HAROLD v. PROBATION DEPT COUNTY OF SAN DIEGO

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

HAROLD L.D., Appellant, v. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, PROBATION DEPT., COUNTY OF SAN DIEGO, and Jerald Bernard J., a Minor, Real Parties in Interest.

Civ. 31572, Civ. 28951.

Decided: May 22, 1984

Lee W. Selvig, San Diego, for appellant. Lloyd M. Harmon, Jr., County Counsel, Howard P. Brody, Chief Deputy County Counsel and Elizabeth Claire Eldridge, Deputy County Counsel, San Diego, for respondent. Edwin L. Miller, Jr., Dist. Atty., Jeffrey B. Dusek, Deputy Dist. Atty. and Robert S. Butler, San Diego, for real parties in interest.

Harold L.D. appeals an order of the superior court granting San Diego County Department of Social Services (Department) an administrative hearing to determine whether eight-year-old Jerald should be removed from D.'s prospective adoptive home.   The legal issue presented is whether the juvenile court is the exclusive forum to litigate Jerald's preadoptive and adoptive placement.   The case, however, is really about Jerald and what is in his best interests.   Keeping Jerald's welfare in proper focus, we conclude the dependency statutes (Welf. & Inst.Code, § 300 et seq.) 1 provide a comprehensive system placing exclusive jurisdiction in the juvenile court to determine both temporary and permanent placements (including preadoptive and adoptive placements) of relinquished children adjudged dependents of the court.   Accordingly, we hold the superior court was without jurisdiction to order a further administrative hearing to review Jerald's preadoptive placement after the juvenile court adjudged him to be a dependent child under section 300, subdivision (e).   As we shall explain, to hold otherwise would waste judicial and administrative resources, legitimize judge shopping and, most significantly, would frustrate the intent of the Legislature and the manifest purpose of the adoption and dependency statutes.   We therefore reverse the superior court's order.

I

Factual and Procedural Background

D. is a 47-year-old unmarried white male homosexual;  Jerald, born January 27, 1976, is black.   When Jerald was about 18 months old he was found wandering alone on a city street in Los Angeles.   During the next five years Jerald experienced three foster home placements, a failed preadoptive placement and a physically and emotionally damaging placement with maternal relatives.   Finally, on December 17, 1982, Department placed Jerald for adoption with D.  (Civ.Code, § 224n, subd. (a).) 2  Department later determined it had erred in making that placement and on February 23, 1983, served D. with a notice of intention to remove Jerald from his home.  (Cal.Admin.Code, tit. 22, § 30684, subd. (d)(1).)   In March 1983, at D.'s request, an administrative hearing was held before a grievance review agent.  (Id., at § 30684, subds. (e)(1), (j).)   Among the witnesses testifying at that hearing was Jerald's therapist who said Jerald's placement with D. had been beneficial.   Jerald had changed from a very sad withdrawn child to a beaming outgoing one and removing him from D.'s home would be extremely detrimental to Jerald's best interests.   After considering all the evidence, including testimony adverse to D., the review agent recommended Jerald remain with D.  (Id., at § 30684, subd. (k)(1).)   Department's director rejected this recommendation and issued an administrative order (id., at § 30684, subd. (k)(3)) directing D. to physically return Jerald to Department pursuant to Civil Code section 224n, subdivision (a).

In May 1983 D. unsuccessfully sought a writ of administrative mandate in the superior court.   In D.'s appeal from the judgment we reversed, holding there was insufficient evidence to support the director's order.  (Harold L. [D.] v. San Diego County Department of Social Services (Aug. 25, 1983) 4 Civ. No. 28951 [unpub. opn.].)

On September 13, 1983, Department petitioned the juvenile court (§§ 272, 325) on Jerald's behalf under section 300, subdivision (e).3  The petition alleged that on or about May 4, 1979, Jerald was freed for adoption by relinquishment and termination of parental rights, and had remained freed for at least 12 months without either an interlocutory decree of adoption or an adoption petition being granted.   The office of the district attorney represented Department at the September 30 jurisdictional hearing;  the minor was represented by court-appointed counsel.  (See §§ 351, 353.)   The juvenile court found the section 300, subdivision (e) allegations true and ordered Jerald remain in D.'s home.   Although in San Diego Department is the agency responsible for the preparation of the dispositional report,4 the court ordered the probation department to prepare that report.   The court also appointed a psychiatrist to evaluate both Jerald and D.  (§§ 358, subd. (a), 358.1.)

The juvenile court asked the probation department to prepare the dispositional report because it noted “there [is] a significant amount of honest difference of opinion within the Department of Social Services as to the handling of this case and the course that it ought to follow, and that that difference of opinion, as is evidenced by the report, went from the highest to the lowest levels in terms of supervisorial levels in that Department ․”   The juvenile court properly insisted the matter should be handled on its merits by persons who could be as objective as possible.   Sensitive to the internal conflicts within Department, the juvenile court was desirous of avoiding the appearance of advocacy by any person involved in Department's internecine conflict.   In light of that conflict and the juvenile court's proper concern with Jerald's welfare, it appointed independent counsel for Jerald.  (See § 317.)

Among the documents submitted to the juvenile court at the dispositional hearing was a psychiatric report which emphasized “Jerald has been bounced around from home to home more than enough” and he “is clearly in a warm, loving, nurturing environment with Mr. [D.]  It would be extremely detrimental to him to remove him from this home now or in the future or to otherwise obstruct his sense of security or permanence in this home, such as by telling him that this placement might not be permanent or having him visit with other potential foster or adoptive homes.   Hence, my very strong recommendation is to have Jerald remain with Mr. [D.] permanently as an adoptive child.”   At that hearing the court also reviewed the probation department's thorough and objective 25-page social study.

On Friday, December 2, 1983, nearly four months after we had rendered our earlier opinion and after reviewing the mass of data on Jerald, including the social, psychological and legal history, the juvenile court:  adjudged Jerald a dependent child of the court (§ 360, subd. (b)) under section 300, subdivision (e);  took custody of Jerald from the guardian (Department);  placed Jerald in D.'s home (§ 362, subd. (a));  ordered “the Adoptive Procedure to continue”;  and set a review hearing (§ 366) and permanency planning hearing (§ 366.25) for May 30, 1984.   The order also provided “that said minor be placed under the care, custody and control of the Department of Social Services of this County ․”   This obvious clerical error was corrected in an amended dispositional order dated January 20, 1984 (Cal.Rules of Court, rule 1391(d);  Gravert v. DeLuse (1970) 6 Cal.App.3d 576, 581, 86 Cal.Rptr. 93) in which the court placed Jerald under the care, custody and control of the San Diego County probation department.   Department has not appealed the jurisdictional and dispositional orders of the juvenile court.  (§ 395.)

Between the jurisdictional and dispositional hearings, Department moved in the superior court's law and motion department for a remanded administrative hearing in order to have new evidence considered on the unsuitability of Jerald's placement with D.   The superior court heard Department's motion on December 5, the Monday following the juvenile court's dispositional order.   D. argued the superior court lacked jurisdiction to order a remanded hearing.   Department, represented by the county counsel, argued the adoption and dependency proceedings were separate and distinct and thus the superior court could proceed as requested.   Department also urged the court to rely on our earlier opinion which stated:  “The judgment is reversed with instructions to the superior court to reverse Department's order removing Jerald from [D.'s] care and custody.   The superior court may retain jurisdiction and upon proper showing refer the matter to the administrative agency consistent with this opinion.”  (Harold L. [D.] v. San Diego County Department of Social Services, supra, 4 Civ. No. 28951, at p. 16.)   Department alternatively argued it was not a party to the dependency proceedings and had not appeared in them by the county counsel and thus was not bound by any orders entered by the juvenile court.

The superior court took Department's motion under submission.   After examining the various reports prepared for the juvenile court and reviewing a transcript of the dispositional hearing, the superior court ordered the matter remanded for further hearing before the administrative agency pursuant to the instructions contained in our earlier opinion.   This appeal ensues from that order.   After D. filed his notice of appeal we granted his petition for a writ of supersedeas to stay the superior court's order.

Discussion

II

 Department's threshold contention is directed to the power of the juvenile court to remove Jerald from Department's custody and place him with the probation department.   Department's argument is directed not to the juvenile court's lack of jurisdiction to enter the dispositional order, but to Department's continuing authority conferred by the Board of Supervisors' earlier resolution delegating to Department all of the probation department's pertinent duties concerning dependent children.  (See fn. 4, ante.)   We do not question the Board of Supervisors' resolution or Department's authority to act in other cases.   In this case, however, there is overwhelming evidence that there are strong conflicting views within Department on where Jerald should be placed.   Because of these conflicting views and the resultant lack of consensus, the court properly designated another qualified agency to take custody in order that a neutral party could furnish objective information to assist the juvenile court in performing its statutory responsibilities.   In effect, the juvenile court acted on the premise articulated by our Supreme Court as follows:  “We cannot assume that adoption agencies will necessarily in all cases have such wisdom and competence that they may be set apart from other custodians and given carte blanche in their control of relinquished children until a petition for adoption is before the court.   Certainly, the Legislature would not leave such a curtailment of the court's power to be drawn by inference alone from adoption provisions that contain no reference to guardianship [or dependency] proceedings.”  (Guardianship of Henwood (1958) 49 Cal.2d 639, 644, 320 P.2d 1.)

Department's argument the juvenile court lacked the power to remove custody over Jerald from Department is also contradicted by its own administrative regulations which recognize there may be circumstances requiring a relinquished child to be transferred to another agency.   Following Civil Code sections 224m and 224n, Title 22, California Administrative Code, section 30577 provides:  “An adoption agency is responsible for the care and support of any child for whom relinquishment has been accepted and filed until the child is adopted, ․ unless the relinquishment has been rescinded ․”   However, under Title 22, California Administrative Code, section 30579, subdivision (2), the “[c]are and supervision of a relinquished child may be transferred to another agency but the agency to which he was relinquished retains responsibility for him.”   Thus the statutes and the administrative regulations reflect the need to seek such supervision of relinquished children pending ultimate adoption as is most compatible with their welfare.   Here that purpose was accomplished by the juvenile court's action in transferring custody over Jerald to the probation department.

III

 Department contends that even if the juvenile court had the power to transfer custody to the probation department, that court's erroneous dispositional order may be challenged in the superior court.   Department relies on a statutory argument to defend the superior court's jurisdiction.   Department asserts the adoption provisions of Civil Code section 221 et seq. are separate and distinct from the dependent children provisions of section 300 et seq. and, accordingly, proceedings related to the adoption process are independent from and unaffected by concurrent dependency proceedings.   Specifically, Department argues the categorical language of Civil Code section 224n, subdivision (a) (see fn. 2, ante) vests it with exclusive responsibility to determine Jerald's preadoptive placement.   Implicit in this argument is the contention the juvenile court in the context of dependency proceedings must subordinate its role in adoption matters to contrary orders obtained by Department.

Preliminarily, it is helpful to recognize the incongruity of subdivision (e) of section 300 compared with the other subdivisions of that section.   Subdivisions (a) through (d) generally describe children who are seriously neglected, destitute, physically dangerous to the public or living in unfit surroundings.   Thus, the dual purposes of the dependency statutes are generally defined as protecting “the welfare of the minor and to safeguard parents' right to properly raise their own child.”  (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599, 157 Cal.Rptr. 280.)   However, once a minor is relinquished, a dependency proceeding to accomplish either of the foregoing purposes becomes unnecessary.   A different purpose underlies subdivision (e).   The principal reason that subdivision was enacted was to conform California law to related statutory requirements for federal funding.  (See Stats.1982, ch. 977, No. 9 West's Cal.Legis. Service, pp. 5119–5120 (Legis. Counsel's Digest); 5  see also Graubart-Greene, Chan and Hinrichs, Review of Selected 1982 California Legislation (1983) 14 Pacific L.J. 357, 667, 675.)   Thus, subdivision (e) is a statutory anomaly, unlike the other subdivisions of section 300.   Nonetheless, in spite of its fiscal origins, we cannot ignore the fact subdivision (e) is part of the dependency law making a child coming within section 300 a dependent child for all purposes.   It therefore becomes necessary for us to examine the statutory scheme for all dependent children, the relationship of that scheme to the adoption statutes and the role the juvenile court must play to implement the legislative intent of the adoption and dependency statutes.

In examining these issues, we are mindful that “the goal of statutory construction is ascertainment of legislative intent so that the purpose of the law may be effectuated, and that we should construe a statute in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.  [Citation.]”  (People v. Shirokow (1980) 26 Cal.3d 301, 306–307, 162 Cal.Rptr. 30, 605 P.2d 859.)   Particularly apropos to our task is the Supreme Court's observation in an analogous statutory context that “[i]t is apparent ․ that the adoption provisions and the guardianship [or dependency] provisions cannot operate to control the custody of the same child at the same time.   A child cannot be in the custody of a guardian subject to the control of the court and at the same time be in the custody and control of the agency.   In any given case the right to custody must rest with one custodian or the other for no machinery is provided whereby it may be divided between them.”  (Guardianship of Henwood, supra, 49 Cal.2d at p. 643, 320 P.2d 1.)

Adoption and dependency provisions share an identical purpose:  promotion of the welfare and best interests of children.  (Compare Civ.Code, §§ 224n, subd. (a), 227;  Cal.Admin.Code, tit. 22, § 30643;  Department of Social Welfare v. Superior Court (1969) 1 Cal.3d 1, 6, 81 Cal.Rptr. 345, 459 P.2d 897 with §§ 202, subd. (a), 350, 358.1, 366.25.)   Each set of provisions is to be liberally construed to accomplish this common purpose.  (Department of Social Welfare v. Superior Court, supra, 1 Cal.3d at p. 6, 81 Cal.Rptr. 345, 459 P.2d 897;  § 202, subd. (a).)  Liberal construction also applies to our resolution of the questions raised by Department's jurisdictional argument.

 Recent amendments to the Welfare and Institutions Code reflect the Legislature's intent to create a comprehensive system for determining both temporary and permanent placements of minors adjudged dependent children of the juvenile court.   Indeed, the express purpose of the system is to promote permanent placements either through reunification of natural families or through alternative permanent living situations such as adoptions or guardianships.  (§ 396.) 6  The Legislature's preference for permanent placements reflects its recognition of the importance to children of continuity in parental relationships and home environments, and the trauma which results from changes in established living situations.  (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 706–707, 117 Cal.Rptr. 856.)   In 1982 the Legislature reaffirmed its commitment to permanent placements of dependent children by creating a “permanency planning” procedure to provide stable, permanent homes for such children who cannot be returned to the physical custody of their parents or guardians.  (§ 366.25, subd. (a);  see generally Graubart-Greene, Chan and Hinrichs, Review of Selected 1982 California Legislation, supra, 14 Pacific L.J. at pp. 673–674.)   The first priority for such children is to seek adoptive placements.  (See § 366.25, subd. (d)(1).) 7  When such a placement is accomplished, the juvenile court “shall terminate” its jurisdiction over the dependent child.  (§ 366.25, subd. (f).)  The dependency provisions thus reflect the Legislature's intent for the juvenile court to determine the preadoptive and adoptive placements of dependent children.   The juvenile court's supervisory role is reflected administratively in San Diego by the local requirement that all petitions for adoptions must be filed and heard in the juvenile court.8

 Through a combination of statutes the Legislature has granted the juvenile court jurisdiction commensurate with its broad authority to determine preadoptive and adoptive placements of dependent children.  Section 300 is the basic grant of jurisdiction.  (See fn. 3, ante.)   Once a minor is adjudged a dependent child, under section 361, subdivision (a) the juvenile court “may limit the control to be exercised over such dependent child by any parent or guardian.”   The court also “may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, including medical treatment, subject to further order of the court ․” (§ 362, subd. (a).)  Furthermore, section 245.5 expansively provides the juvenile court may make whatever orders are necessary and proper for the best interests of a minor.   Section 388 requires all petitions to change, modify or set aside previous juvenile court orders or to terminate the court's jurisdiction over a dependent child to be brought before the juvenile court.9

In light of these jurisdictional provisions and the responsibility assumed by the juvenile court under section 300, subdivision (e), we hold that once a juvenile court adjudges a relinquished child to be a dependent child of the juvenile court, that court has exclusive jurisdiction to determine further preadoptive and adoptive placements of the child.10  Accordingly, the superior court in this case was without jurisdiction to order a further administrative hearing to review Jerald's preadoptive placement.

Our holding is consistent with decisional as well as statutory law.   In Marr v. Superior Court (1952) 114 Cal.App.2d 527, 250 P.2d 739 the prospective adoptive parents of a child filed an adoption petition in superior court.   The county probation officer then initiated a dependency proceeding on behalf of the same child in juvenile court.  (114 Cal.App.2d at p. 528, 250 P.2d 739.)   The juvenile court declared the child a ward (now called a dependent child) of the court, finding it came within the provisions of section 700 (now section 300) of the Welfare and Institutions Code.  (Ibid.)  The superior and juvenile courts then issued a series of totally conflicting custodial orders.  (Id., at pp. 528–530, 250 P.2d 739.)   On a petition for writ of prohibition to permanently stay further proceedings in the superior court, the court of appeal held the custodial orders of the juvenile court were paramount.  (Id., at pp. 530–532, 250 P.2d 739.)

“We think these and related [jurisdictional] provisions of the [Welfare and Institutions] code constitute a statutory plan which for its fulfillment requires that when a juvenile court has adjudged an infant to be its ward then the orders of that court concerning the physical custody, control and care of its ward supersede for so long as necessary any existing orders of other courts made in custodial matters which conflict therewith and that this situation also makes void custodial orders of other courts thereafter made which interfere with the exercise by the juvenile court of such full control over the minor as is proper in order that it may perform the duties it owes to its ward․   Under the juvenile court law ․ it was intended that the court itself, acting under the doctrine of parens patriae should assume, for so long as it deems necessary and to the extent it deems necessary, the complete physical custody, control and care of the person which it declares to be its ward.   It was not intended that during the existence of that wardship such matters should be interfered with in any way by custodial orders of other courts․  [T]he assumption of physical control of the ward by the juvenile court ․ was, to the extent necessary, the assumption of an exclusive jurisdiction such as to completely exclude, pro tempore, the conflicting operation of any other court's orders.”  (Id., at pp. 531–532, 250 P.2d 739.)

Here, the superior court did not enter a custodial order as such.   However, in light of the administrative history and the position taken by Department's director, the practical effect of the superior court's order ultimately will be to interfere with the juvenile court's December 2, 1983, dispositional order.   By entering its order for a remanded administrative hearing, the superior court “was attempting to interfere with the exclusive jurisdiction of the juvenile court.   This it could not do.”  (Marr v. Superior Court, supra, 114 Cal.App.2d at p. 532, 250 P.2d 739.)

It is significant that as a result of the recent statutory amendments implementing the goal of permanent placements for relinquished children through the dependency process, nothing was added to or deleted from the Civil Code to suggest juvenile court dependency proceedings must give way to Department's wishes in those cases where there is a difference of opinion between that court and Department as to the propriety of a preadoptive placement.   On the contrary, the dependency provisions establish it is the juvenile court which should determine placements leading to ultimate adoptions of relinquished children who are adjudged to be dependent children of the court.   If Department could proceed in a different department of the same superior court whenever dissatisfied with a custodial order of the juvenile court, that court's exclusive authority and jurisdiction under the applicable dependency provisions would effectively be nullified.   In addition to wasting governmental resources and legitimizing judge shopping between the juvenile and superior courts, such a result would frustrate the common purpose of the adoption and dependency provisions:  promotion of the welfare and best interests of children.   It hardly makes sense that the comprehensive legislative scheme assuring juvenile court control over the welfare of relinquished children adjudged dependents of the court should be so easily circumvented.

IV

Department also argues the superior court's order for a further administrative hearing was mandated by the language of our earlier opinion.   That opinion, however, must be construed in light of material events occurring after the decision which significantly altered the status of the proceedings.   We did not anticipate Department would initiate dependency proceedings within three weeks after our opinion was filed.   We also did not know the juvenile court would conduct a full hearing on whether Jerald should remain with D. pending completion of the adoption process.   On the record before us, we correctly assumed the superior court was the only forum in which Department would attempt to alter Jerald's preadoptive placement.   Because intervening events have invalidated that assumption, the language of our earlier opinion cannot serve as the legal basis providing jurisdiction in the superior court to order a remanded administrative hearing.

V

 Department finally claims the orders of the juvenile court do not bar it from seeking redress in the superior court because it was not a party to the dependency proceedings and was not represented in those proceedings by its lawyer, the county counsel.   Department, however, was represented by the district attorney's office at both the jurisdictional and dispositional hearings.   Department does not say nor on this record could it say the deputy district attorneys did not fully perform their professional responsibilities in representing Department's interests at those hearings.   Department also overlooks the fact the dependency proceedings were initiated by the petition prepared and filed by its own authorized representatives.   Those representatives thoroughly alleged the problems relating to Jerald's placement with D. and the reasons why the juvenile court should remove Jerald from D.'s home.   Although the juvenile court ultimately rejected Department's contentions, its views were nonetheless strongly conveyed by capable advocates.   In this context it becomes legally irrelevant that one lawyer rather than another represented Department.   County counsel's absence from the dependency proceedings neither restricts the broad scope of the juvenile court's statutory jurisdiction nor immunizes Department from compliance with that court's lawful orders.

VI

Department should not construe this opinion as prohibiting its involvement in further proceedings to assist the juvenile court in determining what is in Jerald's best interests.   Department may furnish the juvenile court with whatever information it deems pertinent.  (See Cal.Admin.Code, tit. 22, § 30579, subd. (2).)  We presume if Department believes termination of the current preadoptive placement is in Jerald's best interests, it will so argue in conjunction with the juvenile court's review and permanency planning hearing now set for May 30, 1984.11  (See In re Michael S. (1981) 127 Cal.App.3d 348, 360, 179 Cal.Rptr. 546.)

Because of delays attributable to the litigation in this case, it may well be in the best interests of Jerald for D. to file his adoption petition in order to expedite ultimate adoptive placement and a conclusion of the dependency proceedings.  (See Civ.Code, § 224n, subd. (a).) 12  If Department refuses to consent and files an adverse report, the juvenile court can then deal with the merits of the adoption rather than confronting the adoption issue by the indirect method of determining whether the preadoptive placement is proper.

VII

Disposition

Order reversed;  writ vacated.

FOOTNOTES

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

2.   Civil Code section 224n provides in part:“(a) The department or licensed adoption agency to which a child has been freed for adoption by either relinquishment or termination of parental rights shall be responsible for the care of the child, and shall be entitled to the exclusive custody and control of the child until either an interlocutory decree of adoption or a final decree of adoption has been granted.   Any placement for temporary care, or for adoption made by the department or a licensed adoption agency, may be terminated at its discretion at any time prior to the granting of an interlocutory decree of adoption or final decree of adoption.   In the event of termination of any placement for temporary care or for adoption, the child shall be returned promptly to the physical custody of the agency.”

3.   Section 300 provides in part:“Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court:“․“(e) Who has been freed for adoption from one or both parents for 12 months by either relinquishment or termination of parental rights and for whom an interlocutory decree has not been granted pursuant to Section 224n of the Civil Code or an adoption petition has not been granted.”

4.   In 1978 the San Diego County Board of Supervisors delegated to Department all pertinent duties of the probation officer “concerning dependent children described in Section 300.”  (§ 272.)

5.   “AB 2695 makes various changes in the Aid for Adoption of Children and AFDC-Foster Care programs to bring those programs into conformity with new federal requirements for funding participation, and establishes a new method for determining rates in the foster care program.”  (Consultant's Analysis of AB 2695 Moore (as amended Apr. 12, 1982), Assembly Com. on Human Services (hg. date:  Apr. 13, 1982) p. 1.)

6.   Section 396 (added by stats.1980, ch. 1229, § 4, p. 4154) provides:“It is the policy of the Legislature that foster care should be a temporary method of care for the children of this state, that children have a right to a normal home life, that reunification with the natural parent or parents or another alternate permanent living situation such as adoption or guardianship are more suitable to a child's well-being than is foster care, and that this state has a responsibility to attempt to ensure that children are given the chance to have a happy and healthy life, and that, to the extent possible, the current practice of moving children receiving foster care services from one foster home to another until they reach the age of majority should be discontinued.”  (Italics added.)

7.   Section 366.25 provides in part:“(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.   In order to enable the minor to obtain a permanent home the court shall make the following determinations and orders:(1) If the court finds that the minor is adoptable, according to the provisions of this article, the court shall order the county counsel, or if there is no county counsel, the district attorney, to initiate an action to declare the minor permanently free from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code unless the court finds that any of the following conditions exist:  ․”  (Italics added.)

8.   Although this requirement is not embodied in the local rules, counsel at oral argument confirmed the correctness of this statement.

9.   Section 388 provides in part:“Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.   The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.”

10.   A bill analysis prepared for the Legislature anticipated our holding:“2) Current law provides that children who have been relinquished to a public or private adoption agency or declared free of their parents' care, custody and control after termination of parental rights, are eligible for foster care funding.   Such children are not necessarily under the jurisdiction of the juvenile court.   This bill would place such children under the court's jurisdiction until they are placed in an adoptive home and are no longer eligible for foster care.   The court would be required to provide the same case reviews at six month intervals which are required of other foster case children.”  (Consultant's Analysis of AB 2695 Moore (as amended Apr. 12, 1982), Assembly Com. on Human Services, supra, p. 2, italics in original.)

11.   Because this appeal does not affect the finality of the juvenile court's December 2, 1983, dispositional order, the May 30 hearing should proceed as scheduled even though this opinion is not yet final.

12.   Following the paragraph quoted in footnote 2, ante, Civil Code section 224n, subdivision (a) provides in part:“No petition may be filed to adopt a child relinquished to the department or a licensed adoption agency or a child declared free from the custody and control of either or both of his parents and referred to the department or a licensed adoption agency for adoptive placement, except by the prospective adoptive parents with whom the child has been placed for adoption by the department or licensed adoption agency․   If the department or a licensed adoption agency refuses to consent to the adoption of a child by the person or persons with whom the department or licensed adoption agency placed the child for adoption, the superior court may nevertheless decree the adoption if it finds that the refusal to consent is not in the best interest of the child.”

WIENER, Associate Justice.

COLOGNE, Acting P.J., and WORK, J., concur.