In re Karen D.
Filed 6/30/08 In re Karen D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re KAREN D., a Person Coming Under the Juvenile Court Law. | |
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. CLARICE D., Defendant and Appellant. | E044598 (Super.Ct.No. J205628) OPINION |
APPEAL from the Superior Court of San Bernardino County. Stephanie Thorton-Harris, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Dismissed.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Janette F. Cochran, under appointment by the Court of Appeal, for Minor.
Appellant (Mother) is the mother of Karen D. (Karen), who is the subject of this dependency case. Mother appeals from the juvenile courts order terminating her parental rights, and from its order denying her motion to vacate all previous orders based on a lack of due diligence by the Department of Childrens Services (DCS). Mother contends she was denied her due process right to notice of the dependency proceedings because DCS did not exercise due diligence in its efforts to locate and notify her of Karens dependency proceedings. DCS argues that Mother failed to timely appeal from the denial of her motion to vacate within 60 days of the August 7, 2007, order denying the motion, and so this court has no jurisdiction to hear this appeal.
As discussed below, we conclude that Mother failed to timely appeal from the order denying her motion to vacate all previous orders, and so dismiss the appeal.
Statement of Facts
1. Detention
Karen D., who was at the time six years old, was detained in December 2005. Karen had disclosed to her paternal aunt, with whom she had been staying since July 2005, that her father, Justin M., (Father) had sexually molested her over a period of time. The section 300 juvenile dependency petition alleged sexual abuse regarding Father (Welf. & Inst. Code, 300, subd. (d)),[1]failure to protect ( 300, subd. (b)) and no
provision for support ( 300, subd. (g)) regarding Mother. The petition listed Mothers name as Karen D. and her address as whereabouts unknown. The detention report additionally listed Mothers date of birth as unknown. The social worker reported that she had attempted to locate [Mother] by asking relatives regarding their whereabouts and by initiating an absent parent search. The social worker had interviewed the paternal aunt, who told her that Father had been awarded custody of Karen through family court in New York, that Mother had a history of substance abuse and that she did not know where Mother was.
At the detention hearing held on January 3, 2006, the juvenile court ordered Father to produce a copy of Karens birth certificate and to give the social worker any information he might have on the maternal relatives so it could be determined whether Karen had any Native American heritage.
2. Jurisdiction/Disposition
At the jurisdiction and disposition hearing held on March 17, 2006, Father pled no contest to the allegations in the section 300 petition and agreed to participate in services. Father was not allowed visits with Karen. Mother was not offered services because her whereabouts were unknown. The juvenile court found that reasonably diligent efforts were made in an attempt to locate Karens mother. Those efforts were unsuccessful. The due diligence report listed Mothers name as Karen D., with no date of birth or social security number. The report concluded that DCS was Unable to locate any information with only name provided at the time of search. However, the report stated that the Child Support Division had searched for Mother in 2003 under the name Clarice D., which was given by Father, but was unable to find her without a date of birth or social security number.
Father had told the social worker that he had gained custody of Karen in New York when she was two years old, that Mother was mentally ill and a drug addict, and that he did not know where she was.
3. Interim Review
In the interim review reports dated May 4 and June 19, 2006, Mothers name was still listed as Karen D., an incorrect birth date was listed, and her address was shown as whereabouts unknown, CA.
In the status review report dated August 23, 2006, the social worker stated that she had spoken by telephone with the maternal grandmother. Mothers name was listed correctly as Clarise D., and a birth date was given. The maternal grandmother told the social worker that she had at one point shared custody of Karen with Father. She also told the social worker that mother is schizophrenic, requires multiple medications, and is unstable. The grandmother also stated that Mother is often homeless, but at times resides with the grandmother, and provided an address. The addendum to the status review report listed Mothers correct name and birth date, but still listed her address as whereabouts unknown, CA.
4. Twelve-Month Review
In the status review report dated February 21, 2007, no new information was provided regarding Mother. Notice of the review hearing was mailed to the maternal grandmothers address. No new due diligence search was conducted.
On March 15, 2007, Mother wrote a letter to county counsel and Karens counsel providing her proper name, address and telephone number. Mother stated she had just received notice of the February 21, 2007 hearing (presumably from the maternal grandmother), asked to have custody of Karen and requested notice of the next hearing. County counsel received the letter on March 20, 2007. There is no indication in the record that mother received notice of the April 19, 2007 contested 12-month review hearing. At that hearing, the juvenile court terminated reunification services and set a section 366.26 hearing for August 16, 2007. The court also ordered that Mother be sent notice of her writ rights. This was done on April 23, 2007.
5. Writ Proceedings
On May 8, 2007, an attorney from New York wrote to the court on behalf of Mother. The attorney enclosed a completed notice of intent to file writ petition (form JV-820) and asked the court to appoint counsel for Mother in California. On May 22, 2007, in proceeding No. E043056, this court directed the juvenile court to appoint counsel for Mother. The juvenile court did so, effective May 23, 2007.
This court dismissed the writ proceeding on June 1, 2007, after Mothers appointed counsel submitted a letter indicating there were no issues cognizable by extraordinary writ.
6. Section 388 Petition and Motion to Vacate
On June 27, 2007, Mothers counsel filed a section 388 petition to change court order asking the juvenile court to set aside all prior orders because DCS had failed to perform a reasonable search for Mother during the earlier stages of Karens dependency. DCS filed its opposition. At the hearing set for the modification petition on July 25, 2007, the juvenile court deemed the petition a motion to vacate all previous orders. The court did so in part because, unlike a section 388 petition, a motion to vacate would not require a showing that granting the motion would be in the childs best interest.
Mother and DCS filed additional points and authorities. At the hearing on the motion to vacate, held on August 7, 2007, the juvenile court denied Mothers motion. The court noted that Father had been uncooperative from the beginning on a number of issues, including giving DCS information that might help locate Mother. Mothers counsel indicated that he might file a writ or appeal from the courts order.
The section 366.26 hearing was held on November 15, 2007. Mothers counsel renewed the motion to vacate, upon which the juvenile court stated it would leave the previous orders in full force and effect. The court terminated mothers parental rights and set adoption as Karens permanent plan. This appeal followed.
Discussion
Mother states in her opening brief that she appeals from the juvenile courts order terminating her parental rights, and from its order denying her motion to vacate all previous orders based on a lack of due diligence by the Department of Childrens Services (DCS). However, mother in her brief does not actually argue that the court erred when it terminated her parental rights. Rather, the entire brief is devoted to the issue of whether DCS exercised due diligence in its initially unsuccessful efforts to locate her and notify her of this dependency case.
The juvenile court decided this issue at the August 7, 2007, hearing on Mothers motion to vacate all previous orders, after briefing and argument by the parties. Although Mothers counsel renew[ed] her motion to vacate at the November 15, 2007, section 366.26 hearing before the pro tem judge, the court noted its understanding that the motion had been denied at the time of the August 7, 2007, motion hearing, and stated that it would leave the previous orders in full force and effect.
Mothers remedy was to have filed an appeal within 60 days of the August 7, 2007, denial of her motion to vacate. (In re Daniel K. (1998) 61 Cal.App.4th 661, 666-667; 395; Cal. Rules of Court, Rule 8.400(d).) [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 7, 2007, order denying her motion to vacate and more than 60 days passed after order was entered and before Mother filed her notice of appeal on November 15, 2007, the order was final and may not be challenged in this appeal from the order terminating Mothers parental rights. Accordingly, we will not address Mothers challenge to the juvenile courts finding that DCS acted with due diligence in attempting to find and notify Mother of these dependency proceedings.
Disposition
The appeal is dismissed.
RAMIREZ, P.J.
We concur:
McKINSTER, J.
GAUT, J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
