ASSIGNMENT NO. 7 Using the IRAC method, brief the opinion that follows. Remember you are "Briefing an Opinion," not "Solving a Problem." This Assignment is worth 30 points. It is due as noted on Canvas. Hint: An effective brief for this opinion cannot be written without citing at least one code section and one case opinion in your Analysis.

216 CalApp 3 323 IN RE A.M. 667 1349), ruled that the failure to file a timely Assuming, without deciding, that the notice of appeal during the 60-day period 1987 amendment to rule 39(a) can be con- specified in rule 2(a) in an action terminat- strued to direct the application of decisional ing parental rights was not remediable and law with respect to rules in criminal cases required dismissal of the appeal. (In re to cases under section 232, we nevertheless Frederick E.H (1985) 169 Cal.App.3d 344, conclude that the application of the con- 347, 215 Cal.Rptr. 171.) structive filing doctrine in such cases As both appellant and respondent recog- "would be clearly impracticably or inappro- nize, however, Frederick E.H. was decided priate." While we recognize the impor- before a 1987 amendment to rule 39(a), tance of a natural mother or father's paren- which now provides that "[the rules gov- tal rights (see Santosky v. Kramer (1982) eming appeals from the superior court in 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 criminal cases [i.e., rule 30 et seq.] are L.Ed.2d 599; In re Jacqueline H. (1978) 21 applicable to ... any appeal in an action Cal.3d 170, 176, 145 Cal.Rptr. 548, 577 P.2d under Civil Code section 232, except where 683), we deem the special need for finality otherwise expressly provided by this rule in cases under section 232 of paramount or rule 39.1, or where the application of a importance. Adoption proceedings could particular rule would be clearly impractica be jeopardized if the finality of a judgment ble or inappropriate." Appellant contends under section 232 were uncertain. (See that, following this amendment, the con- cone. opn. of Brauer, J., in In re Micah S. structive filing doctrine of In re Benoit (1988) 198 Cal.App.3d 557, 564-568, 243 (1973) 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 Cal.Rptr. 756 [discussing need for expedi- P.2d 97 (Benoit) should be available in tious resolution in section 232 cases]; see cases arising under section 232. also Adoption of Alexander S. (1988) 44 1322in Benoit, the Supreme Court deemed Cal.3d 857, 868, 245 Cal.Rptr. 1, 750 P.2d a notice of appeal timely filed in a criminal 778 [concern regarding prolonging uncer- case even though it had been filed beyond tainty for children is policy reason for disal- the 60-day period following rendition of lowing collateral attack on final judgments judgment specified by rule 31(a) for crimi- in adoption proceedings].) Such considera- nal appeals. There each of two defendants tions are not present in criminal cases. had made arrangements with his trial at- Appellant mistakenly asserts that her torney to file a notice of appeal, but timely motion for appointment of counsel on ap- notices were not filed. The Benoit court peal was filed on May 3, 1988, and should extended principles previously applied in be construed as a notice of appeal. The cases where defendants had relied upon clerk's transcript reveals that the motion prison authorities to mail their notice of was filed on May 4, 1988, the same day as appeal to the court, reasoning: "(We can the notice of appeal. This contention is see some reason to excuse a prisoner un- therefore unavailing. learned in the law who has relied upon the assurance of his trial counsel that the no- tice of appeal will be timely filed by the (Disposition latter since the prisoner would be more The appeal is dismissed. justified in relying on his counsel who had represented him and might have some con- KLINE, P.J., and BENSON, J., concur. tinuous concern for him than upon a prison official who was not an attorney and had no familiarity with his case." (Id., at p. 86. (0 1 KEY NUMER SYSTEM) 109 Cal.Rptr. 785, 514 P.2d 97.) 4. Although we are without jurisdiction to review support the judgment. (See In re Frederick E.H., this matter on the merits, we have informally supra, 169 Cal.App.3d 344, 346, fo. 1, 215 Cal. reviewed the record. Were we to reach the Rptr. 171.) merits, we would find substantial evidence to666 264 CALIFORNIA REPORTER 216 CalApp.34 319 216 Cal.App.3d 319 Procedural Background 3ialn re A.M., a minor. On March 18, 1987, respondent filed its ALAMEDA COUNTY SOCIAL SERVIC petition seeking to declare A.M. free from ES AGENCY, Plaintiff and the custody and control of her parents. Respondent, Trial was held on September 23, 24 and 28, 1987, and the matter was taken under sub- J.M., Defendant and Appellant. mission. Judgment was entered on Febru- No. A042237. ary- 1, 1988, terminating the parental rights of appellant and any presumed or alleged Court of Appeal. First District, natural fathers. Notice of entry of judge Division 2 ment was served on March 4, 1988. J.M.'s Dec. 1. 1989 notice of appeal was filed on May 4, 1988. Count)- social services agency peti- tioned court to declare child free from cus- 1321 Discussion tody and control of her parents. The Supe- A threshold issue is whether the notice rior Court. Alameda County. Myron Martin. of appeal filed herein can be deemed time- J., terminated parental rights of mother, ly." It was filed 61 days after the notice of and mother appealed. The Court of Ap- entry- of judgment was served. Appellant peal, Smith, J., held that notice of appeal urges that we deem the notice of appeal was not timely filed timely under the "constructive filing" doc- trine, while respondent contends that the Dismissed. doctrine should not be applied to cases aris- Infants 6244 ing under section 232. Principle of constructive filing of no- Appellant's trial counsel submitted a dec- tice of appeals does not apply to proceed- laration to this court in opposition to re- ings for termination of parental rights. spondent's motion to dismiss, stating the West's Ann. Cal.Civ.Code $ 232: Cal.Rules following: Appellant informed her counsel of Court, Rules 2(a), 39(a). that she wished to appeal shortly after receiving notice of the judgment. On May 1320Ann L. Lipson, Berkeley, for defen- 2, 1988, counsel attempted to contact appel- dant and appellant. lant to have her sign the notice of appeal Richard J. Moore, County Counsel, Coun- but was unable to reach her. He then signed the notice of appeal and filed it, ty of Alameda, Oakland, Anthony E. Scarr believing it to be timely filed. Deputy County Counsel, for plaintiff and respondent. Pursuant to rule 2(a) of the California Rules of Court (hereafter cited by rule only), as pertinent here, a notice of appeal SMITH, Associate Justice. must be filed within 60 days after the date J.M. appeals from a judgment freeing of sendee of written notice of entry of her daughter A.M. from her custody and judgment. In 1985, a Court of Appeal, control pursuant to Civil Code section 232, relying upon Supreme Court cases holding subdivisions (a)(1) (abandonment) and (a)(7) the timely filing of the notice of appeal in (child in supervised out-of-home placement civil cases jurisdictional (Estate of Hanley for one year period).' We conclude that (1943) 28 Cal.2d 120, 142 P.2d 423; Hollis- the notice of appeal was not timely filed ter Convalescent Hosp., Inc. v. Rico (1975) and consequently dismiss the appeal. 15 Cal.3d 660, 125 Cal.Rptr. 757, 542 P.2d 1. All further statutory references are to the Civil more fully address the issue as part of their Code. briefing on the merits. 2. Respondent filed a motion to dismiss the ap- 3. The notice of appeal in this case was filed on pcal on the ground that the notice of appeal was May 4, 1988. The 60-day period expired one not timely filed. The motion was denied with- day earlier, on May 3, 1988. out prejudice and we directed the parties to