Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct.No. AD020513
Duffy, J.
Jesse G., a prison inmate serving an indeterminate life term, appeals from an order freeing his biological daughter, Danica G., from his custody and control under Family Code section 7800 et seq. Respondent Joseph A., who is married to Danica’s mother, Elizabeth A., moved to dismiss the appeal, contending that the notice of appeal was not timely filed under rule 8.104 of the California Rules of Court governing the time for filing a notice of appeal in a civil case. Although this rule is not applicable because the time for filing a notice of appeal in this case is instead governed by rule 8.400 concerning appeals and writs in juvenile cases, we conclude that under the correct rule, the notice of appeal was not timely filed and appellate jurisdiction is accordingly lacking. We therefore grant the motion to dismiss.
Further unspecified statutory references are to the Family Code.
Further rule references are to the California Rules of Court.
STATEMENT OF THE CASE
I. Factual Background
Jesse G. is the biological father of Danica G., who was born in August 1999. That same month, after living with Elizabeth A. and Danica G. for a period of three days, Jesse G. was arrested and incarcerated through February 2000. During that period of time, Elizabeth A. took Danica G. to visit Jesse G. in prison approximately five to ten times.
Upon Jesse G.’s release from prison in February 2000, he again lived with Danica G. and Elizabeth A. for a period of three and a half months during which, according to Elizabeth A., Jesse G. was “drinking very heavily” and physically abusing Elizabeth A. During this three and a half month period, Jesse G. did not work and Elizabeth A. was solely providing for Danica G. While Elizabeth A. was at work, Danica G. was cared for by her maternal grandmother, great aunt, and, sometimes, Jesse G. After this three and a half month period, Jesse G., Danica G., and Elizabeth A. continued to live together for about three more weeks during which Jesse G. was employed. But in July 2000, when Danica G. was 11 months old, Elizabeth A. threw Jesse G. out of the house after he hit her.
From July to September 2000, Jesse G. called Danica G. every two to three weeks and visited her two or three times. He also gave Elizabeth A. $40 for Danica G.’s care, the only funds he has ever provided.
In October 2000, Elizabeth A. began to date Joseph A.
In November 2000, Jesse G. saw Danica G. for the last time. He watched Danica G. one day while Elizabeth A. was at work. When Elizabeth A. picked her up after work, Danica G. was “filthy,” she had not been given lunch, and she had missed her nap. Elizabeth A. then decided that Jesse G. was not “responsible enough to care for [Danica G.].”
For some period of time after that, Jesse G. would call Danica G. about once a month, which decreased to once every two to three months sometime in 2001. Jesse G. asked to see Danica G. in this time period but Elizabeth A. perceived that he was regularly under the influence of alcohol and she was afraid to let Danica G. see him. In 2001, Jesse G. began to threaten to take Danica G. away from Elizabeth A. but he did not offer to take care of the child financially or in any other way.
In October 2001, Danica G. and Elizabeth A. moved in with respondent, Joseph A. For about the next year, Jesse G. would call Danica G.’s maternal grandparents to ask about Danica G. In August 2002, Jesse G.’s sister called to inform Elizabeth A. that Jesse G. was incarcerated and would not be able to call Danica G. for her birthday.
In January 2003, Elizabeth A. married Joseph A. and they continue to live together as a family, raising Danica G.
In August 2003, Jesse G. wrote a letter to Danica G., his last communication to her. In late 2003, Jesse G.’s parents contacted Elizabeth A. and asked her to bring the child to visit Jesse G. in prison. Elizabeth A. did not comply with this request.
In June 2004, Jesse G. was convicted by a jury of first degree murder. On September 13, 2004, he was sentenced to 26 years to life in prison based on the conviction, coupled with the proven allegation that he had personally used a deadly and dangerous weapon, a knife, in the commission of the offense. (Pen. Code, §§ 187, 12022, subd. (b)(1).)
In an unpublished decision, we affirmed the judgment of conviction in 2005.
II. Procedural Background
In October 2006, when Danica G. was seven years old, Joseph A., with the support and consent of Elizabeth A., filed a petition to free Danica G. from Jesse G.’s parental custody and control and to terminate his parental rights under section 7800 et seq. on the basis of child abandonment as provided at section 7822. The petition alleged, among other things, that Jesse G. had refused to consent to a stepparent adoption. At the same time, Joseph A. also petitioned to adopt Danica G. in a stepparent adoption under section 9000 et seq.
These proceedings prompted a social services investigation and report under sections 7850-7852, which recommended that Joseph A.’s petitions be granted. On November 9, 2006, Janet Lee, a court investigator, wrote to Jesse G. concerning Joseph A.’s petition to free Danica G. from Jesse G.’s custody and control. On November 29, 2006, Jesse G. responded in writing to that letter, expressing his objections to the petition and requesting a copy of it.
For reasons not clear in the record, Joseph A.’s petition to free Danica G. from Jesse G.’s parental custody and control was refiled on March 19, 2007. On March 26, 2007, Jesse G. was personally served with a copy of the petition and a citation to appear. The citation to appear directed Jesse G. to show cause why his parental rights should not be terminated to free Danica G. for adoption as prayed in the petition and reflected a hearing date of April 24, 2007. It informed Jesse G. of his rights under section 7862, which provides that “[i]f a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent unless that representation is knowingly and intelligently waived.”
Jesse G. did not respond to the petition or citation, did not communicate a request for counsel in any way, and did not appear at the hearing. The petition was granted at the hearing and a written order declaring Danica G. free from Jesse G.’s parental custody and control was filed that same day.
On May 8, 2007, Jesse G. was personally served with a document entitled “Proposed Order After Hearing Declaring the Minor Child [Free] From [Parental] Custody and Control.” (Italics added.).
The proof of service states the title of the document as such. We cannot tell from the record whether Jesse G. was served with a mere proposed order or a conformed copy of the actual order, signed by the judge and filed on April 24, 2007, on which the word “Proposed” in the title of the document is crossed out.
On June 8, 2007, the superior court clerk received from Jesse G. a form of written objection to the severance of his parental rights dated June 3, 2007. The document noted the April 24, 2007 hearing date, stated that Jesse G. was uncertain as to the court’s ruling on the “proposed order” and the disposition of the proceeding to declare Danica G. free from his parental custody and control. The document further requested copies of all related documents, and a “rehearing and/or time for filing an appeal upon receipt of the proper legal documents” in the event the petition had been granted.
On June 12, 2007, Leonita Garcia, “Deputy Court Manager Probate Division” of the superior court, wrote to Jesse G. in response to the objection he had submitted. The letter informed Jesse G. that his written objection was too late, that the court file reflected personal service of a copy of the order declaring Danica G. free from his parental custody and control on May 8, 2007, and that he had 60 days from that date to file a notice of appeal—an erroneous deadline for appealing in this matter.
After receiving Ms. Garcia’s letter, Jesse G. had another inmate prepare a handwritten notice of appeal for him. The notice includes handwriting, presumably Jesse G.’s, stating that it was filed on “6-30-07,” the day Jesse G. asserts that he signed it, put it in an envelope, and gave it to a prison official to mail that same night. But the clerk’s file endorsed stamp on the document indicates that it was not filed by the clerk until July 30, 2007—a full month later. Leonita Garcia of the superior court also noted in handwriting on the document “7/30/07 The envelope is missing. LG.” The record further includes Jesse G.’s application for a waiver of court fees and costs dated July 27, 2007, which was granted and filed on July 30, 2007, the same day that the notice of appeal was actually filed.
As established in Jesse G.’s opposition to the motion to dismiss, prison logs and records reflecting outgoing legal mail for the period of time February through September 13, 2007 were “lost.”
On August 7, 2007, at a hearing on Joseph A.’s petition for stepparent adoption, the court granted the petition and issued a written adoption order filed that day. That order is not the subject of this appeal.
III. Proceedings in This Court
Jesse G. filed his opening brief, contending that the trial court had erred in failing to appoint an attorney to represent him at the hearing to free Danica G. from his parental custody and control; that he had a statutory right to counsel in the court below under section 7822, despite his having failed to physically appear at the hearing or request counsel in some other manner; and that he had not waived the right to counsel under that section. Jesse G. did not contend that Danica G.’s best interests are not served by her having been freed from his custody and control or having been adopted by Joseph A.
Shortly after the filing of his respondent’s brief, Joseph A. filed a motion to dismiss the appeal on the ground that the notice of appeal was not timely filed within 60 days of service of the order declaring Danica G. free from Jesse G.’s custody and control under rule 8.104 governing the time to appeal in civil cases—by July 7, 2007. Jesse G. agrees with Joseph A. that this rule governs the time for filing a notice of appeal in this case and that July 7, 2007, was the deadline for filing the notice of appeal. But he argues that the so-called doctrine of “constructive filing” ought to apply here such that the notice of appeal may be deemed to have been filed on June 30, 2007—the day he gave the notice of appeal to a prison official for mailing. The appeal is now fully briefed and awaiting oral argument.
Because this appeal is governed by rules 8.400 through 8.474, as provided at rule 8.400(a), oral argument, which has been requested, must take place, if at all, by March 17, 2008, which is 60 days from the filing of the appellant’s reply brief per rule 8.416(h).
DISCUSSION
Despite the parties’ agreement that rule 8.104 governs the time for filing the notice of appeal in this case, they are both mistaken. It is rule 8.400, which governs juvenile appeals generally, that governs here because this case is an appeal in an action to free a child from parental custody and control under section 7800 et seq. as expressly provided in rule 8.400(a)(1)(B), as operative January 1, 2007. Rule 8.400(d)(1) provides that “[e]xcept as provided in (2) and (3) [which are not applicable here], a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, no court may extend the time to file a notice of appeal.” Rule 8.66 provides that the Chair of the Judicial Council may extend the time to do any act, which would include the filing of a notice of appeal, for no more than 14 days if made necessary “by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court.”
There are no circumstances here that would have invoked rule 8.66, which means that the notice of appeal had to have been filed in this case within 60 days of the court’s April 24, 2007 order declaring Danica G. free from Jesse G.’s custody and control—by June 23, 2007. Under rule 8.400(f), this deadline could have been met by Jesse G. delivering the notice for mailing to custodial officials by this date. Thus, the only application of the constructive filing doctrine that Jesse G. urges us to invoke here is already contemplated by rule 8.400(f). This provision would have saved this appeal had Jesse G. delivered his notice of appeal to custodial officials for mailing by June 23, 2007. But because it is undisputed that he did not deliver the notice of appeal to custodial officials for mailing until June 30, 2007, at the earliest, his appeal is untimely, notwithstanding application of the constructive filing doctrine to the extent it is embodied by rule 8.400(f).
This provision provides that “If the superior court clerk receives a notice of appeal by mail from a custodial institution after the period specified in (d) has expired but the envelope shows that the notice was mailed or delivered to custodial officials for mailing within the period specified in (d), the notice is deemed timely. The clerk must retain in the case file the envelope in which the notice was received.” (Cal. Rules of Court, rule 8.400(f).) Rule 8.400(g)(2) further provides that “[t]he superior court clerk must mark a late notice of appeal ‘Received [date] but not filed,’ notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project.” In this case, the clerk did not retain the envelope in which the notice of appeal was received by the court and did not reject the notice, marking it as received as of the date but not filed. But because Jesse G.’s notice of appeal was not delivered to custodial officials for mailing until June 30, 2007, at the earliest, 67 days from the date the order under appeal was made and seven days too late, these failures by the clerk to follow the rules do not affect our analysis.
Moreover, under these circumstances and as provided at rule 8.400(d)(1), we lack the authority to extend the time to file a notice of appeal. This lack of authority is also made clear by rule 8.60(d), which provides in pertinent part that “[f]or good cause, a reviewing court may relieve a party from default for any failure to comply with these rules except the failure to file a timely notice of appeal.” (Italics added.) Accordingly, because the timely filing of a notice of appeal is mandatory and jurisdictional, we are without the authority to do anything else but dismiss this untimely appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [time for appeal is jurisdictional and once it has passed, court lacks jurisdiction to entertain the appeal’s merits]; Estate of Hanley (1943) 23 Cal.2d 120, 122-123 [in the absence of statutory authority, courts have no jurisdiction to extend time for appeal even to relieve against mistake, inadvertence, surprise, accident, or misfortune].)
As we have said, Jesse G.’s opposition to the motion to dismiss urges us to apply the doctrine of constructive filing to deem his appeal filed as of June 30, 2007—the date he delivered his notice of appeal to custodial officials for mailing. But rule 8.400(f), already provides for this kind of constructive filing and, in any event, this provision does not save this untimely appeal because Jesse G.’s delivery of the notice for mailing was already seven days too late. Jesse G. does not contend that some other form of constructive filing ought to apply to excuse his reliance, if indeed he did so rely, on the superior court clerk’s erroneous advice as to the deadline for filing the notice of appeal. But even if he had made this contention, we would be disinclined to accept it in this case involving the freeing of a juvenile from parental custody and control to permit her adoption by a stepparent.
The doctrine of constructive filing originated in People v. Slobodion (1947) 30 Cal.2d 362, and was further developed in In re Benoit (1973) 10 Cal.3d 72—two criminal cases. (In re Jordan (1992) 4 Cal.4th 116, 118-131 [history of doctrine supports its continued viability as “prison-delivery rule” in criminal cases even after 1972 adoption of former rule 31(a) then governing time for filing notice of appeal (see now rule 8.308)].) Under this doctrine, as developed, a late notice of appeal will be deemed to have been timely filed if (1) the appellant is incarcerated and (2) because of special circumstances, “the delay in filing the notice of appeal (a) has resulted from conduct or representations of prison officials upon which the prisoner relied and (b) has not been due substantially to fault on the part of the prisoner.” (Benoit, supra, at p. 86.) As in Benoit, the doctrine is now generally applied in situations in which an inmate is prejudiced by ineffective assistance of counsel with respect to the timely filing of the notice of appeal. (Benoit, supra, at pp. 86-89 [doctrine applied where late filing of notice of appeal occurs in the context of (a) defendant’s justifiable reliance on his attorney to timely file the notice; (b) defendant’s due diligence in assuring that the notice is timely filed; and (c) ineffective assistance of counsel in nevertheless failing to timely appeal].)
“Other circumstances in which relief has been granted include the miscarriage of the mails, where a notice is timely deposited in the post (In re Gonsalves (1957) 48 Cal.2d 638, 646); the dereliction of prison officials, when notice is timely delivered to them for filing or mailing (People v. Slobodion[, supra, 30 Cal.2d at pp. 365-368]); and the fact that defendant has been misled or confused by words or acts of the court (People v. Martin (1963) 60 Cal.2d 615, 617-618.)” (In re Isaac J. (1992) 4 Cal.App.4th 525, 532, fn. 6.) We note that unlike here, in Martin, the Supreme Court was applying former rule 31, which governed the time for filing notice of appeal in criminal cases. This rule, unlike rule 8.400 operative here, contained a provision requiring the clerk to advise a defendant of available proceedings by which he might be relieved of an untimely filing, i.e., unlike here, there were such proceedings available for relief from default. (Martin, supra, 60 Cal.2d at p. 618.)
But in cases involving the termination of parental rights where considerations of speediness and stability for the child are of paramount importance even over the rights of a natural parent, courts have held the constructive filing doctrine inapplicable on policy grounds, citing the “special need for finality in cases under [former Civil Code] section 232 [previously governing actions to free a minor from parental custody and control]” (In re A.M. (1989) 216 Cal.App.3d 319, 322) and “the danger of imperiling adoption proceedings.” (In re Isaac J., supra, 4 Cal.App.4th at p. 531; see also Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 955; In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1254; Adoption of Alexander S. (1988) 44 Cal.3d 857, 867-868 [timely notice of appeal vests appellate jurisdiction; adoption proceedings are not governed by criminal rules such that habeas petition filed beyond time for appeal could serve as basis for collateral relief warranted by ineffective assistance of counsel].) We agree with these policy reasons favoring finality and rejecting the doctrine of constructive filing in a case such as this involving the severance of parental rights and later adoption of the child, whose stability at this point is paramount. Thus, we would reject application of the doctrine here were Jesse G. to invoke it based on the clerk’s erroneous advice as to the time for filing the notice of appeal.
Because Jesse G.’s notice of appeal was not timely filed, we lack appellate jurisdiction in this case and accordingly grant Joseph A.’s motion to dismiss.
DISPOSITION
Jesse G.’s appeal from the April 24, 2007 order freeing Danica G. from his parental custody and control is hereby dismissed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.