Alameda County Social Services Agency v. J. M.

Opinion

SMITH, J. J. M. appeals from a judgment freeing her daughter A. M. from her custody and control pursuant to Civil Code section 232, subdivisions (a)(1) (abandonment) and (a)(7) (child in supervised out-of-home placement for one-year period).1 We conclude that the notice of appeal was not timely filed and consequently dismiss the appeal.

Procedural Background

On March 18, 1987, respondent filed its petition seeking to declare A. M. free from the custody and control of her parents. Trial was held on September 23, 24, and 28, 1987, and the matter was taken under submission. Judgment was entered on February 1, 1988, terminating the parental rights of appellant and any presumed or alleged natural fathers. Notice of entry of judgment was served on March 4, 1988. J. M.’s notice of appeal was filed on May 4, 1988.

[321] Discussion

A threshold issue is whether the notice of appeal filed herein can be deemed timely.2 It was filed 61 days after the notice of entry of judgment was served. Appellant urges that we deem the notice of appeal timely under the “constructive filing” doctrine, while respondent contends that the doctrine should not be applied to cases arising under section 232.

Appellant’s trial counsel submitted a declaration to this court in opposition to respondent’s motion to dismiss, stating the following: Appellant informed her counsel that she wished to appeal shortly after receiving notice of the judgment. On May 2, 1988, counsel attempted to contact appellant to have her sign the notice of appeal but was unable to reach her. He then signed the notice of appeal and filed it, believing it to be timely filed.

Pursuant to rule 2(a) of the California Rules of Court (hereafter cited by rule only), as pertinent here, a notice of appeal must be filed within 60 days after the date of service of written notice of entry of judgment.3 In 1985, a Court of Appeal, relying upon Supreme Court cases holding the timely filing of the notice of appeal in civil cases jurisdictional (Estate of Hanley (1943) 23 Cal.2d 120 [142 P.2d 423, 149 A.L.R. 1250]; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660 [125 Cal.Rptr. 757, 542 P.2d 1349]), ruled that the failure to file a timely notice of appeal during the 60-day period specified in rule 2(a) in an action terminating parental rights was not remediable and required dismissal of the appeal. (In re Frederick E. H. (1985) 169 Cal.App.3d 344, 347 [215 Cal.Rptr. 171].)