Opinion
F086361
07-25-2024
Adoption of N.R., a Minor. v. C.R. et al., Defendants and Respondents C.S., Plaintiff and Appellant,
Law Offices of James L. Arrasmith and James L. Arrasmith for Plaintiff and Appellant. Law Office of Leslie F. Jensen, Leslie F. Jensen; McCormick, Barstow, Sheppard, Wayte & Carruth, and Todd W. Baxter for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 3001067 Marcus L. Mumford, Judge.
Law Offices of James L. Arrasmith and James L. Arrasmith for Plaintiff and Appellant.
Law Office of Leslie F. Jensen, Leslie F. Jensen; McCormick, Barstow, Sheppard, Wayte & Carruth, and Todd W. Baxter for Defendants and Respondents.
OPINION
POOCHIGIAN, Acting P. J.
This matter arises from adoption proceedings involving minor N.R. The family court denied a request by plaintiff and appellant C.S. (Appellant), who is the biological mother of N.R., to enforce a contact agreement. As part of the denial, the court held the contact agreement was no longer valid. In this appeal, Appellant contends that the court erred when it: (1) found sufficient evidence of abandonment of N.R. by Appellant, and consent by Appellant to the adoption of N.R.; (2) disregarded Appellant's improved parental capacity and her inherent right to family integrity with N.R.; and (3) failed to recognize a violation of Appellant's due process rights to adequate notice and an opportunity to be heard. We affirm.
As relevant to this matter, N.R.'s biological father eventually consented to the termination of his parental rights and to Respondents' adoption of N.R. Because N.R.'s biological father had limited involvement in the proceedings below and is not a party to this appeal, we focus on the facts as they relate to Appellant.
On April 7, 2014, defendants and respondents E.R. and C.R. (Respondents), who are N.R.'s biological grandparents, were appointed the legal guardians of N.R. N.R. was about two and one-half years old at the time of guardianship.
On June 20, 2017, Respondents filed a request to adopt N.R. Respondents also filed a petition to declare N.R. free from parental custody and control and alleged abandonment because Appellant had left N.R. in Respondents' custody without provision for N.R. and without communication for a period of six months or more.
On June 28, 2017, Appellant filed an objection to Respondents' petition for adoption and explained that she was receiving help for drug addiction and taking parenting classes.
On August 7, 2017, the court held a hearing on Respondents' petition for N.R. to be declared free from parental control. No decision on the petition was made, and the hearing was continued multiple times.
On March 7, 2018, a continued hearing on the petition to declare N.R. free from parental control was held. Appellant was present with counsel. The parties informed the family court that an agreement had been reached. Appellant agreed to the termination of her parental rights in exchange for a contact-after-adoption order. The resulting order from the hearing was filed on March 28, 2018. The March 28 order read in part that testimony and evidence had been received, and that Appellant had left N.R. with Respondents for over one year without any contact or provision for N.R. with the intent to abandon N.R. The order also noted that a court investigator for the county recommended declaring N.R. freed from Appellant's parental control. The court declared N.R. free from Appellant's parental control and thus, adoptable.
On June 6, 2018, an adoption agreement and a "Contact After Adoption Agreement" (the "CAAA") were filed with the family court. The CAAA was executed by Respondents and Appellant and contained among other provisions an "invalidation clause." In part, the CAAA's invalidation clause provided that, if Appellant "fails to exercise her visitation rights during any period of twelve (12) consecutive months ... then [Respondents] will no longer be obligated to fulfill the terms of this Agreement as to [Appellant]." On the same day, the family court issued an adoption order that made Respondents the parents of N.R.
On February 17, 2023, Appellant filed in the family court a request for hearing and a request to enforce the CAAA. Appellant alleged that Respondents were in violation of the CAAA because she had not received pictures of N.R., had not been able to speak with N.R., and had not been able to visit N.R. The clerk set a hearing date of April 3, 2023, at 8:15 a.m.
On February 27, 2023, Respondents filed an answer to Appellant's request for enforcement. Respondents alleged that the last time Appellant visited N.R. was November 1, 2018. Respondents maintained that, per the CAAA's invalidation clause, the CAAA became invalid and thus, Respondents had no further obligations under the CAAA, as of November 1, 2019. Additionally, the proof of personal service for Appellant's request to enforce indicated that a hearing on the request was set for April 3, 2023, at 8:30 a.m.
On April 3, 2023, at 8:40 a.m., a hearing was held on Appellant's motion to enforce the CAAA. Respondents were present at the hearing and gave testimony. Appellant did not appear at the hearing. The family court concluded that Appellant had failed to fulfill her visitation obligations under the CAAA because she did not visit N.R. at least one time during a 12-month consecutive period. As a result, the court terminated the CAAA due to Appellant's noncompliance.
On May 31, 2023, Appellant appealed the family court's order that terminated the CAAA.
DISCUSSION
I. Parties' Arguments
Appellant argues that the family court committed several errors. First, the court overlooked and did not adequately consider and recognize Appellant's rehabilitation efforts and ability to provide a stable home for N.R. Second, parental rights cannot be terminated based solely on a period of estrangement, and the court erred in finding a clear and unequivocal abandonment of Appellant's parental rights. Third, the court violated Appellant's right to family integrity by unilaterally limiting Appellant's access to N.R. despite their sustained and positive interactions together. Fourth, and finally, the court violated Appellant's due process rights by failing to ensure that she received notice and an opportunity to be heard.
Respondents contend that, to the extent Appellant challenges the termination of her parental rights, there was no timely appeal of that order. Respondents further contend that Appellant's brief fails to show how the April 3, 2023 order was erroneous because there are no legal arguments directed to the factual or legal basis of the order and none of Appellant's factual assertions are supported by citation to the record. Finally,
Respondents argue that Appellant has failed to show any due process violations in part because the record shows she had notice of the April 3, 2023 hearing.
We agree with Respondents.
II. Analysis
A. Procedural Infirmities
1. Untimely Appeal of the March 2018 Termination Order
"The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Davis v. Mariposa County Bd. of Supervisors (2019) 38 Cal.App.5th 1048, 1054.) Thus,"' "an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review." '" (Marshall v. Webster (2020) 54 Cal.App.5th 275, 279; see also Sears, Roebuck &Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1352.) An order and judgment declaring a child free from parental custody and control is an appealable order. (Fam. Code, § 7894; In re Jasmon O. (1994) 8 Cal.4th 398, 412-413; In re Clarissa H. (2003) 105 Cal.App.4th 120, 124.) The time to appeal is 60 days from the filing of the order terminating parental control and custody. (Cal. Rules of Court, rule 8.406(a)(1); In re A.R. (2021) 11 Cal.5th 234, 246.)
Here, Appellant's brief challenges the termination of her parental rights, including challenges relating to consent and abandonment. Those matters, however, were resolved during the March 7, 2018 hearing and the resulting March 28, 2018 order. The March 28 order found abandonment pursuant to Family Code section 7822 and terminated Appellant's parental rights over N.R. The resolution was partly based on a stipulation between the parties, and Appellant was present at the March 7 hearing with her own counsel when the stipulation was announced. Given the March 2018 termination of Appellant's parental rights, Appellant had until May 2018 to timely appeal the termination order. However, there is no indication in the record that Appellant appealed the termination order in May 2018 or at any time in 2018. Further, Appellant did not contradict Respondents' assertion that she did not timely appeal the termination order. We can only conclude that Appellant did not attempt to appeal the termination of her parental rights until May 2023. As a result, we are without jurisdiction to consider whether the family court erred by terminating Appellant's parental rights to custody and control of N.R. because her appeal of that order is untimely. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th at p. 56; Marshall v. Webster, supra, 54 Cal.App.5th at p. 279; Davis v. Mariposa County Bd. of Supervisors, supra, 38 Cal.App.5th at p. 1054.)
2. Inadequately Developed Arguments
The judgment of the trial court is"' presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citation to the material facts in the record; otherwise, the argument may be deemed forfeited.'" (Blech v. Blech (2019) 38 Cal.App.5th 941, 955; see also Securus Technologies, LLC v. Public Utilities Com. (2023) 88 Cal.App.5th 787, 810, fn. 14; In re Marriage of Carlisle (2021) 60 Cal.App.5th 244, 254, fn. 11.) A failure to cite necessary supporting facts from the record may alone justify a forfeiture of an argument. (People v. Hoyt (2020) 8 Cal.5th 892, 939; In re A.K. (2024) 99 Cal.App.5th 252, 270; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
In this case, none of Appellant's legal arguments or factual assertions are supported by citations to the record. Further, while the opening brief cites legal authority and describes the holdings of some cases, the brief does not expound on those cases or explain how those cases support the arguments being made in relation to the facts of this case. Accordingly, because none of her arguments are adequately supported or developed, Appellant's arguments in this appeal are forfeited. (People v. Hoyt, supra, 8 Cal.5th at p. 939; In re A.K., supra, 99 Cal.App.5th at p. 270; Securus Technologies, LLC v. Public Utilities Com., supra, 88 Cal.App.5th at p. 810, fn. 14; Blech v. Blech, supra, 38 Cal.App.5th at p. 955.)
B. Merits of Challenges to the April 3, 2023 Order and Hearing
Even if we were to overlook the forfeiture bar relating to the hearing and order of April 3, 2023, we would conclude that Appellant has failed to demonstrate error.
1. Due Process
Before a parent may be deprived of her interest in the companionship, care, custody, and management of her child, the parent must be afforded adequate notice and an opportunity to be heard. (In re B.G. (1974) 11 Cal.3d 679, 688-689; In re Axsana S. (2000) 78 Cal.App.4th 262, 269, disapproved on another ground in In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12.) In this case, Appellant does not expressly explain how the family court's actions at the April 3, 2023 hearing deprived her of due process. Instead, there is simply a citation to case law and an assertion that her rights were violated. This assertion is inconsistent with the record.
Appellant filed on the same day both a request to enforce the CAAA and a request for a hearing on the request to enforce. The request for hearing was filled out by the clerk, who set the time and hearing date on the request to enforce. The request for hearing, which had the hearing date and time on it, was filed three minutes before Appellant's request to enforce the CAAA. In other words, the record indicates that Appellant would have been aware of the April 3, 2023 hearing date, and thus had notice, before her request to enforce the CAAA was even filed. Further, as pointed out by Respondents, the personal proof of service for Appellant's request to enforce the CAAA included a hearing date of April 3, 2023, at 8:30 a.m. Presumably Appellant would have provided the hearing information to the service agent or possibly put the hearing date on the proof of service herself, which again indicates Appellant had notice of the hearing.
We recognize that there is a 15-minute discrepancy between the clerk's office hearing information (8:15 a.m.) and the proof of service information (8:30 a.m.). However, the discrepancy is immaterial as the case was actually called at 8:40 a.m. Had Appellant been present in the court at either 8:15 or 8:30, she would not have missed the hearing.
Additionally, the April 3, 2023 hearing was set to resolve Appellant's own motion. There is nothing before us that even remotely suggests Appellant would not have been able to be heard at the hearing on her own motion. Therefore, we detect no due process violations relating to the April 3, 2023 hearing.
2. Appellant's Rehabilitation Efforts
Appellant emphasizes her rehabilitative efforts and argues that those efforts should have been considered by the family court. However, the issues before the court at the April 3, 2023 hearing involved the parties' respective compliance with the CAAA. From the record, the issue boiled down to whether the CAAA remained operative or instead had terminated through application of the invalidation clause. Whether the invalidation clause applied did not rest on Appellant's rehabilitative efforts, rather it rested entirely on the exercise of her visitation rights. Therefore, whether Appellant had successfully undertaken substantial efforts at rehabilitation was irrelevant to the issue of the CAAA's continued validity.
To be clear, we in no way disparage Appellant's attempt at rehabilitation; her efforts are commendable. However, those efforts did not affect the issues to be resolved at the April 3, 2023 hearing.
3. Limiting Access to N.R.
Appellant's access to N.R. was dependent on the CAAA, which contained the invalidation clause. As explained above, the CAAA would no longer be operative if Appellant failed to exercise her visitation rights in any consecutive 12-month period. Based on the Respondents' answer and the corresponding minute order, the record indicates Respondents testified at the April 3, 2023 hearing that Appellant had failed to exercise her visitation rights for a period much longer than 12 consecutive months. Appellant has not shown that she was, in fact, in compliance with the CAAA or explained how the family court's invalidation of the CAAA through the CAAA's own terms was erroneous. Appellant's failure to exercise her visitation rights resulted in the invalidation of the CAAA. As a result of the invalidation of the CAAA, Respondents as the adoptive parents of N.R. had the right to limit Appellant's access to N.R. Therefore, Appellant has failed to demonstrate an error by the family court.
DISPOSITION
The judgement is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: SMITH, J. DE SANTOS, J.