Tulare County Health & Human Services Agency v. Ofelia W.

Opinion

VARTABEDIAN, Acting P. J. Ofelia W. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter Madison.1 Appellant contends the court erred three days earlier by denying her petition for reunification services (§ 388). On review, we will affirm.

In the published portion of our opinion, we hold liberal construction of a parent’s notice of appeal from an order terminating parental rights encompasses the denial of the parent’s section 388 petition, provided the trial court issued its denial during the 60-day period prior to the parent’s filing the notice of appeal.

PROCEDURAL AND FACTUAL HISTORY*

DISCUSSION

I. Appealability

Appellant’s trial counsel filed a notice of appeal on February 23, 2006, stating she was appealing from the January 13, 2006 order terminating [1450]parental rights. The notice of appeal contained no reference to the January 10 order denying the section 388 petition.

After court-appointed appellate counsel filed his opening brief challenging the denial of appellant’s section 388 petition, the agency disputed this court’s jurisdiction to resolve the issue given the terms of appellant’s notice of appeal. Appellate counsel thereafter moved to amend the notice of appeal or to request this court’s liberal construction of the notice of appeal to include a challenge to the denial of the section 388 petition. We deferred the issue until now.

Because this is not the first time such a situation has presented itself to this court, we take this opportunity to hopefully resolve it once and for all, at least as to this court. We frequently receive notices of appeal challenging the termination of a parent’s rights and nothing more despite the fact that on or before the same day as the termination order but within 60 days of when the notice of appeal was filed (Cal. Rules of Court, rule 2), the court also denied the parent’s eleventh-hour section 388 petition. When counsel brings the issue to our attention during record preparation or before briefing occurs, we routinely deem the notice of appeal amended to include the additional ruling.