In re Chelsea L. CA4/1

• Court: California Court of Appeal
• Decided: October 9, 2024
• Docket: D084526
• Status: Unpublished

Opinion

Filed 10/9/24 In re Chelsea L. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re CHELSEA L. D084526

on (San Diego County Super. Ct. Nos. J521315A-D) Habeas Corpus.

ORIGINAL PROCEEDINGS in habeas corpus. Marissa A. Bejarano,

Judge. Relief granted.

Appellate Defenders, Inc. and Laura L. Furness for petitioner.

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy

County Counsel and Natasha C. Edwards, Deputy County Counsel, for

Respondent.

Petitioner Chelsea L. seeks the issuance of a writ of habeas corpus

ordering the Superior Court of San Diego County to file her notice of appeal

in the underlying juvenile dependency proceeding. We conclude counsel for

Chelsea was ineffective in failing to advise her of her right to appeal adverse jurisdictional and dispositional orders despite her desire to do so and that

Chelsea took reasonable steps to pursue her rights promptly and diligently.

Accordingly, we grant relief and order reinstatement of the late-filed notice of

appeal.

BACKGROUND

Chelsea is the mother of four children. In October 2023, the San Diego

Health and Human Services Agency (Agency) filed a petition under Welfare

and Institutions Code1 section 300, subdivision (b), seeking to declare the

four children dependents of the juvenile court.

On November 28, 2023, the juvenile court held a jurisdiction and

disposition hearing, where the court found the allegations of the petition true,

removed the children from Chelsea’s custody and placed them with their

presumed father. The court ordered the Agency to provide presumed father

with family maintenance services and Chelsea with enhancement services.

At the time, Chelsea was represented by retained counsel, Samuel Sue.

Chelsea claims neither the juvenile court nor Sue informed her of her right to

appeal the jurisdictional and dispositional orders. And the court’s minute

1 Further undesignated statutory references are to the Welfare and Institutions Code.

2 order does not state the court advised Chelsea of her right to appeal its

findings and orders.2

Chelsea asked Sue when she could appeal the jurisdictional and

dispositional orders. Sue told her “it was not the correct time” to do so. Sue

does not “specifically remember” Chelsea “asking to file a notice of appeal”

after the hearing or while he was her attorney of record. But he does recall

that “Chelsea asked [him] what [they] could do to reverse the orders the court

put in place.” However, Sue did not understand Chelsea was asking to

appeal the court’s orders.

On January 18, 2024—less than 10 days before her right to appeal

would expire—Sue was replaced with an appointed attorney, Leah Moritz.

Soon after, Moritz told Chelsea the jurisdictional and dispositional orders

were appealable. Chelsea then “immediately asked” Moritz to file a notice of

appeal. But by that time, the 60-day deadline had passed.

Moritz prepared a notice of appeal for Chelsea to file in propria

persona, anyway. Chelsea filed the notice of appeal in the superior court on

March 11, 2024, 42 days past the deadline. The superior court clerk’s office

2 The parties have not provided this court with a copy of the reporter’s transcript of the hearing, but the Agency does not appear to dispute Chelsea’s claim she was not advised by the court of her right to appeal the findings and orders.

3 acknowledged receipt of the notice of appeal but declined to file it as

untimely.

The clerk forwarded the notice to Appellate Defenders, Inc. (ADI). On

March 21, 2024, an ADI staff attorney was assigned to investigate whether

any remedies existed to help Chelsea with her late-filed appeal. Chelsea

returned the additional information to ADI by April 5. Over the next four

months, while ADI investigated the matter, Chelsea continued to have

consistent communications with ADI about her claim.

Additionally, ADI communicated with Sue and Moritz and obtained

their declarations to support the filing of this petition, which was filed on

July 29, 2024. The ADI staff attorney avers that “[n]one of the delay in the

filing of this [petition] is due to [Chelsea’s] conduct” but rather due to the

time necessary to prepare, research, and file the petition.

DISCUSSION

Relying on the Supreme Court’s decision in In re A.R. (2021) 11 Cal.5th

234, Chelsea asks this court to grant relief from the late filing of her notice of

appeal under the doctrine of constructive filing. In re A.R. held that a parent

in a juvenile dependency proceeding may seek relief from an attorney’s

failure to file a timely notice of appeal when the parent seeks relief with

promptness and diligence. (In re A.R., at p. 243.)

4 The Agency asserts that Chelsea is not entitled to relief for three

reasons. First, it relies on In re Jackson W. (2010) 184 Cal.App.4th 247

(Jackson W.) and contends that by selecting and retaining her own counsel,

Chelsea waived any right to object to the competency of that counsel. Second,

the Agency argues In re A.R. is not applicable here because it involved an

appeal from an order terminating parental rights rather than an appeal from

jurisdictional and dispositional orders. Third, it contends that even if In re

A.R. applies, Chelsea is not entitled to relief because she did not diligently

seek relief from her attorney’s failure to file an appeal on her behalf.

We disagree with each of the Agency’s contentions and agree with

Chelsea that relief is warranted under the circumstances here.

The parties agree that the Supreme Court’s decision in In re A.R.

governs whether parents are entitled to relief when they receive ineffective

assistance of counsel in a dependency proceeding. In that decision, our high

court recognized that although there is no absolute constitutional right to

counsel in a dependency proceeding, there is a statutory right to competent

counsel. (In re A.R., supra, 11 Cal.5th at pp. 245–246.) There is also a right

to appeal certain rulings. (Id. at p. 246.) The Court concluded that when the

denial of the right to competent counsel interferes with the right to appeal, a

reviewing court may grant a petition for writ of habeas corpus to relieve the

5 parent from the jurisdictional deadline to file a notice of appeal when counsel

fails to do so. (Ibid.)

We disagree with the Agency that Chelsea cannot avail herself of the

relief afforded under In re A.R. because that case involved an appeal from an

order terminating parental rights, whereas Chelsea seeks to appeal from

jurisdictional and dispositional orders. We do not perceive anything in the In

re A.R. opinion to suggest the right to competent counsel applies only at that

late stage, and not in the earlier stages of a dependency proceeding. And the

Agency offers no logical reason to support such an arbitrary cut-off.

The Agency also opposes the petition on the basis that Chelsea chose

her own counsel, who was not a certified dependency law specialist, and

thereby forfeited any right to complain about the competency of that counsel.

It relies on Jackson W., an opinion of this court which involved a case where a

parent retained private counsel who was not a specialist in juvenile

dependency law. (Jackson W., supra, 184 Cal.App.4th at p. 252.) Later, the

parent moved to modify the court’s order on the basis that she was provided

ineffective assistance of counsel. (Id. at p. 255.) On appeal, this court held

that because the parent “knowingly, intelligently and voluntarily chose to

proceed with counsel who was not a specialist in juvenile dependency law,

she cannot be heard to complain that counsel was not competently

representing her precisely because he was not ‘child dependency qualified.’ ”

6 (Id. at p. 257, italics added.) The parent in Jackson W. argued there was a

distinction between “ ‘certification’ ” as a specialist and “ ‘competence,’ ” but

we did not decide the issue. (Ibid.) Instead, we concluded that even if the

parent did not waive the right to competent counsel, she should have filed a

petition for writ of habeas corpus rather than a section 388 modification

motion. (Id. at pp. 257—259.)

Jackson W. is inapposite. Chelsea does not complain that her counsel

was ineffective “precisely because he was not ‘child dependency qualified.’ ”

(Jackson. W., supra, 184 Cal.App.4th at p. 257, italics added.) She complains

that he failed to file an appeal when asked to do so.

We return to In re A.R. The Legislature created a statutory right to

court-appointed counsel in “any dependency proceeding in which out-of-home

placement is at stake.” (In re A.R., supra, 11 Cal.5th at p. 246.) This was an

expansion of the previous scheme, which “required the appointment of

counsel in connection with parental rights termination proceedings.” (Id. at

pp. 245–246.) Finally, the Legislature clarified that parties are not merely

entitled to counsel, they are “ ‘entitled to competent counsel.’ ” (Id. at p. 246.)

Our Supreme Court held that, “[w]hen an attorney fails to file a timely

appeal in accordance with a client’s instructions, the parent may seek relief

based on the attorney’s failure to provide competent representation.” (Id. at

p. 243.)

7 The In re A.R. court cautioned, however, that given the critical need to

avoid unnecessary delays in dependency proceedings, the parent must act

“promptly and diligently in pursuing their rights.” (In re A.R., supra, 11

Cal.5th at p. 251.) Thus, to be entitled to relief, the parent must show

(1) counsel was directed to file an appeal on behalf of a parent but failed to do

so in a timely manner; (2) the parent would have appealed but for counsel’s

error, and (3) the parent acted promptly and diligently in pursuing an appeal.

(Id. at pp. 252–253.)

Here, Chelsea has undisputedly satisfied the first two elements.

Chelsea states in a declaration that she asked her retained counsel whether

she could appeal, but her attorney told her that she could not appeal at that

time. Her attorney admits that Chelsea asked her “what we could do to

reverse the orders the court put in place,” but counsel did not understand

that meant Chelsea wanted to file an appeal. Although this is not a clear

statement that Chelsea asked to file an appeal, it strongly indicates that she

wanted to file an appeal if possible and failed to do so only due to the advice

of counsel. When retained counsel was replaced by appointed counsel,

Chelsea again stated she wanted to appeal the jurisdictional and

dispositional orders. By then, however, it was too late. Chelsea attempted to

file an appeal, but the clerk did not file the notice because it was untimely.

8 Thus, Chelsea would have filed an appeal but for the ineffectiveness of her

counsel.

The Agency, however, disputes the third element: whether Chelsea

acted promptly and diligently to file the appeal. In In re A.R., the notice of

appeal was filed four days late, but the Supreme Court cautioned that it was

not suggesting that “a four-day delay is the outer limit for promptness.” (In

re A.R., supra, 11 Cal.5th at p. 253.) Here, the juvenile court’s orders were

filed on November 28, 2023, and the time to appeal expired on January 29,

2024. Chelsea did not learn of her right to appeal until some time after that

date and attempted to file her notice of appeal on March 11, 2024, 42 days

past the 60-day deadline.

We observe that the juvenile court appointed new counsel to represent

Chelsea approximately 10 days before the time to appeal lapsed. And

Chelsea was advised of her right to appeal only after the 60-day filing period

had elapsed. Upon learning that she had a right to appeal, Chelsea promptly

sought assistance in preparing and filed a notice of appeal. She also

maintains her parental rights at this time, and the juvenile court has not set

a section 366.26 hearing. For these reasons, allowing Chelsea to proceed

with her appeal does not interfere with or delay the children’s long-term

placement. (See In re A.R., supra, 11 Cal.5th at p. 256.) To bar Chelsea from

“any possibility of appeal . . . would not serve any meaningful interest in

9 avoiding unnecessary delay. It would instead serve only to penalize [her] for

relying on the putatively ‘competent counsel’ to which she is statutorily

entitled. (§ 317.5, subd. (a).)” (In re A.R., at p. 251.)

Chelsea frames her petition as a request for constructive filing of the

notice of appeal. However, the Supreme Court in In re A.R. declined “to

extend the constructive filing doctrine to this context.” (In re A.R., supra, 11

Cal.5th at p. 253.) Instead, it found that “[p]arents in [Chelsea’s] position are

entitled to seek relief on a different and independently sufficient basis: Like

other parents whose lawyers have made serious mistakes in the

representation, they are entitled to seek a remedy for the violation of their

statutory right to competent representation. [Citations.] Where, as here, a

parent’s failure to file a timely notice of appeal is the result of counsel’s error,

reinstating an otherwise-defaulted appeal is generally the only meaningfully

way to safeguard the statutory right to competent representation.” (Id. at

p. 254.) We will therefore grant the same relief here.

DISPOSITION

The petition for habeas corpus is granted. The clerk of the San Diego

County Superior Court is directed to reinstate the notice of appeal received

10 on March 11, 2023 in case Nos. J521315A-D, and to process the appeal in the

ordinary course.

DO, Acting P. J.

WE CONCUR:

BUCHANAN, J.

KELETY, J.