Opinion
B324799
10-31-2023
In re ANTHONY M. et al., Persons Coming Under the Juvenile Court Law. v. MARIA M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22CCJP01708, Jean M. Nelson, Judge. Appeal dismissed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
CHANEY, J.
In her appellate briefing in this dependency case, Maria M. (Mother) contends the Los Angeles County Department of Children and Family Services (DCFS) did not comply with the inquiry requirements of California law implementing the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; (ICWA)), as to one of Mother's four children (B.P.) involved in the dependency proceedings. DCFS filed a motion to dismiss the appeal arguing, among other things, this court lacks jurisdiction because Mother did not appeal from an order pertaining to B.P., as reflected in the notice of appeal. Instead, Mother appealed from orders pertaining to her three other children only. As explained more fully below, we agree with DCFS and dismiss this appeal.
BACKGROUND
Mother has four children who were the subjects of these dependency proceedings below: B.P. (nine years old when the proceedings commenced in 2022), An.M. (then seven years old), Ar.H. (then five years old), and Ah.H. (then two years old). When DCFS filed the dependency petition in May 2022, Mother shared custody of the three younger children with their father, Anthony H. Mother had sole legal and physical custody of the elder child B.P., who did not share the same father as her half siblings.
On October 10, 2022, at an adjudication and disposition hearing in this matter, the juvenile court sustained allegations against Mother and Anthony H. under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). The court declared all four children dependents of the court and removed them from Mother. The court ordered the three younger children placed in Anthony H.'s home, where they had resided since their detention from Mother. Over Mother's objection, the court terminated dependency jurisdiction as to the three younger children, granting Anthony H. sole physical custody, with monitored visitation for Mother, and joint legal custody to Mother and Anthony H. As reflected in the reporter's transcript of the hearing, the court placed B.P. under DCFS's care and ordered reunification services for Mother.
On October 11, 2022, the day after the adjudication and disposition hearing, Mother's trial counsel filed a notice of appeal for Mother. At the top of page one, where the notice of appeal form asks for the "CHILD'S NAME," counsel listed the three younger children, An.M, Ar.H., and Ah.H. The name of the oldest child, B.P., is not listed on the notice of appeal. In item 1, which states, "I appeal from the findings and orders of the court (specify date of order or describe order)," counsel entered: "On 10/10/2022 the Court terminated jurisdiction with joint legal and sole physical custody of the three minors to the father." Item 6, on page two of the notice of appeal form, states, "This notice of appeal pertains to the following child or children (specify number of children included)," and provides spaces for listing the names and dates of birth of up to four children (allowing an attachment for listing additional children). In item 6, counsel entered "3" for the number of children involved in this appeal and listed the full names and dates of birth for An.M., Ar.H., and Ah.H. The space for listing the name and date of birth of a fourth child was left blank. In item 7, counsel checked three boxes, indicating "[t]he order appealed from was made under" "Section 360 (declaration of dependency)," "Removal of custody from parent or guardian," "with review of section 300 jurisdictional findings," and specified that the hearing occurred on October 10, 2022.
The superior court prepared a clerk's transcript as to minors "B, C, D" only (An.M., Ar.H., and Ah.H.). There are no juvenile court minute orders in the clerk's transcript pertaining to B.P. (listed as minor A).
In her opening appellate brief, Mother raises one issue: ICWA compliance as to B.P. As reflected in the reporter's transcript, at a hearing on June 29, 2022, the juvenile court stated: "As to all four children, I find there is no reason to know they are Indian children within the meaning of the Indian Child Welfare Act. As to minors B, C, and D, I find the Act does not further apply. [DCFS] must continue to investigate by interviewing other family members, and I did note that the Jurisdiction Report did not indicate that other family members have been interviewed, so [DCFS] must do that and must document its efforts. Mother argues the court's ICWA finding was error as to B.P. because DCFS did not ask B.P.'s extended family members about possible Native American ancestry (as of October 10, 2022, the date of the adjudication and disposition hearing).
DCFS filed a motion to dismiss this appeal on two grounds: (1) this court lacks jurisdiction to review Mother's challenge to the juvenile court's and DCFS's ICWA compliance as to B.P. because Mother did not appeal from an order pertaining to B.P.; and (2) this appeal is moot because after the adjudication and disposition hearing, DCFS interviewed some of B.P.'s extended family members regarding possible Native American Ancestry. Mother filed an opposition to the motion to dismiss.
DISCUSSION
"A timely notice of appeal vests jurisdiction in the Court of Appeal." (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864.) "The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.405(a)(3).)" '[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what the appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.'" (In re Joshua S. (2007) 41 Cal.4th 261, 272.)
Here, as set forth above, Mother's notice of appeal identifies the order being appealed from as follows: "On 10/10/2022, the Court terminated jurisdiction with joint legal and sole physical custody of the three minors to the father." The notice of appeal specifically states that the appeal pertains to An.M., Ar.H., and Ah.H. only-the three children as to whom the juvenile court terminated dependency jurisdiction and made custody orders. Liberally construing the notice of appeal, there is no indication it pertains to B.P., the only child whose dependency case was not terminated. The superior court prepared the record on appeal as to An.M., Ar.H., and Ah.H. only. There are no juvenile court minute orders in the clerk's transcript pertaining to B.P.
Mother asks us to liberally construe her notice of appeal to include B.P. because the orders she specified in her notice of appeal and the disposition order as to B.P. that she now wants to challenge were made on the same date at the same hearing." '[W]here there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders,'" the Court of Appeal lacks jurisdiction to review another part of the judgment, or a separate judgment or order not specified in the notice of appeal. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) Here, it is clear from multiple responses to questions in the notice of appeal that Mother only intended to appeal from the juvenile court's orders terminating dependency jurisdiction as to An.M., Ar.H., and Ah.H. and deciding custody of those three children. As those orders do not concern B.P. (whose dependency case was not terminated), this is not a situation where Mother's trial counsel (who had advocated on mother's behalf as to all four children) inadvertently left B.P.'s name off the notice of appeal. Rather, Mother did not appeal from any order pertaining to B.P., and we have no jurisdiction to review any order pertaining to B.P. Accordingly, we grant DCFS's motion to dismiss this appeal.
It is of no moment that Mother's counsel checked boxes on the second page of the notice of appeal indicating "[t]he order appealed from was made under" "Section 360 (declaration of dependency)," "Removal of custody from parent or guardian," "with review of section 300 jurisdictional findings." This general language in no way indicates the appeal also pertains to B.P., in light of the specific language in the notice of appeal describing the order appealed from and the clear statement in the notice of appeal that this appeal pertains to only three children, An.M., Ar.H., and Ah.H.
On August 28, 2023, DCFS filed a motion to take additional evidence in support of its argument in the motion to dismiss that this appeal is moot. Because we dismiss this appeal based on lack of jurisdiction and do not reach the mootness issue, we deny the motion to take additional evidence.
DISPOSITION
The appeal is dismissed.
We concur: BENDIX, Acting P. J., WEINGART, J.