In re Chelsea L. CA4/1 ( 2024 )

Filed 10/9/24 In re Chelsea L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CHELSEA L. D084526
on (San Diego County
Super. Ct. Nos. J521315A-D)
Habeas Corpus.
ORIGINAL PROCEEDINGS in habeas corpus. Marissa A. Bejarano,
Judge. Relief granted.
Appellate Defenders, Inc. and Laura L. Furness for petitioner.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel and Natasha C. Edwards, Deputy County Counsel, for
Respondent.
Petitioner Chelsea L. seeks the issuance of a writ of habeas corpus
ordering the Superior Court of San Diego County to file her notice of appeal
in the underlying juvenile dependency proceeding. We conclude counsel for
Chelsea was ineffective in failing to advise her of her right to appeal adverse
jurisdictional and dispositional orders despite her desire to do so and that
Chelsea took reasonable steps to pursue her rights promptly and diligently.
Accordingly, we grant relief and order reinstatement of the late-filed notice of
appeal.
BACKGROUND
Chelsea is the mother of four children. In October 2023, the San Diego
Health and Human Services Agency (Agency) filed a petition under Welfare
and Institutions Code1 section 300, subdivision (b), seeking to declare the
four children dependents of the juvenile court.
On November 28, 2023, the juvenile court held a jurisdiction and
disposition hearing, where the court found the allegations of the petition true,
removed the children from Chelsea’s custody and placed them with their
presumed father. The court ordered the Agency to provide presumed father
with family maintenance services and Chelsea with enhancement services.
At the time, Chelsea was represented by retained counsel, Samuel Sue.
Chelsea claims neither the juvenile court nor Sue informed her of her right to
appeal the jurisdictional and dispositional orders. And the court’s minute
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
order does not state the court advised Chelsea of her right to appeal its
findings and orders.2
Chelsea asked Sue when she could appeal the jurisdictional and
dispositional orders. Sue told her “it was not the correct time” to do so. Sue
does not “specifically remember” Chelsea “asking to file a notice of appeal”
after the hearing or while he was her attorney of record. But he does recall
that “Chelsea asked [him] what [they] could do to reverse the orders the court
put in place.” However, Sue did not understand Chelsea was asking to
appeal the court’s orders.
On January 18, 2024—less than 10 days before her right to appeal
would expire—Sue was replaced with an appointed attorney, Leah Moritz.
Soon after, Moritz told Chelsea the jurisdictional and dispositional orders
were appealable. Chelsea then “immediately asked” Moritz to file a notice of
appeal. But by that time, the 60-day deadline had passed.
Moritz prepared a notice of appeal for Chelsea to file in propria
persona, anyway. Chelsea filed the notice of appeal in the superior court on
March 11, 2024, 42 days past the deadline. The superior court clerk’s office
2 The parties have not provided this court with a copy of the reporter’s
transcript of the hearing, but the Agency does not appear to dispute Chelsea’s
claim she was not advised by the court of her right to appeal the findings and
orders.
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acknowledged receipt of the notice of appeal but declined to file it as
untimely.
The clerk forwarded the notice to Appellate Defenders, Inc. (ADI). On
March 21, 2024, an ADI staff attorney was assigned to investigate whether
any remedies existed to help Chelsea with her late-filed appeal. Chelsea
returned the additional information to ADI by April 5. Over the next four
months, while ADI investigated the matter, Chelsea continued to have
consistent communications with ADI about her claim.
Additionally, ADI communicated with Sue and Moritz and obtained
their declarations to support the filing of this petition, which was filed on
July 29, 2024. The ADI staff attorney avers that “[n]one of the delay in the
filing of this [petition] is due to [Chelsea’s] conduct” but rather due to the
time necessary to prepare, research, and file the petition.
DISCUSSION
Relying on the Supreme Court’s decision in In re A.R. (2021) 11 Cal.5th
234, Chelsea asks this court to grant relief from the late filing of her notice of
appeal under the doctrine of constructive filing. In re A.R. held that a parent
in a juvenile dependency proceeding may seek relief from an attorney’s
failure to file a timely notice of appeal when the parent seeks relief with
promptness and diligence. (In re A.R., at p. 243.)
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The Agency asserts that Chelsea is not entitled to relief for three
reasons. First, it relies on In re Jackson W. (2010) 184 Cal.App.4th 247(Jackson W.) and contends that by selecting and retaining her own counsel,
Chelsea waived any right to object to the competency of that counsel. Second,
the Agency argues In re A.R. is not applicable here because it involved an
appeal from an order terminating parental rights rather than an appeal from
jurisdictional and dispositional orders. Third, it contends that even if In re
A.R. applies, Chelsea is not entitled to relief because she did not diligently
seek relief from her attorney’s failure to file an appeal on her behalf.
We disagree with each of the Agency’s contentions and agree with
Chelsea that relief is warranted under the circumstances here.
The parties agree that the Supreme Court’s decision in In re A.R.
governs whether parents are entitled to relief when they receive ineffective
assistance of counsel in a dependency proceeding. In that decision, our high
court recognized that although there is no absolute constitutional right to
counsel in a dependency proceeding, there is a statutory right to competent
counsel. (In re A.R., supra, 11 Cal.5th at pp. 245–246.) There is also a right
to appeal certain rulings. (Id. at p. 246.) The Court concluded that when the
denial of the right to competent counsel interferes with the right to appeal, a
reviewing court may grant a petition for writ of habeas corpus to relieve the
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parent from the jurisdictional deadline to file a notice of appeal when counsel
fails to do so. (Ibid.)
We disagree with the Agency that Chelsea cannot avail herself of the
relief afforded under In re A.R. because that case involved an appeal from an
order terminating parental rights, whereas Chelsea seeks to appeal from
jurisdictional and dispositional orders. We do not perceive anything in the In
re A.R. opinion to suggest the right to competent counsel applies only at that
late stage, and not in the earlier stages of a dependency proceeding. And the
Agency offers no logical reason to support such an arbitrary cut-off.
The Agency also opposes the petition on the basis that Chelsea chose
her own counsel, who was not a certified dependency law specialist, and
thereby forfeited any right to complain about the competency of that counsel.
It relies on Jackson W., an opinion of this court which involved a case where a
parent retained private counsel who was not a specialist in juvenile
dependency law. (Jackson W., supra, 184 Cal.App.4th at p. 252.) Later, the
parent moved to modify the court’s order on the basis that she was provided
ineffective assistance of counsel. (Id. at p. 255.) On appeal, this court held
that because the parent “knowingly, intelligently and voluntarily chose to
proceed with counsel who was not a specialist in juvenile dependency law,
she cannot be heard to complain that counsel was not competently
representing her precisely because he was not ‘child dependency qualified.’ ”
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(Id. at p. 257, italics added.) The parent in Jackson W. argued there was a
distinction between “ ‘certification’ ” as a specialist and “ ‘competence,’ ” but
we did not decide the issue. (Ibid.) Instead, we concluded that even if the
parent did not waive the right to competent counsel, she should have filed a
petition for writ of habeas corpus rather than a section 388 modification
motion. (Id. at pp. 257—259.)
Jackson W. is inapposite. Chelsea does not complain that her counsel
was ineffective “precisely because he was not ‘child dependency qualified.’ ”
(Jackson. W., supra, 184 Cal.App.4th at p. 257, italics added.) She complains
that he failed to file an appeal when asked to do so.
We return to In re A.R. The Legislature created a statutory right to
court-appointed counsel in “any dependency proceeding in which out-of-home
placement is at stake.” (In re A.R., supra, 11 Cal.5th at p. 246.) This was an
expansion of the previous scheme, which “required the appointment of
counsel in connection with parental rights termination proceedings.” (Id. at
pp. 245–246.) Finally, the Legislature clarified that parties are not merely
entitled to counsel, they are “ ‘entitled to competent counsel.’ ” (Id. at p. 246.)
Our Supreme Court held that, “[w]hen an attorney fails to file a timely
appeal in accordance with a client’s instructions, the parent may seek relief
based on the attorney’s failure to provide competent representation.” (Id. at
p. 243.)
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The In re A.R. court cautioned, however, that given the critical need to
avoid unnecessary delays in dependency proceedings, the parent must act
“promptly and diligently in pursuing their rights.” (In re A.R., supra, 11
Cal.5th at p. 251.) Thus, to be entitled to relief, the parent must show
(1) counsel was directed to file an appeal on behalf of a parent but failed to do
so in a timely manner; (2) the parent would have appealed but for counsel’s
error, and (3) the parent acted promptly and diligently in pursuing an appeal.
(Id. at pp. 252–253.)
Here, Chelsea has undisputedly satisfied the first two elements.
Chelsea states in a declaration that she asked her retained counsel whether
she could appeal, but her attorney told her that she could not appeal at that
time. Her attorney admits that Chelsea asked her “what we could do to
reverse the orders the court put in place,” but counsel did not understand
that meant Chelsea wanted to file an appeal. Although this is not a clear
statement that Chelsea asked to file an appeal, it strongly indicates that she
wanted to file an appeal if possible and failed to do so only due to the advice
of counsel. When retained counsel was replaced by appointed counsel,
Chelsea again stated she wanted to appeal the jurisdictional and
dispositional orders. By then, however, it was too late. Chelsea attempted to
file an appeal, but the clerk did not file the notice because it was untimely.
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Thus, Chelsea would have filed an appeal but for the ineffectiveness of her
counsel.
The Agency, however, disputes the third element: whether Chelsea
acted promptly and diligently to file the appeal. In In re A.R., the notice of
appeal was filed four days late, but the Supreme Court cautioned that it was
not suggesting that “a four-day delay is the outer limit for promptness.” (In
re A.R., supra, 11 Cal.5th at p. 253.) Here, the juvenile court’s orders were
filed on November 28, 2023, and the time to appeal expired on January 29,
2024. Chelsea did not learn of her right to appeal until some time after that
date and attempted to file her notice of appeal on March 11, 2024, 42 days
past the 60-day deadline.
We observe that the juvenile court appointed new counsel to represent
Chelsea approximately 10 days before the time to appeal lapsed. And
Chelsea was advised of her right to appeal only after the 60-day filing period
had elapsed. Upon learning that she had a right to appeal, Chelsea promptly
sought assistance in preparing and filed a notice of appeal. She also
maintains her parental rights at this time, and the juvenile court has not set
a section 366.26 hearing. For these reasons, allowing Chelsea to proceed
with her appeal does not interfere with or delay the children’s long-term
placement. (See In re A.R., supra, 11 Cal.5th at p. 256.) To bar Chelsea from
“any possibility of appeal . . . would not serve any meaningful interest in
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avoiding unnecessary delay. It would instead serve only to penalize [her] for
relying on the putatively ‘competent counsel’ to which she is statutorily
entitled. (§ 317.5, subd. (a).)” (In re A.R., at p. 251.)
Chelsea frames her petition as a request for constructive filing of the
notice of appeal. However, the Supreme Court in In re A.R. declined “to
extend the constructive filing doctrine to this context.” (In re A.R., supra, 11
Cal.5th at p. 253.) Instead, it found that “[p]arents in [Chelsea’s] position are
entitled to seek relief on a different and independently sufficient basis: Like
other parents whose lawyers have made serious mistakes in the
representation, they are entitled to seek a remedy for the violation of their
statutory right to competent representation. [Citations.] Where, as here, a
parent’s failure to file a timely notice of appeal is the result of counsel’s error,
reinstating an otherwise-defaulted appeal is generally the only meaningfully
way to safeguard the statutory right to competent representation.” (Id. at
p. 254.) We will therefore grant the same relief here.
DISPOSITION
The petition for habeas corpus is granted. The clerk of the San Diego
County Superior Court is directed to reinstate the notice of appeal received
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on March 11, 2023 in case Nos. J521315A-D, and to process the appeal in the
ordinary course.
DO, Acting P. J.
WE CONCUR:
BUCHANAN, J.
KELETY, J.
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