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California Supreme Court:
Missing Appeal Deadline Not Fatal in Parental Ties Case
Court Says Parent Whose Lawyer Fails to File Timely Appeal Notice May Seek Habeas Relief, Must Act Quickly
By a MetNews Staff Writer
The California Supreme Court held yesterday that a parent who directed counsel to file an appeal from an order terminating parental rights and whose counsel failed to file the notice of appeal timely, may seek relief in the Court of Appeal through a petition for a writ of habeas corpus, with promptness in seeking that relief being essential.
Justice Leondra Kruger wrote the opinion for a unanimous court. The opinion reverses a Jan. 21, 2020 order of Div. One of the First District Court of Appeal dismissing the appeal of “M.B.,” whose lawyer, Rita Rodriguez, filed the appeal notice four days late.
Div. One’s Acting Presiding Justice Sandra L. Margulies said in that order:
“Specifically, although mother does not explicitly rely on this ground, she is not entitled to relief based on the doctrine of constructive filing, under which a late notice of appeal will be deemed timely filed if the appellant is incarcerated and the delay resulted through no fault of his or her own….That doctrine generally does not apply in dependency cases, and the court declines to apply it here….Because the notice of appeal was untimely, the court lacks jurisdiction, and the appeal is dismissed.”
Long-Used Remedy
Rejecting the contention of M.B.’s appellate counsel, Kruger agreed with Margulies that the doctrine of constructive filing should not be extended, but said that habeas relief is available. She explained in a footnote:
“Despite its familiar application in cases concerning official confinement, California has long recognized habeas as a vehicle for challenging child custody decisions. As early as 1892, this court entertained a habeas petition by a mother seeking custody of her child from the child’s uncle, on the ground that the superior court order appointing the uncle guardian was void for lack of jurisdiction.”
Kruger noted that the Court of Appeal in 1996 held in In re Kristin H. held that incompetence of counsel in a parental rights proceeding may be raised by way of a habeas corpus petition, and has been followed by some other courts.
“[W]e now affirm the correctness of these decisions,” she said.
Proceedings Below
M.B.’s parental rights were terminated by Alameda Superior Court Judge Charles A. Smiley III on June 12, 2019. Five days later, Rodriguez, learned that M.B. wanted to appeal, but the matter slipped her mind and she failed to file the notice of appeal with the 60-day period provided for by statute.
Once she remembered, and lodged the notice with the Court of Appeal, it was five days after the deadline. The case nonetheless was assigned a number and appellate counsel was appointed. Her attorney in the Court of Appeal sought relief from default contemporaneously with the filing of the opening brief.
After Div. One dismissed the appeal, and later denied a habeas corpus petition, M.B. sought review in the state high court of the dismissal order. Reinstatement of M.B.’s appeal was opposed by the Alameda County Social Services Agency and by counsel for the child, A.R.
Kruger wrote:
“The central point of dispute between the parties concerns whether the right to seek relief for incompetent representation lapses with the jurisdictional deadline for filing a notice of appeal from the parental rights termination order — even when counsel’s incompetence is the very reason no filing has been made by that deadline. The Agency and A.R. contend that, no matter the reasons for the delayed filing, the passage of the deadline marks the point at which the child’s interest in avoiding unnecessary delay definitively overcomes any countervailing interests the parent may have.
“We emphatically agree that dependent children have a critical interest in avoiding unnecessary delays to their long-term placement….But it does not follow that parents must automatically lose the ability to seek redress for incompetent representation as soon as the time for filing the notice of appeal has passed. Certainly nothing in the statute says so. While the statute makes an order terminating parental rights ‘conclusive and binding,’ it does so expressly subject to the parent’s right of appeal….The statute does not purport to deny appellate rights to a parent whose appeal has been untimely filed because of counsel’s mistakes.
“And while finality is a critically important interest in termination proceedings, it is not the only interest at stake. Children and parents alike also have an interest in ensuring that the parent-child relationship is not erroneously abridged.”
Kruger noted that the Legislature has erected two safeguards in such proceedings: a parent’s right to representation by competent counsel and the right of appeal. The present case, she observed, deals with the effect of the lack of counsel’s competence on the appeal right.
The justice declared:
“We today hold that when their court-appointed attorneys have failed to timely file a notice of appeal of an order terminating parental rights, parents whose rights have been terminated may seek relief based on the denial of the statutory right to the assistance of competent counsel….To succeed in such a claim, parents must show that they would have filed a timely appeal absent attorney error and that they diligently sought relief from default within a reasonable time frame.”
Reasonableness must be determined, she specified, in light of a child’s “unusually strong” interest having the matter of parental ties determined with finality.
The opinion directs the appeals court to make the call as to whether M.B. acted with the requisite swiftness in seeking relief. The case is In re A.R., 2020 S.O.S. 1378.
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