Opinion
D080861
01-20-2023
In re A.B. et al., Persons Coming Under the Juvenile Court Law. v. A.C., Defendant and Appellant. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Kyle C. Weber, Counsel for Imperial County Department of Social Services, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Imperial County No. JJP001072-3 Marco D. Nunez, Judge. Appeal dismissed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kyle C. Weber, Counsel for Imperial County Department of Social Services, for Plaintiff and Respondent.
BUCHANAN, J.
A.C. (Mother) appeals the juvenile court's dispositional order, in which the court found J.B. (Father) to be a noncustodial father, awarded him sole physical and legal custody of their six-year-old daughter, A.B., and five-year-old son D.B. (the children), and terminated dependency jurisdiction pursuant to Welfare and Institutions Code section 361.2. Mother asserts that the court erred when it applied section 361.2 because Father was the children's custodial parent when the proceedings began. She claims the juvenile court should have maintained its dependency jurisdiction and provided services to both parents as argued by the Imperial County Department of Social Services (Department) and Mother in the juvenile court.
Undesignated statutory references are to the Welfare and Institutions Code.
The Department has filed a motion to dismiss the appeal as untimely filed. On the merits, the Department has filed a letter brief conceding error, and agreeing that the juvenile court (1) improperly found Father was a noncustodial parent within the meaning of section 361.2, and (2) erroneously terminated dependency jurisdiction. In response to the motion to dismiss, Mother concedes that she did not timely file the notice of appeal, but requests that we take additional evidence under Code of Civil Procedure section 909 and argues the appeal should not be dismissed because she received ineffective assistance of counsel.
As we shall explain, we grant Mother's request to take additional evidence, but conclude she made an insufficient showing of ineffective assistance of counsel. Accordingly, we grant the Department's motion to dismiss the appeal as untimely filed.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the facts and procedural history is limited to provide context relevant to the motion to dismiss.
In January 2022, the Department filed petitions on behalf of the children alleging Mother had failed to protect them by allowing contact between them and her boyfriend after he was found to have sexually abused A.B. (§ 300, subd. (b)(1).) At the time, the parents had joint legal custody of the children, Father had physical custody of the children, and Mother had unsupervised visitation based on orders made in family court. At the detention hearing the following month, the juvenile court found that a prima facie showing had been made that the children were described by section 300, detained them from Mother, released them to Father, and granted Mother supervised visitation.
All undesignated date references are to 2022.
At the jurisdiction hearing in June, the court read and considered the reports referenced by the Department and took judicial notice of the family court case file. The court found the petitions to be true and removed the children from Mother's custody under subdivision (c) of section 361. It found placement with Father would not be detrimental to the children and was in their best interests. It awarded Father sole physical and legal custody of the children, ordered supervised visitation for Mother, referred the matter back to family court, and terminated dependency jurisdiction. The court's order is dated June 30 and Mother filed her notice of appeal on August 30, 61 days later.
DISCUSSION
"A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." (§ 395, subd. (a)(1).) "The dispositional order is the 'judgment' referred to in section 395, and all subsequent orders are appealable. [Citation.]' "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 later appealable order." '" (In re S.B. (2009) 46 Cal.4th 529, 532.)
A party must generally file a notice of appeal within 60 days after the date of the order being appealed. (Cal. Rules of Court, rule 8.406(a).) "This is a jurisdictional deadline, meaning that courts lack the power to extend it, regardless of whether failure to meet the deadline was 'wilful [sic] or inadvertent,' 'reasonable or unreasonable,' or rooted in 'good faith or not.'" (In re A.R. (2021) 11 Cal.5th 234, 246.) An exception to this rule exists for a parent raising an incompetent representation claim after termination of parental rights. (Id. at p. 257.) A parent seeking to establish ineffective assistance of counsel must show both that counsel failed to act in a manner to be expected of a reasonably competent attorney practicing in the field of juvenile dependency law, and that it is" 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668 (Kristin H.).)
All rule references are to the California Rules of Court.
In In re A.R., supra, 11 Cal.5th 234, our high court held that a parent in a dependency proceeding may seek relief based on the denial of the statutory right to the assistance of competent counsel (§§ 317, 317.5), including the failure of a court-appointed attorney to timely file a notice of appeal. (In re A.R. at pp. 257-258.) Although the In re A.R. court addressed an order terminating parental rights, section 317.5, subdivision (a) provides that "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." "To succeed in such a claim [of ineffective assistance of counsel], parents must show that they would have filed a timely appeal absent attorney error and that they diligently sought relief from default within a reasonable timeframe, considering the child's' "unusually strong"' interest in finality." (In re A.R. at p. 258.)
As a preliminary matter, in opposition to the Department's motion to dismiss her appeal, Mother filed a brief requesting that we take additional evidence and consider the declaration of her trial counsel under Code of Civil Procedure section 909 to address her claim of ineffective assistance of counsel. Code of Civil Procedure section 909 states that a reviewing court may, "for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require."
The power to make factual determinations on appeal lies within a reviewing court's discretion (Diaz v. Professional Comm. Mgmt., Inc. (2017) 16 Cal.App.5th 1190, 1213), but this power is rarely exercised, and only in "exceptional circumstances." (Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, 308.) Here, Mother's claim that she received ineffective assistance of counsel is an exceptional circumstance. Thus, we exercise our discretion to consider the declaration of Mother's trial counsel for the purpose of ruling on her ineffective assistance of counsel claim. (Rule 8.252(c)(1).)
A request to take additional evidence must be made by formal motion under rule 8.54, which must: (1) state the grounds upon which it is made and the relief requested, and must identify any documents on which the motion is based (rule 8.54(a)(1)); (2) be accompanied by a memorandum in support of the motion (rule 8.54(a)(2)); and (3) be accompanied by declarations and/or other evidence in support (rule 8.54(a)(2)). Although Mother failed to make her request by formal motion, her opposition meets these three requirements and denying the request based on this procedural error would improperly elevate form over substance. (Civ. Code, § 3528.)
The declaration of Mother's trial counsel states that she represented Mother at the June 27 disposition hearing and that the juvenile court issued its findings and orders on June 30. Counsel's declaration continues: "Thereafter, I discussed with [Mother] her appellate rights and timely sent to [Mother] a JV-800 Notice of Appeal form for her signature. [¶] 3. "On
August 30, 2022, I received an email from [Mother] inquiring whether I received the signed JV-800 Notice of Appeal form which she said she had returned to me by email the week prior. I had not received the prior email and asked [Mother] to resend the signed form. [¶] 4. I then received a signed JV-800 Notice of Appeal from [Mother] and immediately filed it with the juvenile court."
The notice of appeal was filed on Tuesday, August 30, one day after the jurisdictional 60-day deadline. The signature line on the notice of appeal indicates that Mother signed it on August 30. Mother herself did not submit any declaration in opposition to the Department's motion to dismiss.
We conclude that Mother has not shown ineffective assistance of counsel. First, Mother presented no evidence showing she would have filed a timely appeal absent the presumed attorney error. The declaration of Mother's trial counsel states that she advised Mother of her appeal rights and timely sent her a notice of appeal form for signature. There is no evidence Mother notified counsel she wished to appeal, or directed counsel to file a notice of appeal. Second, the declaration does not show how counsel failed to act in a manner to be expected of a reasonably competent attorney practicing in the field of juvenile dependency law. (Kristin H., supra, 46 Cal.App.4th at p. 1668.) There is no evidence counsel failed to inform Mother of the 60-day deadline to appeal when she advised Mother of her appeal rights and sent her the notice of appeal form. Rather, the declaration establishes that on August 30 (one day after the 60 days had already elapsed), counsel received an email from Mother asking whether counsel had received the signed notice of appeal form "which [Mother] said she had returned to me by email the week earlier." Counsel, however, "had not received the prior email" and asked Mother to resend the form. Mother then sent her a notice of appeal form signed on August 30. But Mother has not provided us with her own declaration stating that she actually sent her counsel an email the week before, nor has she submitted a copy of the email she purportedly sent to counsel or the earlier-signed notice of appeal form she purportedly sent with that email. Nothing in her counsel's declaration establishes that counsel failed to receive Mother's email due to counsel's neglect. It is possible Mother never sent the email.
We therefore conclude that Mother has failed to demonstrate that her failure to file a timely notice of appeal was attributable to ineffective assistance of her trial counsel. Accordingly, we grant the Department's motion to dismiss the appeal.
Even if we were to decide the appeal on the merits, we would find no prejudicial error. Assuming without deciding that the juvenile court erred in relying on section 361.2 to terminate jurisdiction, the error was harmless because it had authority to terminate jurisdiction under section 362.4. "[T]he fundamental goal of the dependency system [is] to return the child to his or her custodial parent and terminate dependency jurisdiction as soon as circumstances permit." (In re Destiny D. (2017) 15 Cal.App.5th 197, 208.) After taking jurisdiction over the children, the juvenile court terminated jurisdiction at the disposition hearing, finding that their placement with Father was "necessary and appropriate" and "not detrimental to [their] physical health, safety, protection or physical or emotional well-being." Mother has not challenged these findings. Accordingly, any error in relying on section 361.2 to terminate jurisdiction would be harmless.
DISPOSITION
The appeal is dismissed.
WE CONCUR: McCONNELL, P. J., IRION, J.