Filed 5/26/21 In re C.L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

In re C.L., a Person Coming Under the Juvenile

Court Law.

MERCED COUNTY HUMAN SERVICES

AGENCY,

Plaintiff and Respondent,

v.

S.L.,

Defendant and Appellant. F082254

(Super. Ct. No. 19JP

- 00004

- A)



### OPINION

THE COURT *

APPEAL from orders of the Superior Court of Merced County. Brian L. McCabe,

Judge.

Elizabeth C. Alexander, u nder appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for P laintiff and Respondent.

- ooOoo

-

* Before Franson, Acting P.J., Peña, J. and Snauffer, J.2

.

S

. L. (mother) appeals from the December 15, 2020 orders of the juvenile court

terminating her parental rights to her son C .L. , now age two. After examination of the

record, mother’s appointed counsel was unable to identify any arguable issues.

A letter brief filed by mother does not present good cause that an arguable issue

exists. As set forth more fully below, mother’s appeal is dismissed. ( In re Phoenix H.

(2009) 47 Cal.4 th 835 ( Phoenix H. ).) 1

ABBREVIATED STATEMENT OF CASE AND FACTS

C .L. ’s presumed father is Kevin L. (father). Father’s two older children, C.L. ’s

half siblings, were dependents of the juvenile court from 1998 to 2000 when father’s

parental rights to those children w ere terminated. C.L. also has an adult maternal half

sibl ing.

Mother has a child protective services (CPS) history dating back to 2014. Mother

and father are married but separated in 201 8

.

The Merced County Child Welfare Services Agency (agency) receiv ed a referral

in January of 2019 that mother gave b irth to C.L. , who tested positive for amphetamines

and methamphetamines and was in respiratory distress. Mother admitted drinking

alcohol during the first six months of her pregnancy but stopped and took only “sips” of

alcohol once she found out she was p regnant. Mother also admitted smoking marijuana

daily throughout her pregnancy.

A Welfare and Institutions Code section 300 petition was filed January 11, 2019,

alleging C.L. was at risk of harm due to the positive drug test at birth, mother’s alcohol

a nd marijuana use during pregnancy, mother’s failure to protect the child from exposure

1 In Phoenix H.

, the Supreme Court held that where an appointed attorney in a

juvenile dependency case is unable to find an arguable issue for appeal, the attorney

should inform the court that he or she has found no arguable issues for appeal, file a brief

setting out the applicable facts and law, and provide a copy of the brief to the parent. The

Court of Appeal has discretion to permit the parent to file a brief upon a showing of good

cause. ( Phoenix H., supra, 47 Cal.4 th at pp. 841

– 846

. )3

.

to dangerous substances in utero, mother’s lack of prenatal care, and that mother lived in

Arizona with father, who was a chronic methamphetamine user. (§ 300, subd. (b )(1)

. )

The petition further alleged that C.L. had been left without any provision for support

(§ 300, subd. (g)), and that C.L. was at risk due to father’s neglect of C.L. ’s half siblings

(§ 300, subd. (j).)

At the jurisdiction and disposition hearing M arch 19, 2019, the juvenile court

dismissed the subdivision (g) allegation and found the remaining allegations true. C.L.

was removed from h is parents and reunification services were ordered.

By the time of the six

- month review hearing, the agency recom mended that

mother be allowed to continue in her reunification services, but that services for father be

terminated. At the contested October 22, 2019 hearing, mother testified that she had

completed her case plan and requested family maintenance services . The juvenile court

found that mother was “making progress,” but continued C.L. as a dependent in out of

home placement. The court continued services for mother but terminated them for father.

In the report for the 12

- month review hearing, the agency recommended that

mother’s reunification services be terminated, and that C.L. remain in a concurrent foster

home. The agency reported that mother had not met her substance abuse objectives as

she had continuous relapses, she tested positive for drugs, fai led to submit to drug

screening, and she failed to engage in her treatment plan.

Due to Covid

- 19, the contested 12

- month hearing was combined with the 18

-

month hearing held July 21, 2020. By that time, the agency reported that mother was

visiting with C .L. , but she had not maintained sobriety for longer than two months. On

July 23, 2020, t he juvenile court found mother had not made significant progress,

terminated services and a section 366.26 hearing was set.

On July 30, 2020, mother filed the form n otice of intent to file writ petition,

regarding the findings and order terminating her parental rights. This court issued an

opinion dismissing the petition on October 13, 2020 ( case No. F081476).4

.

In the report prepared by the agency for the December 15, 2020 contested section

366.26 hearing, the agency recommended a permanent plan of adoption for C.L. with

termination of parental rights for mother and father. C.L. was described as having no

medica l or dental issues, he was developing age appropriately, socially, cognitively, and

emotionally, and was not in need of mental health services. His current caregivers

wished to adopt him.

Visits between mother and C.L. were appropriate but remained supe rvised. The

agency did not recommend visits between C.L. and mother following termination of

parental rights. The caregivers were open to showing photos of C.L. to mother.

At the contested hearing, mother’s counsel made an offer of proof for mother,

st ating she did not agree with the agency’s recommendation because there was a

sufficient bond between her and C.L. to preclude termination of parental rights. Mother

was asking for legal guardianship instead of adoption.

The juvenile court followed the re commendations of the agency and found C.L.

adoptable and terminated mother and father’s parental rights.

DISCUSSION

An appealed from judgment or order is presumed correct. ( Denham v. Superior

Court (1970) 2 Cal.3d 557, 564.) It is up to an appellant to raise claims of reversible

error or other defect and present argument and authority on each point made. If an

appellant does not do so, the appeal may be dismissed. ( In re Sade C. (1996) 13 Cal.4 th

952, 994.)

In her letter brief , mother challenges the order terminating her parental rights by

attacking the juvenile court’s finding of jurisdiction over C.L. , claiming her toxicology

screen was negative at the time of C.L. ’s birth, and that no effort was made to keep C.L.

with mother rather than remove him from her custody at disposition.

One of the most fundamental rules of appellate review is that the time for filing a

notice of appeal is jurisdictional

. “ ‘ “If an order is appealable

... and no timely appeal is5

.

taken therefrom, the issues determined by the order are res judicata.” ’ [Citation.] ‘An

appeal from 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.’ [Citation.]

Appellate jurisdiction to review an appealable order depends upon a timely notice of

appeal

. [Citation.] ” ( Wanda B. v. Superior Court (1996) 41 Cal.App.4 th 1391, 1396,

quoting In re Cicely L. (1994) 28 Cal.App.4 th 1697, 1705 and In re Elizabeth M. (1991)

232 Cal.App.3d 553, 563.)

“The first appealable order in a dependency case is the dispositional order

... a

challenge to the jurisdictional findings must be raised in an appeal from the dispositional

order .” ( In re T.W. (2011) 197 Cal.App.4 th 723, 729.) Mother should have filed a notice

of appeal of the juvenile court’s jurisdictional and dispositional orders within 60 days of

March 19, 2019, the date of the dispositional order

. (Cal. Rules of Court, rule 8.406(a).)

It is only in very rare and “ ‘special circumstances constituting an excuse for failure to

[timely appeal ]’ ” that an appellate court may grant review of an appealable order by way

of extraordinary writ after the deadline to appeal has passed. ( Mauro B. v. Superior

Court (1991) 230 Cal.App.3d 949, 953, citing Adoption of Alexander S. (1988) 44 Cal.3d

857, 865.)

Because mother ’ s challenge to the jurisdictional and dispositional findings is

untimely, we do not have jurisdiction to review that order. Given our lack of jurisdiction

over the issues raised by mother, we conclude mother has not made a good cause

showing that an arguable issue of reversible error exi s ts.

DISPOSITION

The appeal is dismissed.