Rubin P., In re

• Decision Date: 31 December 1991
• Docket Number: No. G010958,G010958
• Citation: 2 Cal.App.4th 306,3 Cal.Rptr.2d 301
• Court: California Court of Appeals Court of Appeals
• Parties: In re RUBIN P., a Minor. ORANGE COUNTY SOCIAL SERVICES AGENCY, Petitioner and Respondent, v. PEDRO P., et al., Objectors and Appellants.

Page 301

3 Cal.Rptr.2d 301

2 Cal.App.4th 306

In re RUBIN P., a Minor.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Petitioner and Respondent, v. PEDRO P., et al., Objectors and Appellants.

No. G010958.

Court of Appeal, Fourth District, Division 3, California.

Dec. 31, 1991.

[2 Cal.App.4th 307] Stephen S. Buckley, El Toro and Phillip I. Bronson, Sherman Oaks, under appointment by the Court of Appeal, for objectors and appellants.

[2 Cal.App.4th 308] Terry C. Andrus, County Counsel, and Nicholas S. Chrisos, Deputy County Counsel, for petitioner and respondent.

Harold LaFlamme, Santa Ana, and Jess Ann Hoyt, Orange, under appointment by the Court of Appeal, for the Minor.

OPINION

MOORE, Associate Justice.

Pedro P. and Teresa M., the parents of Rubin P., have separately appealed from orders terminating their parental rights. We conclude the failure to hold a hearing under Welfare and Institutions Code section 366.22, subdivision (a) ¹ deprived them of due process and requires that the findings terminating their parental rights be reversed.

FACTS

On May 19, 1989, respondent filed a petition seeking to declare minor a dependent child under section 300, subdivisions (b) and (j), alleging he was residing with his mother in a plywood shack devoid of utilities and being fed unrefrigerated formula from unsterilized bottles. The petition also alleged his mother (appellant Teresa M.) was developmentally disabled and unable to care for him, and that minor's father (appellant Pedro P.), an itinerant field worker, did not protect him from these circumstances.

On July 7, appellants pled nolo contendere to an amended petition under the same subsections and agreed that minor would continue to reside out of the home. Minor was ultimately placed in foster care and adjusted well. Appellants' service plan was directed at reunification and required counseling, parent education classes, and a more suitable residence. At both the six- and twelve-month reviews pursuant to section 366.21, the social worker's report indicated appellants were progressing with their service plan, and continuing reunification services were recommended.

Appellants were expecting a new child in September 1990. They were given notice of the section 366.22, subdivision (a), 18-month review hearing at the 12-month review hearing, and indicated they would be going to Mexico for the birth of their new child, but would return for the hearing. The child was not born in Mexico, but in Orange County, and after a visit by a public health nurse who noted the child was slightly jaundiced, appellants left for Oregon with the infant to avoid the institution of dependency proceedings on the infant's behalf.

On the date set for the 18-month review, appellants were not present and no hearing was held. Instead, respondent's counsel and minor's counsel entered into a stipulation that there had not been substantial compliance with the service plan, that returning minor to appellants would create a substantial risk of detriment to him, and that he be placed for adoption or legal guardianship. Appellants' counsel was not a party to this stipulation and moved to withdraw as their attorney of record prior to any findings. The motion was granted, and the only record of what occurred at this "hearing" is gleaned from the motion to be relieved as counsel, the stipulation entered into between counsel for respondent and for minor, and a minute order which was later amended on March 25, 1991. There was no reporter present.

Thereafter, the matter was set for a permanency plan/implementation hearing pursuant to section 366.26. Appellants, who were in contact with their social workers between the November 21, 1990, 18-month review hearing and the date scheduled for the permanency plan/implementation hearing, appeared at the latter and gave testimony. During that proceeding, the court realized it could not proceed because there had been no finding made at the 18-month review, pursuant to section 366.22, that reasonable reunification services had been provided to appellants.

The court declared a recess and directed the parties to go to the court which had been scheduled to preside over the 18-month review hearing and obtain an amended minute order reflecting that the appropriate findings had been made. The parties returned with an amended minute order from Commissioner Hickman's court which indicated that reasonable services had in fact been provided. Though the modification to the minute order was made on that day, March 25, 1991, there is no record of what changes were made or how the court arrived at the requisite findings. Counsel for appellants, who had been reappointed prior to the commencement of the permanency planning/implementation hearing, objected to the amended minute order, arguing that appellants had not entered into the stipulation, that no default had been entered against them, and that no actual hearing had occurred upon which such findings could be made.

The court overruled counsel's objections, holding that the purpose of a section 366.26 hearing was not to reargue the issue of whether reasonable services had been provided, but only to determine whether minor was adoptable and whether any exception applied under section 366.26 which would preclude termination of appellants' parental rights. Respondent's counsel asserted that an objection to the propriety of the section 366.22 hearing was untimely and could only be addressed on appeal, and the court agreed. The court refused to set aside the findings indicated in the amended minute order, found the minor to be adoptable, and found that termination of appellants' parental rights would not be detrimental to the minor.

DISCUSSION

I

Appellants argue the failure to allow them a contested 18-month review hearing pursuant to section 366.22, subdivision (a) ² requires reversal of the termination of their parental rights. We agree.

Under prior law, the termination of parental rights pursuant to Civil Code section 232 was a separate proceeding from those involving dependency and a permanency plan. However, effective January 1, 1989, the termination of parental rights was governed by sections 366.22 and 366.26 of the Welfare and Institutions Code, and proceedings involving dependency and the termination of parental rights became intertwined. As counsel for appellants argued at the section 366.26 hearing, ³ the relevant issues at such a proceeding are in large part dependent and predicated upon findings made at a section 366.22 hearing.

At the section 366.26 hearing, the court properly limited the issues to minor's adoptability and the presence or absence of circumstances indicating that termination of appellants' parental rights would be detrimental to the minor. (Cal. Rules of Court, rule 1463.) However, this hearing was predicated upon findings made during the section 366.22 proceeding, at which a stipulation was entered into that appellants had not complied with their service plan, that returning minor to appellants would create a substantial risk of detriment to him, and that he be placed for adoption or legal guardianship. This stipulation was entered into in lieu of holding an actual hearing, and was later followed by an additional finding, by amendment to the minute order, that reasonable reunification services had been provided. That such findings could be made absent the presence of the appellants and their counsel is doubtful; that they could be made pursuant to a stipulation entered into between only respondent and minor's counsel, and in lieu of holding an actual hearing, is incomprehensible. ⁴ "[T]he findings [made at a previous 18-month review hearing] pursuant to Section 366.22 that a minor cannot or should not be returned to his or her parent ... shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor...." (§ 366.26, subd. (c)(1).) The section 366.22 hearing was vital to appellants' parental rights.

Respondent argues that, since appellants had actual notice at the 12-month review hearing of the date of the 18-month review hearing, their actions in voluntarily absenting themselves conferred jurisdiction upon the court to proceed in their absence. The argument misses the point. Here, no hearing occurred, even in appellants' absence. The only evidence that anything occurred is the motion to be relieved as counsel, the stipulation entered into between counsel for respondent and minor's counsel, and the minute order which was later modified to reflect that the appropriate findings had been made. There simply was no hearing. Though respondent is correct that a stipulation may be evidence, the stipulation was not made in the context of a hearing, nor were appellants or their counsel a party to it, and it was never entered into evidence. This could not bind appellants, nor could it be the basis of a court finding or order. ⁵ See 1 Witkin, Cal.Procedure (3d ed. 1985) Attorneys, §§ 207-216, pp. 238-248; see also Palmer v. City of Oakland (1978) 86 Cal.App.3d 39, 43-44, 150 Cal.Rptr. 41 [stipulation binding only on persons in privity with parties to the stipulation]; Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 476, 107 Cal.Rptr. 378 [stipulation may not bind court on questions of law and legal conclusions]; (Linsk v. Linsk (1969) 70 Cal.2d 272, 276, 74 Cal.Rptr. 544, 449 P.2d 760 [attorney may stipulate to procedural matters but may not impair client's substantial rights or the cause of action by stipulation].)

Respondent also argues the time for appellants to appeal the 18-month review hearing pursuant to section 366.22 has expired. Subdivision (k) of section 366.26 provides that "An order by the court directing that a hearing pursuant to this section be held is not an appealable order, but may be the subject of review by extraordinary writ." The general rule is that "An appeal from the most recent...