39 Cal. App. 5th 70
Cal. Ct. App. 5th2019Background
- Father is the biological parent of twin sons (J.F. and C.F.). Juvenile court found them dependent, bypassed reunification services for parents, and set a section 366.26 permanency hearing.
- Father filed a section 388 petition to be declared presumed father; an earlier petition was denied and not appealed. After paternity was confirmed, he filed a second section 388 petition requesting reunification services and increased visitation; the court denied it on January 22, 2019.
- The court continued the section 366.26 hearing; on March 7, 2019 the juvenile court terminated both parents’ parental rights and freed the children for adoption.
- Father personally filed a notice of appeal on March 7, 2019 that explicitly identified only the March 7 termination order (section 366.26), making no reference to the January 22 order denying the section 388 petition.
- Father’s appellate brief argued the juvenile court abused its discretion in denying the January 22 section 388 petition and asked the court to construe his March 7 notice as encompassing that earlier order.
- The appellate court concluded it lacked jurisdiction to review the January 22 order because the notice of appeal unambiguously limited the appeal to the March 7 termination order; it also found father waived any challenge to the March 7 order by failing to present any reasoned argument attacking that termination decision.
Issues
| Issue | Father’s Argument | CFS / Respondent’s Argument | Held |
|---|---|---|---|
| Whether the March 7 notice of appeal can be liberally construed to include the January 22 order denying the section 388 petition | The notice should be construed to include the January 22 order (relying on Madison W.) because the earlier order was within 60 days of the notice | The notice identified only the March 7 termination order; liberal construction cannot add a distinct omitted order when notice is clear | Court held notice was clear/unambiguous and could not be construed to include the January 22 order; appellate court lacked jurisdiction over that order |
| Whether the March 7 termination order should be reversed on appeal | The briefs focused on error in denial of section 388 and assumed the appeal included the January 22 order | The termination order stands and father failed to raise any reasoned argument attacking it | Court affirmed the March 7 termination order because father waived challenge by not presenting any reasoned argument showing reversible error |
Key Cases Cited
- In re Madison W., 141 Cal.App.4th 1447 (Cal. Ct. App.) (pragmatically construed termination-order notices to include very recent section 388 denials)
- Filbin v. Fitzgerald, 211 Cal.App.4th 154 (Cal. Ct. App.) (notice of appeal cannot be liberally construed if it is so specific it cannot reach an unmentioned order)
- In re Joshua S., 41 Cal.4th 261 (Cal. 2007) (liberal construction applies where it is reasonably clear appellant intended to appeal unmentioned order)
- Unilogic, Inc. v. Burroughs Corp., 10 Cal.App.4th 612 (Cal. Ct. App.) (clear and unmistakable intent to appeal only one order limits liberal construction)
- In re S.B., 46 Cal.4th 529 (Cal. 2009) (dispositional order is the judgment in dependency proceedings; unappealed dispositional or postdisposition orders are final)