IN RE: CEDRIC G. et al.

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

IN RE: CEDRIC G. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JEANETTE J., Defendant and Appellant.

No. D017341.

Decided: December 24, 1992

Jennifer L. King, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Terri L. Richardson, Deputy County Counsel, for plaintiff and respondent. Robert Wayne Gehring, Fallbrook, under appointment by the Court of Appeal, for minors.


This case raises questions of procedural law which have not as yet been addressed in the newly emerging field of practice under the Welfare and Institutions Code 2 provisions dealing with dependent children (§ 300 et seq.) as substantially amended in 1988 (see Sen.Select Com.Rep. on Children and Youth, Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (1988), hereafter referred to as “Senate Select Committee Report”).   The several districts of the Court of Appeal have labored mightily to flesh out the details of the new procedures set forth in the law and to some extent explained by the Senate Select Committee Report.   A group of related issues to which much attention has been given has been the procedures by which various rulings in the progression of dependency hearings may be reviewed by the Court of Appeal.   The broad stroke of our work has been to reconcile section 395, which provides that “[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 ․,” with section 366.26, subdivision (k), which provides that “[a]n 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.”

 Generally, we perceive that our effort has been to promote and implement one of the central objectives of the legislation:  to accelerate the process by which dependent children's permanent placement is achieved, so that “minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.”  (Sen.Select Com.Rep., p. 10.)   To this end we have affirmed that the exclusive method of review of a section 366.21 or 366.22 order terminating reunification services and referring the case for a section 366.26 selection and implementation hearing is by extraordinary writ.  (In re Amber U. (1992) 3 Cal.App.4th 871, 880, 4 Cal.Rptr.2d 726;  In re Michelle M. (1992) 4 Cal.App.4th 1024, 1029–1031, 6 Cal.Rptr.2d 172;  In re Cassandra V. (1992) 10 Cal.App.4th 31, 36, 12 Cal.Rptr.2d 532.)   The requirement of writ review cannot be evaded by including in an appeal from a judgment following a section 366.26 selection and implementation hearing challenges to the findings and rulings made at the earlier referral hearing.  (In re Amanda B. (1992) 3 Cal.App.4th 935, 940, 4 Cal.Rptr.2d 922.)   Similarly, the limitation of review by writ cannot be bypassed by packaging the alleged error at the referral hearing in terms of ineffective assistance of counsel (although under appropriate circumstances the writ may be brought at a late date).  (In re Arturo A. (1992) 8 Cal.App.4th 229, 242, 10 Cal.Rptr.2d 131.)

In In re Steven H. (1992) 6 Cal.App.4th 1752, 8 Cal.Rptr.2d 535, we considered the appealability of a portion of the order made after a section 366.21 hearing which was ancillary to the principal thrust of the order.   The order's primary effect was the termination of reunification efforts and the referral to a section 366.26 hearing.   The order also dealt, however, with a matter not necessarily related to the later selection and implementation hearing:  it regulated child visitation pending the section 366.26 hearing.   We held that any portion of an order made after a section 366.21 hearing which is “integrally related to the referral order” (id. at p. 1761, 8 Cal.Rptr.2d 535) may be reviewed only by writ petition (id. at p. 1759, 8 Cal.Rptr.2d 535).   We said that “the interests of early resolution of the disposition of the child who is the subject of the action require that any review of an order which is part of the order referring the case to a 366.26 hearing should be limited to writ review.”  (Ibid.)

We now approach the appealability of two additional kinds of orders made pending the section 366.26 hearing:  an order made following a section 388 hearing, and an order denying relief based upon Code of Civil Procedure section 473.   The factual and procedural background in this case giving rise to our deliberations, in brief outline, was as follows:  The two young children had become dependents of the court because of mother's inability to care for them, as well as her bizarre conduct which endangered their safety.   Mother failed to carry out the terms of the reunification program, resulting in the likelihood that at the 18–month hearing the court would refer the case to a section 366.26 selection and implementation hearing, terminating further reunification efforts.

The 18–month hearing took place on February 6, 1992.   Mother's counsel was present but mother did not appear.   After making the requisite findings the court terminated reunification services and set a hearing under section 366.26 for June 4, 1992.   Mother was brought to court (under a bench warrant) on February 18, 1992, and at that time advised of the June 4 hearing date.   At the June 4 appearance the court was advised that mother wished to bring a motion to set aside the prior referral order, based upon Code of Civil Procedure section 473.   The court continued the section 366.26 hearing and, on June 17, held a hearing on mother's Code of Civil Procedure section 473 motion.

Mother's case for relief under Code of Civil Procedure section 473 was that she and her counsel had failed to present a defense at the section 366.22 hearing through error and excusable neglect:  He had appeared on February 6, when she was absent, and then she appeared by herself on February 18.   The court found this presentation inadequate and denied the motion.

Mother then, on July 30, 1992, filed a new motion under section 388, asking the court to set aside the prior order terminating reunification services upon the basis of changed circumstances.   The court heard this motion on August 3, 1992, the same day of, but before, the section 366.26 hearing, and denied relief.   The result of the section 366.26 hearing was the termination of mother's parental rights and a referral of the children for adoptive placement.

This present appeal raises issues relating to the section 366.26 hearing itself, which we discuss below.   The appeal also, however, purports to address error in terms of the denial of relief under section 388, and also the denial of relief under Code of Civil Procedure section 473.   In this published portion of our opinion we limit our discussion to the availability of review by appeal of each of these orders.

 Our first conclusion is one to be reached mostly upon the basis of common sense rather than strict legal construction.   Assuming, as we conclude below, that review of the orders under consideration should be accomplished by writ petition rather than ordinary appellate process, we must recognize the inexpedience of attempting to enforce such a rule when the special hearing is held at the same time as or very closely upon, the selection and implementation hearing.   We note that there apparently are many instances in which, as here, the section 388 hearing is held just prior to the section 366.26 hearing.   In such event, if there is to be an appeal of the section 366.26 judgment it would make little sense to require that the review of the concurrent section 388 order be mounted in a separate proceeding.   Were counsel to file an appeal from the section 366.26 judgment and a concurrent petition for writ of mandate from the section 388 order, most appellate courts would consolidate the petition and appeal for unified consideration.   Since that is the situation in this case, we will give substantive consideration to the review of the section 388 motion, and do so hereunder.

 What, however, should be the rule when the motion in question is sufficiently in advance of the section 366.26 hearing to permit effective writ review?   In this case the order denying relief under Code of Civil Procedure section 473 was made on June 17, a good month and a half before its section 366.26 hearing.   Under these circumstances we rule that the review of the denial order must be brought by timely writ.3

This conclusion pertains, of course, only to a special motion the objective of which is the overturning of the order referring the case to a selection and implementation hearing.   Motions for relief under Code of Civil Procedure section 473, as well as motions under section 388, definitionally may be brought to seek relief from juvenile dependency orders other than an order referring the case for a final disposition.   The only special orders which may be subject solely to review by writ petition are those which seek to undermine the section 366.21 or 366.22 order (or, in the less typical case, the § 361.5, subd. (f) order), which moves the case to early final determination.   Based upon our reasoning set forth in In re Steven H., supra, 6 Cal.App.4th 1752, 8 Cal.Rptr.2d 535, we conclude that the exclusive review mandate of section 366.26, subdivision (k) should be applicable to the review of all such motions.   To permit ordinary appellate review of such orders would undermine the objective of prompt resolution of the review of interim orders leading to a final hearing.   It would make no sense to require writ review of the section 366.21 referral order itself, but then permit ordinary appellate review of a section 388 order or an order denying relief under Code of Civil Procedure section 473, when the substance of either interim motion is the reversal of the section 366.21 order.

This case is a good example of the point.   Section 388 relief is properly directed to situations in which circumstances have “changed,” thus requiring a showing of new evidence since the time of the prior hearing in question.   We apprehend, however, that the procedure provided by section 388 is often used as a practical attempt to review the referral ruling.   As we noted in In re Jennifer J. (1992) 8 Cal.App.4th 1080 at page 1090, 10 Cal.Rptr.2d 813, “the court at the section 366.26 hearing is no longer seeking to reunify parent with child.   Issues resolved at the section 366.21 or 366.22 review hearing may not be revisited at the section 366.26 hearing.   The selection and implementation hearing proceeds upon the premise that efforts to reunify are over, and the objective is to select the long-term plan for care and custody which will most benefit the child.”   The only method, therefore, by which questions of renewal of reunification and reversal of the path toward termination of parental rights can be attempted is via a section 388 petition.   As a result the evidence produced at the section 388 hearing is often, as was the case here, little more than an attempt to rehash the considerations previously reviewed at the section 366.21 or 366.22 hearing.   This is, of course, inappropriate and ground for denial of relief.   The point is that upon such denial a review of that order should be brought by writ petition if timing permits.

The same analysis applies to the Code of Civil Procedure section 473 motion in this case.   The motion was based upon prejudice alleged to have resulted from mother's inadvertent failure to appear at the hearing which resulted in the referral order for the section 366.26 hearing.   It was, therefore, a direct attack on the referral order.   The success of the motion would have resulted in the setting aside of the order and a derailing of the progress toward final disposition of the child.   Any appellate review of such order, therefore, should be brought by writ.

We therefore reject the appeal based on grounds associated with the denial of the Code of Civil Procedure section 473 motion.   There was ample time following the order denying the motion, prior to the date set for hearing of the section 366.26 motion, to permit the filing of a writ petition.   Had there been merit to the Code of Civil Procedure section 473 motion and had a writ petition been timely filed, there would have been time to reverse the denial order, resulting in a vacation, or at least a postponement, of the selection and implementation proceeding.

With respect to the order denying the petition brought under section 388, since we find that the motion was heard concurrently with the section 366.26 hearing and that no prejudice will result from our review of the order in conjunction with the appeal from the section 366.26 judgment, we do address, hereunder, the substance of that issue.




The judgment and orders are affirmed.


2.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

3.   The respondent asserts that the provision for relief under Code of Civil Procedure section 473 is unavailable in dependency proceedings, since these proceedings in the juvenile court are special, with their own set of rules and statutes, and there is no provision in juvenile dependency law corresponding to Code of Civil Procedure section 473.   We do not accept this proposition, because section 348 specifically provides that “The provisions of Chapter 8 commencing with Section 469 [and concluding with Section 476] of Title 6 of Part 2 of the Code of Civil Procedure ․ shall apply to petitions and proceedings under this chapter.”   Further, we see no theoretical or practical reason why the relief provided by Code of Civil Procedure section 473 should not be available in juvenile proceedings.   If a party to juvenile proceedings suffers an adverse judgment by reason of a failing resulting from that party's “mistake, inadvertence, surprise, or excusable neglect,” relief therefrom should be available on the same grounds as would be appropriate in any civil proceeding.   We have no occasion in the determination of this case to address, and hence we do not address, the effect that the urgency of prompt administration of juvenile dependency cases might have upon the granting of relief from some default under Code of Civil Procedure section 473.   It is indeed conceivable that the ordinary requirement of a showing of diligence upon discovery of the mistake or default (see 8 Witkin, Cal.Procedure. (3d ed. 1985) Attack on Judgment in Trial Court, § 173, p. 577) would be strictly applied when, to all of the ordinary considerations, is added the imperative of avoiding delay in the final disposition of dependent children.

FOOTNOTE.   See footnote 1, ante.

FROEHLICH, Associate Justice.

BENKE, Acting P.J., and HUFFMAN, J., concur.