Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. S-1501-AT-2454, Sharon Mettler, Judge.
Valerie N. Lankford, under appointment by the Court of Appeal, for Objector and Appellant.
Law Office of Tasha M. Bollinger and Tasha M. Bollinger for Petitioner and Respondent.
Before Cornell, Acting P.J., Hill, J. and Kane, J.
OPINION
This is an appeal from an order freeing a child, R. V., from the custody and control of her mother, Kimberly H. We conclude the notice of appeal was not timely filed and consequently dismiss the appeal.
In light of this disposition, we deny appellant’s motion to augment the record with the contents of the family law court file, case number FL-580953.
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2006, R.’s father, Robert V., filed a petition to declare R. free from the parental custody and control of her mother, Kimberly H., based on alleged abandonment. On January 5, 2007, Kimberly was personally served with a citation ordering her to appear in court on March 9, 2007, to show cause why R. should not be declared free of her custody and control. On March 9, Kimberly did not appear for the hearing; the court noted that Kimberly had contacted Family Court Services that morning and said she could not appear because she had no transportation, and she wished to contest the matter. Robert, his current wife, and R. appeared at the hearing and testified; the court also considered the report of the Family Court Services investigator, which recommended granting the petition. The court found the allegations of the petition to be true, and orally granted the petition at the hearing. On May 14, 2007, Kimberly filed her notice of appeal.
DISCUSSION
“Appellate jurisdiction to review an appeal able order depends upon a timely notice of appeal. [Citation.]” (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.) The court granted the petition to terminate appellant’s parental rights based on abandonment, pursuant to Family Code section 7822. The filing of a notice of appeal from an order granting such a petition is governed by rule 8.400 of the California Rules of Court, which provides, in part, that “a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order [being appealed].” (Cal. Rules of Court, rule 8.400(d)(1).) The phrase “making of the order being appealed” has been interpreted to mean oral pronouncement of the order in open court. (In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1252-1254; In re Markaus V. (1989) 211 Cal.App.3d 1331, 1335-1337.) Consequently, appellant’s 60-day period for filing a notice of appeal of the order terminating her parental rights commenced to run on March 9, 2007, when the court orally pronounced its decision to grant the petition in open court. The 60-day period ended May 8, 2007. Appellant’s notice of appeal was filed May 14, 2007, and therefore was untimely.
This court advised appellant of the untimeliness of her filing and later appointed counsel to represent her. Noting that the record did not indicate appellant had been given notice of the 60-day filing deadline for her notice of appeal, we ordered that “appellate counsel shall address whether the lack of notice regarding the 60-day filing rule excuses appellant’s untimely notice of appeal.” Appellant’s briefs, however, do not address this issue. Instead, appellant argues (1) the notice of appeal was timely under rule 8.400 of the California Rules of Court, (2) if it was not timely under rule 8.400, it was timely under former rule 2 (now rule 8.104), and (3) if former rule 2 does not apply, then the notice of appeal should be treated as a timely petition for an extraordinary writ.
Rule 8.400 of the California Rules of Court, which specifies the time for filing a notice of appeal from an order terminating parental rights under Family Code section 7822, does not contain any express requirement that the court advise the parent of his or her appeal rights or the time for filing a notice of appeal. In contrast, court rules governing juvenile dependency cases require notice to the parent of his or her appeal rights, but only if the matter is contested and the parent is present at the hearing. (Cal. Rules of Court, rules 5.585(d), 5.590.)
Appellant did not appear at the March 9, 2007, hearing at which her parental rights were terminated. She was personally served, more than 60 days before the hearing date, with a citation to appear at the hearing. The reports of the Family Court Services investigator indicate that two letters were mailed to appellant by certified mail in January 2007, and were returned unclaimed in February; another letter was sent in February by regular mail and was not returned. Appellant did not contact Family Court Services prior to the hearing date to discuss the petition.
Appellant did not appear at the hearing or contest any issues before the court at the hearing. The court stated on the record: “Family Court Services called me this morning to say – they called the clerk this morning to say that [appellant] contacted them this morning, saying she could not appear because she had no transportation, and that she wished to contest the matter.” Appellant did not call the court directly. Although she expressed to Family Court Services a desire to contest the matter, she did not ask to appear at the hearing by telephone, nor did she request a continuance or any other accommodation to allow her to appear. Consequently, even if there were a notice requirement similar to that in dependency cases, notice would not have been required in this case because the hearing did not involve contested issues of fact or law, and appellant did not appear at the hearing.
“A continuance may be granted only upon a showing of good cause,” and “[u]nless the court for good cause entertains an oral motion for continuance, written notice of a motion for a continuance of the hearing shall be filed within two court days of the date set for the hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary.” (Fam. Code, § 7871, subds. (a), (b).) Appellant did not make a written request for a continuance, nor did she make an oral request supported by a showing of good cause for either the oral motion or the continuance.
Appellant apparently concedes the point; despite the court’s direction to address the issue in her brief, appellant has proffered no argument that the court was required to give her notice of her appeal rights despite her failure to attend the hearing. She also does not represent that she was unaware of her appeal rights or of the time period prescribed for filing a notice of appeal. (See Castro v. Superior Court (1974) 40 Cal.App.3d 614, 621, concluding that, when the court fails to advise a criminal defendant of his appeal rights as required by the California Rules of Court, the defendant is not automatically entitled to file a late appeal, but he may be entitled to file a late appeal if he was ignorant of his appeal rights during the appeal period.)
Appellant contends that, if her notice of appeal was not timely under rule 8.400, it was timely under rule 8.104, which provides that a notice of appeal in a civil action must be filed within 60 days after the court clerk mails a notice of entry of the judgment or order, within 60 days after a party serves a notice of entry of the judgment or order, or within 180 days after entry of the judgment or order, whichever is earliest. She cites no authority for application of rule 8.104 in this case. Rule 8.400 expressly applies to “[a]ctions to free a child from parental custody and control under Family Code section 7800 et seq.” (Cal. Rules of Court, rule 8.400(a)(1)(B).) Where the time to appeal is governed by rule 8.400, rule 8.104 does not apply. (See In re Markaus V., supra, 211 Cal.App.3d at p. 1335.) Rule 8.104 does not apply in this case.
Finally, appellant argues that, if her notice of appeal was untimely, it should be treated as a timely petition for an extraordinary writ. In Adoption of Alexander S. (1988) 44 Cal.3d 857, the court held that “habeas corpus may not be used to collaterally attack a final non modifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.” (Id. at p. 868.) The court believed this rule to be supported by sound public policy. (Ibid.)
“Protracted litigation over the custody of a child may harm the child. For this reason, among others, the United States Supreme Court held that federal habeas corpus could not be used to litigate constitutional claims in child custody matters, observing that ‘[the] State’s interest in finality is unusually strong in child-custody disputes. The grant of federal habeas would prolong uncertainty for children …. It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged.’ [Citation.]” (Adoption of Alexander S., supra, 44 Cal.3d at p. 868.)
In In re Issac J. (1992) 4 Cal.App.4th 525, the court held that the rule set out in Alexander S. applied in a proceeding to free a child from parental custody and control pursuant to former Civil Code section 232, the predecessor of Family Code section 7822. (In re Issac J., supra, 4 Cal.App.4th at pp. 533-534.) Following Alexander S., the Issac J. court concluded that, even if adoption was not contemplated in the termination proceeding, the public policy supporting the rule stated in Alexander S. also supported application of the rule in a proceeding to terminate parental rights based on abandonment. (In re Issac J. at pp. 533-534.) Therefore, the remedy of habeas corpus could not be used to obtain belated review of the termination order, where a notice of appeal was not timely filed.
Appellant asserts that Alexander S. permits “the use of an extraordinary writ to review an appeal able judgment or order after the time for appeal has passed … in special circumstances.” Although Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953-954, interpreted Alexander S. to permit a petition for extraordinary relief to be brought after the time for appeal from a non modifiable adoption-related order has expired when special circumstances constitute an excuse for the failure to appeal, we do not so interpret it. Rather, we agree with In re Meranda P. (1997) 56 Cal.App.4th 1143, that there is nothing “in Alexander S. which justifies this reading of the Supreme Court’s opinion. Alexander S. articulated an unqualified ‘bright line’ rule prohibiting the use of habeas corpus to challenge final, non modifiable adoption-related orders.” (Id. at p. 1165.) We therefore reject appellant’s invitation to treat her untimely appeal as a petition for an extraordinary writ.
An untimely appeal must be dismissed by the court on motion of a party or on its own motion. (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) We therefore dismiss appellant’s untimely appeal.
DISPOSITION
The appeal is dismissed as untimely filed.