Filed 8/21/14 In re Rogelio C. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re ROGELIO C., JR., a Person Coming                               B250540
Under the Juvenile Court Law.
                                                                     (Los Angeles County
LOS ANGELES COUNTY                                                   Super. Ct. No. CK77997)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ROGELIO C.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Stephen Marpet, Juvenile Court Referee. Affirmed.
         Frank H. Free, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
                                        _________________________
                                     INTRODUCTION
       Rogelio C., Sr. (father) appeals from the order of the juvenile court entered at the
six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e))1 terminating its
dependency jurisdiction over 12-year-old Rogelio C., Jr. (the child) (§ 364). We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In June 2012, the Los Angeles Police and the FBI Violent Gang Task Force
arrested father on charges of kidnapping, sexual assault, and murder of a minor in 2001.
The Multi-Agency Response Team, of which the Department of Children and Family
Services (the Department) is a member, conducted an investigation into allegations of
felony child endangerment at father’s house.
       The Department detained the child and filed a petition under section 300,
subdivision (b) alleging that in 2011 and 2012 father placed the child in a detrimental and
endangering situation in that father exposed the child to gang members in the child’s
home, and caused father’s female companion and active gang member, Sindy A., to
reside in the child’s home and have unlimited access to the child. The juvenile court
appointed counsel to represent father.
       The Department filed an amended petition (the amended petition) adding a count 2
that alleged that father was then incarcerated on charges of murder and kidnapping
(Pen. Code, §§ 187 & 209) and was unable to provide for the child. Continuing, count 2
alleged that “father’s violent behavior remains unresolved. Said conduct, criminal
history, acts, and incarceration by the father impairs his ability to adequately parent and
protect the child and places the child . . . at substantial risk of harm.” The juvenile court
dismissed the original petition. Father denied the petition.
       At the jurisdiction hearing, the court read and considered the Department’s reports
dated July 3, 2012, August 17, 2012, September 24, 2012, and November 1, 2012. The
juvenile court stated to father, “On this case, Mr. C[.], it is my understanding that you are
likewise waiving your right to have a trial. You’re going to allow me to read the papers

1
       All further statutory references are to the Welfare and Institutions Code.


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that have been filed in the case and decide this on a petition that has been worked out
between your lawyer and county counsel. [¶] Is that your understanding on this case, as
well? ” Father twice responded, “Yes, your honor.” The court found that father had
made a knowing and intelligent waiver of his constitutional rights to a contested hearing
on the amended petition and that he understood the possible consequences of his plea.
       After deleting count 1, the court sustained the amended and interlineated petition
as to father pursuant to In re Malinda S. (1990) 51 Cal.3d 368, i.e., based on the
Department’s reports,2 declaring the child a dependent under subdivision (b) of section
300. Subdivision (b) applies when “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise or protect the child.”
(§ 300, subd. (b).) The court removed the child from father’s physical custody, placed
him with mother,3 and ordered reunification services for father.
       At the six-month review hearing (§ 366.21, subd. (e)) held in May 2013, the
juvenile court followed the Department’s recommendation and terminated its jurisdiction
over father under section 364. The family law exit order reads: “Sole physical and legal
custody of the child to the mother.” Father appealed.
                                       CONTENTIONS
       Father contends the juvenile court would not have sustained the petition had
father’s counsel not provided ineffective assistance.
                                        DISCUSSION
       Father timely appeals from the exit order (§ 364) entered at the close of the six-
month review hearing (§ 366.21, subd. (e)). However, he attacks the orders entered at the
jurisdiction hearing contending the juvenile court would not have taken jurisdiction


2
        The Supreme Court’s in In re Malinda S. holding was partially codified and
partially modified by 1996 amendments to section 355, in a manner not relevant here.
(In re Cindy L. (1997) 17 Cal.4th 15, 22, fn 3.)
3
       Mother is not a party to this appeal.


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absent ineffective assistance of his counsel. We may not review the jurisdiction and
disposition orders for several reasons.
       First, the subject of appellate review is defined by the notice of appeal.
(Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92.) “The notice of appeal
must be liberally construed [and] is sufficient if it identifies the particular judgment or
order being appealed” (Cal. Rules of Court, rule 8.100(a)(2)). Father’s notice of appeal
here very clearly challenges the May 2, 2013 hearing, stating as grounds: “the [juvenile]
court terminated F[amily] R[eunification] services for fa[ther] of 12 year old child at the
.21(e)/364 hearing.” (Italics added.) Even construing the notice of appeal as liberally as
possible, it does not mention the jurisdiction and disposition hearing or orders.
Therefore, the notice of appeal is insufficient to raise any issue concerning the rulings
made at the jurisdiction and disposition hearing.
       Second, father’s appeal from the jurisdiction and disposition orders is untimely.
Dependency appeals are governed by section 395. “This statute makes the dispositional
order in a dependency proceeding the appealable ‘judgment.’ [Citation.]” (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) However, “ ‘an unappealed disposition
or postdisposition order is final and binding and may not be attacked on an appeal from a
later appealable order.’ [Citation.]” (Sara M. v. Superior Court (2005) 36 Cal.4th 998,
1018.) “An appeal from the most recent order in a dependency matter may not challenge
earlier orders for which the time for filing an appeal has passed. [Citation.] ‘Permitting a
parent to raise issues going to the validity of a final earlier appealable order would
directly undermine dominant concerns of finality and reasonable expedition,’ including
‘the predominant interest of the child and state . . . .’ [Citation.] Accordingly, ‘By failing
to appeal, [father] has waived any complaint [he] may have regarding the [jurisdiction
order and disposition] plan as ordered.’ [Citation.]” (Ibid.)
       Third, father argues he may challenge the earlier jurisdiction and disposition
orders, despite their finality, based on his claim that his trial counsel provided ineffective
assistance. Generally, this is a useless “avenue down which to parade ordinary claims of
reversible error” that are untimely. (In re Janee J. (1999) 74 Cal.App.4th 198, 209.)


                                              4
Although a parent may “raise the issue of ineffective assistance of counsel by petition for
writ of habeas corpus filed concurrently with an appeal from a final order [citation, t]he
claim of ineffective assistance of counsel must relate to the order appealed from.
[Citation.] Habeas corpus may not be utilized to challenge antecedent final orders.
[Citation.] Thus, for example, a claim of ineffective assistance of counsel in connection
with jurisdiction and disposition orders may be raised in a petition for writ of habeas
corpus filed in connection with an appeal from the disposition order. [Citation.] The
same claims may not be raised by a habeas corpus petition filed in connection with an
appeal from an order terminating parental rights. [Citation.]” (In re Carrie M. (2001)
90 Cal.App.4th 530, 534.) Father never filed an appeal from the disposition hearing, nor
did he file a petition for writ of habeas corpus, and so the jurisdiction and disposition
orders have long since become final and unassailable even by claiming ineffective
assistance of counsel.
       Father relies on In re S. D. (2002) 99 Cal.App.4th 1068, 1077 (S. D.), for a limited
exception to this rule of nonappealability, as when application of the rule would offend
due process. He argues that his attorney rendered ineffective assistance by failing to
object to the juvenile court’s decision to take jurisdiction. In S. D., the mother’s trial
attorney conceded that section 300, subdivision (g) was applicable. The mother did not
seek review of the ensuing jurisdiction order until her parental rights were terminated.
That is when the mother appealed contending her attorney was ineffective at the
antecedent hearing because counsel misunderstood section 300, subdivision (g) as a
matter of law. (S. D., at pp. 1070-1071, 1080.) The S. D. court held the mother’s
ineffective assistance of counsel claim was not waived, notwithstanding it was untimely,
because “the record demonstrate[d] the error . . . was entirely legal, and quite
fundamental” as the mother’s attorney misunderstood the statute and neglected to assert
evidence that would defeat jurisdiction. (Id. at p. 1080.)
       To bring this case within S. D., father contends that “it must be pointed out that
[the Department] cited [and the juvenile court sustained] the wrong subdivision of section
300 in the amended petition.” Father attempts to bootstrap this case to fit the facts of


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S. D. by arguing that the juvenile court should not have sustained the petition under
section 300, subdivision (b), but under subdivision (g), which provides for dependency
jurisdiction when “the child’s parent has been incarcerated or institutionalized and cannot
arrange for the care of the child . . . .” (§ 300, subd. (g).) Father then argues his counsel
provided ineffective assistance in failing to object to the court’s ruling taking jurisdiction
because the evidence does not support a finding under subdivision (g).
       The contention is unavailing. Unlike S. D., nothing in the record here indicates
that trial counsel misunderstood section 300, subdivision (b) or that counsel or the court
committed an entirely legal and quite fundamental error. (S. D., supra, 99 Cal.App.4th at
p. 1080.) Thus, father has not demonstrated a basis for concluding that due process was
violated here so as to allow us to review the jurisdiction and disposition orders.
       Finally, father’s parental rights were never terminated here. The case never
proceeded to the selection and implementation stage (§ 366.26). Instead, the juvenile
court merely terminated its jurisdiction with a family law exit order (§ 364). That order
may be modified or terminated. (In re A.C. (2011) 197 Cal.App.4th 796, 799.)




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                                  DISPOSITION
     The order appealed from is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, J.




We concur:




             KLEIN, P. J.




             KITCHING, J.




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