Angela R., In re

• Decision Date: 26 June 1989
• Docket Number: Nos. D006293,D007891,s. D006293
• Citation: 260 Cal.Rptr. 612,212 Cal. App. 3d 257
• Court: California Court of Appeals
• Parties: In re ANGELA R., a Minor. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. LISA M., Objector and Appellant.

Page 612

260 Cal.Rptr. 612

212 Cal.App.3d 257

In re ANGELA R., a MinorSAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v.LISA M., Objector and Appellant.

Nos. D006293, D007891.

Court of Appeal, Fourth District, Division 1, California.

June 26, 1989.

Dacia Burz, San Diego, under appointment by the Court of Appeal, for objector and appellant.

Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel, Suzanne Ramirez and Arlene Prater, Deputy County Counsel, for petitioner and respondent.

Sharron Voorhees, San Diego, under appointment by the Court of Appeal, for minor.

KREMER, Presiding Judge.

On May 12, 1987, in San Diego Superior Court case number J136359, the juvenile court under Welfare and Institutions Code section 366.25 authorized the San Diego County Department of Social Services(Department) to institute proceedings under Civil Code section 232 to free dependent child Angela R. from her mother Lisa M.'s custody and control.Lisa appealed.(D006293.)

On January 15, 1988, in San Diego Superior Courtcase number A32031, the court declared Angela free from Lisa's custody and control.Lisa appealed.(D007891.)

Meanwhile, on February 29, 1988, the Department moved to dismiss Lisa's appeal in D006293.

On March 22, 1988, we deferred ruling on the Department's motion to dismiss in D006293 until consideration of Lisa's appeal on its merits.

On December 23, 1988, we consolidated the appeals.

We dismiss Lisa's appeal in D006293 from the order authorizing institution of proceedings to terminate parental rights.In D007891we affirm the judgment freeing Angela from Lisa's custody and control.

D006293

IFACTS AND PROCEDURAL HISTORY

Angela was born on August 2, 1980.

In July 1985the juvenile court declared Angela its dependent after Lisa admitted she endangered Angela by not providing her with reasonable and necessary housing.(Welf. & Inst.Code, § 300, subd. (b).)The court removed Angela from Lisa's custody and placed her in a foster home.

In January 1986 at a review hearing the court continued Angela as a dependent child with foster home placement.

In August 1986 at a review and permanency planning hearing the court continued Angela as a dependent child with foster home placement.Review was scheduled for February 1987.

In February 1987 the social worker recommended to the court that the Department pursue an action under Civil Code section 232 to free Angela from Lisa's care and custody.The matter was continued until March 1987, April 1987, and ultimately May 12, 1987.

On May 12, 1987, after a contested hearing, the court continued Angela as its dependent child with foster home placement.The court directed the Department to pursue an action under Civil Code section 232.The court found "return of the minor to the care, custody and control of the parents would create a substantial risk of detriment to the physical or emotional well-being of the minor and there is not a substantial probability that the minor will be returned within six months; the minor is considered adoptable...."Lisa appeals the order authorizing institution of section 232 proceedings.We dismiss her appeal.

IIDISCUSSION

The Department has moved to dismiss Lisa's appeal from the order authorizing institution of proceedings under Civil Code section 232.The Department correctly contends the order is nonappealable.

Chapter 1075, Statutes of 1988, addedsubdivision (j) to Welfare and Institutions Code section 366.25.Subdivision (j) provides: "An order by the court that authorizes the filing of a petition to terminate parental rights pursuant to Section 232 or that authorizes the initiation of guardianship proceedings is not an appealable order but may be the subject of review by extraordinary writ."In enacting subdivision (j), the Legislature has retroactively terminated any right to appeal from an order under Welfare and Institutions Code section 366.25 authorizing proceedings to terminate parental rights.(In re T.M.(1988)206 Cal.App.3d 314, 315-316, 253[212 Cal.App.3d 262] Cal.Rptr. 535.)"The right to appeal is wholly statutory, and the Legislature can terminate a perfected appeal by retroactive legislation clearly indicating an intent to affect pending appeals.[Citation.]Such intent is evident here: subdivision (i) of section 366.25(added in1987) expressly states that the statute applies to minors adjudged dependent children before 1989."(Id. at p. 316, 253 Cal.Rptr. 535.)

The appeal in D006293 is dismissed.¹

D007891

IPROCEDURAL HISTORY

In August 1987 the Department petitioned under Civil Code section 232, subdivision (a)(7), to free Angela from Lisa's custody and control.²

On October 26, 1987, Lisa was personally served with a copy of the petition and a citation to appear in court on December 4, 1987, to show cause why Angela should not be declared free from parental custody and control.³

On December 4, 1987, Lisa did not appear at the hearing.The court entered Lisa's default.The court continued the matter until January 15, 1988, for a prove-up hearing.

On January 15, 1988, the court read and considered the probation report, took judicial notice of the findings and orders of the dependency proceedings, and considered the dependency file in determining the services offered were reasonable.The court found the requirements of Civil Code section 232, subdivision (a)(7), were proved by clear and convincing evidence, reasonable services were offered to Lisa, awarding Lisa custody would be detrimental to Angela, and an award of custody to the Department was required to serve Angela's best interests.⁴The court entered judgment declaring Angela free from Lisa's custody and control and referring Angela to the Department for adoptive placement.Lisa appeals the judgment.

IIDISCUSSION

Lisa contends we should review certain alleged errors occurring at the juvenile court permanency planning hearing assertedly infecting the outcome of the ensuing Civil Code section 232 proceedings.Lisa also contends the court's finding under section 232 lacked substantial evidentiary support.Lisa further contends the court in the section 232 proceedings erred in entering her default and in not appointing counsel for her.We affirm the judgment under section 232.

AJUVENILE COURT PROCEEDINGS

In In re Kristin B.(1986)187 Cal.App.3d 596, 605, 232 Cal.Rptr. 36, the court held "where a judgment terminating parental rights is challenged on appeal, an earlier appeal arising out of a juvenile court dependency proceeding is not moot if the purported error is of such magnitude as to infect the outcome of the ensuing termination action or where the alleged defect undermines the juvenile court's initial jurisdictional finding.Consequently, the question of mootness must be decided on a case-by-case basis."(Id. at p. 605, 232 Cal.Rptr. 36, italics in original, fn. omitted;see alsoIn re Linda P.(1987)195 Cal.App.3d 99, 105-106, 240 Cal.Rptr. 474;In re Debra M., supra, 189 Cal.App.3d at p. 1039, 234 Cal.Rptr. 739.)

Relying on In re Kristin B., supra, 187 Cal.App.3d 596, 232 Cal.Rptr. 36, Lisa contends in her appeal from the Civil Code section 232 judgment she may properly raise the errors of the juvenile court.The Department agrees with the holding of In re Kristin B. that the issue of mootness should be decided on the posture of each particular case.However, the Department contends under the facts here the judgment under section 232 has rendered moot any errors in the juvenile court permanency planning hearing.

The court in In re Kristin B., supra, 187 Cal.App.3d at page 604, 232 Cal.Rptr. 36, perceived several instances where error in the juvenile court proceedings might bear on later termination proceedings.The court stated "where the termination judgment is based solely upon testimony improperly ruled admissible at a permanency planning hearing, the judgment's propriety is questionable.And where the superior court's jurisdiction to entertain a petition for freedom from parental control is predicated on a child's dependency status or out-of-home placement (see, e.g., Civ.Code, § 232, subds. (a)(2), (a)(7)) which arose out of an erroneous jurisdictional finding of the juvenile court, the ultimate judgment may be a nullity."(Ibid., fns. omitted.)

Lisa does not assert the termination judgment was based solely upon testimony improperly ruled admissible at the permanency planning hearing.Neither does she assert Angela's out-of-home placement arose out of an erroneous jurisdictional finding of the juvenile court.Instead, Lisa attacks the juvenile court's denial of her counsel's motion for continuance and the evidentiary basis for the juvenile court's findings under Welfare and Institutions Code section 366.25.However, Lisa makes no showing any such asserted error was of such magnitude as to infect the outcome of the Civil Code section 232 proceedings.

DENIAL OF CONTINUANCE

When Lisa did not appear at the permanency planning hearing on May 12, 1987, her counsel sought a continuance.⁵Counsel argued Lisa "did not have actual notice of the hearing, due to the fact that the trial calendar was so delayed at the time of the last court appearance that she had to leave to get to work."Counsel then told the court: "[W]e had had one readiness hearing, and then we were sent down to the trial calendar; and after much waiting around, and the fact that she had a brand new job, I told her it was okay for her to leave at that point.Counsel had selected a date at that point, and my client was advised of the date we had selected; however, she did not appear in court, and was not ordered to appear, and has not been cited."The court asked if Lisa had actual notice of the hearing.Counsel replied "to the best of my recollection she was advised of the date.I cannot--I'm not positive that's even true.To the best of my recollection she knew the date we had selected."The...