In re Z. S. ( 2015 )

Filed 1/8/15 ; ordered published by Supreme Court 4/1/15
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re Z.S. et al., Persons Coming Under the B252184
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK72082)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JONATHAN A.,
Defendant and Appellant;
BETHANY S.,
Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Steff R.
Padilla, Commissioner, and Marilyn Mordetzky, Referee. Dismissed.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant Jonathan A.
Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for
Appellant Bethany S.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and
Respondent.
——————————
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 Welfare and Institutions Code section 300,
subdivisions (a), (b), and (as to Z.S. only) (g) and (j).1 The children had been living with
S.S. (mother), who had a history of violent altercations with father in the children’s
presence, including father’s striking mother’s face and stomach when she was pregnant
with D.A. D.A. and Z.S. were placed together in foster care. The petition gave father’s
address as Whitney Way (the Whitney Way address), the home of the paternal
grandparents. The April 18, 2008 detention report stated that father told the social
worker he was staying with D.A. at the paternal grandparents’ other house at “43141.” A
report on April 29, 2008 gave the 43141 address for father, and gave the Whitney Way
address as the mailing address.
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
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
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 section
300, subdivision (a), granted father monitored visitation, and ordered DCFS to provide
reunification services. D.A. and Z.S. subsequently were placed in the home of D.A.’s
paternal grandparents on August 21, 2008. In June 2009, the children were placed with a
foster family, after the paternal grandparents were no longer willing to care for them.
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 a domestic altercation with mother and
warrant issues. Father had visited D.A. sporadically since the initial detention in April
2008 and had not maintained contact with DCFS. A March 2009 supplemental report
stated that father remained incarcerated and was not eligible for services, with a release
date in July 2009. In April 2009, DCFS recommended that family reunification services
be terminated.
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 section 300, subdivisions (a), (b), and (j), as K.A. had tested positive for marijuana
at birth and mother’s marijuana use interfered with her ability to care for him, mother and
father had a history of violent altercations including father’s striking mother while she
was pregnant with D.A., and mother and father had not fully complied with the case plan.
The petition stated that father was incarcerated at Chino State Prison. An interim review
report dated May 11, 2009 stated that maternal grandmother wanted K.A. placed in her
home. DCFS did not recommend placement with maternal grandmother, as there were
substantiated allegations from 2003 that maternal grandmother had failed to protect
mother from physical and sexual abuse. Mother was adamant that she did not want K.A.
placed with maternal grandmother, as mother “‘didn’t want the same thing to happen’” to
K.A. In June 2009, maternal grandmother indicated that after careful consideration both
she and mother felt it was best that she not obtain custody of K.A.
3
The trial court found father to be K.A.’s presumed father and sustained the petition
as to K.A. under section 300 subdivision (b) following a hearing on July 21, 2009. Father
was present with his attorney. Father was ordered to complete parent education and
domestic violence counseling and test clean in six consecutive drug tests, and his
visitation was to be monitored. A status review report for D.A. and Z.S. dated
October 22, 2009 stated that father visited D.A. in the DCFS office in July 2009 after
father’s release from prison, but had not contacted DCFS to arrange further visits, and
had failed to drug test as the court had ordered. Maternal grandmother visited D.A. and
Z.S. on the days scheduled for mother, who failed to show for most visits. In December
2009, the court ordered unmonitored visitation and a home evaluation for maternal
grandmother over DCFS objection.
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.
A status review report on January 19, 2010 for K.A. stated that both mother and
father remained incarcerated, and recommended that reunification services be terminated.
The court continued a permanent plan hearing as to K.A. on January 19, 2010 as both
mother and father requested contests, ordered a supplemental report to address the
services provided to incarcerated parents and K.A.’s possible placement (with his
siblings) in the home of maternal grandmother, and granted maternal grandmother
unmonitored visitation over DCFS objection.
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
4
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 section 388
petition to change the order granting mother unmonitored and overnight visitation with
D.A., and after a hearing on June 28, 2010, at which mother and father appeared, the
court granted the petition, changing mother’s visitation to monitored (with discretion to
liberalize following clean drug tests).
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 counsels’ request for a contested hearing. The court terminated reunification
services for both mother and father and referred the matter for a section 366.26 hearing.
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. On August 2, 2010, we granted
father’s petition and remanded the matter for a hearing, finding that the court erred in not
granting a contested hearing.2
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
2 Father’s opening brief incorrectly states that we denied the petition.
5
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 section 366.26 report as to D.A. and Z.S. dated August 19, 2010 recommended
adoption (with all three siblings remaining together) as the most appropriate plan if the
children did not reunify with mother and father. In June 2010 maternal grandmother had
informed the social worker she would not pursue adoption of the children “due to a
change in her living circumstances.” DCFS asked the court to terminate reunification
services and implement adoption placement services.
Father was personally served with notice of the August 19, 2010 section 366.26
hearing (as to D.A. and Z.S.) at the 4341 address, signing the proof of service under a
handwritten statement “Jonathan lives at this address.” At the August 19, 2010 hearing
the court found notice proper as to father, but continued the section 366.26 hearing to
November 18, 2010 (D.A. and Z.S.) because notice was not given to mother and the
home study was not complete.
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,
6
terminated reunification services with K.A., and referred the matter for a section 366.26
hearing, setting K.A.’s hearing for December 29, 2010.
Father was served by mail at the 4341 address with notice of the October 21, 2010
review hearing regarding D.A. and Z.S. At the October 21 hearing (at which father did
not appear), the court reset the section 366.22 hearing as to D.A. for a contest pursuant to
our ruling on father’s writ, ordered notice to all parties, and reinstated reunification
services for K.A.
Father was served by mail with a notice of the November 18, 2010 section 366.26
hearing regarding D.A. at the 4341 address. He did not appear on that date, and the court
continued the hearing to the next morning. At the continued hearing on November 19,
the court found notice proper to father as to D.A. and found K.A. was placed on the
calendar in error, reinstating the date of K.A.’s section 366.26 hearing as December 29,
2010. The court continued the section 366.26 hearing as to D.A. and K.A. to
December 29, 2010 and ordered father’s counsel to provide notice to father for the
continued hearing.
Father did not appear at the December 29, 2010 hearing, which the court changed
to a contested section 366.22 review hearing as to D.A. (as this court had granted father’s
writ petition). The court again terminated reunification services as to D.A., ordered
DCFS to conduct an adoptive home study, and continued the section 366.26 permanent
plan hearing to April 27, 2011 as to D.A. The due diligence search for mother was not
complete, so the court continued K.A.’s section 366.26 hearing, eventually setting it for
June 29, 2011 after finding due diligence proper as to mother.
Meanwhile, after meeting K.S. 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
7
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 CACI history, and
she had requested review. Now the children were living with prospective adoptive
parents, and maternal grandmother had lost her visitation rights. Her criminal record
(welfare fraud) had not resulted in jail time. She was the most consistent person in the
children’s lives throughout their various placements, including the home in which K.A.’s
leg was broken, and “I would like for my grandkids to live in my home.” At hearings on
April 21 and April 27, 2011, the court placed the children with maternal grandmother
over DCFS objection. Father did not appear at either hearing.
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 section 366.26 hearing. The
worker spoke to father’s uncle, who verified that father lived at that address, but the
worker had just missed him and the uncle did not know when father would return. The
uncle refused to accept service “because he doesn’t want to get into [father’s] business,”
but remembered the worker from a prior service attempt. The worker gave the uncle a
business card and asked him to have father call. The court then continued D.A.’s hearing
to June 29, 2011, the same day as K.A.’s hearing, and DCFS personally served father’s
attorney on behalf of father, whose whereabouts were unknown.
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
8
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 section 387 supplemental petition on
October 14, 2011 to have the three children removed from maternal grandmother’s home.
The petition alleged that while mother was visiting the children in maternal
grandmother’s home, mother had inappropriately physically disciplined the children on
more than one occasion, causing bruising to K.A. on October 10, 2011, and maternal
grandmother failed to prevent it. The children were placed in foster care. Five-year-old
Z.S. stated that mother would come and spend the night at maternal grandmother’s house,
and he was afraid “‘when they fight and are mad because they yell and hit us and it
hurts.’”
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 366.26 hearing be taken off
calendar until a permanent home could be identified. On October 26, 2011, the court
found notice proper, ordered that maternal grandmother have monitored visitation, and
continued the hearing to April 25, 2012.
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
9
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 366.26 hearing and ordered “counsel
to notice father” for the next hearing.
DCFS subsequently mailed notices to father at the 4341 address and the Whitney
Way address that on May 16, 2012, the section 366.26 hearing as to D.A., K.A., and Z.S.
would be set. On May 16, 2012, the court found notice was proper, set the hearing for
September 12, 2012, and ordered the clerk to advise father (who was not present) of his
right to file a writ if he opposed the setting of the hearing. The minute order and
notification setting the hearing for September 12, 2012 were mailed to father at the 4341
address.
On June 18, 2012, maternal grandmother filed a section 388 request to change
court order, arguing that the children were “illegally and unlawfully detained” and the
social worker had falsified documents. She requested custody and legal guardianship of
the children. The court denied the section 388 petition on the grounds that it did not
show a change of circumstances and the proposed change was not in the children’s best
interests. Also on June 18, the court awarded the current caretakers de facto parent status
and denied maternal grandmother similar status.
At the section 366.26 hearing as to all three children on September 12, 2012,
DCFS asked the court to find mother’s and father’s notice was complete. Mother’s
counsel (with mother present) disputed the notice, but father’s counsel made no
10
objection.3 The court found notice was proper. The court set the matter for a contested
section 366.26 hearing on October 23, ordering DCFS to provide courtesy notice to
father.
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 section 366.26 hearing, and ordered all parties
to return for the next hearing on March 12, 2013 without further notice.
At the continued section 366.26 hearing on March 12, 2013, father’s attorney
announced that father was not present and stated: “I am asking to be heard also. I just
found out he is incarcerated.” Mother’s attorney stated that mother also was not present
although “I have done my best to get notice to her,” and mother “did not want to lose her
3
No notices for the September 12, 2012 hearing appear in the record. DCFS filed
a motion to augment the record or for judicial notice, acknowledging that it could not find
the actual notice in the court file and attaching a proof of service from the county
counsel’s file in the Lancaster DCFS office showing that father was personally served
with notice of the section 366.26 hearing on July 26, 2012; the proof of service does not
include the date of the section 366.26 hearing or the address where father was personally
served. We grant the request to take judicial notice of the proof of service. We also grant
DCFS’s motion to augment the record with the reporter’s transcript of the April 22, 2008
detention hearing.
11
children,” but without mother present “I have no authority to proceed on a contest.”
Mother’s counsel had spoken with maternal grandmother, who “is asking that regardless
of whatever action the court takes today that the court consider having her visits become
unmonitored.” Father’s counsel stated: “I’m requesting a continuance to be able to bring
father in from incarceration or at least inquire of him as to whether he wishes to
participate in the contest. Notice was found proper to him in September of last year
based on personal service from July 26, and again I was just given the information
about his incarceration; so I don’t know when he became incarcerated, but he may
wish to participate in the contest on the other basis.” (Boldface added.) The court
responded: “[E]ven in the most positive light to the father [the court] would need to
make a basis to set the matter for a contest. Your request is denied.” The court then
terminated mother’s and father’s parental rights and found D.A., K.A., and Z.S. adoptable
as a sibling set. The March 12, 2013 minute order and section 366.26 orders found notice
had been given as required by law.
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 pro. per. from
the section 366.26 order and from the adoption order on October 11, 2013, stating,
“father not notice while jailed. I am the legal guardian and no other family members
12
were asked to adopt. . . .”4 Maternal grandmother attached a 10-page “Appeal
Attachment” disputing the removal of the children from her care. Maternal grandmother
also stated that Father was incarcerated and had no notice of the March 12, 2013 hearing
at which his parental rights were terminated, adding: “Due to overcrowding in the jails it
takes up to three weeks for prisoners to get mail. I immediately wrote father and told him
what happened and assist to appeal his case. He contacted his attorney who sent him the
appeal but with mail delays, receipt and return to court resulted in court saying it was too
late.”
Father filed a notice of appeal in pro. per. 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
4Maternal grandmother stated she was not the legal guardian but was “sworn in as
the legal guardian,” on August 26, 2011. The minute order for the August 26, 2011
hearing shows that she was sworn and examined as to the duties of legal guardianship,
but the court continued the hearing because father had not been given proper notice, and
the letters of guardianship in the file are not signed by the court. Before the continued
hearing, the children were removed from maternal grandmother’s home and placed in
foster care because of mother’s physical abuse of the children while she visited them in
maternal grandmother’s home.
13
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 designated father’s address as the Whitney Way address, the DCFS
detention report also provides the 43141 address (likely a typographical error), as does a
pre-release investigation report dated a week after the filing of the petition as to D.A. and
Z.S. There are instances of the use of the Whitney Way address and the 43141 address,
but at all times relevant to this appeal, father was provided with notice at the 4341
address. As respondent’s brief points out, father had received personal service at the
4341 address three times (the first on June 11, 2010, when the words “Jonathan lives at
this address” appear over Jonathan’s signature); father’s uncle (who also lived there)
confirmed that father lived there; the clerk served Jonathan with his writ rights by mail at
the 4341 address; and father used the address on his notice of intent to file a writ petition.
14
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
5.583(b)(3) requires that the court serve the parent by mail at the last known address,
which at the time of the section 366.26 hearing in March 2013 was the 4341 address. We
conclude that the court properly served father with the section 366.26 order by mail at the
4341 address.
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.) “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]. . . . If it appears that the appeal
was not taken within the 60-day period, the court has no discretion but must dismiss the
appeal of its own motion even if no objection is made. [Citations.]’” (Ibid.)
15
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.) “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.)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 [s]ection 395, which
provides in relevant part: ‘A judgment in a proceeding under section 300 may be
appealed from in the same manner as any final judgment, and any subsequent order may
be appealed from as from an order after judgment . . . .’ [¶] This statute makes the
dispositional order in a dependency proceeding the appealable ‘judgment.’ [Citation.]
Therefore, all subsequent orders are directly appealable without limitation . . . .
[Citations.] A consequence of section 395 is that an unappealed disposition or
postdisposition order is final and binding and may not be attacked on an appeal from a
5 Father does not argue that the prison-delivery rule applying to self-represented
inmates applies to him. (See Cal. Rules of Court, rule 8.25(b)(5).) His notice of appeal
indicated that he continued to be represented by his trial counsel.
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later appealable order.” (In re Meranda P. (1997) 56 Cal. App. 4th 1143, 1149–1150.)
This “waiver rule” holds “that an appellate court in a dependency proceeding may not
inquire into the merits of a prior final appealable order,” even when the issues raised
involve important constitutional and statutory rights. (Id. at p. 1151.) We therefore
cannot inquire into the merits of the unappealed order terminating father’s parental rights.
Collateral attack of a termination order is expressly prohibited in section 366.26,
subdivision (i), subdivision (1): “Any order of the court permanently terminating
parental rights under this section shall be conclusive and binding upon the child, upon the
parent or parents and upon all other persons who have been served with citation by
publication or otherwise as provided in this chapter. After making the order, the juvenile
court shall have no power to set aside, change, or modify it, . . . but nothing in this
section shall be construed to limit the right to appeal the order.” “This statute forbids
alteration or revocation of an order terminating parental rights except by means of a
direct appeal from the order.” (In re Meranda P., supra, 56 Cal.App.4th at p. 1161.)
Further, “habeas corpus may not be used to collaterally attack a final nonmodifiable
judgment in an adoption-related action where the trial court had jurisdiction to render the
final judgment.” (Adoption of Alexander S. (1988) 44 Cal. 3d 857, 867–868; see In re
Issac J. (1992) 4 Cal. App. 4th 525, 532–533.) This action is adoption-related, as father
appeals from the adoption order, and the court had jurisdiction to terminate parental
rights under section 366.26. He may not use this appeal to mount a collateral attack on
the section 366.26 order.
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.) 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
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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 § 366.26.) A failure to follow mandated statutory procedures such as service
of notice to father at his last known address is an act in excess of jurisdiction which, even
had it occurred, father cannot challenge via a collateral attack.
Father also argues that collateral attack is permissible because his appeal of the
termination order is pending and therefore the order is not final. (See In re Darlice C.
(2003) 105 Cal. App. 4th 459, 466.) As we explain above, however, no appeal of the
termination order is pending as father did not file a timely appeal, and collateral relief is
unavailable “‘where the claimed errors could have been, but were not, raised upon a
timely appeal from a judgment.’” (Adoption of Alexander S., supra, 44 Cal.3d at p. 865.)
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; see In re B.G. (1974) 11 Cal. 3d 679, 689.)
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. Section 294 governs the notice
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required for a section 366.26 hearing, including a requirement that notice be given to the
presumed father. (§ 294, subd. (a)(2).) “Regardless of the type of notice required, or the
manner in which it is served, once the court has made the initial finding that notice has
been properly given to the parent, . . . subsequent notice for any continuation of a Section
366.26 hearing may be made by first-class mail to the last known address . . . or by any
other means that the court determines is reasonably calculated, under any circumstance,
to provide notice of the continued hearing.” (§ 294, subd. (d).)
Father was personally served with notice of the initial section 366.26 hearing (for
D.A.) on August 19, 2010, at which he failed to appear. Although DCFS states that he
was also personally served with notice for the initial section 366.26 hearing for K.A. on
December 29, 2010, no such personal service appears in the record, although on
September 7, 2010 the court mailed father (at the 4341 address) a copy of the
September 1, 2010 minute order setting the section 366.26 hearing as to K.A. for
December 29, 2010. The first section 366.26 hearing as to K.A. (as to D.A., a continued
hearing) was held on September 12, 2012. As we explained above, DCFS admits the
record does not contain any notices for the September 12, 2012 hearing. The proof of
service from the county counsel’s file in the Lancaster DCFS office for all three children
showing that father was personally served with notice of the section 366.26 hearing on
July 26, 2012 does not include the date of the section 366.26 hearing or the address where
father was personally served. Father failed to appear at the September 12, 2012 hearing,
where the court made its initial finding that notice was proper. At a continued hearing on
January 29, 2013, DCFS counsel stated (with no objection from father’s counsel) that the
court had found notice proper to father on September 12, 2012, and the court agreed that
notice was proper. Father’s own counsel repeated at the March 12, 2013 hearing that
notice was found proper to him in September 2012, based on personal service from
July 26. Counsel for DCFS and father thus agreed that notice was proper to father for the
September 12, 2013 section 366.26 hearing (the first as to both D.A. and K.A.) based on
personal service from July 26. Either father or his attorney received notice of all the
continued hearings, by mail or through the attorney’s presence at the hearings when the
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continuance date was set. Even in the absence of direct evidence of notice, the court
could infer that father had actual notice “because [his] appointed counsel had notified
[him] of the continued hearing dates” pursuant to the statutory obligation to provide
competent representation, especially given counsel’s failure to contest the court’s
findings of proper notice. (In re Phillip F. (2000) 78 Cal. App. 4th 250, 259.)
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) 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 section 366.26 hearing as to K.A., any error was
harmless beyond a reasonable doubt. (See In re Angela C. (2002) 99 Cal. App. 4th 389,
395.) Father, who failed to maintain contact with DCFS, visited the children only
sporadically, and often did not appear at noticed hearings even while not incarcerated,
does not explain how the result of the section 366.26 hearing would have been different if
the record reflected perfect compliance with section 294. He does not argue that D.A.
and K.A. would not have been found adoptable at the section 366.26 hearing or that his
parental rights would not have been terminated had he been present. By the time of the
section 366.26 hearing, parental unfitness has been shown and the focus of dependency
proceedings is determining the proper placement for the children. (In re Teneka W.
(1995) 37 Cal. App. 4th 721, 728.) If clear and convincing evidence exists that the
children will be adopted, and a previous decision has been made that reunification
services should be ended, the “termination of parental rights . . . is relatively automatic,”
unless the parent can show that termination would be detrimental. (Ibid.) Father does
not argue, and the record does not show, that he had maintained regular visits with the
children and that they would be benefited from continuing the relationship. (§ 366.26,
subd. (c)(1)(B)(1); In re Lukas B. (2000) 79 Cal. App. 4th 1145, 1155–1156.)
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V. The juvenile court did not abuse its discretion in denying father’s request for
a continuance.
Section 352, subdivision (a) provides that the juvenile court may continue a
hearing if it is not contrary to the interest of the minor, given the child’s need for a
prompt resolution of custody status and a stable environment, and the damage of
prolonged temporary placements. We will reverse an order denying a continuance only
upon a showing that the court abused its discretion. (In re Gerald J. (1991) 1
Cal. App. 4th 1180, 1187.) At the March 12, 2013 section 366.26 hearing, father’s counsel
admitted that father had notice of the hearing since July 2012, but as she had just learned
he was incarcerated, she requested a continuance to bring father to court from
incarceration, or at least to ask him if he wanted to contest the termination of his parental
rights. The court responded that without any offer of proof as to the basis for father’s
contest, the request would be denied. This was within the court’s discretion. The section
366.26 hearing had been repeatedly continued and it was not arbitrary to decline to
further delay the hearing on the basis that father, at the last minute, might wish to contest
the termination of his parental rights. A further continuance would not have been in the
children’s best interests, and on this record “[t]here is no indication a different result
would have occurred had [father] been present.” (In re Gerald J., at p. 1187.)
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.) 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 appeal from a judgment terminating parental rights confers
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standing to appeal an order concerning the dependent child’s placement only if the
placement order’s reversal advances the parent’s argument against terminating parental
rights.” (Id. at p. 238.) A reversal of the order finalizing the adoption would not advance
any argument father might make against terminating his parental rights, and he therefore
has no standing to appeal the adoption order. The appeal must be dismissed in its
entirety.
DISPOSITION
The appeals are dismissed.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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