Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. B.F. (In re J.F.)

• Decision Date: 26 August 2019
• Docket Number: E072301
• Citation: 251 Cal.Rptr.3d 602,39 Cal.App.5th 70
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE J.F. et al., Persons Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. B.F., Defendant and Appellant.

39 Cal.App.5th 70

251 Cal.Rptr.3d 602

IN RE J.F. et al., Persons Coming Under the Juvenile Court Law.

San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.B.F., Defendant and Appellant.

E072301

Court of Appeal, Fourth District, Division 2, California.

Filed August 26, 2019

Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

B.F. (father) purports to appeal from a juvenile court order denying his petition under Welfare and Institutions Code section 388 (all additional undesignated statutory references are to the Welfare and Institutions Code), in which he requested family reunification services and increased visitation with his twin sons, J.F. and C.F. Although the order denying father's petition is appealable, and father filed his notice of appeal within the time to appeal from that order, the notice of appeal expressly stated father was appealing only from the order terminating his parental rights to the boys that was entered 44 days after denial of his petition. Because father's notice of appeal is clear and unambiguous about what he meant to appeal, we cannot liberally construe it to embrace the omitted order denying the section 388 petition and, hence, we lack jurisdiction to review that order. And, because father presents no reasoned argument why the juvenile court erred by terminating his parental rights, father has waived his challenge to the sole order properly before us. Therefore, we must affirm.

I.PROCEDURAL BACKGROUND

The underlying facts of this case are not germane to the dispositive question of this court's jurisdiction to review the January 22, 2019 order denying father's section 388 petition. In brief, the juvenile court found that J.F. and C.F. were dependent children within the meaning of section 300, bypassed reunification services for father and mother (who is not a party to this appeal), and set a hearing pursuant to section 366.26 for the selection of a permanent plan. (§ 361.5, subd. (b).) The juvenile court continued the hearing to permit the San Bernardino County Department of Children and Family Services (CFS) additional time to locate an adoptive home for the boys and ordered paternity testing for father. When the tests confirmed father's biological paternity, he petitioned the juvenile court pursuant to section 388 to be declared the boys' presumed father. The juvenile court denied the petition, but father did not appeal that order.

After conducting a permanency planning review hearing, the juvenile court again set a section 366.26 hearing. Father then filed a second section 388 petition requesting reunification services and increased visitation. On January 22, 2019, the juvenile court denied father's most recent petition after hearing an offer of proof about changed circumstances and arguments as to why the requested orders would be in the boys' best interest. The court continued the section 366.26 hearing to March 7, 2019. Father did not immediately file a notice of appeal from the order denying his second petition.

Finally, on March 7, 2019, the juvenile court terminated mother and father's paternal rights and freed the boys for adoption. Although he was represented by appointed counsel in the juvenile court, father personally completed and filed a notice of appeal the same day, indicating he was appealing the order terminating his parental rights.

II.DISCUSSION

Father argues the juvenile court abused its discretion when it summarily denied his most recent section 388 petition. According to father, he was entitled to relief because he demonstrated changed circumstances and the relief he sought—reunification services and increased visitation—was in the boys' best interests. Because we conclude father did not actually appeal from the January 22, 2019 order denying his second section 388 petition, and we cannot liberally construe father's notice of appeal to embrace that order, we lack jurisdiction to address the merits of father's argument. Although father properly appealed from the March 7, 2019 order terminating his parental rights, we must affirm it because he has failed to provide any reasoned argument why that order should be reversed.

" ‘[A]n appealable judgment or order is a jurisdictional prerequisite to an appeal.’ " ( Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571, 231 Cal.Rptr.3d 560.) "Because the right to appeal is strictly statutory, a judgment or order is not appealable unless a statute expressly makes it appealable. [Citations.] ‘Appeals in dependency proceedings are governed by section 395 ....’ [Citations.] Section 395 provides in pertinent part that ‘[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).)" ( In re Michael H. (2014) 229 Cal.App.4th 1366, 1373, 178 Cal.Rptr.3d 71, fn. omitted.) The judgment in dependency proceedings is the dispositional order. ( In re S.B. (2009) 46 Cal.4th 529, 532, 94 Cal.Rptr.3d 24, 207 P.3d 525.) " ‘ "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." ’ " ( Ibid. ; accord, In re A.A. (2016) 243 Cal.App.4th 1220, 1234, 197 Cal.Rptr.3d 619.)

In addition, "the timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction." ( Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670, 125 Cal.Rptr. 757, 542 P.2d 1349 ; see Cal Rules of Court, rules 8.100, 8.104.) " ‘[O]nce the deadline [to appeal] expires, the appellate court has no power to entertain the appeal.’ " ( In re A.O. (2015) 242 Cal.App.4th 145, 148, 194 Cal.Rptr.3d 826, quoting Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, 61 Cal.Rptr.2d 166, 931 P.2d 344.)

There is no question the January 22, 2019 order denying father's second section 388 petition was an appealable postjudgment order ( In re Shirley K. (2006) 140 Cal.App.4th 65, 71, 43 Cal.Rptr.3d 897 ), and father's March 7 notice of appeal was otherwise timely because he filed it less than 60 days later. ( Cal. Rules of Court, rule 8.104(a).) The sole issue here is whether father properly appealed from that order in the first place. A notice of appeal "is sufficient if it identifies the particular judgment or order being appealed." ( Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).) " ‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’ [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal." ( Faunce v. Cate (2013) 222 Cal.App.4th 166, 170, 166 Cal.Rptr.3d 61.)

Father's notice of appeal (Judicial Council Forms, form JV-800) filed on March 7, 2019, indicates he intended to appeal only from the order entered that day terminating his parental rights.¹ Under the heading, "I appeal from the findings and orders of the court (specify date of order or describe order )," father wrote, "3/7/19 The court terminated parental rights." And, under the heading, "The order appealed from was made under Welfare and Institutions Code section (check all that apply )," father checked the boxes for, "Section 366.26 " and "Termination of parental rights." Tellingly, father did not check the catchall box for "Other appealable orders relating to dependency (specify )" (or any other box, for that matter), and nowhere did father indicate on the notice that he intended to appeal from the order entered January 22 or that he was appealing the denial of his second section 388 petition.²

Generally, we must liberally construe a notice of appeal in favor of its sufficiency. ( Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).) A notice of appeal shall 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, 59 Cal.Rptr.3d 460, 159 P.3d 49, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289, italics added; accord, Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961, 75 Cal.Rptr.2d 456 ["This policy is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal."].) For example, in In re Daniel Z. (1992) 10 Cal.App.4th 1009, 13 Cal.Rptr.2d 139, the notice of appeal specified the juvenile court's jurisdictional finding instead of the dispositional order. ( Id. at p. 1017, 13 Cal.Rptr.2d 139.) Applying the rule of liberal construction, the appellate court rejected the argument that the appeal should be dismissed because the parents appealed from the nonappealable jurisdictional order and not from the appealable dispositional order. "Liberal construction is particularly appropriate here because the jurisdictional finding and dispositional order were rendered simultaneously on January 9, 1992—the date specified in the notice of appeal—and are reflected for each child in a single written order." ( Ibid. ; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶¶ 3:130.1-3:130.4, pp. 3-60 to 3-62 [providing additional examples].)

But there are limits to our ability to liberally construe a notice of appeal. "The policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all." ( Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173, 149...