In re N.T. CA4/1 ( 2020 )

Filed 11/25/20 In re N.T. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re N.T., a Minor.
D077580
TANYA B.,
Petitioner and Appellant, (San Diego County Super. Ct. No.
A63298)
v.
STEVEN T.
Objector and Respondent.
APPEAL from order of the Superior Court of San Diego County, Marian
F. Gaston, Judge. Dismissed.
Marcus Family Law Center, PLC, Ethan Marcus, Moriel Cohen, and
Erin K. Tomlinson, for Petitioner and Appellant.
Steven T. in pro. per., for Objector and Respondent.
Tanya B. (Mother) appeals from an order dismissing her petition under
Family Code section 7822 to free her minor son, N.T., from the parental
custody or control of his father, Steven T. (Father).1 We requested
supplemental briefing regarding the timeliness of the appeal. Mother
concedes her notice of appeal was filed after the deadline, but contends we
should deem it timely. Father argues for dismissal. We conclude the appeal
is untimely and we lack jurisdiction to consider it. The appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2004, and had N.T. in 2013.
Mother filed for divorce in 2015, which proceeded in the family court division
of San Diego County Superior Court and resulted in a status-only dissolution
judgment in December 2016.2 Pertinent here, following proceedings in June
and August 2016, the family court granted joint legal custody, allowed
Mother to move to Michigan with N.T., and gave Father visitation. He was
out of contact with N.T. from December 2016 through April 2018, and spent
much of this time in immigration detention. Father then sought ex parte
relief to see N.T., and litigation on issues including custody, visitation, child
support, and reunification therapy followed. Mother received sole legal
custody.
In July 2019, Mother filed a petition in the juvenile court division to
free N.T. from Father’s parental custody and control under section 7822, and
the family court case was stayed.3 At the March 6, 2020 hearing on the
1 Undesignated statutory references are to the Family Code.
2 All subsequent superior court references are to the San Diego County
Superior Court.
3 Section 7822 applies when a parent leaves a child for the statutory
period without support or communication, and with intent to abandon the
child. (See Adoption of Allison C. (2008) 164 Cal. App. 4th 1004, 1009-1010.)
These proceedings usually occur in the context of an adoption, but it is not a
prerequisite. (See In re Marcel N. (1991) 235 Cal. App. 3d 1007, 1013.)
2
petition, the juvenile court began by describing the record. The court noted
the family court’s move-away findings, which indicated N.T. had a good
relationship with Father, and Father’s efforts to pursue contact and
reunification in 2018 and 2019. After argument by counsel, the court
observed that, even if it reached the merits, it was “incomprehensible . . . that
[it] would find that [Father] intended to abandon [N.T.]; and that legally
severing his relationship with his child after five years of litigation during
which he continually sought contact would be in [N.T.’s] best interests.” The
court then found N.T.’s “best interests have been at the heart of previous
litigation over the course of years,” dismissed the petition on res judicata and
collateral estoppel grounds, and said it believed laches applied too. The court
reiterated that if it reached the merits, it would still find it was in N.T’s best
interests to have a parent in his life with the rights and obligations of a
father.
On March 18, 2020, the superior court issued a general order in
response to the COVID-19 pandemic, pursuant to statutory authority and
Judicial Council orders, which deemed March 17, 2020 through April 3, 2020
to be holidays for computing filing times and statutory deadlines. (General
Order No. 031820-34.)4 The superior court later extended the holiday period
through May 22, 2020. (General Order Nos. 040320-39, 043020-47.)
Meanwhile, by the authority of Judicial Council emergency orders entered
pursuant to California Rules of Court, rule 8.66(a), additional orders were
entered by the Fourth Appellate District. (Implementation Order for
4 On our own motion, we take judicial notice of the orders and news
release relating to COVID-19 discussed herein. They are available at
http://www.sdcourt.ca.gov/portal/page?_pageid=55,2053814&_dad=portal (as
of Nov. 24, 2020).
3
Emergency Order on Mar. 20, and Renewed Implementation Order on Apr.
15, 2020.)5 Each order extended the time for required actions under the
California Rules of Court by 30 days, for deadlines that fell within the time
periods March 19, 2020 to April 18, 2020, and April 19, 2020 to May 18, 2020
respectively.
On May 22, 2020, the superior court entered a general order stating the
court would resume most services on May 26, 2020. (General Order No.
052220-54.) A news release issued the same day said “in-person services at
the courthouses will continue to be limited” and [i]n-person filings will only
be accepted as drop offs . . . .”
A proof of service in the record on appeal reflects Mother’s counsel
placed the notice of appeal in the mail on June 3, 2020. The notice of appeal
was filed on June 9, 2020. After the respondent’s brief was filed, this court
became aware of a potential timeliness issue and requested letter briefs from
the parties. Both parties filed briefs.
DISCUSSION
A. Applicable Law
“[T]he 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 (Hollister).) “In the absence of statutory authorization, neither the trial
nor appellate courts may extend or shorten the time for appeal [citation],
even to relieve against mistake, inadvertence, accident, or misfortune.”
(Estate of Hanley (1943) 23 Cal. 2d 120, 123.) As we have no jurisdiction to
review an untimely appeal, we must dismiss it. (See Van Beurden Ins.
5 Further rule references are to the California Rules of Court.
4
Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15
Cal. 4th 51, 56; In re Gary R. (1976) 56 Cal. App. 3d 850, 852-853 [accord.)
Rule 8.400 states “[t]he rules in this chapter [i.e. for juvenile appeals
and writs] govern: [¶] (1) Appeals from judgments or appealable orders in: .
. . . (B) Actions to free a child from parental custody and control under
Family Code section 7800 et seq. . . .” Rule 8.406(a) provides, in pertinent
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." (Rule
8.406(a)(1).) Rule 8.406(c) further provides: “Except as provided in rule 8.66,
no court may extend the time to file a notice of appeal. The superior court
clerk must mark a late notice of appeal ‘Received [date] but not filed,’ notify
the party that the notice was not filed because it was late, and send a copy of
the marked notice of appeal to the district appellate project.” Finally Rule
8.66 states in relevant part that, if necessary due to a public health crisis, the
Chair of the Judicial Council may authorize courts to toll appellate rules for
up to 30 days and may renew such orders. (Rule 8.66(a)(2), (c).)
B. Analysis
The 60-day period to appeal began to run on March 6, 2020, the date
the juvenile court made its order dismissing Mother’s petition. (Rule
8.406(a)(1).) Absent the COVID-19 pandemic and related orders, the notice of
appeal would have been due by May 5, 2020. Under the superior court
general orders discussed above, that date was a holiday, extending the time
for performance to the next day the court was open, or May 26, 2020. (See
Code Civ. Proc. § 12a [if last day is a holiday, period is “extended to and
including the next day that is not a holiday”].) However, because the May 5,
2020 date also fell within the time period of April 19, 2020 to May 18, 2020,
the Fourth Appellate District’s implementation orders extended Mother’s
5
deadline by 30 days. Thus, Mother’s notice of appeal was due by June 4,
2020, and her notice, filed on June 9, 2020, was untimely. (See Rowan v.
Kirkpatrick (2020) 54 Cal. App. 5th 289, 294-295 (Rowan) [addressing orders
issued for COVID-19 pandemic, in dismissing an appeal as untimely].)
Mother does not dispute her notice of appeal was due by June 4, 2020,
and filed later. Rather, she contends we should deem it timely filed, because
the law favors hearings on the merits and she was essentially prevented from
complying with the rules. We are not persuaded.
First, Mother argues the law prefers hearings on the merits and
untimeliness can be relieved by proof of estoppel, citing Slawinski v.
Mocettini (1965) 63 Cal. 2d 70 (Slawinski) and In Re Morrow (1970) 9
Cal. App. 3d 39 (Morrow). We disagree with this characterization of the law.
It is true Slawinski recognized the policy of hearing appeals on the merits in
doubtful cases, and may have been read broadly to support an estoppel
theory—as in Morrow. (See Slawinski, supra, at p. 71 [denying motion to
dismiss where appellants relied on date of written order, rather than minute
order; “law favors hearings on the merits when such can be accomplished
without doing violence to applicable rules” and “in doubtful cases the right of
appeal should be granted”]; Morrow, supra, at pp. 43-46 [stating Slawinski is
“generally viewed” as recognizing a late notice of appeal “may be relieved by
proof of estoppel,” and rejecting respondents’ timeliness argument based on
allegedly invalid new trial proceedings, where they did not object until their
reply brief on appeal].)
However, the California Supreme Court subsequently confirmed in
Hollister that a timely notice of appeal is an “absolute prerequisite” for
appellate jurisdiction. (Hollister, supra, 15 Cal.3d at p. 670.) Addressing
Slawinski, the Court explained its “actual holding” was that if there is a
6
“clear conflict” between the court minutes and a formal order as to the date of
denial of a new trial motion, the conflict is resolved in favor of appeal.
(Hollister, supra, at p. 665.) The Court acknowledged Slawinski “might be
interpreted . . . to reflect . . . a more lenient standard under which compelling
excuse, such as fraud, mistake, disability, or estoppel would . . . forgive
noncompliance,” but stated its “broad language . . . is to be distinguished from
its narrow holding.” (Hollister, supra, at pp. 668, 674 [disagreeing with
language suggesting “estoppel has any place” in determining timeliness].) As
for Morrow, the Court stated it “reache[d] an improper result and is wrongly
decided. (Hollister, supra, at p. 674) Finally, the Court did leave
undisturbed the policy of hearing doubtful cases on the merits, consistent
with applicable rules (ibid.), but as discussed next, Mother does not establish
this was a doubtful case.6
Second, Mother contends she substantively complied with the court
rules, and was “essentially estopped” from meeting the deadline by the
superior court’s backlog. She states the notice of appeal was prepared on
June 3, 2020, “[d]ue to COVID-19 precautions, [it] was filed via mail from
6 Other cases Mother cites predate Hollister and were addressed therein.
(See Mills v. Superior Court (1969) 2 Cal. App. 3d 214, Desherow v. Rhodes
(1969) 1 Cal. App. 3d 733, and Gomes v. Superior Court (1969) 272 Cal. App. 2d
702; Hollister, supra, 15 Cal.3d at pp. 670-674 [noting the cases referenced
Slawinski, but were still consistent with its present analysis or inapposite].)
Mother also summarily requests we find her notice “constructively filed” by
the deadline, but does not establish that doctrine applies here. (See
Silverbrand v. County of Los Angeles (2009) 46 Cal. 4th 106, 110, 113
[extending prison-delivery rule for constructively timely mail filing by
inmates, to pro. per. civil appeals]; Rule 8.25(b)(3) [mail filings by inmates];
compare In re Z.S. (2015) 235 Cal. App. 4th 754, 769 [“ ‘[n]umerous cases have
held that constructive filing, which can be applied in criminal cases, does not
apply in termination of parental rights proceedings’ ”].)
7
counsel’s office located in San Diego, CA,” and the “estimated” and “expected”
delivery time was one day, “putting in within the filing deadline.” She
further states it is unclear why the notice of appeal “was not processed . . .
until June 9, 2020,” speculating it was “most likely because of the incredible
backlog the [court] was facing in light of the suspended court operations . . .
resulting in thousands of cases being delayed.”
As discussed ante, estoppel does not excuse an untimely appeal. Even
if it did, Mother’s explanation falls short. She does not explain how dropping
off the notice of appeal at superior court, rather than mailing it on June 3,
would have implicated COVID-19 concerns, nor does she establish was
prevented from mailing the notice of appeal sooner once the court reopened
on May 26. She also cites no evidence to support her assertions about the
estimated one-day mail delivery time. And, to the extent she is suggesting
the court received her notice prior to June 9, but delayed in processing it, she
cites no evidence for this either. (See Estate of Crabtree (1992) 4 Cal. App. 4th
1119, 1125 [Evid. Code § 664 presumption that “ ‘official duty has been
regularly performed’ . . . applies to the duties of clerks of court”; “we must
presume, in the absence of affirmative evidence to the contrary, that the clerk
performed his duty and endorsed the notice of appeal with the date it was in
fact presented to him for filing”].)
Mother relatedly notes Rowan acknowledged the “unprecedented
nature” of COVID-19 and the “possibility that [some] litigants may have been
denied the right to appeal through no fault of their own.” (See Rowan, supra,
54 Cal.App.5th at p. 297.) She contends that while the appellant in Rowan
did not contend she was prevented from timely filing, she does. But Mother,
as noted above, does not establish she was prevented from filing a timely
notice of appeal. We do not dismiss the concerns noted in Rowan, but the
8
Court of Appeal expressly stated it was “leav[ing] those concerns for another
day (ibid.), and on this record, so do we.
Finally, we address Mother’s observation that we raised timeliness
after briefing and record preparation. It is preferable to identify such issues
early and the superior court typically reviews juvenile appeals for timeliness
under Rule 8.406(c); it is unclear why that did not happen here. But
jurisdiction can be raised at any time, we became aware of the issue after
Father filed his respondent’s brief (and requested party input before Mother
filed her reply brief), and we have a duty to consider it. (See Ponce-Bran v.
Trustees of Cal. State University (1996) 48 Cal. App. 4th 1656, 1660, fn. 2
[appellate jurisdiction not subject to waiver, and “may be raised at any
time”]; cf. Jennings v. Marralle (1994) 8 Cal. 4th 121, 126–127 [court has duty
to raise appealability “on its own initiative” whenever doubt exists].) Having
concluded the appeal is untimely and we lack jurisdiction, we are compelled
to dismiss it.
9
DISPOSITION
The appeal is dismissed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
10