Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. B.F. (In re J.F.)
Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. B.F. (In re J.F.)
Opinion of the Court
*73B.F. (father) purports to appeal from a juvenile court order denying his petition under Welfare and Institutions Code section 388 (all additional undesignated statutory references are to the Welfare and Institutions Code), in which he requested family reunification services and increased visitation with his twin sons, J.F. and C.F. Although the order denying father's petition is appealable, and father filed his notice of appeal within the time to appeal from that order, the notice of appeal expressly stated father was appealing only from the order terminating his parental rights to the boys that was entered 44 days after denial of his petition. Because father's notice of appeal is clear and unambiguous about what he meant to appeal, we cannot liberally construe it to embrace the omitted order denying the section 388 petition and, hence, we lack jurisdiction to review that order. And, because father presents no reasoned argument why the juvenile court erred by terminating his parental rights, father has waived his challenge to the sole order properly before us. Therefore, we must affirm.
I.
PROCEDURAL BACKGROUND
The underlying facts of this case are not germane to the dispositive question of this *605court's jurisdiction to review the January 22, 2019 order denying father's section 388 petition. In brief, the juvenile court found that J.F. and C.F. were dependent children within the meaning of section 300, bypassed reunification services for father and mother (who is not a party to this appeal), and set a hearing pursuant to section 366.26 for the selection of a permanent plan. (§ 361.5, subd. (b).) The juvenile court continued the hearing to permit the San Bernardino County Department of Children and Family Services (CFS) additional time to locate an adoptive home for the boys and ordered paternity testing for father. When the tests confirmed father's biological paternity, he petitioned the juvenile court pursuant to section 388 to be declared the boys' presumed father. The juvenile court denied the petition, but father did not appeal that order.
After conducting a permanency planning review hearing, the juvenile court again set a section 366.26 hearing. Father then filed a second section 388 petition requesting reunification services and increased visitation. On January 22, 2019, the juvenile court denied father's most recent petition after hearing an offer of proof about changed circumstances and arguments as to why the requested orders would be in the boys' best interest. The court continued the section 366.26 hearing to March 7, 2019. Father did not immediately file a notice of appeal from the order denying his second petition.
*74Finally, on March 7, 2019, the juvenile court terminated mother and father's paternal rights and freed the boys for adoption. Although he was represented by appointed counsel in the juvenile court, father personally completed and filed a notice of appeal the same day, indicating he was appealing the order terminating his parental rights.
II.
DISCUSSION
Father argues the juvenile court abused its discretion when it summarily denied his most recent section 388 petition. According to father, he was entitled to relief because he demonstrated changed circumstances and the relief he sought-reunification services and increased visitation-was in the boys' best interests. Because we conclude father did not actually appeal from the January 22, 2019 order denying his second section 388 petition, and we cannot liberally construe father's notice of appeal to embrace that order, we lack jurisdiction to address the merits of father's argument. Although father properly appealed from the March 7, 2019 order terminating his parental rights, we must affirm it because he has failed to provide any reasoned argument why that order should be reversed.
" '[A]n appealable judgment or order is a jurisdictional prerequisite to an appeal.' " ( Hedwall v. PCMV, LLC (2018)
In addition, "the timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction." ( Hollister Convalescent Hosp., Inc. v. Rico (1975)
There is no question the January 22, 2019 order denying father's second section 388 petition was an appealable postjudgment order ( In re Shirley K. (2006)
Father's notice of appeal (Judicial Council Forms, form JV-800) filed on March 7, 2019, indicates he intended to appeal only from the order entered that day terminating his parental rights.
Generally, we must liberally construe a notice of appeal in favor of its sufficiency. ( Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).) A notice of appeal shall be " 'liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' " ( In re Joshua S. (2007)
But there are limits to our ability to liberally construe a notice of appeal. "The policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all." ( Filbin v. Fitzgerald (2012)
As indicated ante , father's March 7, 2019 notice of appeal makes no mention of the January 22 order denying his section 388 petition. Instead, the notice expressly states father intended to appeal solely from the March 7 order terminating his parental rights. In his briefs, father essentially concedes *77his notice of appeal completely omits any reference to the order denying his most recent section 388 petition or the date the juvenile court issued that order, but he argues we should nonetheless liberally construe the notice to embrace the omitted order. Relying on In re Madison W. (2006)
The mother in Madison W. timely filed a notice of appeal "stating she was appealing *608from the January 13, 2006 order terminating parental rights," but "[t]he notice of appeal contained no reference to the January 10 order denying [her] section 388 petition." ( Madison W., supra , 141 Cal.App.4th at pp. 1449-1450,
The appellate court stated it was not condoning "the practice of only citing the termination order in the notice of appeal if there was also an order denying the parent's section 388 petition made at or close to the termination hearing," and it was not condoning "any omission on appellate counsel's part to carefully review the notice of appeal and promptly bring the issue to [the] court's attention." ( Madison W., supra , 141 Cal.App.4th at pp. 1450-1451,
In Madison W. , the juvenile court denied the mother's section 388 petition a mere three days before it terminated parental rights and the mother filed her notice of appeal. ( Madison W., supra , 141 Cal.App.4th at pp. 1449-1450,
*78But even if that factual distinction between this case and Madison W. is jurisdictionally meaningless because father's notice of appeal was filed within 60 days of the order denying his most recent section 388 petition ( Madison W. , at pp. 1450-1451,
As stated ante , a notice of appeal must be construed liberally to encompass an order not expressly mentioned only when it is " 'reasonably clear' " the appellant intended to appeal from the unmentioned order. ( In re Joshua S., supra , 41 Cal.4th at p. 272,
Although we too strive to be pragmatic within the settled limits of our duty to liberally construe notices of appeal, applying the rule from Madison W. in a case like this-where the order denying the section 388 petition was entered many days before the juvenile court terminated parental rights, and the notice of appeal from the termination order did not mention whatsoever the earlier order or the date it was entered-goes " 'beyond liberal construction' to view an appeal from one order as an appeal from a 'further and different order.' " ( Baker v. Castaldi, supra , 235 Cal.App.4th at p. 225,
*79Moreover, although the Madison W. court stated it was not condoning poor appellate practices ( Madison W., supra , 141 Cal.App.4th at pp. 1450-1451,
In sum, because we cannot liberally construe father's notice of appeal to embrace the January 22, 2019 order denying his most recent section 388 petition, we lack jurisdiction to review that order,
The juvenile court's orders are "presumed to be correct, and it is appellant's burden to affirmatively show error." ( In re S.C. (2006)
III.
DISPOSITION
The order terminating father's parental rights is affirmed.
We concur:
RAMIREZ, P. J.
FIELDS, J.
As noted, ante , although father was represented by appointed counsel in the juvenile court, he completed the notice of appeal himself.
We have found nothing in the record prepared by father or by his attorney that clearly indicates father intended to appeal from the January 22, 2019 order denying his most recent section 388 petition.
In his reply brief, father contends "[i]t is very much probable that trial counsel for appellant, in reliance on existing law-Madison W. -determined it would have been a waste of scarce judicial time and resources to file multiple notices of appeal when a termination hearing was coming up and a single Notice of Appeal would have been sufficient." We agree with the assertion that, because the termination order was entered less than 60 days after the order denying father's most recent section 388 petition, there was no need for him to file more than one notice of appeal. However, for the reasons stated in this opinion, we disagree with the premise that a notice of appeal from the termination order could omit any mention whatsoever of the order entered 44 days earlier. And, we decline the invitation to guess what father's appointed counsel in the juvenile court may or may not have believed with respect to the notice of appeal because it was father himself who prepared and filed it. (See, ante , fn. 1.)
Father argues it is unfair to punish him "for doing what the existing law permits and find him to have forfeited a right to appeal that existed" when he filed his notice of appeal. We disagree with father's implicit assertion that the rule in Madison W. was so settled, and that his purported reliance on it requires us to liberally construe the notice of appeal. As set forth in this opinion, the limitations on an appellate court's ability to liberally construe a notice of appeal are well settled.
In contrast, Madison W. has only once been cited in a published opinion. In In re Angelina E. (2015)
CFS also argues father is not a "party aggrieved" (Code Civ. Proc., § 902 ) and, therefore, he lacks standing to appeal, because he is merely a biological father and never obtained presumed father status. Because we conclude we lack jurisdiction to review the denial of father's most recent Welfare and Institutions Code section 388 petition, and father has not met his burden of overcoming the presumption of correctness that attached to the subsequent order terminating parental rights, we need not decide whether he lacks standing to appeal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.