In re Athena Q. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. J513950C
- Trial judge
- Jean P. Leonard (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- dependency
- Panel
- Cynthia Aaron (author), Alex C. McDonald, Joan K. Irion
Analysis
The trial court denied Virginia P.'s petition under Welfare and Institutions Code section 388 to modify the removal of her daughter, finding no prima facie showing, no changed circumstances, and that modification was not in the child's best interests. The Court of Appeal affirmed the order, concluding that Virginia abandoned her appeal because she failed to present specific arguments regarding the section 388 denial and instead relied on arguments from a separate, unrelated appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition under Welfare and Institutions Code section 388 to modify prior custody order“We therefore conclude that Virginia has abandoned her appeal of the order denying her petition under section 388.” | unclear | not reached | agree with court The appellate court did not review the merits of the trial court's decision because it determined the appellant had abandoned the issue by failing to provide pertinent legal argument specific to the order being challenged. |
Authorities
- relied: Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691 — When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.
The appellate opinion: sound — The opinion correctly applies the procedural rule that an appellant must present specific arguments to preserve issues for review. By relying on arguments from a different case involving a distinct legal issue (ICWA), the appellant failed to provide cognizable argument for the section 388 denial, justifying the finding of abandonment.
How this analysis was made · dispute it
unusual dispositionThe juvenile court denied Virginia P.'s Welfare and Institutions Code section 388 petition to modify a prior removal order, finding no prima facie showing, no changed circumstances, and that modification would not serve the child's best interests. The Court of Appeal affirmed because Virginia assigned no error to the section 388 ruling and merely incorporated by reference ICWA arguments from a separate appeal, so the court deemed the appeal abandoned.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of mother's section 388 petition to modify the prior removal order (no prima facie showing, no changed circumstances, modification not in child's best interests)“We therefore conclude that Virginia has abandoned her appeal of the order denying her petition under section 388.” | unclear | correct | agree with court The appellate court never reached the merits of the section 388 ruling; it affirmed on the procedural ground that the appellant presented no cognizable argument directed at the order, instead incorporating by reference ICWA arguments from another appeal. Treating an unargued issue as abandoned is well established (Landry), and the court also addressed in a footnote the possibility that the ICWA argument was meant to void the later order, noting that its prior affirmance of the ICWA determination disposed of that theory. On this record the result is supported. |
Authorities
- relied: Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691 — When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and the reviewing court need not discuss it.
The appellate opinion: sound — The court correctly applied the abandonment rule where the appellant offered no argument addressed to the order actually appealed from, and it anticipated and disposed of the only plausible alternative reading of her brief. The opinion is very short and does not describe the standard of review or the merits of the section 388 ruling, but it did not need to given the abandonment.
Opinion
Filed 1/16/14 In re Athena Q. 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 ATHENA Q., a Person Coming Under the Juvenile Court Law. D064707 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J513950C) Plaintiff and Respondent, v. VIRGINIA P., Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Jean P.
Leonard, Judge. (Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff and Respondent.
Virginia P. appeals the juvenile court's denial of her petition under Welfare and Institutions Code section 388 to modify a prior order that removed custody of her daughter under Welfare and Institutions Code section 361, subdivision (c)(1). In support of her petition, Virginia cited as changed circumstances that she "has continued to participate in services comprising [sic] of therapy and substance abuse treatment . . . ."
The trial court denied Virginia's petition, finding that she failed to make a prima facie showing, that she failed to show changed circumstances, and that granting the modification would not be in the minor's best interests.
On appeal, Virginia does not assign any specific error to the court's order denying her petition. Instead, she merely "joins in and adopts by reference the arguments presented in her opening brief in Appeal No. D064265." Virginia's appeal in case No. D064265 challenged the trial court's determination that her daughter was not an Indian child under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1921 et seq.).1 The arguments advanced in Virginia's opening brief in case No. D064265 have nothing to 1 We affirmed that determination in an unpublished decision filed December 23, 2013.
2 do with the order that she challenges in the instant appeal.2 We therefore conclude that Virginia has abandoned her appeal of the order denying her petition under section 388.
(Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].)
DISPOSITION
The order is affirmed.
AARON, J.
WE CONCUR:
MCDONALD, Acting P. J.
IRION, J.
2 If Virginia intended for us to construe her current argument to be that a prior error on the ICWA determination rendered void the subsequent denial of her petition to modify, our disposition of her previous appeal disposes of that contention. 3
Cites, in this corpus
- Landry v. Berryessa Union School District H013458 · 1995-10-25