In re Z.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JONATHAN A., Defendant and Appellant; BETHANY S., Appellant.
No. B252184
Second Dist., Div. One.
Jan. 8, 2015
235 Cal. App. 4th 754
*Opinion directed to be published by the Supreme Court April 1, 2015.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
JOHNSON, J.—Jonathan A. (father), the presumed father of D.A. and K.A., appeals from orders terminating his parental rights and the subsequent order finalizing the children‘s adoptions. Bethany S. (maternal grandmother) joins in father‘s arguments. We dismiss the appeal as untimely filed and for lack of standing.
BACKGROUND
A petition filed April 22, 2008, by the Los Angeles County Department of Children and Family Services (DCFS) alleged that D.A., born late 2007, and his half brother Z.S., born early 2006, were at risk of harm under
Father, represented by counsel, appeared at the April 22, 2008 detention hearing, and the court found that he was D.A.‘s presumed father. Father‘s counsel confirmed that the address on the petition was correct and that father currently lived with the parental grandparents. On May 28, 2008, at a hearing for which father waived appearance, the juvenile court sustained the petition and declared D.A. and Z.S. dependents under
Father appeared at a progress hearing for D.A. on August 22, 2008, at which the court gave DCFS discretion to allow the paternal grandparents to monitor his visits with D.A. A status review report dated November 26, 2008, stated that father had been arrested on September 15 and remained in jail for
Mother gave birth to K.A. in 2009, and father was later found to be K.A.‘s presumed father. A petition filed May 4, 2009, alleged that K.A. was under risk of harm under
The trial court found father to be K.A.‘s presumed father and sustained the petition as to K.A. under
At a January 7, 2010 hearing for D.A. and Z.S., father was again incarcerated and mother appeared in custody. The court ordered the social worker and father‘s counsel to contact him and determine what services were available to him in prison, and continued the hearing because father was not present, ordering a statewide jail removal order for a contested hearing on February 11, 2010.
Father and mother both appeared at the February 11 hearing as to all three children; the court continued the hearing to February 18 and ordered father kept in local custody in the meantime. An addendum report dated February 18, 2010, stated that father was in prison in Lancaster with a March release date. Reunification services were not available at the facility, although father stated that he had participated in some court-ordered services while in prison in Chino. At the February 18 hearing, with father present while in custody and mother present, the court ordered that family reunification services be continued and granted mother unmonitored visitation with all three children during the day as well as overnight and weekend visitation at the home of maternal grandmother, over the objection of DCFS. DCFS subsequently filed a
A status review report on April 22, 2010, as to D.A. and Z.S. stated that mother was in partial compliance with the case plan but had tested positive for methamphetamine twice in March 2010. Father contacted DCFS in early March 2010 after his release from prison, but failed to show up for a scheduled meeting and failed to drop off promised documentation of his completion of case plan services. The report recommended the termination of family reunification services for both mother and father and the setting of a hearing on a permanent plan. A notice of the April 22, 2010 hearing on the termination of reunification services was sent to father at “4341” (the 4341 address). Neither father nor mother was present at the April 22 hearing (as to D.A. and Z.S.), and the court denied their counsel‘s request for a contested hearing. The court terminated reunification services for both mother and father and referred the matter for a
The court also ordered that father and mother be served with notice that to preserve their right to appeal the order setting the hearing, they must file a writ petition. Notice was mailed to father at the 4341 address. Father filed a notice of intent to file a writ petition, listing his address as the 4341 address.
Mother‘s contact with D.A. was restricted to monitored visitation in June 2010, with the proviso that maternal grandmother was not to be the monitor and visits were not to take place in maternal grandmother‘s home. A status report as to K.A. dated July 19, 2010, explained that K.A. had been moved into a third placement from his second foster home “due to allegations of neglect and absent caretaker,” when he fell and fractured a femur. Father had contacted the social worker in mid-June 2010 to request a bus pass, which he picked up at the DCFS office, stating he was on his way to enroll in a domestic violence program and a parenting class and would provide proof of enrollment later. Father had not contacted the social worker again. Since K.A.‘s injury, father had sporadically visited K.A. during K.A.‘s visits with the paternal grandparents, who served as monitors. DCFS recommended reunification services be continued for both parents, but if the parents failed to reunify with K.A. and his siblings, the social worker would locate an adoptive home for all three children. Father appeared at a July 19, 2010 hearing after notice was sent to the Whitney Way address. The court continued the hearing for a contest requested by K.A.‘s counsel.
A
Father was personally served with notice of the August 19, 2010
The court continued K.A.‘s hearing to September 1, 2010. Father did not appear at the September 1 hearing, at which the court found notice proper, ordered an adoptive home study, found mother and father were both not in compliance with the case plan, terminated reunification services with K.A., and referred the matter for a
Father was served by mail with a notice of the November 18, 2010
Father did not appear at the December 29, 2010 hearing, which the court changed to a contested
Meanwhile, after meeting K.A. at an adoption fair, prospective adoptive parents began the process of being matched with D.A., K.A., and Z.S. The three children were placed with the family in early 2011, and DCFS reported on April 21, 2011, that the placement was going well. Mother had not visited regularly, and father had not responded to DCFS efforts to set a visitation schedule. Maternal grandmother, however, visited regularly and had overnight visits once a month. She continued to express interest in caring for the children, but DCFS continued to oppose placement with maternal grandmother, as her history of sustained allegations with DCFS was removed from her record only because of the age of the allegations.
On March 18, 2011, maternal grandmother wrote a letter to the court stating that she had been “desperately trying to gain custody of my grandchildren.” Mother‘s opposition to placement with maternal grandmother was out of anger. Maternal grandmother had since mended her relationship with mother and was allowed to see the children. Maternal grandmother had visited them consistently. Maternal grandmother‘s home had been assessed but she was denied placement because of her criminal history, and she had requested review. Now the children were living with prospective adoptive
On April 27, 2011, DCFS reported that a DCFS worker went to the 4341 address on March 10, 2011, with a notice of D.A.‘s April 27, 2011
On June 29, 2011, DCFS reported that the children had adjusted well in the placement with maternal grandmother, who told DCFS she did not wish to adopt but preferred to be the children‘s legal guardian (and subsequently began the guardianship process). Neither mother nor father visited regularly. At the hearing on June 29, the court found that father had not been properly noticed and ordered DCFS to notice him properly for a continued hearing on August 26, 2011.
On August 26, DCFS once again represented that a worker had gone to the 4341 address and had been told by father‘s uncle that he would not accept the notice. The worker handed the uncle a business card and asked him to have father call, but DCFS had not received any communication from father. DCFS requested permission to notice father through his attorney. The court found father had not been given notice and continued the hearing to October 26, 2011, ordering “DCFS to properly notice [father] and show proof of service for 10/26/2011.”
Before the continued hearing, DCFS filed a
On October 26, 2011, DCFS informed the court in a last-minute information that it again had notified father of the hearing by certified mail to father‘s attorney; father‘s whereabouts were unknown. DCFS also noticed father at the 4341 address by first-class mail. The children remained in foster care, but the previous caregivers and prospective adoptive parents had contacted DCFS and wished to foster the children and be considered for adopting them as a sibling group. DCFS asked that the
In November 2011, DCFS reported that the three children were placed in the home of the prospective adoptive parents. The allegation that mother physically abused the children while they lived with maternal grandmother appeared to be true. Maternal grandmother had allowed mother to live in the home and have unlimited, unmonitored contact with the children.
After further continuances, a status review report on April 25, 2012, stated that the children were doing well in their placement, with a loving bond to the caregivers and their biological children. Mother routinely attended monitored visitation every other Friday for 90 minutes. Father had shown up only for a birthday celebration for Z.S. in March 2012, when he told the social worker he would be in touch to arrange visits but did not subsequently contact the social worker. Maternal grandmother had also had monitored visitation. The court again continued the
DCFS subsequently mailed notices to father at the 4341 address and the Whitney Way address that on May 16, 2012, the
On June 18, 2012, maternal grandmother filed a
At the
At the October 23, 2012 hearing the court found that notice had not been given to all parties and again continued the hearing to January 29, 2013, ordering notice to all appropriate parties. A status review report dated November 14, 2012, indicated that father had visited successfully with the children three times in the last six months (at a birthday party for K.A., a visit at the DCFS office, and for ice cream with the prospective adoptive parents present).
At the January 29, 2013 hearing, mother appeared; father‘s counsel was present. Counsel for DCFS stated (with no objection by father‘s attorney): “I have that you found notice proper to mother and [father] on September 12, 2012.” Mother requested a contest. The court continued the matter to March 12, 2013, with “no supplemental report needed,” stated “Minute order shall reflect today that notice is proper for the 26,” and ordered the prospective adoptive parents (who were present) to return on March 12, 2013, “[t]o be questioned about the quality of visits for father.” The minute order states that notice had been given to all parties for the
At the continued
On the next day, March 13, 2013, the court clerk mailed a copy of the minute order and notification of rights form to father at the 4341 address. Father‘s notice of appeal from the termination of parental rights was stamped received but not filed on May 31, 2013. The notice gave his attorney‘s address and telephone number in the heading, and gave his attorney‘s phone number as father‘s phone number; father‘s signature was dated May 15, 2013. The superior court clerk sent father a letter through his counsel stating that pursuant to California Rules of Court, rule 8.406(a)(2), the notice should have been submitted by May 22, 2013, and was not timely.
The children‘s adoptions were finalized on September 19, 2013, and the court terminated jurisdiction. Maternal grandmother filed a notice of appeal in propria persona from the
Father filed a notice of appeal in propria persona on October 16, 2013, stating, “California Family Code 9102(b) the adoption of my children/stepson was fraudulent, I was incarcerated at the time of the parental rights hearing and was not noticed from DCFS/Court.” In an attached letter, father stated that he was incarcerated for three months prior to the hearing and was not notified of the hearing or transported so he could contest the termination of parental rights, maternal grandmother informed his attorney of his incarceration and his attorney then informed the court, and it was a violation of his civil rights for the court to proceed without him.
DISCUSSION
I. Father‘s appeal from the March 12, 2013 order terminating parental rights was untimely, and we have no jurisdiction to review the order.
Father argues that he did not receive notice of the March 12, 2013 hearing terminating his parental rights, and so the court acted in excess of its jurisdiction in issuing the termination order. He also argues that the court should have granted his counsel‘s request for a further continuation of the hearing. The obstacle to father‘s arguments is that his notice of appeal from the March 12, 2013 order was untimely. The order in this case was by a referee, and therefore father was required to file a written notice of appeal within 60 days after the order became final under California Rules of Court rule 5.540(c). (Cal. Rules of Court, rule 8.406(a).) Rule 5.540(c) provides that an “order of a referee becomes final 10 calendar days after service of a copy of the order and findings under rule 5.538,” which in turn provides that the referee must serve the parent “by mail to the last known address and is deemed complete at the time of mailing” (Cal. Rules of Court, rule 5.538(b)(3)). The clerk served father by mail on March 13, 2013, to father‘s last known address, the 4341 address, meaning that the order became final 10 days later, on March 23, 2013. Father was required to file his notice of appeal within 60 days of that date, by May 22, 2013. He did not file the notice of appeal until May 31, 2013, nine days late.
Father argues that the court sent the March 12, 2013 minute order “to a nonexistent address,” and so we must first address the confusion, largely created by father‘s briefing, regarding father‘s address at the times relevant to this appeal. Father‘s opening brief argues that the 4341 address was invalid and “nonexistent,” and that the paternal grandparents’ address (the Whitney Way address) was the proper address for all service, while the 43141 address was father‘s “one-time residence.” While the initial petition in April 2008
In partial response, father‘s reply brief abandons the argument that father ever lived at the 43141 address, and continues to assert that only the Whitney Way address was the proper address for service, without citing to any references to the Whitney Way address after April 2008. Father subsequently filed a notice of errata stating that “further investigation of this issue has revealed that the 4341 address is not the incorrect address. Rather, the 43141 East Avenue is the incorrect address.”
Father has abandoned his initial argument that the 4341 address was incorrect. Father argues in his reply brief that his last known address at the time of the March 12, 2013 hearing was his place of incarceration. We reject this argument. No place of incarceration was provided to the court at the time of the hearing, and father acknowledges that the court was not required to conduct a prison search for father‘s address in custody. Father alternatively argues that the court should have sent notice of the termination order to his “designated address” (presumably the Whitney Way address), or “to the last place it believed Jonathan lived.” California Rules of Court, rule 5.538(b)(3) requires that the court serve the parent by mail at the last known address, which at the time of the
The filing of the notice of appeal was untimely, and therefore we lack jurisdiction to consider the appeal of the termination of father‘s parental rights. ” ‘[T]aking of the appeal is not merely ... procedural ...; it vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court.’ ” (In re Frederick E. H. (1985) 169 Cal.App.3d 344, 347 [215 Cal.Rptr. 171].) “The consequences of an untimely notice of appeal ... are not remediable. ‘In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. . . .
II. The doctrine of constructive filing does not apply.
Father requests that we apply the doctrine of constructive filing, which considers a late notice of appeal to be timely filed if the appellant is incarcerated, and the lateness of the notice of appeal is the result of negligence by prison officials relied upon by the appellant (and not due to the fault of the incarcerated prisoner). (In re Benoit (1973) 10 Cal.3d 72, 81 [109 Cal.Rptr. 785, 514 P.2d 97].) “Numerous cases have held that constructive filing, which can be applied in criminal cases, does not apply in termination of parental rights proceedings .... [Citations.] These cases have determined that the special need for finality in parental termination cases and the danger of imperiling adoption proceedings prevails over the policy considerations in favor of constructive filing.” (In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1254 [27 Cal.Rptr.2d 809].)5 Further, father makes no showing in the record that his late notice of appeal was the result of negligence by prison officials, and the mere fact of his incarceration does not suffice to excuse him from timely filing.
III. Father cannot collaterally attack the March 12, 2013 order terminating parental rights by noticing an appeal from the September 2013 order finalizing the adoptions.
Father also argues that his notice of appeal from the September 2013 adoption orders is a permissible collateral attack on the March 2013 order terminating his parental rights. Father is wrong. “Dependency appeals are governed by
Collateral attack of a termination order is expressly prohibited in
Father attempts to avoid this bar by arguing that errors in notice of the termination hearing rendered the dependency court without jurisdiction to terminate his parental rights at the hearing on March 12, 2013. Even if notice to father were deficient, however, that would not constitute a lack of fundamental jurisdiction, which ” ‘refers to a court‘s power over persons and subject matter.’ ” (In re Angel S. (2007) 156 Cal.App.4th 1202, 1209 [67 Cal.Rptr.3d 792].) In a less fundamental sense, jurisdiction ” ‘refers to a court‘s authority to act with respect to persons and subject matter within its power. [Citation.] Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time. [Citations.] By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver ... [citation] and forfeiture ... [citation].’ ” (Ibid.) When a court with fundamental jurisdiction over the persons and subject matter in question acts contrary to a statutory procedure or applicable rules, it does not act without jurisdiction, but rather in excess of jurisdiction. (Ibid.) “Acts in excess of jurisdiction are not void in any fundamental sense but are, at most, voidable if properly raised by an interested party.” (Ibid.) Here, the children were the subject of a dependency petition, and the juvenile court had fundamental jurisdiction to exercise its power to terminate parental rights. (See
IV. Father has forfeited review of the alleged defects in notice, and even if he had not, any error was harmless.
Father argues that the court violated his right to due process by failing to provide proper notice of the March 12, 2013 hearing. Father was represented throughout, and his counsel acknowledged at the hearing that notice to father had been found proper, and did not argue that father did not receive notice. This waives his argument that notice was defective. Even “[a]ssuming proper notice was not given, [father‘s] failure to raise the defect at the... hearing constitutes a waiver of the issue on appeal.” (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198 [8 Cal.Rptr.2d 285]; see In re B. G. (1974) 11 Cal.3d 679, 689 [114 Cal.Rptr. 444, 523 P.2d 244].)
If we were to consider father‘s argument on the merits, we would conclude that father received adequate notice of the March 12, 2013 hearing at which the court terminated his parental rights as to D.A. and K.A.
Father was personally served with notice of the initial
Only the failure to attempt to give notice to a parent is a structural defect requiring automatic reversal (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [26 Cal.Rptr.3d 394]) and father has made no showing that DCFS made no effort to give him notice. Even considering the absence from the record of the complete notice to father on July 26, 2012, as a showing of error in notice to father of the initial
By the time of the
V. The juvenile court did not abuse its discretion in denying father‘s request for a continuance.
VI. Maternal grandmother does not have standing to appeal, and father does not have standing to appeal the adoption order.
Maternal grandmother simply joins in father‘s arguments regarding the March 12, 2013 order terminating parental rights. She was not a party to the proceeding terminating father‘s parental rights, and she makes no argument that she was aggrieved by the termination order as “one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.” (In re K.C. (2011) 52 Cal.4th 231, 236 [128 Cal.Rptr.3d 276, 255 P.3d 953].) She therefore has no standing to challenge the orders terminating parental rights and finalizing the adoptions. For similar reasons, father has no standing to challenge the order finalizing the adoptions. “. . . A parent‘s
DISPOSITION
The appeals are dismissed.
JOHNSON, J.
Rothschild, P. J., and Chaney, J., concurred.
The petition of appellant Bethany S. for review by the Supreme Court was denied April 1, 2015, S224470.