In re K.M.

Filed 8/26/08 In re K.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stanislaus County. Thomas L. Bender, Judge.

Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

More than 60 days after the Madera County Superior Court terminated appellant fathers parental rights (Welf. & Inst. Code,  366.26) to his daughter, K.M., the fathers trial attorney filed a notice of appeal.^[1] Because a notice of appeal must be filed within 60 days of the courts decision (Cal. Rules of Court, rule 8.400(d)), the notice of appeal was untimely. Consequently, the termination order became final, and this court lost jurisdiction to review the superior courts decision. (Estate of Hanley (1943) 23 Cal.2d 120, 122.) We so notified the trial attorney, giving him an opportunity to explain why we should not dismiss the appeal. The attorney responded by letter that he mistakenly thought he filed the notice when in fact he misplaced it. Thus, the attorney claimed it was his mistake which led to the late filing. We also served copies of our order on the father.^[2] He did not respond.

We did not dismiss the appeal at the time. Rather, we authorized appointment of appellate counsel so that the issue of this courts jurisdiction to consider the late appeal could be briefed.^[3]

The fathers appellate counsel urges this court to deem the notice of appeal timely under the constructive filing doctrine. Alternatively, he claims the trial attorney was per se ineffective for not filing the notice of appeal in a timely fashion so that the father should be entitled to this courts consideration of his appeal on its merits. On review, we will dismiss.

DISCUSSION^[4]

I. Inapplicability of the Constructive Filing Doctrine

In criminal cases, the constructive filing doctrine permits an appellate court to construe a belated notice of appeal as having been timely filed under certain circumstances. Those include when an incarcerated criminal defendant made arrangements with his trial attorney to file the notice of appeal. (In re Benoit (1973) 10 Cal.3d 72, 81-86, (Benoit).) As the Benoit court explained, it would not penalize such a defendant who justifiably relied on his attorney to file the notice of appeal in a timely fashion. (Id. at p. 88.) On the other hand, the Benoit court added, it would not indiscriminately permit a defendant whose counsel undertook to file the notice of appeal, to invoke the doctrine of constructive filing when the defendant displayed no diligence in seeing that his attorney discharged this responsibility. (Id. at p. 89.)

Appellate counsel claims the father in this case is entitled to the benefit of the constructive filing doctrine because of his trial attorneys acknowledged mistake in belatedly filing the notice of appeal. Setting aside the fact the doctrine exists in criminal cases and for the benefit of incarcerated defendants as well as the caselaw which holds the constructive filing doctrine does not apply to parental rights termination cases (In re Alyssa H. (1994) 22 Cal.App.4th 1249; In re Ricky H. (1992) 10 Cal.App.4th 552; In re Isaac J. (1992) 4 Cal.App.4th 525; In re A.M. (1989) 216 Cal.App.3d 319) and the absence of any caselaw which holds otherwise, we disagree. The father has shown neither any justifiable reliance upon counsel nor any diligent effort to make sure his appeal was filed. (Benoit, supra, 10 Cal.3d at p. 89.) Indeed, as previously noted, the father has taken no apparent interest or shown any diligence in this appeal. He has not responded either to our earlier order or the separate requests made of him to submit his application for appointed appellate counsel. Under these circumstances, we conclude he is not entitled to the benefit of the constructive filing doctrine. Anything further we might say about the applicability of constructive filing doctrine to untimely appeals from orders terminating parental rights would be dicta.

II. Ineffective Assistance Argument

As mentioned earlier, appellate counsel also contends the trial attorney was per se ineffective for not filing the notice of appeal in a timely fashion so that the father is entitled to this courts consideration of his appeal on its merits. Again we disagree.

First, inherent in Benoit is the notion that an attorney who takes the responsibility of filing a criminal defendants notice of appeal but does not do so in a timely fashion is ineffective. Such an attorney has breached a duty of trial counsel to either file the notice, instruct the defendant as to the proper procedure or see that the defendant has counsel to do these things. (Benoit, supra, 10 Cal.3d at p. 88.) However, as Benoit clarifies and as discussed above, that dereliction of duty standing alone does not warrant relief for the defendant. (Id. at pp. 88-89.)

Second, the fathers reliance on Roe v. Flores-Ortega (2000) 528 U.S. 470 (Flores-Ortega) for his ineffective assistance argument is misplaced. The defendant in Flores-Ortega unsuccessfully sought relief in California state courts under the constructive filing doctrine when no appeal had been filed following his criminal conviction. He then petitioned for federal habeas relief, where a magistrate could at most determine there was no consent by the defendant to counsels failure to file a notice of appeal. (Id.at p.473-475.) Notably, the Flores-Ortega court rejected a per se approach -- that is, counsel must file a notice of appeal unless the defendant specifically instructs otherwise -- to the ineffective assistance claim. (Id. at p. 478, et seq.)

Neither Flores-Ortega nor the federal constitutional right of a criminal defendant to effective assistance of counsel entitles the father to any relief. The United States Supreme Court has ruled that federal habeas corpus may not be used to litigate constitutional claims in child-custody matters. (Lehman v. Lycoming County Childrens Services Agency (1982) 458 U.S. 502, 513.)

In addition, the California Supreme Court has distinguished case law permitting a court to entertain a belated appeal from a final judgment -- when a constitutional claim of ineffective assistance of counsel is alleged -- because those decisions arose out of criminal actions. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 865-866, (Alexander S.).) The Alexander S. court proceeded to hold habeas corpus could not be used to collaterally attack a final, non-modifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment. (Id. at pp. 867-868.) Here the father did not resort to a habeas petition to allege ineffective assistance. However, given that the termination order was already final when his trial attorney filed the notice of appeal, Alexander S. would prevent that. (See also In re Meranda P. (1997) 56 Cal.App.4th 1143.)

DISPOSITION

The appeal from the order terminating parental rights is dismissed.

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* Before Vartabedian, A.P.J., Cornell, J., and Kane, J.

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

^[2] We served our copies at the two addresses listed for appellant on the notice of appeal so that he also might respond. The U.S. Mail returned one of the copies sent to the father to us as attempted - not known unable to forward.

^[3] To expedite our review of juvenile dependency appeals, this court has a policy of appointing appellate counsel in juvenile dependency matters before an appellant has completed an application for appointed counsel or this court has determined whether an appellant is indigent. Notably, in this case, the father has not responded to three separate requests over time to submit his application.

^[4] Under the circumstances of this appeal, we do not summarize the underlying factual and procedural history of K.M.s dependency.