In re C.T. CA4/2 ( 2024 )

Filed 1/2/24 In re C.T. CA4/2
See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.T., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN & FAMILY SERVICES, E081536
Plaintiff and Respondent, (Super.Ct.Nos. J290011)
v. OPINION
C.A.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Dismissed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, Tiffany Lok and Landon Villavaso, Deputy County
Counsel, for Plaintiff and Respondent.
1
I. INTRODUCTION
C.T. is the daughter of defendant and appellant C.A. (Mother). On June 14, 2023,
the juvenile court entered an order terminating Mother’s parental rights following a
hearing pursuant to Welfare and Institutions Code1 section 366.26. Mother filed a notice
of appeal from this order. However, the only claim of error asserted in the opening brief
is that the juvenile court erred by summarily denying a petition brought pursuant to
section 388 without an evidentiary hearing.2 The petition sought to reinstate
reunification services for Mother, and the order denying this petition was entered more
than a month prior to the contested permanency planning hearing pursuant to section
366.26.
We agree with plaintiff and respondent San Bernardino County Children and
Family Services (CFS) that the order denying Mother’s section 388 petition is beyond the
scope of our appellate jurisdiction in this appeal. In the absence of any assertion of
reversible error with respect to the order terminating parental rights identified in the
notice of appeal, we conclude that dismissal of the appeal is the appropriate disposition.
II. FACTS AND PROCEDURAL HISTORY
Mother and C.T. first came to the attention of CFS shortly after C.T.’s birth. C.T.
was born prematurely and required significant medical attention. Mother reported being
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 “Section 388 accords a parent the right to petition the juvenile court for
modification of any of its orders based upon changed circumstances or new evidence.
[Citation.] To obtain the requested modification, the parent must demonstrate both a
[footnote continued on next page]
2
homeless, appeared to lack provisions for C.T., and left the hospital on her own without a
discharge summary or medication.
After C.T. spent several months in medical facilities, C.T.’s medical providers
believed that her condition had improved to the point where C.T. would soon be ready for
discharge. However, they reported concerns that C.T. could not be safely discharged to
either of her parents. Mother had not visited C.T. in weeks and had not participated in
training to learn how to manage C.T.’s medical needs upon discharge. As a result, CFS
filed a petition on behalf of C.T. pursuant to section 300, alleging Mother’s inability to
supervise or protect, inability to provide, and inability to regularly care for C.T.
The juvenile court sustained the allegations of the petition and ordered C.T.
removed from Mother’s custody. In a 12-month review hearing, the juvenile court
concluded that Mother had made minimal progress towards alleviating or mitigating the
causes necessitating placement; found there was no substantial probability that C.T. could
be returned to Mother within the statutory time frames; ordered Mother’s reunification
services terminated; and set the matter for a hearing pursuant to section 366.26 for the
selection and implementation of a permanent plan.
On December 7, 2022, one day before the scheduled section 366.26 hearing,
Mother filed a petition pursuant to section 388 seeking to modify the juvenile court’s
change of circumstance or new evidence, and that the proposed change is in the best
interests of the child.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) To obtain an
evidentiary hearing on a section 388 petition, a parent must make a prima facie showing
of entitlement to relief. “ ‘We review the juvenile court’s summary denial of a section
388 petition for abuse of discretion.’ ” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079;
In re Alayah J., at p. 478.)
3
prior orders. The juvenile court summarily denied the request. On December 8, 2022,
the juvenile court held a hearing pursuant to section 366.26, but it continued the hearing
in order to permit CFS to supplement various items in its reports.
On April 27, 2023, Mother filed a second petition pursuant to section 388. Mother
requested that C.T. be returned to her custody or, alternatively, that Mother’s
reunification services be reinstated. The juvenile court summarily denied the petition
without setting the matter for an evidentiary hearing.
On June 14, 2023, the juvenile court held a contested hearing pursuant to section
366.26. Ultimately, the juvenile court ordered Mother’s parental rights terminated.
Mother filed a notice of appeal from the order terminating her parental rights.
III. DISCUSSION
A. Our Appellate Jurisdiction Is Limited by the Notice of Appeal
“ ‘[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an
absolute prerequisite to the exercise of appellate jurisdiction.’ ” (In re J.F. (2019)
39 Cal.App.5th 70, 74; In re Isaiah W. (2016) 1 Cal.5th 1, 7 [“ ‘ “Appellate jurisdiction
to review an appealable order is dependent upon a timely notice of appeal.” ’ ”].)
Additionally, “ ‘ “[o]ur 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.’ ” (In re J.F., at p. 75.) Thus, it has long
been the rule that “ ‘ “ ‘[w]here several judgments and/or orders occurring close in time
are separately appealable . . . , each appealable judgment and order must be expressly
specified—in either a single notice of appeal or multiple notices of appeal—in order to be
4
reviewable on appeal.’ ” ’ ” (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4
Cal.App.5th 982, 1007-1008; Sole Energy Co. v. Petrominerals Corp. (2005) 128
Cal.App.4th 212, 239.)
In this case, the notice of appeal identifies only the order entered on June 14, 2023,
terminating parental rights pursuant to section 366.26. However, Mother’s opening brief
seeks review of an order entered on May 2, 2023, denying her request to modify prior
orders pursuant to section 388. The order denying Mother’s section 388 petition was not
identified in her notice of appeal and, as a result, we are without appellate jurisdiction to
review Mother’s challenge to this order.
It is true that “[g]enerally, we must liberally construe a notice of appeal in favor of
its sufficiency.” (In re J.F., supra, 39 Cal.App.5th at p. 75; Cal. Rules of Court, rules
8.100(a)(2), 8.405(a)(3).) However, as numerous courts, including this court, have
recognized: “[I]t is well ‘beyond liberal construction’ to view an appeal from one order
as an appeal from a ‘further and different order.’ [Citation.] ‘Despite the rule favoring
liberal interpretation of notices of appeal, a notice of appeal will not be considered
adequate if it completely omits any reference to the judgment being appealed.’ ” (Baker
v. Castaldi (2015) 235 Cal.App.4th 218, 225; Russell v. Foglio (2008) 160 Cal.App.4th
653, 661 [same]; In re J.F., at p. 76.)
Further, the policy of liberal construction 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; Ellis v. Ellis (2015) 235 Cal.App.4th 837,
846 [Liberal construction of a notice of appeal is not appropriate where “every indication
5
in the record” is that appellant intended to appeal only from the identified judgment.];
Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92 [It goes beyond the rule
of liberal construction where the notice “does not present ‘a mere misdescription’ of the
judgment,” and “the description of that portion of the judgment appealed from is so clear
and unmistakable as to preclude a description of [other portions of the judgment].”].)
Here, Mother’s notice of appeal is clear and unambiguous. The notice states that
Mother intended to appeal from the “termination of parental rights on 6/14/23.” The
notice was filed on Judicial Council Form JV-800, which permitted Mother to check
various boxes to further identify the order subject of her appeal. Mother checked the
boxes for “Section 366.26” and “Termination of parental rights,” again identifying the
date of the order as “6/14/23.” Notably, the form also gave Mother the option of
checking a box for “Section 388 (request to change court order),” but Mother did not
check this box. Thus, Mother’s notice of appeal evidences the intent to appeal from a
specific order, as well as the intent to omit prior orders issued pursuant to section 388.3
3 For this reason, we are unpersuaded by mother’s reliance on cases that liberally
construe a notice of appeal based upon actual language set forth in the notice. In re Baby
Boy V. (2006) 140 Cal.App.4th 1108 involved a notice of appeal that failed to correctly
identify an order but expressly referenced the specific argument and finding made at the
time of hearing on the order the appellant sought to appeal (id. at pp. 1113-1115). In re
Joshua S. (2007) 41 Cal.4th 261 involved a notice of appeal that correctly identified the
date and name of the order the appellant sought to appeal, but included superfluous
language that suggested the appellant originally intended to limit the claim of error
related to that order (id. at pp. 271-272). Unlike these cases, the notice of appeal in this
case does not include any language that could be liberally construed to suggest Mother
intended to appeal from the order denying her section 388 petition.
6
We also observe that Mother’s section 388 petition was not considered at the time
of the section 366.26 hearing in this case but instead was resolved by a separate written
order entered more than a month prior to the section 366.26 hearing. Nor did the
substantive issues presented in the section 388 petition overlap with those considered by
the juvenile court at the section 366.26 hearing. A section 388 petition can serve as an “
‘escape mechanism’ ” to obtain the reinstatement of reunification services “when parents
complete a reformation in the short, final period after the termination of reunification
services but before the actual termination of parental rights.” (In re Kimberly F. (1997)
56 Cal.App.4th 519, 528; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, at the
time of a section 366.26 hearing, “the decisions made at the review hearing regarding
reunification are not subject to relitigation at the termination hearing.” (Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 250; In re Marilyn H., at p. 309 [“Once
reunification services are ordered terminated,” the court “need not continue to consider
the issue of reunification at the section 366.26 hearing.”].) Thus, the context and
procedural history do not suggest that the omission of the order denying Mother’s section
388 petition from her notice of appeal was merely a misdescription.
In urging us to liberally construe her notice of appeal to encompass the order
denying her section 388 petition, Mother relies on In re Madison W. (2006)
141 Cal.App.4th 1447, which concluded that the rule of liberal construction should be
extended to permit an appellant to challenge any order that could have been timely
appealed at the time the notice of appeal was filed, absent prejudice to the opposing party
(id. at pp. 1450-1451.) However, in In re J.F., this court concluded that we lacked
7
jurisdiction to review the denial of a section 388 petition where the appellant’s notice of
appeal specified only the date and description of an order terminating parental rights
entered forty-four days after the order denying the section 388 petition. (In re J.F.,
supra, 39 Cal.App.5th at p. 73.) In doing so, we expressly disagreed with the rule
formulated in In re Madison W. (In re J.F., at pp. 76-79), and the California Supreme
Court subsequently denied a petition for review of our opinion in that case. Thus, we
decline to follow In re Madison W. and instead choose to follow our own precedent on
this point.
In our view, where the notice of appeal contains no language to suggest an intent
to appeal from a separate order and the procedural history does not suggest that the
appellant may have been confused that separate appealable orders were involved, it goes
well beyond the rule of liberal construction for this court to construe Mother’s notice of
appeal to encompass a separately appealable order involving distinct requests for relief
under a separate statutory procedure entered more than a month prior to the order actually
identified in the notice of appeal. Because the notice of appeal in this case entirely omits
any mention of the juvenile court’s order denying Mother’s section 388 petition, we
conclude that we are without appellate jurisdiction to review that order.
B. Dismissal Is Appropriate
Having clarified that our appellate jurisdiction in this appeal is limited to
consideration of the order terminating Mother’s parental rights, we conclude that
Mother’s appeal must be dismissed as abandoned.
8
“A ‘reviewing court has inherent power, on motion or its own motion, to dismiss
an appeal which it cannot or should not hear and determine.’ [Citation.] An appealed-
from judgment or order is presumed correct. [Citation.] Hence, the appellant must make
a challenge. In so doing, he must raise claims of reversible error or other defect
[citation], and ‘present argument and authority on each point made’ [citations]. If he
does not, he may, in the court’s discretion, be deemed to have abandoned his appeal”;
and, “[i]n that event, it may order dismissal.” (In re Sade C. (1996) 13 Cal.4th 952, 994;
In re J.F., supra, 39 Cal.App.5th at p. 79 [same]; In re Mary C. (2020) 48 Cal.App.5th
793, 809 [“When an appellant’s briefs fail ‘to make any arguments to support any theory
of error,’ but there is no basis to conclude the appeal is frivolous, the appeal is deemed
abandoned.”].)
In this case, the only claim of error asserted in Mother’s opening brief is that the
juvenile court should have granted Mother an evidentiary hearing on her section 388
petition. Mother has presented no claim of error with respect to the order terminating her
parental rights. Nor has Mother presented any argument that an evidentiary hearing on
her section 388 petition would likely have resulted in the reinstatement of reunification
services, let alone that such a hearing would have prevented the subsequent order
terminating her parental rights.4 In the absence of any argument regarding reversible
4 Indeed, Mother does not claim that it was reasonably probable she would have
prevailed on the merits had she been given an evidentiary hearing on her section 388
petition, arguing instead that she “was not required to establish a probability of prevailing
. . . to be entitled to a full hearing,” and further arguing only that termination of parental
rights was “premature” absent such a hearing.
9
error with respect to the order actually subject of this appeal, it is appropriate for us to
deem the appeal abandoned and dismiss the appeal.
We further observe that, even if we had appellate jurisdiction to consider the
merits of the juvenile court’s order denying Mother’s section 388 petition, dismissal of
the appeal would still be appropriate. The order terminating Mother’s parental rights is
presumed correct, and it is Mother’s burden to affirmatively demonstrate error on appeal.
(In re A.L. (2022) 73 Cal.App.5th 1131, 1161; In re Sade C., supra, 13 Cal.4th at p. 994;
In re J.F., supra, 39 Cal.App.5th at p. 79.) Thus, in the absence of any argument
regarding reversible error related to the order terminating Mother’s parental rights, we
must presume the order is correct and affirm the order. (In re Meranda P. (1997)
56 Cal.App.4th 1143, 1160 [“Because the mother’s appeal from the termination order
does not present any issue concerning the validity of the juvenile court’s findings of
adoptability and lack of detriment made at the .26 hearing, we will affirm the order
terminating the mother’s parental rights.”].) And, absent a viable challenge to the order
terminating parental rights, Mother’s challenge to the denial of her section 388 petition
becomes moot because “[n]o effective relief may be afforded mother even were we to
find her appeal of the denial of the section 388 petition meritorious.” (In re Jessica K.
(2000) 79 Cal.App.4th 1313, 1317.)
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IV. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
I concur:
McKINSTER
Acting P. J.
11
[In re C.T., E081536]
RAPHAEL, J., Dissenting.
Our division took a wrong turn in In re J.F. (2019) 39 Cal.App.5th 70. That
opinion split from three decades of precedent and bars a parent’s appellate challenge in a
dependency case like this one. The mother here, like many parents before her, made a
familiar mistake in her notice of appeal. She timely appealed from the termination of her
parental rights but did not list in the notice of appeal the then-recent, intertwined order
denying her petition to change custody and visitation orders, which contained the ruling
she wishes to challenge.
Before In re J.F., an unbroken line of cases would permit this appeal. (See In re
Jeremy W. (1992) 3 Cal.App.4th 1407, 1413, fn.9 (Jeremy W.); In re Madison W. (2006)
141 Cal.App.4th 1447, 1450 (Madison W.)) Our division followed Jeremy W. and
Madison W. for many years. I would follow those cases, which construe the notice of
appeal to cover the related, but unlisted, appealable order. I therefore dissent from the
dismissal and would hear this appeal on the merits.
I
A “notice of appeal must be liberally construed.” (Cal. Rules of Court, rule
8.100(a)(2).) That is, the appeal must be “‘liberally construed . . . 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.) The liberal construction rule exists to “‘implement the
1
strong public policy favoring the hearing of appeals on the merits.’” (K.J. v. Los Angeles
Unified Sch. Dist. (2020) 8 Cal.5th 875, 882 (K.J.).)
While the “timely filing of a notice of appeal is an absolute jurisdictional
prerequisite. . .technical accuracy in the contents of the notice is not.” (K.J., supra, 8
Cal.5th at pp. 882-883). “Once a notice of appeal is timely filed, the liberal construction
requirement compels a reviewing court to evaluate whether the notice, despite any
technical defect, nonetheless served its basic function—to provide notice of who is
seeking review of what order or judgment—so as to properly invoke appellate
jurisdiction.” (Id. at p. 883.)
To be sure, a notice of appeal must “identif[y] the particular judgment or order
being appealed.” (Cal. Rules of Court, rule 8.405 (a)(3).) Under the liberal construction
rule, though, once a notice of appeal is timely filed from one appealable order, a court
can construe it as encompassing a separate, related appealable order as to which it is
timely filed, if doing so aligns with the filer’s intent and there is no unfair prejudice to the
respondent. (See In re Cole L. (2021) 70 Cal.App.5th 591, 600-601 [construing notice of
appeal from January 22 appealable orders to also include challenges to January 6
appealable orders]; Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 [notice of
appeal from costs and fees award subsumes later appealable order setting the amounts];
In re Jordan (1992) 4 Cal.4th 116, 131, fn.9 [notice of appeal listing only one of
petitioner’s two convictions construed to appeal from both]; Aweeka v. Bonds (1971) 20
2
Cal.App.3d 278, 282, fn.1 [notice of appeal specifying judgment of dismissal construed
to include appealable request for a preliminary injunction].)
In a recent opinion, our Supreme Court construed a notice of appeal filed by an
appellant to include a sanctioned attorney who was not listed as an appellant in the notice.
(K.J., supra, 8 Cal.5th 875.) In doing so, the court stated that this was a less common
type of liberal construction and stated that “the rule of liberal construction is most
commonly employed to remedy defects in a notice’s designation of the order or judgment
that is being appealed from.” (K.J., supra, at p. 885.)
II
The problem here recurs in dependency cases due to the structure of the appellate
scheme in that area of law. In other civil and criminal cases, the final judgment rule
typically means that a single appeal from the judgment permits challenges to rulings
made along the way to it. In a dependency proceeding, however, the dispositional ruling
is the judgment, yet a case that results in the termination of parental rights proceeds for
many months after that judgment. Each order following the dispositional ruling generally
is appealable. (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 512; Welf. & Inst.
Code § 395, subd. (a).) An appeal from an order terminating parental rights seems much
like an appeal from a final judgment. Yet it does not permit us to consider earlier
appealable rulings, where the appeal from those rulings would be untimely. But what
about the situation here: there is an earlier appealable ruling, related to the termination of
parental rights, that was so recent that the notice of appeal was timely as to it?
3
Here, the trial court denied mother’s Welfare & Institutions Code section 388
petition seeking to reinstate her reunification services due to changes she had made in her
life. Granting that petition would have forestalled termination of her parental rights, her
obvious goal. A few weeks later, the trial court terminated her parental rights.
Mother filed a notice of appeal that was timely as to both orders, both of which are
independently appealable. But, on her notice of appeal, filed without a lawyer, she
identified only the order terminating her parental rights and did not identify the earlier
order denying her section 388 petition. In her appellate briefing, she challenges the
section 388 denial. Do we have appellate jurisdiction?
Over thirty years ago, in the 1992 Jeremy W. opinion, the Court of Appeal held
that we do have jurisdiction in just this circumstance. (In re Jeremy W., supra, 3
Cal.App.4th at p. 1413, fn.9; see also In re Josiah S. (2002) 102 Cal.App.4th 403, 418.)
About fourteen years later in 2006, In re Madison W. observed that the issue kept
arising “frequently.” (In re Madison W., supra, 141 Cal.App.4th at p. 1450.) So the
court attempted to “resolve it once and for all, at least as to this court.” (Ibid.) It once
again dealt with the precise situation we have here: the notice of appeal from an order
terminating parental rights “contained no reference” to the earlier denial of a petition
filed under Welfare & Institutions Code section 388. (In re Madison W., at p. 1450.) Yet
again, the court held that we do have jurisdiction to hear such a challenge: “we will
henceforth liberally construe a parent’s notice of appeal from an order terminating
parental rights to encompass the denial of the parent’s section 388 petition, provided the
4
trial court issued its denial during the 60–day period prior to filing the parent's notice of
appeal.” (Id. at p. 1451; accord In re Angelina E. (2015) 233 Cal.App.4th 583, 585, fn.2.)
For twenty-seven years following Jeremy W., and for thirteen years following
Madison W., the court of appeal treated this matter as settled. No published opinion
contradicted those holdings. Madison W. has been cited in over 100 nonpublished
opinions, including many that applied its holding to review a challenge to an order not
mentioned in the notice of appeal. I have located seventeen nonpublished opinions from
our division that followed Jeremy W. or Madison W. in construing a notice of appeal
from the termination of parental rights to allow an appeal from a denial of a section 388
petition, even though that denial was not listed in the notice. I have listed these cases in
an Appendix.1
The recurrence of this mistake is important. It helps show that a reasonable person
in the parent’s position may intend to appeal from the earlier order, intertwined as it is
with the order terminating parental rights, even though the parent lists only the latter.
This understanding can inform why it can be “reasonably clear” (K.J., supra, 8 Cal.5th at
1 Our rule of court (Cal. Rules of Court, rule 8.1115) permits citation of
nonpublished opinions only in a couple of circumstances. Outside the terms of the rule,
however, our Supreme Court cites nonpublished opinions to show the extent to which a
rule of law is applied. (See Camacho v. Superior Court (2023) 15 Cal.5th 354, 376, fn.2
[citing 13 nonpublished opinions to show the existence of an issue]; People v. Mumin
(2023) 15 Cal.5th 176, 230 [listing dozens of nonpublished opinions that involved a
particular jury instruction]; People v. Henson (2022) 13 Cal.5th 574, 595, fn.15 [citing
nonpublished opinions to show issue was recurring and stating “without treating them as
legal precedent, we may take judicial notice of their statements of fact”].) Because that
sensible use—at least in an opinion—has been sanctioned by our highest court, I am
citing the nonpublished opinions in the Appendix, though they have no binding force.
5
p. 885) that a parent wished to appeal from the earlier, unlisted order that would have
halted the termination of parental rights. Understanding how readily this mistake can be
made illuminates why Madison W.’s rule reasonably construes the intent of appealing
parents.
III
Madison W.’s approach makes sense as a construction of mother’s intent. A
section 388 petition filed shortly before the trial court is to consider terminating parental
rights is geared toward heading off that termination by showing circumstances have
changed. Here, with her section 388 petition, mother asserted that she had “maintained
her sobriety” and she provided records of negative drug tests; she asserted that she had
“consistently attended” Narcotics Anonymous meetings and provided records of that
attendance; and she provided evidence of consistent attendance at a counseling program.
She provided four reference letters from a counselor and friends. She asserted that she
had “housing and a job and can provide for” her daughter.
It should be clear that a central purpose of mother’s section 388 petition was to
stave off the termination of parental rights. Yet mother made that explicit in her petition:
she asked for the reinstatement of reunification services and “for the court not to follow
the recommendation for the upcoming” hearing to terminate her parental rights. Had her
request been granted, the termination hearing presumably would be taken off the court’s
calendar. Instead, the trial court denied her request without a hearing. Now mother
brings to us a single claim: that she merited a hearing on her petition. (See In re J.P.
6
(2014) 229 Cal.App.4th 108, 127 [under section 388, a party need only make a prima
facie showing to trigger the right to a hearing]; In re Jeremy W., supra, 3 Cal.App.4th at
pp. 1416-1417 & fn.14 [reversing order terminating parental rights because “a fair
hearing on the section 388 petition was a procedural predicate to proceeding” to that
order; also observing the two hearings could be consolidated].)
Whatever the merits of mother’s section 388 petition, it was directed at staving off
the termination of her parental rights. It was perhaps her best vehicle for doing so. At
the later hearing to terminate mother’s rights, her counsel “place[d] an objection” to the
recommendation to terminate mother’s rights, recognized that the request for services in
her denied section 388 petition was no longer “at issue,” but noted that the court knew
about what she had done to improve herself and change her circumstances.
Today the majority follows In re J.F., supra, 39 Cal.App.5th 70, which arose in a
similar situation to this case. There, we held that a father’s notice of appeal from the
order terminating parental rights “indicates he intended to appeal only” from that order
and not the earlier order terminating his section 388 petition. (In re J.F. at p. 75.) The
court pointed out that he did not check any box showing his intent to appeal from any
other order. (Ibid.) The notice of appeal thus “expressly states” what order he is
appealing from and “completely omits” any other order. (Id. at pp. 76-77.) Where the
notice is “unambiguous” as to what the parent purported to appeal from, In re J.F.
believed the court had no jurisdictional basis for liberal construction of the notice of
appeal. (Id. at pp. 78-79.)
7
In re J.F. is correct as a strict construction of the language of the notice of appeal.
Viewed strictly, the notice of appeal shows an intent to appeal from only the termination
order. But our duty to liberally construe a notice of appeal is not limited to such a
construction. Rather, we are to construe the notice reasonably, in its context. For
comparison, the notice of appeal in K.J., supra, 8 Cal.5th 875, showed a single party
appealing. Yet our Supreme Court construed the notice to include the party’s attorney,
appealing a sanctions order. There, the context made clear enough that the appeal was
intended to encompass the attorney. Once there is a timely notice of appeal, the test is
whether it is “reasonably clear” that the attorney, as well as the party, wished to appeal.
(Id. at p. 885.)
Here, once mother filed an appeal from the termination of her parental rights, it
was reasonably clear that she intended to appeal from the order denying her section 388
petition, directed at stopping the termination. Indeed, there may be no rational reason for
mother to have excluded her section 388 petition denial from the notice of appeal. It does
not make sense to construe the omission of that denial from the notice as a choice not to
appeal from it. In re J.F. is wrong to conclude that the omission “manifests a ‘“clear and
unmistakable”’ intent” to appeal from only the termination order. (In re J.F., supra, 39
Cal.App.5th at p. 78.) Instead, it manifests a mistake in believing that the matters would
be subsumed in the appeal from the final order in the case.
In re J.F. acknowledges that we can construe an appeal as taken from an unlisted
intended order when the appellant makes a mistake. It cites a mistake that predominates
8
in civil cases where there is a single appealable judgment and other unappealable orders.
When a party takes an appeal from a non-appealable order, we often can construe the
appeal as properly taken from an appealable one. (In re J.F., supra, 39 Cal.App.5th at p.
76 [discussing In re Daniel Z. (1992) 10 Cal. App.4th 1009].) For instance, our Supreme
Court has held that a notice of appeal identifying an unappealable order denying a new
trial should be construed as if it had listed the judgment itself. (Walker v. Los Angeles
County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22.)
In this situation, our Supreme Court has even suggested that “when filed” in such
a case, the notice subjectively “was intended to announce an appeal” from the non-
appealable order. (Vibert v. Berger (1966) 64 Cal.2d 65, 68.) Despite that mistake, the
notice will “‘be treated’” as a notice of appeal from the appealable judgment, when it is
clear what the appeal was intended to cover and there is no prejudice to the respondent.
(Ibid.) The court stated that it did not matter whether the notice of appeal’s error was a
mistake in the description of the appealable order, or made out of ignorance as to the
proper order, the notice of appeal would be interpreted to apply to the appealable order.
(Id. at p. 70.)
As in those cases, mother’s mistake here is that she mistakenly failed to list the
correct order on her notice of appeal. The difference is that mother’s notice of appeal
identified an order that also is appealable, rather than non-appealable. Dependency
cases, where virtually all orders leading up to termination of parental rights are
appealable, present a situation that has no common analogue in other civil cases. The
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same liberal construction principle that applies to listing the wrong order in ordinary civil
cases should apply here. What that means is that we should construe a notice of appeal as
including a timely appeal from an unlisted order when its substance relates to the order
listed on the notice of appeal, and there is no prejudice to the respondent.
Finally, In re J.F. suggests that the court could be swayed to liberally construe the
notice of appeal if only a few days passed between the denial of the section 388 petition
and the termination of parental rights. (In re J.F., supra, 39 Cal.App.5th at p. 77.) If
there had been a “mere three days” between the two orders, rather than 44 days, In re J.F.
might have entertained the appeal. (Ibid.) On this score, In re J.F. is correct that the
number of days is “jurisdictionally meaningless.” (Id. at p. 78). As a matter of our
jurisdiction, the notice of appeal is timely so long as it was filed within 60 days of the
denial of the section 388 petition, which it was. But not only is the number of days
jurisdictionally meaningless, it has little connection to the reason for liberal construction
of the notice of appeal. A parent makes a mistake in failing to separately list the denial of
the section 388 petition even if that denial occurs the same day as the termination of
rights. The mistake is in believing that the section 388 issues raised are included in the
appeal, despite the failure to list the section 388 denial. Absent the failure to appeal
immediately causing prejudice, I see no reason why the number of days between the
orders matters to correcting that mistake by liberally construing the appeal.2
2 The majority is wrong to ascribe any importance to the fact that “the California
Supreme Court . . . denied a petition for review of [the In re J.F.] opinion.” (Maj. opn,
ante, at p. 8.) Our Supreme Court has repeatedly told us not to view a review denial that
[footnote continued on next page]
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V
Parents in dependency cases will continue to make the mistake that mother made
here, as they have over the decades. Court of Appeal panels that follow In re J.F. will
penalize that mistake by dismissing their appeals, as the majority does here. Applying In
re J.F.’s unkind rule is the wrong choice. It allows a hollow appeal from the order
terminating parental rights, but it bars an argument based on the motion in which the
parent attempted to show a change in their circumstances to stave off the final loss of
their child.
We entertained these appeals for many years. Panels that follow Jeremy W. and
Madison W. are acting more consistently with the California policy of hearing appeals on
their merits. I would follow those cases and hear this appeal.
RAPHAEL
J.
way. Where a court of appeal panel recently stated that denial of review provided a clue
as to the law, the Supreme Court responded: “as we have reiterated, an order granting or
denying a petition for review . . . is not an expression of opinion on the merits of the
case.” (People v. Salazar (2023) 15 Cal.5th 416, 426, fn. 4.)
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APPENDIX
Following are nonpublished dependency cases where the Fourth District, Division
Two took jurisdiction over an appealable order not mentioned in the notice of appeal
from the termination of parental rights, relying on In re Jeremy W. (1992), 3 Cal.App.4th
1407, 1413, fn.9, or In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.
In re Nadilie K. (Oct. 15, 2001, E028830) 2001 Cal.App.Unpub. Lexis 2676
In re Owen B. (Aug. 9, 2002, E031412) 2002 Cal.App.Unpub. Lexis 7569
In re Jeanna V. (Mar. 15, 2007, E041137) 2007 Cal.App.Unpub. Lexis 2122
In re I.K. (Oct. 20, 2008, E045065) 2008 Cal.App.Unpub. Lexis 8669
In re M.M. (Nov. 17, 2008, E045360) 2008 Cal.App.Unpub. Lexis 9345
In re A.M. (Feb. 10, 2011, E051676) 2011 Cal.App.Unpub. Lexis 1067
In re B.B. (Feb. 28, 2013, E056793) 2013 Cal.App.Unpub. Lexis 1516
In re E.C. (Aug. 19, 2014, E060614) 2014 Cal.App.Unpub. Lexis 5810
In re M.A. (Jan. 6, 2016, E063878) 2016 Cal.App.Unpub. Lexis 123
In re D.Q. (Aug. 17, 2016, E065396) 2016 Cal.App.Unpub. Lexis 6003
In re S.P. (January 25, 2017, E066449) 2017 Cal.App.Unpub. Lexis 523
In re A.T. (Sept. 27, 2017, E067574) 2017 Cal.App.Unpub. Lexis 6623
In re W.M. (June 10, 2019, E071872) 2019 Cal.App.Unpub. Lexis 3925
K.K. v. Superior Court (Oct. 3, 2019, E073008) 2019 Cal.App.Unpub. Lexis 6713
In re A.V. (June 25, 2020, E074817) 2020 Cal.App.Unpub. Lexis 3978
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In re E.L. (Feb. 10, 2021, E075816) 2021 Cal.App.Unpub. Lexis 822
In re M.M. (May 24, 2023, E080117) 2023 Cal.App.Unpub. Lexis 3043
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