In re D.M.

Filed 7/13/07 In re D.M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy Staggs, Commissioner.

Michael B. McPartland, under appointment by the Court of Appeal, for Objector and Appellant.

No appearance by Petitioner and Respondent.

-ooOoo-

Devon M. appeals from an order terminating his parental rights (Fam. Code,  7822) to his son D.M. Appellants appointed appellate counsel submitted a letter dated May 22, 2007, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order filed May 30, 2007, we extended time for appellant to personally file a letter brief. Appellant has filed such a letter brief with this court. To evaluate its merits, we have reviewed the record which we now summarize.

D.s stepfather petitioned in August 2006 to terminate appellants parental rights. The stepfather alleged appellant abandoned the child in the mothers care for more than a year from the filing of the petition without any provision for the childs support and without any communication.

Appellant was properly served with a copy of the petition and a CITATION TO PARENT. The citation included a notice of the date, time and place of a hearing on the petition as well as an advisement of rights.

Appellant was not present in court on the original hearing date of December 8, 2006. The court continued the hearing to enable Family Court Services to complete its report. Appellant received proper notice of the continued hearing date.

A superior court investigator for Family Court Services subsequently filed a report in support of the petitions allegations. Notably, the report stated that appellant did not show for his respective interview and therefore a social history was not obtained. A copy of the report was properly served on appellant.

On the continued hearing date, D., his mother and stepfather were present. Appellant was again absent. According to the courts minute order, it found notice had been given as required by law. On the merits, the court found by clear and convincing evidence that D. should be declared free from appellants custody and control.

Appellant claims: he was at the courthouse on the date the court granted the petition although he arrived after the court terminated his rights; Family Court Services was biased against him by intentionally withholding available evidence; and he did not abandon his son. Appellant also questions whether counsel should have been appointed to represent the child and why the child was present at the hearing. Having reviewed the appellate record, we conclude neither appellants claims nor his questions amount to arguments that the juvenile court committed an error affecting the outcome of this case. (In re Sade C., supra, 13 Cal.4th at p. 994.)

First, appellants letter brief is fatally flawed in that none of his claims are supported by the appellate record. In other words, there is no evidence in the record before this court to support any of his claims. In this respect, it appears appellant misunderstands the function of this court. Simply put, we are not a trial court. As the California Supreme Court explained in In re Zeth S. (2003) 31 Cal.4th 396, 405:

an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. [Citation.] This rule reflects an essential distinction between the trial and the appellate court that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. (In re Zeth S., supra, 31 Cal.4th at p. 405.)

The time and place to make the very claims appellant now voices was in the superior court before it rendered its decision. However, according to the appellate record, appellant never appeared in court nor did he make himself available to Family Court Services during its investigation. Furthermore, once the superior court issued its order declaring D. free from appellants custody and control, the court had no power to set aside, change or modify it. (Fam. Code,  7894, subd. (b).)

As for questioning the childs presence in the courtroom or whether the court should have appointed counsel on the childs behalf, appellant fails to appreciate his appellate burden to establish that the trial court committed reversible error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564. Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and present argument and authority on each point made (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278). If he does not, he may, in the court's discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) In that event, it may order dismissal. ( Ibid.) (In re Sade C., supra, 13 Cal.4th at p. 994.)

Here, appellant fails to present any argument and authority that the trial court erred either by permitting the child to appear in open court or by not appointing counsel to represent the child. Indeed, we know of no such authority.

Having reviewed his letter brief and the record herein, we conclude appellant raises no arguable issue regarding the courts decision. Having found no claim of trial court error in appellants letter brief as to matters within the scope of this appeal, we conclude he has abandoned the appeal from the order terminating his parental rights and will dismiss this appeal.

DISPOSITION

The appeal is dismissed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.