IN RE: CHRISTOPHER C.

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

IN RE: CHRISTOPHER C., a Person Coming Under the Juvenile Court Law. John L. PHILLIPS, as Chief Probation Officer, etc., Plaintiff and Respondent, v. MARILYN M., Defendant and Appellant.

No. A036356.

Decided: May 23, 1988

Robert K. Calhoun, Jr., Executive Director, Frances M. Termus, Staff Atty., First Dist. Appellate Project, San Francisco, for defendant and appellant. Jerome J. Mautner, Dist. Atty., Raymond E. Schaal, Deputy Dist. Atty., Napa, for plaintiff and respondent.

This is an appeal from a juvenile court order after a permanency planning hearing pursuant to Welfare and Institutions Code section 366.25 1 in the case of a minor previously declared a dependent child under section 300.   The order appealed from referred the matter to county counsel pursuant to section 232 of the Civil Code, which concerns actions to declare a minor free of parental custody and control.   The order also continued the minor's status as a dependent child in the custody of foster parents, provided for an 18–month review, denied visitation and discontinued quarterly progress reports to appellant, the minor's mother.

Facts

A section 300 petition was filed on January 15, 1985, alleging that Christopher C., born July 22, 1983, was in need of proper and effective parental care in that his mother was arrested on January 11 on felony forgery charges and remained in custody.   The petition also contained allegations that Christopher's father was unknown, that there was no other relative willing to care for the child, and that appellant's daughter “believes that her mother is not providing properly for the minor because of her psychological problems․”

Appellant was found mentally incompetent in the California criminal proceedings against her, and the juvenile court appointed a guardian ad litem prior to the jurisdictional hearing in the section 300 proceeding.   At the jurisdictional hearing on June 7, 1985, the court found the allegations of the petition to be true, with the exception of the unproven allegation of the daughter's belief regarding psychological problems.   At that time, the court learned that there was an outstanding warrant for appellant in the State of Washington due to a 1974 grand larceny conviction.

At the time of the section 300 dispositional hearing on July 1, 1985, appellant was facing a maximum 15–year sentence on the Washington grand larceny charges.   The court noted that the dependency petition was not based upon appellant's psychological problems, but that her incompetency was a collateral factor.   The court's decision declaring Christopher to be a dependent child approved the probation officer's recommendations regarding foster placement of the child and allowed supervised visitation with appellant.   That decision was affirmed on appeal to this court on April 18, 1986.

By July 29, 1985, appellant had been certified able to participate in the criminal proceedings and was awaiting extradition to Washington on grand larceny charges.   Appellant refused to work with social services to develop a reunification plan without having her attorney present.   On August 6, appellant and her attorney met with a social worker regarding the plan, but appellant refused to acknowledge any problems other than her incarceration.2  On August 8, 1985, appellant was transferred to Washington and incarcerated.   The California criminal charges were dismissed.

At a hearing in October, 1985, the court denied a request that Christopher be placed with appellant's relatives in Washington, citing appellant's previous refusals to cooperate with efforts at reunification with Christopher, appellant's mental problems and her poor relationships with her family in the Washington area.   The court denied visitation while appellant remained incarcerated in Washington.   The plan for reunification was otherwise unchanged.   Counsel for appellant informed the court that a parole hearing would take place in November or December, 1985, and the court continued the hearing until January.

By January, 1986, counsel could represent only that appellant may be released that spring, and the court continued the permanency planning hearing until April.   The hearing was again continued until July to allow counsel to review the opinion of this court in the earlier appeal.   Social services subsequently determined that there were no relatives in the Washington area who would agree to care for Christopher and recommended that reunification planning be terminated and adoption be considered as the permanent plan.

On July 14, 1986, counsel represented to the court that appellant's release into a community work program in Washington was “imminent”.   The hearing was again continued to allow review of recent case authority on the need for additional reunification efforts prior to a reference for adoption planning.

On August 11, 1986, the permanency planning hearing was held.   At this time, appellant was in a pre-work release program in Washington which was scheduled to last at least two months prior to a parole decision.   Appellant's plan to be paroled in California was rejected by the Washington authorities.   At this time, the court denied a motion for a further continuance, found that there was no substantial probability that the minor would be returned to his mother's custody within six months, and found that the minor was adoptable.   The court ordered that the permanent plan was adoption, referred the case to county counsel pursuant to Civil Code section 232, continued Christopher as a dependent of the juvenile court for an additional 18 months, discontinued quarterly progress reports to appellant, and continued the order denying visitation.   Appellant appeals from this order.

Discussion

 As a preliminary matter, respondent argues that an order authorizing county counsel to proceed to terminate parental custody is not appealable.   We have previously stated unequivocally that an order which simply refers the matter to an agency for possible action under Civil Code section 232 is not appealable.  (In re Candy S. (1985) 176 Cal.App.3d 329, 331, 222 Cal.Rptr. 43;  In re Lisa M. (1986) 177 Cal.App.3d 915, 918, 225 Cal.Rptr. 7.)   Since those decisions were issued, several decisions of courts in other districts and of divisions of our own district have disagreed with our determination.   Division One of the Second Appellate District and Division Two of the Fourth Appellate District have agreed with our determination.  (In re Debra M. (1987) 189 Cal.App.3d 1032, 234 Cal.Rptr. 739, rev. denied May 14, 1987;  In re Brandy K. (1988) 198 Cal.App.3d 42, 243 Cal.Rptr. 484.)

Beginning with the cases which disagree with Candy S., we note that in In re Clarence I. (1986) 180 Cal.App.3d 279, 225 Cal.Rptr. 466, Division Four of this court indicated in an appeal of a Civil Code section 232 order that the appellant should have appealed the juvenile court's rulings in the earlier proceeding.   Next, in In re Joshua S. (1986) 186 Cal.App.3d 147, 230 Cal.Rptr. 437, the Fifth Appellate District found Candy S. was wrongly decided and held that an order of reference was appealable where it also terminated plans for reunification with the parent.   The Joshua S. court found that termination of reunification efforts affected the substantial rights of the parent.  (Id., at p. 153, 230 Cal.Rptr. 437.)

Subsequently, in In re Lorenzo T. (1987) 190 Cal.App.3d 888, 235 Cal.Rptr. 680, Division Six of the Second Appellate District agreed with the Joshua S. court that the reference order is appealable because it impliedly determines that nonparental placement is necessary and the aggrieved parent is forced to defend the Civil Code proceeding.   The order in Lorenzo T. determined that minimal progress had been made to alleviate the necessity of foster care for the minor and continued the minor's dependent status as well as referring the case pursuant to Civil Code section 232.   The same division stated in In re Linda P. (1987) 195 Cal.App.3d 99, 240 Cal.Rptr. 474, that even an implied termination of unification efforts and continuation of dependency status renders the order of reference appealable.   In In re Sarah F. (1987) 191 Cal.App.3d 398, 236 Cal.Rptr. 480, Division Two of this district agreed with the Joshua/Lorenzo reasoning to find the reference order appealable.3

The reasoning of the Joshua/Lorenzo line of cases rests on the language of section 395 and California Rules of Court, rule 1396(b), which govern appeals of Welfare and Institutions Code orders and which state:  “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;  ․”  Rule 1396(b) provides that “the petitioner, minor and the parent or guardian may appeal from any judgment, order or decree specified in section 395.”   Thus, a section 300 judgment of dependency and subsequent juvenile court orders are appealable in the same manner as other judgments and subsequent orders, by the persons listed in rule 1396(b).   In In re Corey (1964) 230 Cal.App.2d 813, 41 Cal.Rptr. 379, the court stated that the statutory language provides for an appeal from any order which “affects the substantial rights of the juvenile․”  (Id., at p. 822, 41 Cal.Rptr. 379.)   This language resembles the requirement of Code of Civil Procedure section 902, that an appealing party be aggrieved, and is consistent with the section 395 language to the effect that subsequent orders are appealable as any other order after judgment.

Thus, where we stated in Candy S. that the appellant was not aggrieved by a mere order of reference, the Joshua S. court found that the related order which terminated reunification efforts affected substantial rights of the parent, and was, therefore, appealable.   We do not disagree with this determination.   Termination of reunification efforts clearly affects the parent's rights and renders the parent aggrieved.   We do not, however, believe that nature of an order terminating reunification renders the related reference under Civil Code section 232 appealable.

The Lorenzo T. court, however, found that because the implied determination that nonparental placement is necessary that results from a reference order affects the substantial rights of the appealing parent, the reference order itself is rendered appealable.   The Lorenzo T. court stated:  “The order for commencement of termination proceedings is an order after judgment of dependency.  [Citation.]”  (In re Lorenzo T., supra, 190 Cal.App.3d at p. 892, 235 Cal.Rptr. 680.)   We disagree with Lorenzo T. for the reasons set forth in In re Debra M., supra, 189 Cal.App.3d 1032, 234 Cal.Rptr. 739, and in the dissenting opinion of Justice Benson in In re Sarah F., supra, 191 Cal.App.3d at pages 405–411, 236 Cal.Rptr. 480.

In In re Debra M., supra, 189 Cal.App.3d 1032, 234 Cal.Rptr. 739, the court considered an appeal solely from an order referring the case for adoption planning.  (Id., at p. 1035, 234 Cal.Rptr. 739.)   Reunification services and visitation with the mother were ordered to continue pending any action on the adoption.   In addition, the court ordered the child's dependency status to continue and ordered a psychiatric evaluation.   The only argument raised on appeal was sufficiency of the evidence to support the reference for adoption proceedings.  (Id., at pp. 1034–1035, 234 Cal.Rptr. 739.)   Observing that the referral for adoptive planning was “couched in terms of intermediacy,” the court reasoned that the legislative policy of limiting the time a child is in foster care was not served by rendering an “interim ruling referring a dependent child for adoptive planning” appealable.   We agree.

We disagree with the Lorenzo T. court's conclusion that an order of reference must always imply termination of efforts to reunite the parent and child, as illustrated in In re Debra M., supra, 189 Cal.App.3d 1032, 234 Cal.Rptr. 739.   The order of reference itself makes no binding determination of the child's status.   In addition, an order of reference under section 366.25 is not an order for commencement of termination proceedings.   The 366.25 order is merely one of referral to the appropriate agency to determine if a Civil Code section 232 proceeding should be initiated.  (In re Sarah F., supra, 191 Cal.App.3d at p. 405, 236 Cal.Rptr. 480, (Benson, J., dissenting.).)   The juvenile court has no power to order initiation of such proceedings;  its reference is binding on no one.  (In re Joshua S., supra, 186 Cal.App.3d at p. 154, 230 Cal.Rptr. 437.)   In addition, county authorities need not wait for the juvenile court's reference, but may file a Civil Code section 232 petition on their own initiative.  (In re Sarah F., supra, 191 Cal.App.3d at p. 410, 236 Cal.Rptr. 480 (Benson, J., dissenting);  In re Joshua S., supra, 186 Cal.App.3d at p. 154, 230 Cal.Rptr. 437;  In re Shannon W. (1977) 69 Cal.App.3d 956, 962–963, 138 Cal.Rptr. 432.) 4

The facts of the instant case illustrate the practical reason that such orders are not appealable.   There is no indication that a Civil Code proceeding has been filed in this matter.   If a petition to terminate parental custody is never filed, or filed but denied, an order of this court reversing the initial reference would be meaningless.   Conversely, if the petition is filed and granted, our determination that the reference was somehow improper would have no effect on the superior court's otherwise valid determination, for the simple reason that a reference by the juvenile court is not a prerequisite to initiation of a Civil Code section 232 action.  (In re Sarah F., supra, 191 Cal.App.3d at p. 410, 236 Cal.Rptr. 480 (Benson, J., dissenting);  In re Clarence I., supra, 180 Cal.App.3d 279, 282–283, 225 Cal.Rptr. 466;  In re Lisa M., supra, 177 Cal.App.3d 915, 919, 225 Cal.Rptr. 7;  contra, In re Julia C., supra, 196 Cal.App.3d 840, 844, 242 Cal.Rptr. 172, and In re Kristin B. (1986) 187 Cal.App.3d 596, 605–606, 232 Cal.Rptr. 36 [errors in dependency proceeding not necessarily moot after termination judgment].)

 Our decision, however, has no effect on other orders that may issue simultaneously with the 366.25 reference.  (In re Lisa M., supra, 177 Cal.App.3d at p. 919, 225 Cal.Rptr. 7.)   As noted in In re Joshua S., supra, 186 Cal.App.3d 147, 230 Cal.Rptr. 437, an order continuing an out-of-home placement is appealable even where the earlier disposition was also appealable.  (Id., at p. 154, 230 Cal.Rptr. 437.)   Thus, under appropriate conditions, an appeal may lie from an order terminating reunification measures, as from any other order of the juvenile court after judgment that affects the substantial rights of the minor.   In fact, an appeal from an order terminating reunification efforts is the appropriate method of review of this action of the juvenile court.  (In re Clarence I., supra, 180 Cal.App.3d 279, 282–283, 225 Cal.Rptr. 466.)   We reaffirm, however, that no appeal lies from a mere reference or authorization for the possible filing of an action to terminate parental rights.   Thus, insofar as the instant appeal purports to be from the reference order, it is dismissed.

 In addition to appealing from the reference order, appellant has challenged the court's order denying a continuance.   She argues that all evidence indicated she would be released from prison within the month and that another continuance should have been granted.   The juvenile court, however, had already continued the permanency planning hearing several times, based on counsel's representations that appellant's release was imminent.   The court expressly noted that even if appellant were released as apparently planned, it would be into a work release program that would require a substantial period of time to establish herself.   We find no error in the court's refusal to grant another continuance.

The only other argument cognizable on this appeal is appellant's contention that section 366.25 is unconstitutional, because it fails to incorporate the “constitutionally mandated preference for the least detrimental alternative.”   This argument has no merit.   The only cases cited by appellant are those which discuss the legislative requirement that a court find an award of custody to a nonparent is the least detrimental alternative to the child.   (In re Angelia P. (1981) 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198;  In re David C. (1984) 152 Cal.App.3d 1189, 1203, 200 Cal.Rptr. 115.)   This issue would be appropriately addressed in a Civil Code section 232 proceeding.  (In re Joseph E. (1981) 124 Cal.App.3d 653, 664–665, 177 Cal.Rptr. 546.)   As previously discussed, the section 366.25 order does not determine custody.3

The purported appeal from the reference order pursuant to section 366.25 is dismissed.   The balance of the orders of the juvenile court are affirmed.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code, unless otherwise specified.  Section 366.25 provides, in relevant part:  “(a) In order to provide stable, permanent homes for children, a court shall, if the minor cannot be returned home pursuant to subdivision (e) of Section 366.2, [return of custody to the parent would create a substantial risk of detriment to the minor] conduct a permanency planning hearing to make a determination regarding the future status of the minor․  [¶] (d) If the court determines that the minor cannot be returned to the physical custody of his or her parent or guardian and that there is not a substantial probability that the minor will be returned within six months, the court shall develop a permanent plan for the minor.  [¶] (1) If the court finds that it is likely that the minor can or will be adopted, the court shall authorize the appropriate county or state agency to proceed to free the minor from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code․”

2.   Appellant did sign an agreement to seek counseling, read materials on parenting children, and agree to a psychological assessment of her ability to care for Christopher.   Appellant apparently complied with the conditions she agreed to accept.

3.   We note that review was granted on February 25, 1988, in In re Julia C. (1987) 196 Cal.App.3d 840, 242 Cal.Rptr. 172 on the issues of the appealability of the reference order and whether such an appeal, if authorized, is mooted by a final judgment terminating parental rights.   The Sixth Appellate District determined in Julia C. that the reference order was appealable.

4.   We find relevant, if not strictly analogous, the Supreme Court's determination that an order pursuant to section 707 certifying a juvenile unfit for treatment in the juvenile court is not appealable.  (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976.)   The Chi Ko Wong court relied on In re Brekke (1965) 233 Cal.App.2d 196, 199, 43 Cal.Rptr. 553, which reasoned that a 707 order relates to a matter outside the jurisdiction of the juvenile court and, unlike other juvenile court orders, does not relate to the original judgment assuming jurisdiction over the minor.   The fact that a criminal court has no jurisdiction until the juvenile court makes a 707 certification only strengthens the applicability of the reasoning to this case, when the questioned order has no bearing on another court's jurisdiction.   Here, although the juvenile court order is not a jurisdictional prerequisite to civil action, it does relate to adoption proceedings, a matter outside the juvenile court's jurisdiction.   We believe that Chi Ko Wong and Brekke add weight to the conclusion that reference orders are not appealable.

HOLMDAHL, Associate Justice.

NEWSOM, Acting P.J., and ELKINGTON, J., concur.