Opinion
F062058 Super. Ct. No. S-1501-AD-16024
11-02-2011
Adoption of LIAM D., a Minor. JOHN DOE and MARY DOE, Plaintiffs and Respondents, v. CHRISTIAN D., Defendant and Appellant.
Gorman Law Office and Seth F. Gorman for Defendant and Appellant. Douglas R. Donnelly for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge.
Gorman Law Office and Seth F. Gorman for Defendant and Appellant. Douglas R. Donnelly for Plaintiffs and Respondents.
Christian D. appeals in propria persona from a judgment and order terminating his parental rights to his biological son, Liam D., under the Uniform Parentage Act (Fam. Code, §§ 7600 et. seq.) (UPA). We conclude the notice of appeal was not timely filed and consequently dismiss the appeal.
Subsequent statutory references are to the Family Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Sixteen-year-old Angela D. gave birth to Liam D. (the baby) on June 4, 2010. Before the baby's birth, Angela decided to place the baby for adoption and selected a prospective adopting couple (the adopting couple), to whom she authorized the hospital to release the baby after his birth.
On June 4, 2010, 17-year-old Christian filed a petition to establish a parental relationship pursuant to section 7630 of the UPA in Kern Superior Court case No. S-1501-PT-30830 (the paternity action). By the petition, Christian sought to be declared the baby's father and obtain custody of the baby.
Ten days later, in a separate action (Kern Superior Court case No. S-1501-AD-16024), the adopting couple filed a petition to determine and terminate Christian's parental rights pursuant to sections 7630, 7662 and 7664 of the UPA (the termination action). The adopting couple claimed Christian's consent to the adoption was not required because he was not a presumed father as defined in section 7611 and did not qualify as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) and Adoption of Michael H. (1995) 10 Cal.4th 1043 (Michael H.). The adopting couple requested the court find that (1) Christian was not a presumed father under either statutory or case law, (2) his consent to adoption was not required, (3) it was in the baby's best interests to be adopted, and (4) it would be contrary to the baby's best interests for Christian to retain any parental rights he may possess. The adopting couple further requested the court order termination of Christian's parental rights and obligations in accordance with section 7664, subdivision (b), and that he is not entitled to further notice of the adoption proceedings. On July 20, 2010, the court stayed Christian's paternity action pending resolution of the termination action.
At an August 2010 hearing in the termination action, the trial court appointed Christian's mother, Guadalupe D., as his guardian ad litem, appointed an attorney to represent Christian, and ordered the proceedings bifurcated as to the issue of whether Christian was either a presumed or Kelsey S. father. The trial court granted the adopting couple's request to keep their identities confidential, ordering that they be referred to in future pleadings as John and Mary Doe.
The hearing on the issue of Christian's status as a presumed father was held over four days beginning in October 2010 and concluding on November 5, 2010. After testimony was received from various witnesses, including Angela and Christian, and oral arguments made, the trial court took the matter under submission. On November 15, 2010, the trial court issued a memorandum of its intended decision, which became the statement of decision since no party submitted any objection or proposed addition.
In its statement of decision, the trial court found that Christian did not meet any of the statutory definitions of a presumed father. In addressing whether Christian's actions satisfied the criteria of a presumed father under Kelsey S. and Michael H., the court found the evidence established that: (1) Christian initially refused to consider the possibility of pregnancy, refused to discuss the pregnancy after it was confirmed, and wanted to postpone any discussion about it with their parents; (2) after their parents learned of the pregnancy, he did very little to assume the responsibility of fatherhood; (3) instead of providing Angela with his unfailing commitment to raise their child together, Christian operated in a "business as usual fashion, attending school, participating in sports, and maintaining a 'friends with benefits' relationship with Angela behind her parents' backs"; (4) Angela and her parents agreed to a third party adoption of the baby since Christian failed to demonstrate he intended to fulfill his parental responsibilities; and (5) after the baby's birth and Christian's efforts to establish paternity and obtain custody, Christian continued to only pay lip service to the idea of fatherhood. Accordingly, the court found that Christian did "not meet the criteria of a Kelsey S. father, because he did not promptly come forward and demonstrate as full a commitment to his parental responsibilities as the biological mother would allow and the circumstances would permit within a short time after he learned of the pregnancy."
A hearing on the issue of whether it was in the baby's best interest to be adopted was held on December 10, 2010 and January 4, 2011. Testimony was received from the adopting couple, Christian's mother and Christian. Following argument of counsel, the trial court made its ruling from the bench, stating that it could not "find it's in [the baby's] best interests to be in [Christian]'s care, so I do find it's in the best interests of the baby to continue with the adoptive parents, and that's the ruling." The trial court then stated that "[t]he petition for termination of parental rights is granted." The following then occurred:
"[ADOPTING COUPLE'S COUNSEL]: Would the Court like me to prepare a formal order?
"THE COURT: I think you'll need to prepare a judgment, won't you?
"[ADOPTING COUPLE'S COUNSEL]: Yeah. I will prepare a judgment and order.
"[CHRISTIAN'S COUNSEL]: For circulation for review and signature?
"THE COURT: Absolutely.
"[ADOPTING COUPLE'S COUNSEL]: Okay. It will be in the mail tomorrow. Thank you, your Honor. . . .
"[CHRISTIAN'S COUNSEL]: And will I be relieved after the notice of the appeal is filed?
"THE COURT: [Christian's counsel], you will be relieved after the appeals period is passed, why don't we say it that way."
In a declaration dated January 13, 2011, the adopting couple's counsel explained that he transmitted a proposed judgment and order to Christian's attorney on January 5 and sent her a text message on January 12 asking if she had received and approved the proposed judgment, to which she responded by text message that her client had not "'given [her] authorization to approve the proposed judgment.'" The adopting couple's counsel requested the trial court sign the proposed judgment and order, as it was deemed approved pursuant to California Rules of Court, rule 3.1312.
On January 21, 2011, the trial court signed and filed the written judgment and order, which stated that following the first phase of the trial, the court ruled on November 15, 2010 that Christian was not a presumed father by statute or under case law, and that following completion of the second phase of the trial on January 4, 2011, the court "makes the following findings": (1) "[i]t will not serve the [baby]'s best interests for Respondent Christian D[] to maintain his parental rights"; (2) "[t]he [baby]'s best interests are best served by being adopted by his current caretakers, the prospective adopting parents John Doe and Mary Doe"; [and] (3) Respondent Christian D[]'s consent is therefore not required for the adoption of the [baby] []." The judgment further stated that it was "hereby ordered," in accordance with section 7664, subdivision (b), "the parental rights of Respondent Christian D[] as to the [baby], born June 4, 2010, are hereby terminated." The prospective adopting couple served notice of entry of judgment and order on Christian's attorney on February 23, 2011. A "Notification of Subsequent Action" was filed on January 21, 2011, in which the county clerk advised the California Department of Social Services that parental rights of an alleged natural father were terminated on "01/21/11."
On March 15, 2011, Christian filed a notice of appeal, in propria persona, from the "Judgment and Order After Contested Trial of Fact filed January 21, 2011 served by mail on February 23, 2011."
Prior to filing its brief on appeal, the prospective adopting couple's attorney filed a motion to dismiss the appeal as untimely. Christian, through an attorney who represented him only for the purpose of opposing the motion to dismiss, submitted written opposition to the motion. In an April 28, 2011 order, we deferred ruling on the motion pending consideration of the appeal's merits. We noted that the appellate record was silent regarding whether Christian received notice of his appellate rights and directed the parties to address in their briefing what effect, if any, the lack of notice has on Christian's ability to pursue and this court's jurisdiction to consider the appeal.
DISCUSSION
"Appellate jurisdiction to review an appealable order depends upon a timely notice of appeal." (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.) Here, the prospective adopting couple filed their petition under the UPA to terminate Christian's parental rights pursuant to section 7664, which provides in pertinent part that "[i]f the court finds that the man claiming parental rights is not the father, or that if he is the father it is in the child's best interest that an adoption be allowed to proceed, it shall order that that person's consent is not required for an adoption. This finding terminates all parental rights and responsibilities with respect to the child." (§ 7664, subd. (b).) At the January 4, 2010 hearing, the trial court announced its decision from the bench, finding that it was in the baby's best interests that the adoption proceed and granting the petition for termination of parental rights.
Section 7669, subdivision (a), provides that "[a]n order requiring or dispensing with a father's consent for the adoption of a child may be appealed from in the same manner as an order of the juvenile court declaring a person to be a ward of the juvenile court and is conclusive and binding upon the father." An appeal from a juvenile court order declaring a person a ward of the juvenile court is governed by Title 8, Chapter 5 of the California Rules of Court. (Cal. Rules of Court, rule 8.400.) In such cases, under California Rules of Court, rule 8.406(a)(1) "a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." "Except as provided in rule 8.66 [allowing extension of time due to public emergency], no court may extend the time to file a notice of appeal." (Cal. Rules of Court, rule 8.406(c).)
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 (Alyssa H.); Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 955-956 (Mauro B.); In re Markaus V. (1989) 211 Cal.App.3d 1331, 1335-1337.) Thus, Christian's 60-day period for filing a notice of appeal of the order terminating his parental rights commenced running on January 4, 2010, when the trial court orally pronounced its decision to grant the petition in open court, and ended on March 5, 2011. Christian's notice of appeal, filed on March 15, 2011, therefore was untimely.
Christian does not dispute that generally the time to appeal from an order terminating parental rights in a UPA action begins to run from the trial court's oral pronouncement of the order. Instead, he contends the rule should not be applied here. First, he asserts that because the trial court stated at the January 4 hearing that a judgment needed to be prepared and affirmed it should be circulated for review and signature, the time to appeal did not begin to run until the written judgment was filed. In support, he relies on cases which apply the rule, now stated in California Rules of Court, rule 8.104(c)(2), that when an appealable order is entered in the court's minutes and the minute order directs a written order be prepared, the date the order is entered is the date the signed order is filed. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1455-1456; County of Alameda v. Johnson (1994) 28 Cal.App.4th 259, 261, fn. 1; Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 122-123.) These cases, as well as the rule of court, are inapplicable here, however, as they do not involve the rule by which this appeal is governed, rule 8.406(a)(1), that provides the time to appeal in cases such as this one begins to run from the date of the oral pronouncement, not the minute order.
He next contends because the written judgment differs from the trial court's oral pronouncement the time to appeal did not begin to run until the written judgment was filed. The rule he relies on - that when a non-final judgment is substantially modified, such as on a motion for new trial or a motion to vacate and enter a different judgment, the amended judgment supersedes the original and becomes the appealable judgment-applies to amended judgments in civil proceedings. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222; CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048; McConville v. Superior Court (1926) 78 Cal.App. 203, 207; Eisenberg, et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2010) 3:56.1, p. 3-27.) This rule does not apply here, where there is no amended judgment. While the written judgment states the findings necessary to support the trial court's oral order granting the adopting couple's petition, it does not amend or modify the trial court's oral pronouncement, but confirms it.
Christian also contends we should consider the appeal timely because no reasonable person would believe the order was then final and appealable as there were no "indicators of a final judgment, such as a written judgment, use of the words final or judgment, or advisement of appellate rights." He argues that because the court failed to "indicate in any form that its ruling was then 'final,'" further judicial action was required to make a final determination of the parties' rights and therefore the time to appeal commenced with the filing of the written judgment which finally determined those rights, citing Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 698, Lyon v. Goss (1942) 19 Cal.2d 659, 670 (Lyon), and Code of Civil Procedure section 577, which states that "[a] judgment is the final determination of the rights of the parties in an action or proceeding." This argument fails, in that the trial court's oral pronouncement did not leave any issue for future consideration and further judicial action was not essential to a final determination of the parties' rights. Accordingly, under the authority he cites, the oral pronouncement was a final decree. (See Lyon, supra, 19 Cal.2d at p. 670 ["where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final . . . "].) In our view, it was enough for the trial court to state that the petition was granted to indicate the finality of the order.
Christian compares the trial court's oral order to a written order granting a petition to free a minor from the custody and control of his parents in In re Fredrick E.H. (1985) 169 Cal.App.3d 344, 347, and argues the oral order here cannot be deemed final because it was not as specific as the written order in that case. In Fredrick E.H., there was both an oral order, in which the trial court stated the child was "'freed from the custody of the father,'" and a subsequent written order that declared the child from his father's custody and control and terminated the father's rights and responsibilities to the child. (Fredrick E.H., supra, at pp. 345, 347-348.) In holding the father's appeal, filed more than 60 days after the written order was filed, untimely, the court noted there was nothing in the trial court's oral ruling or written order suggesting it was rendering a partial or interlocutory judgment. (Id. at pp. 347-348.) Similarly here, there was nothing in the trial court's oral ruling that "[t]he petition for termination of parental rights is granted," which suggests it was rendering a partial or interlocutory order. Christian's reliance on Montenegro v. Diaz (2001) 26 Cal.4th 249 is also misplaced, as there the court was determining whether a stipulated custody order was a final judicial custody determination for purposes of applying the changed circumstances rule, not whether an oral order was appealable.
With respect to advisement of appellate rights, there is no express requirement under the appellate rules applicable to UPA actions that the trial court advise the parent of his or her appeal rights or the time for filing a notice of appeal. (See Cal. Rules of Court, rules 8.400-8.416.) In contrast, court rules governing juvenile dependency and delinquency cases require notice to the parent of his or her appeal rights if the matter is contested and the parent is present at the hearing. (Cal. Rules of Court, rule 5.590.)
Christian submits, however, that he was entitled under case law and as a matter of due process to notice of his appeal rights. (See In re Jacqueline H. (1978) 21 Cal.3d 170, 179 [when parental rights are terminated, "the trial court should advise the parents of their right to appeal, to appellate counsel, to a free transcript if indigent, and inform them of the procedures for perfecting an appeal."]; In re Arthur N. (1974) 36 Cal.App.3d 935, 939-940 [holding juvenile entitled to receive notice of appellate rights from juvenile court after jurisdiction taken over juvenile under Welfare & Institutions Code section 602].)
We need not decide whether a trial court is required in all termination of parental rights cases under the UPA to advise a parent of his or her appellate rights, since Christian was represented in this proceeding by both a guardian ad litem (GAL) and an attorney. A GAL is the representative of record of a party. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 964 (J.W.).) While a minor parent of a child who is the subject of family court proceedings under the UPA may appear in court without a GAL, the court is required to appoint a GAL if it finds the minor parent is unable to understand the nature of the proceedings or assist counsel in preparing the case. (Code Civ. Proc., § 372, subd. (c)(1)(A), (c)(2).) Here, the record is silent as to why a GAL was appointed for Christian. But once a GAL was appointed, the GAL, here Christian's mother, became responsible for prosecuting and defending the action on his behalf. (J.W., supra, 17 Cal.App.4th at pp. 964-965; see De Los Santos v. Superior Court (1980) 27 Cal.3d 677, 683-684 [GAL has right to control the lawsuit on the minor's behalf, including controlling the procedural steps necessary to the conduct of the litigation].) As explained in J.W., a GAL "represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself in those proceedings." (J.W., supra, 17 Cal.App.4th at p. 965.)
A GAL, however, cannot represent her minor son in propria persona in a legal proceeding. (J.W., supra, 17 Cal.App.4th at pp. 961-962.) Instead, the GAL must represent the minor's interests through an attorney. (Ibid.) Here, an attorney was appointed to represent Christian's interests. Both the attorney and the GAL were present in their representative capacities at the January 4 hearing in which the trial court stated the petition to terminate parental rights was granted. The trial court did not relieve the GAL of her appointment. Accordingly, an appeal must have been at the GAL's direction and could only be accomplished through an attorney. The trial court specifically directed the attorney to continue to represent Christian throughout the "appeals period." Since Christian could only act through his attorney, there was no need to advise either Christian or the GAL of Christian's appellate rights, as the attorney was responsible for pursuing Christian's appeal. (See, e.g., In re Ryan R. (2004) 122 Cal.App.4th 595, 599 [assuming mother whose parental rights were terminated was entitled to notice of her appellate rights, the court mailed such notice to mother, albeit to an address not listed by her, and advised mother's counsel at the hearing that counsel was responsible for protecting her appellate rights].)
For this reason, we question whether Christian's notice of appeal is even effective because he filed it in propria persona without the consent of his GAL. It appears from the record that Christian turned 18 years old in May 2011. When the notice of appeal was filed in March 2011, however, he was a minor and still had a GAL, which means that the notice of appeal should have been filed by an attorney with the GAL's consent. Since the parties have not briefed the issue and we conclude the appeal was untimely, however, we do not decide it.
Christian argues he is entitled to relief because he was misled or confused by the trial court's words or acts. This argument is based on the "constructive filing" doctrine, which has been applied in criminal cases to relieve criminal defendants from the effect of a late-filed appeal. (See In re Issac J. (1992) 4 Cal.App.4th 525, 531-532 & fn. 6 (Issac J.) [explaining constructive filing doctrine]; see also People v. Martin (1963) 60 Cal.2d 615, 618-619 [criminal defendant's late-filed appeal deemed timely where trial court's course of action misled defendant into delaying his appeal]; People v. Calloway (1954) 127 Cal.App.2d 504, 506-507 [criminal defendant's late-filed appeal deemed timely where defendant lulled into false sense of security by representative of the state].)
Courts, however, have declined to extend the doctrine of constructive filing to appeals of orders terminating parental rights, as "the special need for finality in parental termination cases and the danger of imperiling adoption proceedings prevails over the policy considerations in favor of constructive filing." (Alyssa H., supra, 22 Cal.App.4th at p. 1254; see also Adoption of Alexander S. (1988) 44 Cal.3d 857, 867-868 [timely notice of appeal confers appellate jurisdiction; adoption proceedings are not governed by criminal rules such that habeas petition filed beyond time for appeal could serve as basis for collateral relief warranted by ineffective assistance of counsel]; In re Ricky H. (1992) 10 Cal.App.4th 552, 560; Mauro B., supra, 230 Cal.App.3d at p. 955; Issac J., supra, 4 Cal.App.4th 525, 531-532; In re A.M. (1989) 216 Cal.App.3d 319, 322.) We agree with the policy reasons favoring finality and rejecting the doctrine of constructive filing in a case such as this involving the severance of parental rights and adoption of the child, whose stability at this point is paramount.
Christian also contends we should follow dependency cases involving the juvenile court's failure to discharge its duty to give timely correct notice to a parent that he or she must file an extraordinary writ petition, rather than an appeal, to seek review of all orders issued at a setting hearing, i.e. when the court sets a hearing to determine whether parental rights should be terminated. In such a situation, if the parent appeals from the subsequent parental rights termination order, the parent's failure to seek writ review is excused and the appellate court may address the merits of the parent's challenge to orders issued at the setting hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722-724; see also In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110; In re Athena P. (2002) 103 Cal.App.4th 617, 625; In re Rashad B. (1999) 76 Cal.App.4th 442, 450.) These cases, however, are inapplicable here, as there the parent filed a timely appeal from a juvenile court order terminating parental rights which vested the appellate court with jurisdiction and allowed the appellate court to review prior orders the parent failed to challenge by writ petition.
In contrast here, there is no timely appeal that vests us with jurisdiction and allows us to review the order Christian is seeking to challenge. Absent a timely notice of appeal, we have no jurisdiction to consider an appeal from an otherwise appealable order or judgment. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 662 [appellate court has no jurisdiction to review untimely appeal]; In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219 [policy of liberal construction of appeal does not confer power on court to consider untimely appeal].)
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 Christian's untimely appeal.
DISPOSITION
The motion to dismiss the appeal is granted and the appeal is dismissed as untimely filed.
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Gomes, J.
WE CONCUR:
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Wiseman, Acting P.J.
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Dawson, J.