In re Michael S.

Filed 9/8/06 In re Michael S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed; motion to dismiss denied.

Donna Q. appeals an order terminating her legal guardianship to her minor grandsons, Michael S. and Zachary F. (together minors). Donna contends the court erred by granting the San Diego County Health and Human Services Agency's (the Agency) petition for modification seeking to terminate legal guardianship under Welfare and Institutions Code section 388.^[1] Angel Q. the minor's mother, also appeals and joins in Donna's arguments.

In addition, the Agency filed a motion to dismiss the appeal asserting Donna and her attorney did not sign the notice of appeal and that there is no evidence showing Donna authorized her attorney to proceed with the appeal.^[2] We affirm the order and deny the motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, then six-year-old Michael and three-year-old Zachary were placed in a legal guardianship with Donna, their maternal grandmother, after Angel was unable to reunify with them. In July 2005, the Agency received a referral alleging Angel and Jason B., Angel's husband, appeared to be under the influence of an illegal substance and had been neglecting Michael, Zachary and their four other minor children.^[3] Angel and Jason had moved into Donna's home after Donna suffered a stroke. An investigation of the home revealed it to be filthy and cluttered with various items, including trash, clothes and dirty dishes. The children appeared dirty and had not been fed.

Approximately one week later, Jason attempted suicide by drug overdose and was admitted to the hospital. Shortly thereafter, police officers and social workers conducted a search of Donna's home. The police found methamphetamine pipes and drug residue in the master bedroom where Angel, Jason and their four minor children slept. The home remained dirty and hundreds of cockroaches were observed crawling on the walls and in the master bathroom.

Angel informed the social worker that as of October 2004, she and Jason helped care for Donna after Donna suffered a stroke. The stroke rendered Donna paralyzed, unable to speak more than 20 to 30 words, and she had to be diapered. Angel noted Donna could feed herself but she was unable to write and it was unclear how much information she was able to comprehend.

In August 2005, the Agency filed petitions in the juvenile court on behalf of the minors under section 300, subdivision (b). The petitions alleged Donna was unable to adequately attend or supervise the minors because of her current medical condition. After the stroke, Angel and Jason moved into Donna's house to care for her. However, the house was now filthy, infested with insects, and ridden with drug paraphernalia. At a detention hearing, the court made a prima facie finding on the petition and detained the minors. Donna was not present at the hearing.

In an addendum report, the social worker reported the Agency intended to file a petition under section 388 to terminate Donna's status as legal guardian to Michael and Zachary because the severity of the stroke prevented her from being able to care for the minors. The report further noted the whereabouts of the minors were unknown.

In October 2005, the Agency filed a section 388 modification petition on behalf of the minors. The petition alleged Donna had suffered from a stroke and was no longer able to care for the minors. At the time the petition was filed, the whereabouts of the minors remained unknown.

In late January 2006, Angel called the social worker and indicated she had taken the minors to Polinsky's Children Center. Although the Agency attempted numerous times to locate the minors, they remained missing for five months and it was unknown where they had lived during this time. The minors told social workers they had not attended school since June 2005 and it was clear their basic medical needs had not been satisfied. The Agency recommended terminating guardianship and selecting a new permanent plan. Donna remained unable to care for the minors because of the stroke.

After allowing several continuances in order to provide Donna with the opportunity to be present at the section 388 hearing, the court held a hearing on the petition in March 2006. The Agency's reports were admitted without objection. Donna appeared at the hearing and was represented by counsel. The parties stipulated that should Donna take the stand, she would express her love for the minors and believed she could successfully care for them in her capacity as a legal guardian. The parties further stipulated Donna's condition had improved "somewhat" from October 2005 to March 2006. Donna did not submit additional evidence to the court.

After considering the Agency's reports and hearing arguments, the court granted the Agency's section 388 petition for modification, reinstated dependency for the minors, and terminated the legal guardianship. Counsel for Donna timely filed a notice of appeal.

DISCUSSION

I

Donna appeals the court's order granting the Agency's section 388 modification petition terminating her legal guardianship for the minors. After filing her opening brief addressing this issue, the Agency filed a motion to dismiss the appeal asserting: (1) Donna's notice of appeal was not signed by her or her attorney; and (2) there is no evidence showing she consented to or otherwise authorized the appeal.

Filing a notice of appeal vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666.) A timely and proper notice of appeal is essential to vest the reviewing court with appellate jurisdiction. (Associated Lbr. etc. Co. v. Superior Court (1947) 79 Cal.App.2d 577, 581.) Under California Rules of Court, rule 37(c)(1),^[4] a notice of appeal must be signed by the appellant or by his or her attorney. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 909; rule 37( c)(1).) An attorney, however, cannot appeal without the client's consent; therefore, when an attorney signs a notice of appeal without the client's authority, the notice of appeal does not preserve the right to appeal. (In re Malcolm D., supra, 42 Cal.App.4th at p. 910.) Nevertheless, a notice of appeal is to be liberally construed in favor of its sufficiency. (Rule 1(a); In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017.)

Here, we first address the Agency's argument that counsel did not sign the notice of appeal. Although rule 37(c)(1) states the notice of appeal must be signed, it does not specify where. The record shows Donna's attorney did sign the notice of appeal albeit in the wrong place. The signature here can be found on the notice of appeal under the section entitled motion for appointment of counsel. Given the attorney's signature and also adhering to the principles of liberal construction of the notice of appeal, it would be reasonable to infer that trial counsel signed the notice not just merely to request counsel on appeal but also to request the appeal itself. (Rule 1(a).)

Concerning Donna's authorization of the appeal, Donna admittedly did not sign the notice of appeal and her attorney did not represent on the notice that she authorized the appeal. However, Donna's signed declaration attached to her opposition clearly states her attorney had her authorization to file a notice of appeal on her behalf. Further, there is nothing in the record indicating the appeal was unauthorized. Donna instead made substantial efforts to show her interest in this case even though her communication abilities were greatly limited by the effects of her stroke. She appeared at the section 388 hearing and expressed to the court her interest in wanting to retain legal guardianship over the minors.

The Agency relies on cases such as In re Alma B. (1994) 21 Cal.App.4th 1037 and In re Sean S. (1996) 46 Cal.App.4th 350 to support its assertion that Donna did not authorize the appeal. This reliance is misplaced. In those cases, the parents did not attend the hearing terminating parental rights and the whereabouts of the parents was unknown or the parents had otherwise demonstrated a lack of interest in pursuing the case. Here, Donna was present with her attorney at the hearing for termination of legal guardianship and showed a continued interest in the case. The motion to dismiss the appeal is denied.

II

Donna contends the court abused its discretion when it terminated her legal guardianship because it did not have a requisite report from the Agency assessing whether the guardianship could have been preserved. She asserts a report would have contained an evaluation addressing whether the minors could have remained in her custody if services were provided to her and the minors.

The Agency correctly asserts Donna's argument cannot be presented in this appeal because she failed to raise it earlier. As a general rule, a party may not assert new theories on appeal that were not raised in the trial court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) Here, the Agency submitted to the court various reports prepared by the social worker. Donna was present at the hearing and neither she nor her attorney made any objections to the admission of the reports. She also did not challenge the sufficiency of the reports. Had she done so, the court could have considered her argument. In addition, Donna had numerous opportunities to object to the contents of the reports. The court continued the hearing on one occasion to allow for Donna to investigate her position in this matter. The court also permitted two additional continuances to provide Donna additional time to consult with her attorney. She had sufficient time to raise any concerns before the trial court. Donna is precluded form raising this issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

III

Donna asserts the court erred by granting the Agency's section 388 modification petition to terminate legal guardianship. She asserts the information in the Agency's reports was insufficient to support the court's decision.

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

B

Here, the Agency submitted numerous reports addressing Donna's medical condition, evaluating the changed circumstances of the guardianship, and the best interests of the minors. The reports note in October 2004, Donna suffered from a stroke that resulted in paralysis. Her speaking abilities became limited, she had difficult writing, and trouble comprehending information. The record shows Donna could not care for herself without assistance and thus, was unable to provide adequate care for the minors. Donna instead relied on Angel and Jason for help when she needed to be moved, bathed, and diapered. Although Donna argued at the hearing her health was improving, the record shows she continued to be cared for by Angel.

In light of these changed circumstances, terminating Donna's legal guardianship was in the minor's best interests. After her stroke, Donna permitted Jason and Angel to move into her home and care for her. After they moved into the home, the home entered into a state of complete disarray and was riddled with drug paraphernalia. The house was cluttered with various items, the kitchen was full of dirty dishes and the house smelled of urine. Cockroaches were found crawling all over the house. Additional referrals reported individuals trafficked in and out of the home and marijuana could be smelled coming from the home. A police search revealed pipes for smoking methamphetamines. Numerous glass vials and plastic baggies containing methamphetamine residue were also found in the house. In addition, in the months before the section 388 hearing, the Agency was not able to locate the whereabouts of the minors for about five months. During this time, they had not attended school. There clearly was no evidence that Donna was able to care for and protect the minors. It was in the minors' best interests to terminate guardianship and implement a new permanent plan for the minors. The court did not err by granting the section 388 modification petition.

DISPOSITION

The juvenile court's order terminating the legal guardianship is affirmed. The motion to dismiss the appeal is denied.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] We previously ordered the motion to dismiss to be considered with the appeal.

^[3] Angel's four other minor children are not subject to this appeal.

^[4] All rule references are to the California Rules of Court.