Appellate Procedure,  Jurisdiction,  Standing to Appeal,  Waiver of Issues

Not Every Procedural Error is Jurisdictional

I know that sounds self-evident. But a jurisdictional challenge is your last hope on appeal if you’re relying on procedural irregularities that you let pass without objection. That’s because a jurisdictional defect can be raised any time in the course of the proceedings, so a party on appeal does not have to worry about having waived it.

But the appellant in In re Angel S., case no. C054446 (3d Dist. Oct. 23, 2007, modified and ordered published Nov. 13, 2007) isn’t able to pull it off.

The appellant in Angel S. had her probate guardianship of her 2-year-old great niece terminated after the girl suffered severe head injuries in appellant’s care and appellant later failed to complete steps ordered in the reunification services plan. She claimed that the juvenile court that terminated the guardianship lacked jurisdiction to do so because the Sacramento County Department of Health and Human Services petitioned to end the guardianship under Welfare and Institutions Code section 388 instead of by a motion under section 728 and did not give notice of the hearing to the minor’s father or establish that good faith attempts to locate him had failed.

But neither of these errors is jurisdictional, says the court. Section 728 conferred fundamental jurisdiction on the juvenile court to terminate the guardianship. Bringing the petition under the wrong section is a mere procedural defect that the appellant waived by failing to object below. As for notice, appellant had no standing to challenge a lack of jurisdiction as to the father that might result from the failure to serve him. She was provided notice of the hearing and appeared.

This case has a nice, succinct discussion of the difference between a lack of fundamental jurisdiction to hear and decide a matter vs. acts “in excess of” a court’s power to act even when it has fundamental jurisdiction. Both are a form of jurisdictional defect, but the distinction is important because the ways in which a lack of jurisdiction may be challenged depend on the type of jurisdictional defect. This case is worth reading for this summary alone.