Eli F., In re

• Decision Date: 19 July 1989
• Docket Number: No. C004186,C004186
• Citation: 212 Cal.App.3d 228,260 Cal.Rptr. 453
• Court: California Court of Appeals Court of Appeals
• Parties: In re ELI F., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DEBBIE F., Defendant and Appellant.

Page 453

260 Cal.Rptr. 453

212 Cal.App.3d 228

In re ELI F., a Person Coming Under the Juvenile Court Law.

DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DEBBIE F., Defendant and Appellant.

No. C004186.

Court of Appeal, Third District, California.

July 19, 1989.

[212 Cal.App.3d 230] Jesse S. Kaplan, under appointment by the Court of Appeal, for defendant and appellant.

Susan Roff, County Counsel, and David M. McClain, Chief Deputy County Counsel, for plaintiff and respondent.

SIMS, Associate Justice.

In this case we consider the appealability of certain orders made by the juvenile court following a permanency planning hearing (Welf. & Inst.Code, § 366.25; further unspecified statutory references are to this code)--an issue partially resolved by recent legislation. We shall conclude most of this appeal must be dismissed, but an order placing the minor in Alabama is reviewable and must be reversed because the juvenile court failed to comply with the Interstate Compact on the Placement of Children (Compact) (Civ.Code, § 264 et seq.).

FACTUAL AND PROCEDURAL HISTORY

The minor was declared a dependent by the court after his mother (appellant) admitted allegations in a petition filed in August 1986. ( § 300, subd. (a).) The minor was originally detained when appellant was arrested for shoplifting while apparently under the influence of drugs. Subsequently, the police found a syringe and a lipstick container containing methamphetamine in appellant's purse.

By January 1987 appellant had participated in a reunification plan and had made sufficient progress to warrant the minor's placement in the Family Maintenance Program. The minor was ordered into the A supplemental petition filed in April 1987 stated appellant was found to have extensive needle marks and bruising to her arms which were caused by injecting herself with methamphetamines and heroin. She admitted she was a regular user of cocaine. After appellant admitted the allegations in this petition ( § 300, subds. (a), (d)), the minor was placed in the custody of his maternal grandparents.

Family Maintenance Program in February 1987.

In a supplemental petition filed in July 1987 the maternal grandparents stated they were no longer able to provide for the minor's care, custody and control because they could not protect the minor from appellant. On at least one occasion appellant had made verbal threats to kill herself and the minor. In light of the threats, the minor was moved to a confidential foster home.

Appellant was arrested on numerous occasions after January 1987. These arrests include: forgery, burglary, harboring a fugitive, possession of illegal weapons, possession of illegal syringes, and petty theft. In July 1987 appellant was incarcerated and remained so at the time of the permanency planning hearing at issue here.

A contested Permanency Planning Hearing ( § 366.25) was held on March 2, 1988. At the conclusion of this hearing, as pertinent here, the court found there is not a substantial probability the minor will be returned to the custody of his parent within six months and the minor is adoptable. The court also made an order which incorporated by reference recommendation number seven of the social worker's report. That recommendation appears on a standard Butte County form which is materially the same as the form used by the juvenile court clerk for entering the juvenile court's minute order. The form provides: "7. The minor be ordered into the Permanency Planning Program:

"(X) 366.25(d)(1): Adoption

"( ) 366.25(d)(2): Guardianship

"( ) 366.25(d)(3): Long-Term Foster Care"

The juvenile court also ordered the child placed in the custody of the maternal aunt in Alabama.

In her appeal from these orders, appellant contends the juvenile court erred by (1) premising its adoption-referral order on the duration of the dependency; (2) choosing adoption, rather than long-term foster care or guardianship, without substantial evidence; (3) finding without substantial evidence that reunification was unlikely; (4) failing to articulate on the record the standard of proof used to enter the adoption-referral order; and (5) placing the child with his maternal aunt in Alabama pending adoption.

We shall conclude the first four contentions attack a nonappealable order and are nonreviewable but the fifth contention is meritorious.

DISCUSSION

I Appellant May Not Attack the Adoption-Referral Order In This Appeal

The right to appeal is conferred, if at all, only by statute. (People v. Keener (1961) 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587; In re Richard C. (1979) 89 Cal.App.3d 477, 482, 152 Cal.Rptr. 787; In re Corey (1964) 230 Cal.App.2d 813, 820, 41 Cal.Rptr. 379; 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 2, p. 33.)

Section 395 states the general rule governing appeals from section 300 proceedings. (See In re Corey, supra, 230 Cal.App.2d at p. 821, 41 Cal.Rptr. 379; In re Syson (1960) 184 Cal.App.2d 111, 114-115, 7 Cal.Rptr. 298; Moch v. Superior Court (1919) 39 Cal.App. 471, 478, 179 P. 440.) That statute provides in part, "A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment; ..." ¹ California Rules of In a case brought under section 300, the juvenile court's dispositional order is a judgment. ( § 360; see In re Conley (1966) 244 Cal.App.2d 755, 760, 53 Cal.Rptr. 321 [decided under former § 725].)

[212 Cal.App.3d 233] Court, rule 1396(b) also provides in part: "In proceedings under section 300, the petitioner, minor, and the parent or guardian may appeal from any judgment, order, or decree specified in section 395." (Further rule references are to the California Rules of Court.)

As a general rule, section 395 reflects a legislative intent to make appealable any order of a juvenile court after judgment which affects the substantial rights of the minor. (See In re Corey, supra, 230 Cal.App.2d at p. 822, 41 Cal.Rptr. 379 [decided under former § 800].)

Permanency planning hearings are mandated by section 366.25. Subdivision (a) of that statute requires the juvenile court to conduct one or more hearings, within time deadlines, "to make a determination regarding the future status of the minor" where the court has previously entered a dispositional order removing the minor from the physical custody of parents and the minor cannot be returned home.

If at a permanency planning hearing the juvenile court determines the minor cannot be returned to the custody of parents or guardian, and there is not a substantial probability the minor will be returned within six months, then subdivision (d) of section 366.25, set out in the margin, ² commands the juvenile court to make certain findings and orders.

Even though permanency planning orders are entered after judgment, during the past several years a large body of case law disputed whether permanency planning orders were or were not appealable. Some cases held the orders appealable. (In re Linda P. (1987) 195 Cal.App.3d 99, 240 Cal.Rptr. 474; In re Sarah F. (1987) 191 Cal.App.3d 398, 236 Cal.Rptr. 480; In re Lorenzo T. (1987) 190 Cal.App.3d 888, 235 Cal.Rptr. 680; In re Joshua S. (1986) 186 Cal.App.3d 147, 230 Cal.Rptr. 437.) Others held the orders nonappealable. (In re Debra M. (1987) 189 Cal.App.3d 1032, 234 Cal.Rptr. 739; In re Lisa M. (1986) 177 Cal.App.3d 915, 225 Cal.Rptr. 7; In re Candy S. (1985) 176 Cal.App.3d 329, 222 Cal.Rptr. 43; see In re Sarah F., supra, 191 Cal.App.3d at p. 405, 236 Cal.Rptr. 480 (dis. opn. of Benson, J.).) Some of these cases opined that only an order authorizing the filing of a Civil Code section 232 action to terminate parental rights was nonappealable. (In re Candy S., supra, 176 Cal.App.3d 329, 222 Cal.Rptr. 43 [affirming other orders discussed in the unpublished portion of the case rather than dismissing the appeal]; In re Sarah F., supra, 191 Cal.App.3d at p. 411, 236 Cal.Rptr. 480 (dis. opn. of Benson, J.).)

Last year, in an apparent attempt to clarify the issue, the Legislature added subdivision (j) to section 366.25 (eff. Jan. 1, 1989), which 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." (Stats.1988, ch. 1075, § 6.)

In In re T.M. (1988) 206 Cal.App.3d 314, 253 Cal.Rptr. 535, Division Five of the First District Court of Appeal interpreted the legislation as evincing an intent to abort even existing appeals from the proscribed orders. (P. 316, 253 Cal.Rptr. 535.) The Supreme Court denied review in T.M. on February 16, 1989, and on February 23, 1989, dismissed several cases raising this point. (Rule 29.4(c); see 9 Witkin, Cal.Procedure, op. cit. supra, Appeal, § 722, pp. 695-696.) ³ While the denial of review by the Supreme Court does not normally add weight to the opinion of the District Court of Appeal "it does not follow that such a denial is without significance...." (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865; see 9 Witkin, Cal.Procedure, op. cit. supra, Appeal, §§ 775-776, pp. 743-747.) Given the wholesale disposition of these cases in the face of an appellate interpretation of the new statute, we believe the Supreme Court has made its unspoken views clear. Section 366.25, subdivision (j) resolves the split of authority among the district courts of appeal and terminates existing appeals from the orders described in the statute. (In re T.M., supra, 206 Cal.App.3d at p. 316, 253 Cal.Rptr. 535.)

However, this conclusion does not end the question before this court. As is apparent in this case, a juvenile court frequently makes several kinds of orders at the conclusion of a permanency planning hearing. Had the Legislature wished...