 42 Cal.3d
223, 227 [fact that habeas corpus proceeding vindicating prisoner rights is a special
proceeding of a criminal nature does not preclude application of section 1021.5]; Best v.
California Apprenticeship Counsel (1987) 193 Cal.App.3d 1448, 1460–1461 [the term
“action” in section 1021.5 includes special administrative proceedings that are “useful
and necessary” to public interest litigation.].) Thus, section 1021.5’s placement in Part 2
of the Code of Civil Procedure does not preclude its application to dependency cases.
We turn next to the question whether section 1021.5 is consistent with the purposes of the
juvenile dependency system.
D. Section 1021.5 Is Not Consistent with Juvenile Dependency Law
Code of Civil Procedure section 1021.5 encourages private lawsuits to enforce
important public policies by providing substantial attorney’s fees to successful litigants in
such cases. (Maria P., supra, 43 Cal.3d at p. 1288.) The primary justification for this
statute is that without a fee-shifting mechanism, there would be insufficient financial
incentives to enforce important public policies. (Ibid.; Conservatorship of Whitley (2010)
50 Cal.4th 1206, 1211.) Another unspoken justification for the doctrine is that “it
is equitable to impose public interest attorney’s fees on parties that have done something
to adversely affect the public interest.” (Adoption of Joshua S. (2008) 42 Cal.4th 945,
954, 958 [“the party against whom [] fees are awarded must have done something, in
good faith or not, that compromised public rights.”].)
“The goal of dependency proceedings, both trial and appellate, is to safeguard the
welfare of California’s children. ‘The objective of the dependency scheme is to protect
abused or neglected children and those at substantial risk thereof and to provide
permanent, stable homes if those children cannot be returned home within a prescribed
period of time.’ [Citation.] . . . The best interests of the child are paramount.
[Citations.]” (Josiah Z, supra, 36 Cal.4th at p. 673.) In nonminor dependency cases, the

10
focus remains on the best interests of the dependent. (In re Aaron S. (2015)
235 Cal.App.4th 507, 519.) “The Legislature intended that the nonminor dependent
and the county welfare department ‘shall work together to ensure the nonminor
dependent’s ongoing eligibility’ for extended foster care. (§ 11403, subd. (a).)”
(In re M.W. (2018) 26 Cal.App.5th 921, 928.) Even when dependency jurisdiction over a
nonminor is terminated, the court retains general jurisdiction over the nonminor so that he
or she may petition the court to resume dependency jurisdiction until the nonminor turns
21. (Ibid.)
We conclude that the financial incentives integral to section 1021.5 are
unnecessary in the dependency context and could undermine protections built into the
dependency scheme to serve the best interests of children and nonminor dependents by
ensuring that all parties are represented by competent counsel. Parents, guardians,
children and nonminor dependents who lack the financial resources to retain their own
counsel are statutorily entitled to the appointment of counsel who are competent to
handle dependency cases. (§ 317, §§ 317.5–317.6; Cal. Rules of Court, rule 5.534.) 3
And appointed trial counsel are statutorily entitled to reasonable compensation, “the
amount of which shall be determined by the court, to be paid out of the general fund of
the county.” (§ 218.) The dependency scheme also provides for the appointment of
separate appellate counsel. (§ 395, subd. (b)(1); rules 5.661 & 8.403.) Thus, as the trial
court found, authorizing private participants in dependency proceedings to pursue section
1021.5 fees “would subvert the legislative plan for the provision and compensation” of
competent counsel in dependency cases by providing a financial incentive to look outside
that system for independent counsel.
Nicole contends that allowing section 1021.5 fees in dependency cases would not
disrupt the dependency law’s attorney compensation scheme, but rather would
supplement that scheme by affording a potential funding source for legal representation
that is not compensated under the dependency statutes and rules. Notably, Nicole

3
All subsequent references to rules are to the California Rules of Court.

11
identifies only one example of dependency attorney work that she alleges is not
compensated under the dependency statutes and rules: a traditional mandamus action
seeking interim review of a juvenile court’s evidentiary ruling, such as the writ
proceeding underlying this appeal.
Under Nicole’s reading of the dependency statutes and rules, a court dependent is
not entitled to appointed counsel to pursue extraordinary review of an interim juvenile
court ruling for two related reasons: (1) section 317 provides for the appointment and
compensation of counsel for a dependent child or nonminor dependent, but only in
proceedings conducted before the juvenile court; and (2) section 395, subdivision (b)
(section 395(b)) provides that the court of appeal must appoint separate counsel to
represent a dependent in appeals, but says nothing about extraordinary writ proceedings.
Nicole posits that section 1021.5 fills this hole in the dependency scheme by affording
dependents a potential fee recovery to entice private counsel to represent them in
extraordinary writ proceedings that would not otherwise be filed. We disagree with
Nicole that there is any such hole in the statutory scheme that needs filling, as section 317
and section 395 both provide avenues to ensure that counsel is compensated for seeking
interlocutory review of the sort pursued in this case.
First, Nicole’s argument that section 317 does not authorize appointed trial
counsel to pursue an extraordinary writ seeking interim appellate review focuses too
narrowly on a single phrase in the first sentence of section 317, subdivision (d) (section
317(d)), which states that appointed trial counsel must represent their clients in all
“proceedings before the juvenile court.” She ignores that section 317(d) also explicitly
states that appointed counsel’s representation “shall” continue until counsel is relieved by
the court. Where a writ proceeding is ancillary to a matter before the juvenile court, as
with this challenge to the juvenile court’s evidentiary ruling, we think part of representing
the dependent in the proceeding before the juvenile court includes seeking interlocutory
review of an evidentiary decision in an appropriate case.
Confirming this view, we note that standards designed to assure the competency of
appointed counsel, such as those imposed through rules of court (§ 317, subd. (c)(5); rule

12
5.660), specify that attorneys in juvenile dependency matters should be capable of filing
extraordinary writs. Notably, rule 5.660 defines “competent counsel” in this context to
mean “an attorney who is a member in good standing of the State Bar of California, who
has participated in training in the law of juvenile dependency, and who demonstrates
adequate forensic skills, knowledge and comprehension of the statutory scheme, the
purpose of the goals of dependency proceedings, and the specific statutes, rules of court,
and cases relevant to such proceedings and procedures for filing petitions for
extraordinary writs.” (Rule 5.660(d)(1), italics added.)
Nicole contends that appointed counsel in dependency cases are expected to be
familiar with extraordinary writ practice only so that they can handle the special
“statutory” writs required by section 366.26, and that counsel are not authorized to file
other traditional writs on behalf of their clients. But Nicole provides no reason why the
absence of a provision explicitly addressing traditional writs should be taken to mean that
trial counsel has no authority to file them. The pertinent rule of court quoted above does
not distinguish between traditional and extraordinary writs. CSAC point out in their
amicus brief that there are variations in the dependency representation programs adopted
by counties to appoint and compensate trial counsel in dependency cases. In San
Francisco, for example, the superior court permits hourly billing for preparing writs
generally, making no distinction between statutory and non-statutory writ petitions. (S.F.
Bar Assoc., Dependency Phase and Task Codes, p.1,
.)
Furthermore, other provisions of section 317 impose special duties and obligations
on a dependent child’s appointed counsel that are commensurate with his or her primary
responsibility to “advocate for the protection, safety, and physical and emotional well-
being of the child or nonminor dependent.” (§ 317, subd. (c)(2).) These duties include
conducting investigations, making recommendations to the court regarding the
dependent’s welfare, and “participat[ing] further in the proceedings to the degree
necessary to adequately represent the child.” (§ 317, subd. (e)(1).) The Legislature
makes explicit that the duties of a dependent’s appointed trial counsel extend “beyond the

13
scope of the juvenile proceeding,” requiring counsel to advise the court of “other interests
of the child that may need to be protected by the institution of other administrative or
judicial proceedings.” (§ 317, subd. (e)(3); see also § 317.6, subd. (a)(4) [“rules of court
regarding the appointment of competent counsel in dependency proceedings” should
address “[p]rocedures for informing the court of any interests of the minor that may need
to be protected in other proceedings”].) In this regard, rule 5.660(g) provides that “until
juvenile court jurisdiction is terminated, . . . . [¶] . . . [¶] . . . [i]f the attorney for the child
. . . learns of any such interest or right, the attorney . . . must notify the court immediately
and seek instructions from the court as to any appropriate procedures to follow.” (Rule
5.660(g).) Where further action is required to protect or pursue the interests or rights of
the dependent child, the court must take steps to ensure that appointed counsel acts to
protect those rights by, for example, “authoriz[ing] and direct[ing] the child’s attorney to
initiate and pursue appropriate action.” (Rule 5.660(g)(3)(B).) In light of this directive,
we do not share Nicole’s concern about the absence of a statute explicitly authorizing
appointed counsel to file an interim writ.
Crucially, Nicole cites no case, statute or rule questioning the authority of
appointed trial counsel in a dependency proceeding to file a traditional writ.
Indisputably, “traditional writ relief is available to remedy errors” in dependency cases.
(In re Matthew P. (1999) 71 Cal.App.4th 841, 844; see also In re Pablo D. (1998) 67
Cal.App.4th 759, 671.) Moreover, in their amicus brief, CSAC cite multiple examples
when trial counsel pursued such relief on behalf of a party in a dependency case. (See
Johnny W. v. Superior Court (2017) 9 Cal.App.5th 559 [father’s writ of mandate
challenging order denying motion to disqualify judge]; In re Jonathan M. (1997) 53
Cal.App.4th 1234 [dependent child’s writ of mandate challenging visitation order]; In re
Jeannette H. (1990) 225 Cal.App.3d 25 [Agency writ of mandate challenging pretrial
order]; Taylor M. v. Superior Court (2003) 106 Cal.App.4th 97 [former dependent child’s
writ of mandate challenging dismissal of petition]; Joe B. v. Superior Court (2002) 99
Cal.App.4th 23 [father’s writ of mandate challenging the denial of reunification
services].)

14
 Thus, we find nothing in section 317 or any other authority that precludes
appointed trial counsel from filing an interim writ when that course of action would
further the best interests of the dependent. For similar reasons, we are unpersuaded by
the second part of Nicole’s argument, which posits that appointed appellate counsel are
unavailable to pursue interim writs in dependency cases. Because section 317 addresses
the duties and obligations of appointed trial counsel, that specific provision does not
require the appointment of appellate counsel in dependency cases or address the
obligations of such appellate counsel. (In re Zeth S. (2003) 31 Cal.4th 396, 414–415.)
However, if appointed trial counsel believes that the interests of the dependent child or
nonminor dependent would be better served by having separate appellate counsel pursue
an interim writ, the appellate court stands ready to appoint such an attorney at public
expense.
When a dependent child is an appellant, section 395(b) requires the appointment
of separate counsel on appeal. As Nicole points out, this statute does not explicitly
address writ proceedings, but it does provide that in “any appellate proceeding,” in which
“the child is not an appellant, the court of appeal shall appoint separate counsel for the
child if the court of appeal determines, after considering the recommendation of the trial
counsel or guardian ad litem appointed for the child . . . that appointment of counsel
would benefit the child.” (§ 395(b)(1); see also rules 5.661 & 5.662.) 4 In seeking an
extraordinary writ, a juvenile dependent is not an “appellant” but is participating in an
“appellate proceeding,” so the appellate court should appoint counsel if it encounters a
case where doing so would benefit the child.

4
To receive federal funding, a state’s dependency program must “ensure
appointment of a specially trained guardian ad litem in every judicial proceeding
involving an abused or neglected child.” (Josiah Z., supra, 36 Cal.4th at p. 679.) In
California, the responsibilities of this Child Abuse Prevention and Treatment Act
(CAPTA) guardian include making recommendations to the court regarding the best
interests of the child, such as whether to appoint appellate counsel. (Rule 5.662.) Trial
counsel usually serves also as CAPTA guardian. (Rule 5.662(c).)

15
 Nicole assumes that the phrase “any appellate proceeding” in section 395(b) does
not include an extraordinary writ proceeding seeking interim appellate review of a
juvenile court order. We see no reason for reading such a restriction into the statute
absent authority for doing so. In a different context, our Supreme Court concluded that
the term “appellate jurisdiction” refers to the power of “a reviewing court to correct error
in a trial court proceeding . . . in the procedural context of a direct appeal or a writ
petition.” (Leone v. Medical Board (2000) 22 Cal.4th 660, 666.) Moreover, a rule of
court specific to writ proceedings before the court of appeal expressly assumes that
parties in a juvenile dependency case are entitled to court-appointed counsel. Rule 8.493
governs cost awards in writ proceedings “[e]xcept in a criminal or juvenile or other
proceeding in which a party is entitled to court-appointed counsel.”
We recognize that trial counsel’s ability to file a writ petition may make
appointment of separate appellate counsel unnecessary, but we conclude that in an
appropriate case section 395(b) offers an independent route for the court of appeal to
appoint counsel for a juvenile dependent seeking an extraordinary writ. Because
appointed appellate counsel play a crucial role in fulfilling the statutory mandate to
protect the best interests of dependent children, they are compensated for their work.
(Cf. Cunningham v. Superior Court (1986) 177 Cal.App.3d 336 [forced appointment of
attorneys without compensation would violate equal protection].) 5 Indeed, appellate
specialists handling juvenile dependency cases routinely appear pursuant to court of
appeal appointment and are compensated with public funds for their efforts.
The facts of this case expose no gaps in this comprehensive statutory scheme for
appointing and compensating counsel in juvenile dependency cases. Nicole’s appointed

5
This situation should be distinguished from independent counsel appointed by
the juvenile court to represent a dependent in a proceeding outside the dependency
system, such as a potential tort action. (See In re Nicole H. (2011) 201 Cal.App.4th 388.)
In that context, counsel serve on a pro bono or contingency fee basis because their
services fall outside the dependency law’s attorney compensation scheme. (Ibid.; see
also San Diego County Dept of Social Services v. Superior Court (2005) 134 Cal.App.4th
761, 767.) Our conclusions in this appeal do not apply to these independent counsel.

16
trial counsel obtained a stay of the juvenile court’s evidentiary ruling regarding the
inapplicability of the psychotherapist/patient privilege so that he could obtain appellate
review by seeking a writ. Counsel never informed the juvenile court that he could not or
would not handle that appellate proceeding. Nor did he request that the court of appeal
appoint separate counsel to represent Nicole in the writ proceeding. Instead, according to
a declaration filed in support of the attorney’s fee motion, Nicole’s counsel contacted Bay
Legal to request assistance for Nicole after concluding that his own agency lacked the
resources to handle the writ matter. Then Bay Legal and Nicole entered into an
agreement that Bay Legal would represent Nicole in the writ proceeding “pro bono.” Of
course, Nicole had the right to retain outside counsel of her choice (§ 349, subd. (b)), but
her exercise of that right is not indicative of a hole in the dependency statute’s attorney
compensation scheme.
By separate argument, Nicole contends that regardless whether there is a hole in
the dependency law’s attorney compensation scheme, supplementing that scheme by
allowing section 1021.5 fee awards would be consistent with the law’s paramount
purpose of furthering the best interests of nonminor dependents. Nicole posits that her
experience in this case illustrates that permitting a fee award as an incentive to attorneys
like Bay Legal will further the best interests of other nonminor dependents who face
similar obstacles that threaten their right to receive extended foster care services.
We do not doubt that pro bono counsel can play a valuable role in dependency
cases. But the question we face here is whether offering the financial incentive of a
section 1021.5 fee award to privately retained counsel in dependency cases would further
the best interests of dependents or otherwise be consistent with California’s dependency
scheme. Section 1021.5 encourages private parties to pursue public interest litigation by
permitting an award of fees against an “opposing party.” (§ 1021.5; see also Nestande v.
Watson (2003) 111 Cal.App.4th 232, 242 [“The incentive the Legislature has chosen to
encourage public interest litigation is to permit an award of fees against the losing parties,
not to authorize a subsidy out of the public treasury”].) We conclude that this impetus is
antithetical to the dependency law’s goal of protecting children and nonminor dependents

17
through a “cooperative effort” between the social services agency and the juvenile court,
who work together to administer the law. (In re M.C. (2011) 199 Cal.App.4th 784, 810;
In re Ashley M. (2003) 114 Cal.App.4th 1, 6–8.)
By legislative mandate, the social services agency must play a hybrid role,
exercising executive and judicial functions. (In re M.C., supra, 199 Cal.App.4th at p.
810; In re Ashley M., supra, 114 Cal.App.4th at pp. 6–8.) First, when the agency files a
petition and appears at hearings where it bears the burden of proof, it performs an
executive function, acting as a prosecuting arm of the state. (M.C., at p. 810 [and cases].)
But unlike public interest litigation that must be initiated by a private party, the agency
has a statutory duty to initiate dependency proceedings. Second, when the social services
agency provides welfare services to dependents and their families, it also acts as an
administrative agency of the executive branch. (Ibid.) Outside the dependency context,
our Supreme Court has held that an administrative agency can be an “opposing party”
under section 1021.5, when it is “responsible for initiating and maintaining actions or
policies that are deemed harmful to the public interest and that gave rise to the litigation.”
(Connerly v. State Personal Bd. (2006) 37 Cal.4th 1169, 1176–1177.). But when the
social services agency provides dependency services, it is the juvenile court that
“ ‘maintains ultimate control over the delivery of services through its authority to
decide’ ” whether appropriate and sufficient services have been offered. (M.C., at
p. 810.) A third essential function of the social services agency is to provide information
to the juvenile court by filing reports and making recommendations. (M.C., supra,
199 Cal.App.4th at p. 810.) In performing these statutory duties, “the social services
agency acts as an impartial arm of the court in assisting the court to carry out the Juvenile
Court Law.” (Ibid.)
Thus, the roles played by social services agencies in dependency proceedings are
hardly analogous to that of an opposing party in public interest litigation. Applying
section 1021.5 in juvenile dependency cases could seriously impede the agency’s ability
to perform its statutorily-mandated functions by exposing it to potentially significant
financial liability. Moreover, as evidenced by cases previously cited, interim writ

18
proceedings in dependency cases typically challenge decisions that the court itself has
made. Here, for example, Nicole initiated a writ petition to challenge the court’s
evidentiary decision. While the agency functions as an arm of the court, the opposite is
not true, which highlights another reason why it would be inaccurate to cast the agency as
an opposing party within the meaning of section 1021.5. Finding no indication that the
Legislature intended such anomalies, we cannot find that authorizing section 1021.5 fee
awards in dependency cases would be consistent with the best interests of California’s
dependent children and nonminor dependents.
For all these reasons, we agree with the superior court that section 1021.5 does not
apply in dependency cases.
III. DISPOSITION
The order denying Nicole’s motion for attorney’s fees is affirmed.

19
 _________________________
TUCHER, J.

I CONCUR:

_________________________
BROWN, J.

In re Nicole S. (A154443)

20
 Streeter, Acting P. J., concurring and dissenting.
The majority takes the view that because “[p]arents, guardians, children and
nonminor dependents who lack the financial resources to retain their own counsel are
statutorily entitled to” appointed counsel, “authorizing private participants in dependency
proceedings to pursue [Code Civ. Proc.] section 1021.5 fees ‘would subvert the
legislative plan for the provision and compensation’ of competent counsel in dependency
cases by providing a financial incentive to look outside that system for independent
counsel.”
Respectfully, I do not agree. Fee awards under Code of Civil Procedure section
1021.5 (section 1021.5) are reserved for cases having wide-ranging public impact. Far
from “subvert[ing]” the system of appointed counsel in dependency cases, endorsing the
availability of section 1021.5 fees in this case would enhance the system of compensation
for appointed dependency counsel, not undermine it.
A line of argument similar to the one the majority embraces here was made in In
re Head (1986) 42 Cal.3d 223, where the respondent agency argued that “the existence of
Penal Code section 987.2, which authorizes the reimbursement of counsel assigned to
represent defendants in criminal proceedings, suggests that the Legislature has insured
that habeas corpus petitioners will be represented by appointed counsel when
appropriate.” (Id. at p. 232, fn 9.) Our Supreme Court rejected the argument, pointing
out that “Section 1021.5 . . . exists to encourage the initiation of proceedings that might
not otherwise have been brought to enforce important rights.” (In re Head, supra, at
p. 232, fn. 9.)
The majority’s premise—that section 1021.5 would be injurious to what it views
as a self-contained system of compensation for indigent litigants in dependency
proceedings—is simply not accurate. Dependency practice is a specialty field, requiring
unique competence, and the statutory compensation system for appointed counsel within
the field rightly demands that lawyers who receive such appointments possess the
necessary expertise. As I see it, the availability of section 1021.5 fees would promote,
not detract from, that objective. Sometimes issues arise that well-trained dependency

1
attorneys do not encounter with any frequency or do not have the resources to pursue. In
those situations, section 1021.5 ought to be available as a “carrot” to attract talent from
other fields.
Whether there is some sort of “gap” in the available appointive compensation
scheme for dependency counsel seems beside the point. The issue—which is equally true
in the related statutory scheme for representation of indigent clients in criminal cases—is
that the amount of available compensation lags so far behind what lawyers can earn in
other, adjacent fields, that there is sometimes a built-in disincentive to do anything for a
client beyond what is sure to be compensable. It may not be realistic to “level the playing
field” between the type of representation a rich person gets and a poor person gets, but
the potential availability of section 1021.5 fees is at least a nod in that direction.
I also fail to see how applying section 1021.5 could possibly be injurious to our
appointive counsel system in dependency. What happened here is illustrative. Appointed
counsel in the trial court, Mr. Waring and his agency, say they lacked the resources to
litigate a mandamus action. But as Mr. Waring explained, absent mandamus, Nicole
would have been forced to either waive the psychotherapist-patient privilege or leave the
dependency system and thus lose her eligibility for Extended Foster Care. So they did
what any competent lawyer would have done, in any field, to protect the interests of a
client—they sought outside help.
That should be encouraged, since one of the most basic rules of professional
conduct is that an attorney must recognize his or her limitations and take steps to find
whatever additional help a client may need, if the attorney cannot deliver it alone. (Rules
Prof. Conduct, rule 1.1(c)(i) & (iii).) Given this ethical imperative, I think it is misguided
to say we should shrink from applying a statute that creates a “financial incentive to look
outside [the dependency compensation] system for independent counsel.” The very idea
runs contrary to maximum promotion of attorney competence under the Rules of
Professional Responsibility.
The majority suggests that by making section 1021.5 available we may be putting
social service agencies in an adversarial posture at odds with their unique role in the

2
dependency system. I do not see why that would be the case any more than it is already
the case. It is true that the hybrid role of a social service agency requires that it serve as
an impartial arm of the juvenile court (In re B.D. (2019) 35 Cal.App.5th 803, 821–822),
but that hybrid role can sometimes have an adversarial component. As counsel for Bay
Legal pointed out at oral argument, the specific context before us—a dispute over
Nicole’s continued eligibility for non-minor dependent status—is a good example of a
situation where the agency’s role can take on an adversarial cast.
To the extent the majority is concerned that section 1021.5 could expose social
service agencies to financially burdensome fee awards, in no other sector of public
administration has a de facto immunity from section 1021.5 been recognized on fiscal
protection grounds. It is not the case, in any event, that we are dealing with financial risk
outside of an agency’s control. One purpose of section 1021.5 is to incentivize a public
entity, faced with a challenge to a legal position it has taken on an issue of broad public
significance, to reexamine that position if presented with potentially meritorious
arguments in favor of doing so, without insisting upon a court order. I see the statute as
an important tool to force agency accountability, not a drain on the public fisc.
While I part ways with the majority on the threshold issue of whether section
1021.5 applies in dependency cases, I nonetheless concur with the result it reaches. I am
not persuaded that “a significant benefit . . . has been conferred [in this case] on the
general public or a large class of persons.” (§ 1021.5.) Simply obtaining a published
appellate opinion does not meet this standard. In this case, we decided for Nicole on
narrow, fact-specific grounds, emphasizing “the limited nature of our ruling[.]” (N.S. v.
Superior Court (2016) 7 Cal.App.5th 713, 725.) I applaud the fine work Bay Legal did
for Nicole, but I cannot say the relief it obtained for her is of benefit to multitudes, which
is what it takes to earn a section 1021.5 fee award.

_________________________
STREETER, Acting P. J.

3
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Brenda Fay Harbin-Forte

Counsel for Appellant: Bay Area Legal Aid, Robert P. Capistrano, Fawn Jade
Koor, Rebekah Evenson

Amicus Curiae on
behalf of Appellant: AvoKids, Janet G. Sherwood

Counsel for Respondent: County of Alameda, Donna R. Ziegler, County
Counsel, Samantha N. Stonework-Hand, Deputy
County Counsel

Amicus Curiae on California State Association of Counties, Jennifer
behalf of Respondent: Henning; San Francisco City Attorney, Dennis J.
Herrera, Kimiko Burton, Lead Attorney, Elizabeth M.
Muniz, Deputy City Attorney

4