IN RE: SIEBRINA B.

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

IN RE: SIEBRINA B., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. VINCENT B. et al., Defendants and Appellants.

Nos. G011009, G011848.*

Decided: July 10, 1992

Dennis L. Cava, Beverly Hills, Paoli & Paoli and Sylvia A. Paoli, Tustin, under appointment by the Court of Appeal, for defendants and appellants. Terry C. Andrus, County Counsel, and Michelle Ben–Hur, Deputy County Counsel, for plaintiff and respondent. Jane Winer, La Canada, under appointment by the Court of Appeal, for the minor.

OPINION

Vincent B. and Marilynn B., the parents of minor Siebrina B., have separately appealed from orders denying reunification services and directing that a hearing to terminate parental rights be held, as well as a final order terminating their rights and finding Siebrina to be adoptable.   We conclude that many of the underlying orders are not appealable in their own right, but are properly reviewable in the subsequent appeal from the judgment terminating parental rights, in accord with our opinion in In re Cody L. (Cal.App.1992), 9 Cal.Rptr.2d 882 [Ordered not officially published Oct. 16, 1992].   All of the issues in this case are properly before us in some manner, and (in the unpublished portion of this opinion) we affirm the termination of parental rights.

PROCEDURAL HISTORY

On March 25, 1989, Siebrina was born in Santa Ana with cocaine in her system.   A petition was filed three days later, alleging that Vincent had supplied Marilynn with cocaine the day before Siebrina's birth, and further alleging there was a substantial risk Siebrina would suffer serious physical harm pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b).1  The petition was sustained on April 19 and Siebrina was adjudged a dependent of the juvenile court.

On October 3, respondent Orange County Social Services Agency (SSA) filed a supplemental petition alleging that appellants failed to provide adequate medical treatment for Siebrina and further alleging there was a substantial risk Siebrina would suffer serious physical harm, pursuant to section 300, subdivision (a).   This petition was filed because Siebrina had been diagnosed as a “failure-to-thrive” infant.   The petition was sustained on February 27, 1990.

On October 17, SSA filed a second supplemental petition, alleging Siebrina had suffered serious physical abuse and emotional damage, and had not been protected by Vincent, who knew or should have known of the abuse.   Siebrina was admitted to the hospital with bruising, scars, lacerations, open wounds, internal bleeding and dehydration.   The petition was sustained, and on May 2, 1991 the matter was referred for a selection and implementation hearing under section 366.26.   In this “referral order,” the trial court made findings pursuant to section 361.5, subdivision (b) 2 that further reunification services need not be provided.   The order further provided that “mother's counsel's request for visitation is denied.”   Both Marilynn and Vincent filed notices of appeal from the referral order.

After several continuances, a contested section 366.26 hearing was held on November 19.   Marilynn appeared and testified, but Vincent failed to appear and a default was entered against him.   The court found Siebrina was adoptable and terminated appellants' parental rights.   Marilynn and Vincent appealed from the judgment terminating their parental rights.   We consolidated the appeals from the referral order and from the judgment terminating parental rights.

FACTS**

DISCUSSION

IAppealability

 As set forth above, appellants filed notices of appeal from the trial court's order terminating reunification services and referring the matter for a hearing under section 366.26.   Under the plain language of subdivision (k) of this statute, however, “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.”   Simply stated, this order is not appealable.

 Finding that the referral order is nonappealable, however, is a far cry from concluding it is nonreviewable.   As we explain in In re Cody L., supra, 9 Cal.Rptr.2d 882, also filed this date, we strongly disagree with cases which have held that findings made in a referral order can only be challenged in a petition for extraordinary relief.  (Id. at 9 Cal.Rptr.2d 882.)   The Legislature is perfectly capable of drafting a statute which limits appellate review solely to a petition for extraordinary relief.  (See, e.g., Code Civ.Proc., § 170.3, subd. (d), and § 409.4;  In re Cody L., supra, 9 Cal.Rptr.2d 882.)   Section 366.26, subdivision (k) is simply not drafted in such a fashion, and we find no support for the “writ it or lose it” rationale which has crept into numerous Court of Appeal opinions.   Dependency proceedings are thus subject to the usual rule on appeal:  Nonappealable orders may be reviewed in an appeal from the final judgment, in this case the judgment terminating parental rights.

 One further point deserves mention;  indeed, it is the subject of Justice Moore's “dissenting” opinion.   The referral order in the present case also made findings regarding visitation.   In In re Megan B. (1991) 235 Cal.App.3d 942, 1 Cal.Rptr.2d 177, we held (with one justice dissenting) that a visitation order made the same day as a referral order was appealable.   For reasons borne of practicality, however, we must now conclude that Megan B. is unworkable.   When the issue in Megan B. is viewed in isolation (as it was when that case was decided), there is much to be said for the conclusion that a visitation order, even if made in conjunction with a referral order, falls under section 395.4  However, as this court observes in In re Cody L.:  “Scarce judicial resources are being diverted from the real issues in these cases:  Did the court correctly conclude that adequate reunification services were provided or that parental visitation should be terminated?”   (In re Cody L., supra, 9 Cal.Rptr.2d 882.)   From now on, therefore, all orders emanating from a referral hearing will be considered nonappealable, and counsel in this division are on notice that they may either file a petition for extraordinary relief from that hearing or wait until final judgment (such as termination of parental rights) to raise such issues.

In the present case, appellants appealed from the judgment terminating parental rights as well as from the referral order, and their improper appeal from the referral order has been consolidated with their proper appeal from the final judgment.   Since there is a final judgment, we review all nonappealable orders and findings, including those made in the referral order.

II–IX ***

DISPOSITION

For the reasons stated in the unpublished portion of this opinion, the judgments are affirmed.

I agree with the majority that the trial court judgment should be affirmed.   From that point on, we part company.   I disagree with the majority's determination that a visitation order is nonappealable when made in conjunction with or simultaneously with the referral order.   This court has previously held to the contrary.  (In re Megan B. (1991) 235 Cal.App.3d 942, 951, 1 Cal.Rptr.2d 177, review den.)   The majority disapproves of Megan B. because now “[f]or reasons borne of practicality ․ [it] is unworkable.”  (Maj. opn., p. 891.) 1  Another panel of this court today disapproves of Megan B. because “the dialogue surrounding the question of which portions of the referral order are reviewable by writ and which by appeal is no longer productive․   Scarce judicial resources are being diverted․”  (In re Cody L. (Cal.App.1992) 9 Cal.Rptr.2d 882.)   And, the author of the majority opinion here writes separately in Cody L. to explain that his departure from Megan B. is not a matter of legal conviction, but is justified because it provides a “fourth vote” on the issue.  (See conc. opn. of Sills, P.J.)

Yet, unless the rules of appellate review are changed, a Court of Appeal is not empowered to change laws as it sees fit, avoiding clear legislative schemes when those schemes are deemed by judges to be unworkable or non-resource conserving.  “Courts do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature.”  (Estate of Horman (1971) 5 Cal.3d 62, 77, 95 Cal.Rptr. 433, 485 P.2d 785.)   Furthermore, my colleagues' obsession with preserving judicial resources and achieving workable and practical solutions has, in the process, obscured the deleterious effect their new rule will have on children.

Both the majority and my colleagues in Cody L. ignore the clear wording of Welfare and Institution Code section 366.26, subdivision (k) 2 which precludes an appeal only from “an order by the court directing that a hearing pursuant to this section be held․”   But, “a juvenile court frequently makes several kinds of orders at the conclusion of a permanency planning hearing.   Had the Legislature wished to make all such orders nonappealable it would have said so.”  (In re Eli F. (1989) 212 Cal.App.3d 228, 235, 260 Cal.Rptr. 453.)3  “[B]y its enactment of subdivision (j) of section 366.25 the Legislature intended to preclude appeals only from an order authorizing the filing of a parental termination action or initiating a guardianship proceeding.   Other contemporaneous orders made during a permanency planning hearing remain appealable pursuant to the general rule of section 395․”   (Id. at pp. 235–236, 260 Cal.Rptr. 453.) 4

Eli F.'s logic is just as compelling today.   If the Legislature wanted to make all orders arising from a permanency planning hearing nonappealable, they would have said so.   Incredibly Cody L. acknowledges Eli F.'s statutory construction is a “reasonable” one, but claims it “is not the only logical interpretation,” and “is simply not workable.”  (In re Cody L., supra, 9 Cal.Rptr.2d 882 fn. omitted [typed opn. p. 8].)  However, Cody L. presents no alternative interpretation of section 366.26, subdivision (k)'s command that only “an order ․ directing that a hearing pursuant to this section be held” is nonappealable.   Furthermore, the assertion Eli F.'s construction is unworkable is based solely on the claim there is a division of authority between appellate courts concerning which status review hearing orders are covered by section 366.26, subdivision (k).   The mere fact appellate courts currently disagree does not render a rule unworkable.

The majority here adopts the same approach, apparently believing statutory construction can properly be founded upon a value judgment.   I was not aware that an appellate court is free to reject a plain meaning interpretation of a statute that it does not prefer.

Cody L. cites the opinion in Megan B. for two points for which it does not stand:  1) A dispute exists between appellate courts concerning the appealability of visitation orders;  and 2) all appellate review was denied by declining to treat the appeal in that case as a writ.  (In re Cody L., supra, 9 Cal.Rptr.2d 882.)

The first point is based on a comparison of Justice Sonenshine's dissent in Megan B. with the decision in In re Kristin W. (1990) 222 Cal.App.3d 234, 271 Cal.Rptr. 629.   There is no disagreement between the holdings in Megan B. and Kristin W.   Both cases held visitation orders are appealable.   The only “disagreement” arises from Justice Sonenshine's dissenting opinion.   A dissent, by its very nature, cannot create a division of authority between appellate courts.

The second point misstates the facts in Megan B.   There the mother both appealed and filed a writ.   The writ was heard first and denied.  (See In re Megan B., supra, 235 Cal.App.3d at p. 949, fn. 2, 1 Cal.Rptr.2d 177.)   Thus, it would have made no sense thereafter to treat the appeal as a writ.

There is a wealth of recent case law on the issue of whether collateral orders are part of a referral order.   For instance, some courts have held that the issue of the adequacy of reunification services is part and parcel of the referral order and therefore not appealable (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483), while other courts have indicated that the adequacy of reunification services is an issue cognizable on appeal.   (In re Kristin W., supra, 222 Cal.App.3d 234, 248, 271 Cal.Rptr. 629.)   I believe the former approach is the more reasoned, since a finding of adequate reunification services is a prerequisite to the referral order and therefore inseparable from it.5

However, visitation is another matter.   Although a court, if called upon, must rule on visitation at the 12– and 18–month review hearings (§§ 366.21, subd. (h) and 366.22, subd. (a)), visitation is in no way a necessary predicate to a determination whether the matter should be referred for a selection and implementation hearing.   Unlike reunification services, visitation is distinct from the referral order and is not encompassed by sections 366.25, subdivision (j) or 366.26, subdivision (k).   Justice Sonenshine, whose dissent in Megan B. concludes that visitation orders are non-appealable because they are “instrumental in enabling [a] court to reach its decision that termination of parental rights [is] next on the agenda” (In re Megan B., supra, 235 Cal.App.3d at p. 955, 1 Cal.Rptr.2d 177), would apparently hold that all interim orders in parental termination cases are nonappealable.   Nothing in the statutory scheme supports her claim visitation orders are instrumental in deciding whether or not to order a parental termination proceeding.   Also to do as she suggests would be to ignore the Legislature's reference in the aforementioned sections to “order[s] ․ directing that a hearing pursuant to this section be held․”   If there were not some rulings which remain appealable, why would the Legislature not simply state that all interlocutory orders in child dependency and parental termination cases are nonappealable.   The only logical answer is that there must be at least one type of order, of which visitation is the prime candidate, that remains appealable.

In Megan B., the visitation order was temporally distinct from the referral order.   But I do not see this as a reason to distinguish Megan B. from the case here.   Its logic remains sound.   While matters such as the risk of detriment to a minor are “a prerequisite to the court's decision to authorize termination proceedings” (id. at p. 951, 1 Cal.Rptr.2d 177), “ ‘The order reducing visitation is another matter․  [¶] A decision whether to grant visitation rights to a parent is independent of any decision authorizing the termination of parental rights.   Visitation may be granted or continued to a parent during the time it takes to determine whether parental rights should be terminated.  [Citations.]   Because the granting of parental visitation rights is not inconsistent with a permanency planning order authorizing termination of parental rights, the visitation order is not within the parameters of section 366.25, subdivision (j) and thus is appealable under section 395.’  [Citations.]”  (Id. at p. 952, 1 Cal.Rptr.2d 177, quoting In re Kristin W., supra, 222 Cal.App.3d at p. 248, 271 Cal.Rptr. 629;  see also In re Elizabeth M., supra, 232 Cal.App.3d at p. 564, 283 Cal.Rptr. 483.)

Justice Sills' concurrence in Cody L. is based on the need for “predictability.”   But the rule stated in Eli F. and followed in Megan B. also provides a means of predictably determining which orders are appealable and which are not.   While it may not be as simple as the rule announced in Cody L. and Siebrina B., at least it comports with the legislative intent expressed by sections 366.25, subdivision (j) and 366.26, subdivision (k).

Section 395 sets forth the general rule regarding the right to appeal.   It is only supplanted by the more specific subdivision (k) of section 366.26 in the case of “an order by the court directing that a hearing pursuant to ․ section [366.26] be held․”   There is absolutely nothing about a visitation order that can be confused with a referral order.   Therefore, it is clear that the Legislature did not intend to limit the appealability of visitation orders.

True, it would have been simpler and made much more sense had the Legislature treated the reviewability of all interim orders in the same manner.   However, they did not.   Under the umbrella of practicality and efficiency, the majority seeks to read into section 366.26, subdivision (k) a limitation on the right to appeal all orders made under sections 366.21 and 366.22.   Indeed, if the majority were a legislative body, the statute would undoubtedly have been drafted in such a way.   However, the majority's judicial function does not include the transmutation of bad legislation into good, or “unworkable” effects into workable ones, by judicial fiat.

While the rule announced today in this case and Cody L. may be practical for lawyers representing clients in dependency proceedings, it will wreak havoc for the minors.   Under the majority's approach, an erroneous ruling made early on in the case, say at the six months status review, would result in a reversal of an order terminating parental rights and adoption of the minor several years later.  (See e.g. In re Rubin P. (1991) 2 Cal.App.4th 306, 313, fn. 6, 3 Cal.Rptr.2d 301.)   Our concern for establishing a workable and predictable review procedure in juvenile dependency matters should focus on how it affects the minors and parents involved in these cases, not on how it will simplify the work of attorneys or justices of the Court of Appeal.

I would find that visitation orders are appealable under section 395 and are not governed by section 366.26, subdivision (k).

FOOTNOTES

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

2.   That subdivision reads:  “Reunification services need not be provided to a parent described in this subdivision when the court finds, by clear and convincing evidence, any of the following:“․“(3) That the minor had been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, that following that adjudication the minor had been removed from the custody of his or her parent or guardian pursuant to Section 361, that the minor had been returned to the custody of the parent or parents or guardian or guardians from whom the minor had been taken originally, and that the minor is being removed pursuant to Section 361, due to additional physical or sexual abuse.   However, this section is not applicable if the jurisdiction of the juvenile court has been dismissed prior to the additional abuse.“․“(5) That the minor was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent.”

FOOTNOTE.   See footnote *, ante.

4.   On this issue, Justice Sonenshine adheres to the views expressed in her separate opinion in Megan B.  (See In re Megan B., supra, 235 Cal.App.3d at pp. 955–956, 1 Cal.Rptr.2d 177 [conc. and dis. opn. of Sonenshine, J.].)

FOOTNOTE.   See footnote *, Ante.

1.   The Supreme Court denied review of Megan B. on February 26, 1992.   How this majority and the panel in Cody L. can divine Megan B. to be “unworkable” in a period of 41/212 months is beyond worldly comprehension.

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

3.   Eli F. interprets section 366.25, subdivision (j), the counterpart to section 366.26, subdivision (k) for cases commenced before January 1, 1989.   The two sections are virtually identical, and cases construing the former are also authority for the latter.  (See In re Taya C. (1991) 2 Cal.App.4th 1, 8, fn. 8, 2 Cal.Rptr.2d 810.)

4.   Section 395 states in pertinent 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;  ․”

5.   Kristin W. holds that both visitation and the adequacy of reunification services are appealable issues, ruling as to the latter that, “Although the alleged insufficiency of the reunification efforts which were offered to petitioner contributed to the issuance of the permanency planning order and, thus, arguably, is subsumed in that order, this allegation does not constitute a direct attack on the authorization order.   Therefore, the issue concerning the insufficiency of the reunification services before the permanency planning decision was made is cognizable on appeal․”   While the court attempts to distinguish between an attack on a factor which contributed to the referral order, and a direct attack on the order itself, it is clear for our purposes that the issue of visitation does not fall within the ambit of either category.

SILLS, Presiding Justice.

SONENSHINE, J., concurs.