43 Cal.App.5th 49
Cal. Ct. App.2019Background
- In October 2017 San Bernardino CFS filed section 300 petitions on behalf of nine‑year‑old twins after mother allegedly tried to abandon the boy at a hospital and exhibited hostility toward him. CFS determined the boy had not been diagnosed with the disorders mother claimed.
- Father (nonoffending, noncustodial) requested placement; stepmother supported placement with them.
- At the November 20, 2017 jurisdiction/disposition hearing the juvenile court sustained the petitions, removed the children from mother, placed them with father (granting father sole legal and physical custody), imposed supervised visitation for mother, and dismissed the dependency with family law exit orders.
- The juvenile court did not advise mother of her right to appeal the dispositional order as required by rule 5.590(a). Mother did not appeal at that time.
- In September 2018 mother filed a Welfare & Institutions Code section 388 petition to vacate the November 2017 dispositional order; the juvenile court denied it and mother did not appeal that denial.
- Mother filed a notice of appeal in March 2019 challenging the November 2017 removal; the Court of Appeal initially dismissed as untimely, then reinstated after mother showed the record lacked an appeal advisement, but ultimately dismissed the appeal for want of jurisdiction because the appeal remained far beyond the 60‑day limit and mother had not shown diligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court's failure to advise under rule 5.590(a) excuses an untimely appeal of the dispositional/removal order | Mother: the failure to give the advisement constitutes good cause to excuse the late appeal (relying on In re A.O.) | CFS: appeal is jurisdictionally time‑barred after 60 days; failure to advise does not permit reopening a long‑closed dependency | Court: A.O. is distinguishable; where dependency is closed and parent did not pursue timely relief or show diligence, failure to advise does not excuse a 16‑month delay—appeal dismissed for lack of jurisdiction |
| Merits: sufficiency of evidence for jurisdiction/disposition (neglect/emotional abuse and removal) | Mother: CFS relied on hearsay and “junk science”; evidence insufficient | CFS: record contains ample support for findings | Court: did not reach merits due to dismissal for untimeliness (no jurisdiction) |
Key Cases Cited
- In re A.O., 242 Cal.App.4th 145 (Cal. Ct. App. 2015) (allowed consideration of a belated challenge where parent filed a timely appeal of later dependency orders and the juvenile court had failed to give advisements)
- In re Z.S., 235 Cal.App.4th 754 (Cal. Ct. App. 2015) (untimely notice of appeal deprives appellate court of jurisdiction)
- Van Beurden Ins. Servs., Inc. v. Customized Worldwide Weather Ins. Agency, Inc., 15 Cal.4th 51 (Cal. 1997) (appeal deadline is jurisdictional and cannot be extended absent statutory authorization)
- In re Daniel K., 61 Cal.App.4th 661 (Cal. Ct. App. 1998) (appeal from most recent dependency order cannot be used to challenge prior orders beyond the appeal period)
- In re Cathina W., 68 Cal.App.4th 716 (Cal. Ct. App. 1998) (failure to advise of writ rights can constitute good cause in limited circumstances)
- Adoption of Alexander S., 44 Cal.3d 857 (Cal. 1988) (extraordinary relief for late appeals is appropriate only in rare, special circumstances)
- Hollister Convalescent Hosp., Inc. v. Rico, 15 Cal.3d 660 (Cal. 1975) (timely filing of an appeal is an absolute prerequisite to appellate jurisdiction)
- In re Marilyn H., 5 Cal.4th 295 (Cal. 1993) (dependency scheme emphasizes prompt resolution and stability for the child)