In re Salina C.

Filed 3/2/07 In re Salina C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Dismissed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.

Janette F. Cochran, under appointment by the Court of Appeal, for Minor.

After the juvenile court terminated her parental rights at a permanent plan hearing held pursuant to Welfare and Institutions Code section 366.26,^[1]defendant and appellant Dawn C. (mother) challenges the jurisdictional findings, the disposition, and the denial of visitation made at the disposition hearing, which mother characterizes as pending the section 366.26 hearing. As described below, the time for appealing each of these rulings has passed, and so the appeal is dismissed.

Statement of Facts and Procedure

On March 22, 2005, four-year-old Salina C. (the child) was found early in the morning crossing a busy street on her bicycle. About an hour later, the childs maternal grandmother and legal guardian called police to report the child missing. The previous day, the grandmother had gone to court to request that her guardianship be relinquished because she was unable to provide adequate care and supervision due to illness. The child was detained and placed in foster care. The grandmother had cared for the child since she was nine months old, when mother dropped her off with the grandmother and never returned.

At the jurisdiction hearing held on July 25, 2005, the juvenile court took jurisdiction over the child under section 300, after finding that mother had a history of substance abuse, mother had previously had two other children removed from her custody and reunification services were terminated, and mother had lost custody of the childs siblings because of abuse and the child was similarly at risk for abuse. ( 300, subds. (b) & (j).)

At the disposition hearing on August 29, 2005, the juvenile court ordered that mother not receive reunification services and have no contact or visitation with the child. The court ordered reunification services for the childs father and set a six-month review hearing for February 28, 2006. ( 366.21, subd. (e).)

At the six-month review hearing, the Department of Childrens Services (the department) recommended reunification services to the father be terminated. The fathers counsel indicated that he agreed with the recommendation. The court continued reunification services until the father could personally waive reunification services. The father did so at a review hearing held on March 30, 2006. On that date, the juvenile court also set the section 366.26 hearing for July 28, 2006, and ordered the department to notify mother.

On July 28, 2006, the section 366.26 hearing was set contested and continued to September 6, 2006. Mother was present at the September 6, 2006 hearing, at which the juvenile court terminated mothers parental rights and selected adoption as the childs permanent plan. This appeal followed.

Discussion

1. Jurisdiction and Disposition Orders Not Appealable

Mother challenges: 1) the sufficiency of the evidence to support the juvenile courts jurisdiction findings; 2) the sufficiency of the evidence to support the order removing the child from mothers care at the disposition hearing; and 3) the sufficiency of the evidence to support the order, made at the disposition hearing, denying visitation based on detriment to the child. However, the issues in question involve findings or orders the court made at or before the disposition hearing, and mother did not appeal from the disposition order, which is the first appealable judgment in a section 300 proceeding. (See In re Daniel K. (1998) 61 Cal.App.4th 661, 666-667, and cases cited therein.) In order to challenge findings or orders made at the disposition or prior hearings, an appeal from the disposition must be filed within the jurisdictional time limit, namely 60 days after the order is made. (Ibid.; 395.) A jurisdictional finding, while not appealable, may be reviewed in an appeal from the dispositional order. (In re Megan B. (1991) 235 Cal.App.3d 942, 950.) [A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.)

Because mother did not appeal from the August 29, 2005 disposition order and more than 60 days has passed since that order was entered, the disposition order and the orders and findings that preceded the disposition, are final and may not be challenged in this appeal. Accordingly, we will not address mothers challenges to the sufficiency of the evidence to support the jurisdictional findings or the sufficiency of the evidence to support the disposition order removing the child from mothers care.

2. Disposition Order Denying Visitation Not Appealable

Mother characterizes the order denying visitation, also made at the disposition hearing, as an order pending the section 366.26 hearing. She then attempts to make that portion of the August 29, 2005 disposition order appealable by arguing that she is not precluded from challenging that order, despite her failure to file a petition for extraordinary writ from the order setting the section 366.26 hearing. This is because she was not present at the March 30, 2006 hearing to be personally advised of her right to file a writ petition challenging the courts orders, and the court did not provide her with notice by mail at her last known address.

An order setting a section 366.26 hearing is not appealable; rather review of such an order may be had only by filing a petition for an extraordinary writ. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838; see also In re Cathina W. (1998) 68 Cal.App.4th 716, 719.) The juvenile court must give notice of the writ requirement orally to all parties present at the setting hearing and by first class mail to all parties not present. ( 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.585(e), 5.600(b), 5.695(f)(18).) A party then has seven days to file a notice of intent to file a writ petition (or 12 days if the notice of the setting order was mailed). (Cal. Rules of Court, rule 8.450(e)(4) & (5).) When notice is not given, the parents claims of error occurring at the setting hearing may be addressed on review from the disposition following the section 366.26 hearing. (In reHarmony B., at p. 838; see also In re Athena P. (2002) 103 Cal.App.4th 617, 625; In re Rashad B. (1999) 76 Cal.App.4th 442, 450; In reCathina W., at pp. 722-726.) The notice must be mailed within 24 hours of the hearing to the last known address of the party. (Cal. Rules of Court, rules 5.585(e)(1), 5.600(b)(1), 5.695(f)(18)(A).)

Here, mother did not attend the March 30, 2006 appearance review hearing, at which the court made the section 366.26 referral. The juvenile court ordered the department to provide mother the rest of the notice as required by law, i.e., written notice of the section 366.26 hearing and [w]rit rights to Mother to last known address. On April 3, 2006, the next court day, the department mailed the notice to 15210 Foothill Blvd., Rm #6 in Fontana. This was the motel room where mother was staying, and to which notice of the February 28, 2006 six-month review hearing had been sent. The permanent mailing address officially on file for mother at this time was 1738 North Encina Avenue in Rialto. Prior to the February 28, 2006 hearing, mother spoke with the social worker and told her that, although she had moved to Las Vegas and did not yet have a mailing address, the previous mailing address on North Encina Avenue in Rialto was still available for receiving mail.

Because we find it arguable that mother was not provided with timely notice of her writ rights at her last known address on North Encina Avenue in Rialto, we would address in this appeal the merits of any claim mother made regarding the March 30, 2006 order setting the section 366.26 hearing. However, mother does not challenge the order setting the section 366.26 hearing. Rather, she challenges the order made at the August 29, 2005 disposition hearing that she not be allowed visitation with the child based on a finding of detriment to the child.

Mother concedes in her reply brief that the situation in the present case is similar to that of [Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391 (Wanda B.)] and would appear to require the same result. In Wanda B., the appellate court dismissed a writ filed by the mother of a minor seeking to challenge an order denying reunification services to her that was made at a disposition hearing held in May 1995. The father was offered reunification services, but the services were later terminated, at a hearing held in November 1995, at which the section 366.26 hearing was also set. The appellate court held that the earlier order denying reunification services to the mother was appealable at the time it was made, and so she could not challenge it after the time to appeal had passed by attempting to piggyback it on a challenge to the later order setting the section 366.26 hearing. (Wanda B., at pp. 1395-1396.)

Mother then argues that this case is different from Wanda B. because she did not become an aggrieved party until fathers reunification services were terminated and the section 366.26 hearing was set. Mother argues the harm to her occurred on March 30, 2006, not August 29, 2005. Mother refers us to In re Patricia E. (1985) 174 Cal.App.3d 1, which held that a father has standing to raise the issue of his daughters right to counsel because [w]here the interests of two parties interweave, either party has standing to litigate issues that have [an] impact upon the related interests. (Id. at p. 6.) Mother further argues that she could take comfort in the reunification efforts of the minors father as the means of preserving her family and thus had no need to appeal the denial of visitation until the section 366.26 hearing was set.

We acknowledge mothers arguments, but conclude that the August 29, 2005 disposition order denying visitation played no part in the later order setting the section 366.26 hearing, and mother was aggrieved at the time visitation was denied. Therefore, mother cannot challenge the order made at the disposition hearing.

Even were we persuaded by mothers arguments regarding when she was actually aggrieved, the right to appeal is entirely a creature of statute, which can be restricted, withheld, or even abolished by the Legislature. (In re Daniel K., supra,61 Cal.App.4th at p. 666; In re Meranda P., supra, 56 Cal.App.4th at p. 1156, fn. 7.) Thus, in order to invoke the appellate jurisdiction necessary to review the order denying visitation made at the disposition hearing, a timely notice of appeal must be filed. (Wanda B., supra, 41 Cal.App.4th at pp. 1395-1396; In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 506, p. 548 [noting that a timely notice of appeal is jurisdictional].) That policy was selected by the Legislature, not the courts. We have no authority to second-guess the Legislatures policy decision and address untimely appeals. Therefore, when a party in a dependency proceeding fails to file a timely notice of appeal from a prior appealable order, we have no choice but to dismiss that portion of the appeal for lack of jurisdiction. Applying that rule to this case, we must dismiss mothers appeal relating to the order denying visitation made at the disposition hearing.

Disposition

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

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