In re Sophia P.

Filed 3/23/07 In re Sophia P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Steve Berman, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Dismissed.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________________

Appellant Gilbert P. purports to appeal from the order terminating parental rights (Welf. & Inst. Code,  366.26)^[1]as to his daughter, Sophia P. (born August 2004).^[2] However, he seeks to reverse the juvenile courts orders in this matter dating back to [the] jurisdiction and disposition orders. Appellant (a drug addict with no known address at the time of the childs birth) contends that DCFS made inadequate attempts at notice and due diligence to locate him, and that his trial attorneys assistance was ineffective when, prior to the setting of the section 366.26 hearing, counsel failed to seek to vacate previous orders for lack of notice. Appellant raises no contention directly challenging matters occurring at the section 366.26 hearing terminating parental rights.

DCFS correctly urges that because the notice of appeal is limited and is specifically from the August 10, 2006, order terminating parental rights, appellant improperly seeks review of matters going back to the jurisdiction and disposition hearings. We are constrained by the limits of appellate jurisdiction from reviewing claims of error relating back to matters regarding any lack of notice as to the earlier 2004-2005 proceedings, and from addressing DCFSs allegedly inadequate efforts to locate appellant concerning those earlier proceedings and the related challenge to the adequacy of trial counsels representation.

Appellate jurisdiction to review an appealable order is dependent upon a timely notice of appeal. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331, citing Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) The notice of appeal will be liberally construed, but it must identify the particular judgment or order being appealed. (Cal. Rules of Court, rule 8.400(c)(2).) Although particular circumstances may warrant generous interpretation of a notice of appeal (see In re Josiah S. (2002) 102 Cal.App.4th 403, 418), a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed. (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045; see also Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47.)

Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from. (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) A challenge to 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. (Steve J.v. Superior Court (1995) 35 Cal.App.4th 798, 811.)

Nonetheless, appellant urges that the juvenile courts failure to give him notice of his right to writ relief, following the setting of the section 366.26 hearing, makes appellants due process notice issue, as well as the related ineffective assistance of counsel claim, cognizable on this appeal. The general rule is that a parent may not appeal from an order made at a hearing at which a section 366.26 hearing was set unless the parent timely files a petition for extraordinary writ review ( 366.26, subd. (l)), and the juvenile court must so advise the parent of the right to file such a petition. ( 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.585(e), 5.600(b).) As urged by appellant, where the juvenile court fails to advise a parent of the right to file a petition for writ relief, the parent appealing from the order terminating parental rights may challenge the predicate order setting the section 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)

Indeed, DCFS concedes that appellant is able to challenge orders made at the twelve-month review hearing at which the juvenile court referred the matter for a section 366.26 hearing, because [appellant] was not given the proper writ advisement. However, DCFS also aptly emphasizes that the right to appeal is not open-ended.

The lack of writ advisement permits an appellate court to address on [the] appeal from the termination order [a parents] contentions with respect to the merits of the juvenile courts setting order. (In re Cathina W., supra, 68 Cal.App.4th at p. 722.) Where a proper writ advisement is lacking, it is only the order setting a section 366.26 hearing that may be reviewed on appeal with review of the section 366.26 order terminating parental rights. (In re Athena P. (2002) 103 Cal.App.4th 617, 625; see also In re Harmony B. (2005) 125 Cal.App.4th 831, 838-839.)

The lack of a writ advisement does not magically permit a parent to challenge all earlier orders, for which the time to appeal has long ago expired. Nor do complaints about those orders at the later 12-month review hearing somehow extend the time to challenge such earlier orders. Thus, appellants belated complaints about the prior order denying family reunification services (based on appellants previously unknown whereabouts) and DCFSs allegedly inadequate efforts at notice, are not claims of error occurring at the setting hearing (In re Harmony B., supra, 125 Cal.App.4th at p. 838, italics added) and are not cognizable in the present appeal.

Here, the notice of appeal unambiguously specifies only the juvenile courts order terminating parental rights on August 10, 2006. And, orders made at the 12-month review hearings--held during proceedings on October 12, November 2 and November 14, 2005--are not challenged in appellants appeal. Rather, appellant challenges prior orders, which are not encompassed by the notice of appeal or by the writ advisement rule permitting review of the predicate order setting the section 366.26 hearing.

Accordingly, since the appeal raises issues beyond the permissible scope of appellate review, we have no authority to review those matters. The appeal must be dismissed.^[3]

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

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^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] Because the child was born with symptoms of drug withdrawal and her mother, Krista P., had tested positive for drugs and used heroin during her pregnancy, the respondent, Department of Children and Family Services (DCFS), filed the dependency petition ( 300). Krista P. is not a party to the present appeal.

^[3] Therefore, it is unnecessary to address whether DCFSs service of notice and extensive efforts to locate appellant were proper. It is also unnecessary to address whether the related ineffective assistance of counsel claim, raised on appeal and without a writ (see In re Carrie M. (2001) 90 Cal.App.4th 530, 533-534), would be unavailing for failure to show that a more favorable result could have been achieved if trial counsel had raised the notice and due diligence issue complained of on appeal. (See In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)