IN RE: D.M. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Luis R. (Luis) appeals from the order made on April 28, 2010, setting a Welfare and Institutions Code section 366.26 ¹ hearing concerning D.M.² He contends the setting order must be reversed because he was not given an opportunity to appear at the April 28, 2010 hearing, or notice and an opportunity to be heard at the October 28, 2009 jurisdictional/dispositional hearing.   He further contends we should review and reverse the October 28, 2009 judgment declaring D. a dependent of the court because he was not given notice of the proceedings, transported to the hearing from jail, or served with Judicial Council form JV-505 (Statement Regarding Paternity)

The Department of Children and Family Services (the Department) moved to dismiss the appeal ³ on the grounds the issues are not ripe for review, Luis lacks standing to assert his claims, and appellate jurisdiction does not lie to review the October 28, 2009 judgment because no timely appeal was filed.⁴  We dismiss the appeal:  Luis's challenge to the April 28, 2010 referral order is moot because the challenged order was vacated by a subsequent order;  and we have no jurisdiction to review the October 28, 2009 judgment because the judgment is final and was not appealed.

D., born in 2009 to L.M. (mother), was declared a dependent of the court on October 28, 2009, because Luis repeatedly struck mother while she was pregnant with D. and mother used illicit drugs.   Custody was taken from mother and Luis. Reunification services were offered to mother but not to Luis because he is only an alleged father.   On April 28, 2010, reunification services were terminated and the matter was set for a permanent plan hearing under section 366.26.   Luis filed a notice of intent to file a writ petition to review the April 28, 2010 setting order.

DISCUSSION

Mootness

“ ‘ “[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [respondent], an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.  [Citations.]” ’  [Citation.]”  (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)   While this appeal was pending, the dependency court vacated the setting of the permanent plan hearing.  (Minute Order of Sept. 13, 2010.)   To the extent Luis contends the setting order should be vacated, the contention is moot, because the relief has already been granted by the dependency court's subsequent order.

Appellate Jurisdiction

Luis's direct challenge to the judgment of October 28, 2009, comes too late.   We have no jurisdiction to hear it.

“A timely notice of appeal vests jurisdiction in the Court of Appeal.”   (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864.)   When a party fails to file a notice of appeal from a judgment, the Court of Appeal “never gain[s] jurisdiction to address the ․ judgment․”  (Ibid.;   accord, In re S.B. (2009) 46 Cal.4th 529, 531-532;  Adoption of Kelsey S. (1992) 1 Cal.4th 816, 852 [when “the time for an appeal [has] passed, ․ there can be no direct attack on the judgment”].)  “[A]ppellate jurisdiction is dependent upon the filing of a timely notice of appeal.  [Citations.]  ‘An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.’  [Citations.]”  (In re Megan B. (1991) 235 Cal.App.3d 942, 950;  accord, In re Sara M. (2005) 36 Cal.4th 998, 1018;  In re Janee J. (1999) 74 Cal.App.4th 198, 206-207.)  “The timely filing of the notice of appeal is jurisdictional.   Unless the notice is actually ․ filed within the relevant period, the appellate court has no jurisdiction to determine the merits of the appeal and must dismiss the appeal.  (Hollister Convalescent Hosp., Inc. v. Rico [ (1975) ] 15 Cal.3d 660, 674;  In re Benoit [ (1973) ] 10 Cal.3d 72, 79.)”  (In re Gary R. (1976) 56 Cal.App.3d 850, 853;  accord, City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 818-819;  In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219 [“If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal”].)

California Rules of Court, rule 8.406(a) provides in pertinent part:  “(1) Except as provided in (2) ․, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.  [¶] (2) In matters heard by a referee not acting as a temporary judge, a notice of appeal must be filed within 60 days after the referee's order becomes final under rule 5.540(c).”

Luis did not file a notice of appeal from the October 28, 2009 judgment.   His appeal from the subsequent setting order does not vest this court with jurisdiction to review the prior judgment, from which no appeal was taken and for which the statutory time for filing an appeal has passed.   Therefore, to the extent Luis contends the judgment should be reversed, we are without jurisdiction to address the contention.

To the extent Luis contends his failure to appeal from the judgment should be excused because he was not given notice of the proceedings, the proper vehicle for raising the contention is a petition under section 388 in the trial court.  “A section 388[ ⁵ ] motion is a proper vehicle to raise a due process challenge based on lack of notice.” ⁶  (In re Justice P. (2004) 123 Cal.App.4th 181, 189 [parent filed section 388 petition to modify prior orders on ground of lack of due process notice];  accord, Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 480-481, 484-487;  In re Arlyne A. (2000) 85 Cal.App.4th 591, 596-597 [parent filed § 388 petition to set aside dispositional judgment for lack of due diligence in notifying him of the proceedings].)   The record indicates Luis visited D. and mother in the hospital on the day of D.'s birth, spoke with the social worker three days later after D. had been detained from him, and was in touch with mother's family about mother and D. Any evidence supporting the contention he did not receive notice of the proceedings and an opportunity to be heard may be attached to the section 388 petition.

DISPOSITION

The appeal is dismissed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Luis sought review of the April 28, 2010 setting order by filing a notice of intent to file a writ petition under California Rules of Court, rule 8.450(e).   However, the matter is before us as an appeal, because the April 28th minute order mistakenly indicates the case was continued for a review hearing, rather than for a permanent plan hearing, and the superior court classified the notice of intent as a notice of appeal.  (See fn. 3, infra.)   During the pendency of the appeal, the dependency court vacated the setting order.  (See fn. 3, infra.)   The extraordinary writ review procedure (Cal. Rules of Court, rule 8.450 et seq.) was created “to achieve a substantive and meritorious review by the appellate court within the time ․ for holding a [section 366.26] hearing.” (§ 366.26, subd. (l)(4)(A).)   As the order setting the section 366.26 hearing was vacated, proceeding with this matter as an appeal will not violate the legislative policy..  FN2. Luis sought review of the April 28, 2010 setting order by filing a notice of intent to file a writ petition under California Rules of Court, rule 8.450(e).   However, the matter is before us as an appeal, because the April 28th minute order mistakenly indicates the case was continued for a review hearing, rather than for a permanent plan hearing, and the superior court classified the notice of intent as a notice of appeal.  (See fn. 3, infra.)   During the pendency of the appeal, the dependency court vacated the setting order.  (See fn. 3, infra.)   The extraordinary writ review procedure (Cal. Rules of Court, rule 8.450 et seq.) was created “to achieve a substantive and meritorious review by the appellate court within the time ․ for holding a [section 366.26] hearing.” (§ 366.26, subd. (l)(4)(A).)   As the order setting the section 366.26 hearing was vacated, proceeding with this matter as an appeal will not violate the legislative policy.

FN3. The Department also filed a motion to take additional evidence, asking us to receive various documents filed in the dependency court file after April 28, 2010, including minute orders of the hearings on August 30, 2010 and September 13, 2010.   Luis filed a motion to augment the record with a copy of his notice of intent to file a writ petition, with “NOA” handwritten on it, filed May 18, 2010, and the notice to reporter to prepare transcript on appeal, filed May 20, 2010.   We deny the motions to take additional evidence and to augment the record, but take judicial notice, pursuant to Evidence Code, sections 451 and 452, of the minute orders of August 30 and September 13, 2010, Luis's notice of intent with the handwritten “NOA” notation, and the notice to prepare transcript on appeal..  FN3. The Department also filed a motion to take additional evidence, asking us to receive various documents filed in the dependency court file after April 28, 2010, including minute orders of the hearings on August 30, 2010 and September 13, 2010.   Luis filed a motion to augment the record with a copy of his notice of intent to file a writ petition, with “NOA” handwritten on it, filed May 18, 2010, and the notice to reporter to prepare transcript on appeal, filed May 20, 2010.   We deny the motions to take additional evidence and to augment the record, but take judicial notice, pursuant to Evidence Code, sections 451 and 452, of the minute orders of August 30 and September 13, 2010, Luis's notice of intent with the handwritten “NOA” notation, and the notice to prepare transcript on appeal.

FN4. We advised the parties it appeared Luis's challenge to the referral order was made moot by the subsequent order vacating the referral order.   We invited the submission of letter briefs..  FN4. We advised the parties it appeared Luis's challenge to the referral order was made moot by the subsequent order vacating the referral order.   We invited the submission of letter briefs.

FN5. Section 388 provides in pertinent part:  “Any parent ․ may, upon grounds of change of circumstance or new evidence, petition the court ․ for a hearing to change, modify, or set aside any order of court previously made․”.  FN5. Section 388 provides in pertinent part:  “Any parent ․ may, upon grounds of change of circumstance or new evidence, petition the court ․ for a hearing to change, modify, or set aside any order of court previously made․”

FN6. A section 388 petition must be filed before, if ever, parental rights are terminated. (§ 366.26, subd. (i)(1).).  FN6. A section 388 petition must be filed before, if ever, parental rights are terminated. (§ 366.26, subd. (i)(1).)