IN RE: CODY L. (1992)

OPINION

This is an appeal from a termination of parental rights.   The issues Jineen L. raises stem from the order made at the 18–month review, when the juvenile court referred her son's case for a termination hearing under Welfare and Institutions Code section 366.26.¹  Per subdivision (k) of that statute, “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.”

Jineen failed to petition for writ relief, however;  and this appeal was not filed until after her parental rights were terminated.   Accordingly, she has placed herself in an appellate maelstrom that has generated no fewer than 12 published opinions in the last seven months and 21 overall in the past three years.²  Eschewing the current trend, we find this post-termination appeal to be appropriate and timely.  (On the merits, though, we affirm.)   Along the way, for the benefit of local practitioners, we describe the procedures this division intends to follow, pending further guidance from the Supreme Court.³

I

When children are declared dependents of the juvenile court, removed from the family home, and offered reunification services with their parents, the Legislature has mandated that status review hearings be held at six and twelve months.⁴  Typically, after one year in an out-of-home placement, the juvenile court decides whether to return the child to the parents or initiate proceedings to sever parental rights.  (Welf. & Inst.Code, §§ 366.25, 366.26.)   Nevertheless, the court has the option of extending the out-of-home placement for up to six months, provided a third status review is scheduled no later than eighteen months after the child's removal from parental custody.⁵  (Welf. & Inst.Code, §§ 366.21, subd. (g)(1);  366.22;  366.25.)   If the court determines the matter should be referred for a selection and implementation hearing, several orders and findings are made.

Beginning in the mid–1980's, confusion reigned concerning the proper procedure to review those findings and orders.  (See, e.g., In re Eli F. (1989) 212 Cal.App.3d 228, 234–235, 260 Cal.Rptr. 453.)   In an effort to remedy the situation, the Legislature ended routine appeals from the review immediately preceding the selection and implementation hearing.   The statutory changes became effective January 1, 1989.   For pre–1989 dependency cases, section 366.25, subdivision (j) provides, “An order by the court that authorizes the filing of a petition to terminate parental rights pursuant to Section 232 or that authorizes the initiation of guardianship proceedings is not an appealable order but may be the subject of review by extraordinary writ.”   The counterpart for post–1988 cases is subdivision (k) of section 366.26, quoted above.

Sadly, it appears the tonic has exacerbated the disease.   A survey of the appellate landscape vis-à-vis the scope and effect of sections 366.25, subdivision (j) and 366.26, subdivision (k) reveals there is as much, if not more, appellate debate today concerning appealability than before.   Two questions surface repeatedly in the challenges to orders and findings made at the 12– or 18–month reviews.⁶  They are:  (1) In light of section 366.25, subdivision (j) and section 366.26, subdivision (k), how may an aggrieved party challenge orders and findings made at the status review immediately preceding the selection and implementation hearing?   In other words, what may be appealed and what should be the subject of a writ petition?   And (2) if there was no early writ review on the merits, may orders and findings made at the last status review be considered in an appeal from a judgment terminating parental rights?

The Third District addressed the first issue early on with In re Eli F., supra, 212 Cal.App.3d 228, 260 Cal.Rptr. 453.   There, the panel observed, “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.”  (Id. at p. 235, 260 Cal.Rptr. 453.)   The court then concluded the statutory prohibition against appeals applies “only [to] 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 and rule 1396(b).”  (Id. at pp. 235–236, 260 Cal.Rptr. 453.)  Eli F.'s statutory interpretation was reasonable;  and, for a time, appellate courts accepted without question its premise, i.e., that some portions of the referral order were not affected by the 1989 amendments and were, consequently, still appealable.⁷

This resulted in a slew of opinions dissecting juvenile court referral orders and finding certain portions reviewable by writ and others only by appeal.   But appellate panels soon began to disagree over which aspects of a referral order could be reviewed via appeal and which could only be challenged by a petition for extraordinary relief.   For example, some courts held attacks on findings that reunification services were adequate may be reviewed in a pre-termination appeal (In re Kristin W. (1990) 222 Cal.App.3d 234, 248, 271 Cal.Rptr. 629);  others said only a writ petition was appropriate.  (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483.)   Similarly, there has been disagreement as to whether visitation orders are to be reviewed by pre-termination appeal or writ petition.  (Compare In re Kristin W., supra, 222 Cal.App.3d at p. 248, 271 Cal.Rptr. 629 with In re Megan B., supra, 235 Cal.App.3d at p. 955, 1 Cal.Rptr.2d 177 (dis. opn. of Sonenshine, J.).)

While this debate rages, practitioners have been forced to file essentially redundant writs and appeals (invariably at public expense since the vast majority are appointed) or risk severe consequences:  Several courts have declined to treat an appeal from a nonappealable portion of a referral order as a writ.   In those cases parents were denied any appellate review.  (E.g., In re Megan B., supra, 235 Cal.App.3d at p. 953, 1 Cal.Rptr.2d 177;  In re Eli F., supra, 212 Cal.App.3d at p. 236, fn. 6, 260 Cal.Rptr. 453.)

Recently, a panel in Division One of this court rejected “the concept of bifurcated review.”  (In re Steven H. (1992) 6 Cal.App.4th 1752, 1759, 8 Cal.Rptr.2d 535.)   In a well-reasoned analysis, the Steven H. court concluded all components of an order referring the case for a selection and implementation hearing should be reviewable via a writ petition, regardless of whether the particular finding or order constitutes a “direct attack” on the referral order.   The opinion recites the same list of disadvantages to piecemeal review we have just discussed.   And we agree with its conclusion:  The Eli F. rule, while providing one reasonable explanation of subdivisions (j) of section 366.25 and (k) of section 366.26, is not the only logical interpretation.   More to the point, however, it is simply not workable.⁸

In our view, the dialogue surrounding the question of which portions of the referral order are reviewable by writ and which by appeal is no longer productive.   It has all been a vain effort to discern what the Legislature intended when it said orders directing termination hearings are “not [ ] appealable [ ] but may be the subject of review by extraordinary writ.”  (Welf. & Inst.Code, §§ 366.25, subd. (j);  366.26, subd. (k).)  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?

Our only criticism of In re Steven H., supra, 6 Cal.App.4th 1752, 8 Cal.Rptr.2d 535 is that it failed to go far enough.   There, our colleagues declined to “attempt statement of a rule for all occasions” (id. at p. 1761, 8 Cal.Rptr.2d 535) and stopped short of “stat[ing] that there should never be a situation in which a portion of the order emanating from a 366.21 or 366.22 hearing, which refers the case to a selection and implementation hearing, should be appealable (as distinguished from review by extraordinary writ).”  (Id. at p. 1760, 8 Cal.Rptr.2d 535.)

We think a rule for all occasions would best serve the interests of those involved in juvenile dependency proceedings.   Accordingly, with this opinion and its companion, In re Siebrina B. (Cal.App.1992) 9 Cal.Rptr.2d 889, also filed today [Ordered not officially published Oct. 16, 1992], we are placing the juvenile court and practitioners on notice of the procedures we will now follow.   Before we articulate them, however, we must resolve the second question in the appealability analysis:  What of the parent who did not challenge the orders at the 12– or 18–month review hearing, but seeks to attack them in a post-termination appeal?

Nothing in subdivision (j) of section 366.25 or subdivision (k) of section 366.26 abrogates the general rule that interim decisions are reviewable on appeal from a final judgment.⁹  Because the orders made at the referral hearing are not themselves appealable, the longstanding rule that “[a]n appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed” (In re Elizabeth M., supra, 232 Cal.App.3d at p. 563, 283 Cal.Rptr. 483) simply does not apply.  (See also Welf. & Inst.Code, § 395.)   This conclusion conflicts with that reached by several other Courts of Appeal, however;  and, as of the date of this opinion, the Supreme Court has granted review in one of those cases.  (In re Matthew C. (1992) 3 Cal.App.4th 249, 4 Cal.Rptr.2d 303, review granted Apr. 23, 1992 (S025565).) ¹⁰

In re Taya C., supra, 2 Cal.App.4th 1, 2 Cal.Rptr.2d 810 did survive a petition for review.   There, our colleagues in Division One wrote, “We agree [ ] the Legislature did not intend to preserve the issues resulting in the referral to the section 366.26 hearing, including the adequacy of the reunification services and a parent's compliance, for a second review on appeal because of the express statement the order is not appealable.   It would be illogical to review the order itself by petition, and then later rereview the underlying findings on a subsequent appeal.” ¹¹  (Id. at p. 8, 2 Cal.Rptr.2d 810, fn. omitted.)

But nothing in the controversial subdivisions suggests the mere option of filing a writ petition eliminates a post-termination appeal to challenge the referral order.  Code of Civil Procedure section 906 generally applies to dependency proceedings.  (See, e.g., In re Debra M. (1987) 189 Cal.App.3d 1032, 1036, 234 Cal.Rptr. 739.)   It provides, “[u]pon an appeal [from a final judgment or a post-judgment order], the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party ․”  (Italics added.)   Whether one considers the termination of parental rights a final judgment or a post-judgment order, it is an appealable ruling;  and, unless the subdivisions under scrutiny today abrogate the applicability of Code of Civil Procedure section 906, the referral order, which certainly “involves the merits or necessarily affects the judgment ․ or [ ] substantially affects the rights” of a parent, may be reviewed after parental rights have been terminated.   We do not believe they do.

The Legislature knows how to prohibit an earlier order from being attacked on appeal from a subsequent judgment.   For example, a challenge to a judge's refusal to accept disqualification “is not an appealable order and may be reviewed only by a writ of mandate․”  (Code Civ.Proc., § 170.3, subd. (d), italics added.)   Subdivisions (j) and (k) do not limit a party “only” to writ relief.

While there is no question the right to appeal is statutory and may be abolished at any time, courts should not anticipate or infer legislative intent in this regard.   Until the Legislature clearly removes the right to challenge referral issues on appeal from the termination ruling, we will continue to recognize a parent's right to attack them, provided they were not previously considered on the merits in a writ proceeding.

 Having said this, we are prepared in this opinion and In re Siebrina B., supra, 9 Cal.Rptr.2d 889, to articulate the procedures this court will follow in dependency proceedings.   They are:  All orders and findings made by a juvenile court at the hearing where the cause is referred for initiation of “a petition to terminate parental rights pursuant to [Civil Code [s]ection 232 or ․ guardianship proceedings” (Welf. & Inst.Code, § 366.25, subd. (j)) or for a hearing under Welfare and Institutions Code section 366.26, regardless of whether they constitute direct attacks on the referral order, are subject to the no-immediate-appeal rule in sections 366.25, subdivision (j) and 366.26, subdivision (k).¹²  They may be immediately challenged, however, by a petition for writ of mandate.  (See also Cal.Rules of Court, rule 39.2.)

 Such a petition may be summarily denied, but per rule 39.2(b), not on the basis that the petitioner has an adequate remedy by way of appeal.   While summary denial of a writ petition will not foreclose a party from raising the same issue in a post-termination appeal, denial on the merits will.   But we believe such petitions should be reviewed on the merits in most cases:  From the perspective of dependent children and their families, present and prospective, an appeal of a termination judgment is an inadequate remedy, as rule 39.2(b) states.

 Nevertheless, orders at referral hearings may be attacked in an appeal from a judgment terminating parental rights, establishing a guardianship, or placing the minor in long-term foster care.   Practitioners should realize, however, that in many cases intervening events might render any error harmless and failure to seek writ relief may forfeit an otherwise just claim.   We cannot overemphasize the importance of adhering to rule 39.2 of the California Rules of Court and the use of extraordinary writ relief to challenge orders in dependency cases.

Any notices of appeal from referral orders filed after the finality of this opinion will be dismissed.   All pending appeals challenging orders from the referral hearing will be treated as petitions for extraordinary relief.

II

 We now proceed to the merits of Jineen L.'s appeal.   She first challenges the statutory 18–month deadline for reunification services (Welf. & Inst.Code, §§ 366.21, subd. (g)(1);  366.22), arguing it is an arbitrary period pegged to the state's pecuniary interests.¹³  Assuming the period was selected for that reason, the 18–month limit is not arbitrary, at least as applied in this case.

In the past 15 years, there has been a revolution in thinking concerning long-term foster care.   We doubt any respected professional in the field disagrees today with the view that long-term foster care is generally detrimental and the state has a compelling interest in ensuring that dependent children find stability and permanence in their lives sooner rather than later.  (In re Brian R., supra, 2 Cal.App.4th at p. 923, 3 Cal.Rptr.2d 768;  In re Emily L. (1989) 212 Cal.App.3d 734, 742, 260 Cal.Rptr. 810;  In re Heather P. (1989) 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545.)   Eighteen months is usually not too short a period in which to expect parents to make a commitment to raising their offspring.¹⁴  We find no violation of constitutional dimension here.¹⁵

III

 Finally, Jineen challenges the sufficiency of reunification efforts.   We agree the efforts in this case were not so extensive as we usually see.   But the fault lies with Jineen, not the system.   For the first 12 months that Cody was in an out-of-home placement, she rarely surfaced in his life.   She was incarcerated on several occasions and failed to advise SSA of her whereabouts or to achieve any of the reunification goals.   She had her opportunity and threw it away.   Yes, she had made some progress by the time the termination hearing was held.   But she admitted she was not prepared to parent Cody even at that late date;  if all went well, she would still require three to six more months of rehabilitation.   Too little, too late.  (In re Rikki D., supra, 227 Cal.App.3d 1624, 278 Cal.Rptr. 565.)

Judgment affirmed.

I concur fully with Justice Crosby's opinion.   I believe it represents the best accommodation of competing policies in the sometimes baffling world of juvenile dependency procedure;  indeed, I have authored an opinion to that effect filed this date.  (In re Siebrina B. (Cal.App.1992) 9 Cal.Rptr.2d 889 [Ordered not officially published Oct. 16, 1992].)  I write separately to explain my departure from In re Megan B. (1991) 235 Cal.App.3d 942, 1 Cal.Rptr.2d 177, where I was something of the “swing vote” in a two-to-one decision holding that a change in visitation gave rise to an appeal even though it was issued in conjunction with a nonappealable “referral” order.

Although we sit in panels of three, we are a five judge court.   Today's decision, read in conjunction with the dissenting opinion in Megan B., makes it clear that a majority (i.e., Justices Crosby, Wallin, and Sonenshine) believe Megan B. should no longer be followed.   By agreeing to be the “fourth vote,” I can assure that a visitation order made in conjunction with a referral order will be treated as nonappealable in this division no matter what panel a litigant may draw.   I am willing to do that;  at least litigants will receive some measure of predictability.   As Justice Blackmun once observed:  “If my vote were not needed to create a majority, I would adhere to my prior view.   A definitive ruling, however, is paramount.”  (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 354, 94 S.Ct. 2997, 3014, 41 L.Ed.2d 789 [conc. opn. of Blackmun, J.].)

FOOTNOTES

1.   Jineen challenges the termination of reunification services, contending the statutory scheme that authorizes them for no more than 18 months is arbitrary, and attacks the finding that reasonable services were provided.

2.   The reader must accept our accounting on faith.   It is too early to tell how many of the recent opinions will remain on the books.   A few have already been depublished, the Supreme Court granted review in several others, and petitions are pending in most of the rest.   Five recently ran the gauntlet and emerged unscathed.  (In re Amanda B. (1992) 3 Cal.App.4th 935, 4 Cal.Rptr.2d 922;  In re Amber U. (1992) 3 Cal.App.4th 871, 4 Cal.Rptr.2d 726;  In re Cory M. (1992) 2 Cal.App.4th 935, 3 Cal.Rptr.2d 627;  In re Taya C. (1991) 2 Cal.App.4th 1, 2 Cal.Rptr.2d 810;  In re Megan B. (1991) 235 Cal.App.3d 942, 1 Cal.Rptr.2d 177 [as to the last opinion, see infra, fn. 8.].)

3.   Our division is to an extent in a sui generis position respecting these issues because a special experimental rule of court applies only to us.  (See Cal.Rules of Court, rule 39.2.)

4.   Two distinct, but parallel, statutory schemes currently exist for dependent children.   Key provisions for all of them include Welfare and Institutions Code sections 300, 361, 361.2, 361.5, and 366.   For minors who were adjudged dependents of the juvenile court before 1989, sections 360, 366.2, 366.25, and 366.3 also apply.  Civil Code section 232 governs the termination of parental rights involving these children.   Minors who have entered the system since January 1, 1989, look to Welfare and Institutions Code sections 366.21, 366.22, and 366.26.At the dispositional hearing in some cases, a child will be removed from the family home, but no reunification services will be ordered.   This can only occur if the court finds, by clear and convincing evidence, that any of the five circumstances enumerated in Welfare and Institutions Code section 361.5, subdivision (b) exist.   When this determination is made, there are no status review hearings.   Instead, what was traditionally referred to as a termination hearing, but is now commonly yclept a “selection and implementation” hearing (In re Amanda B., supra, 3 Cal.App.4th 935, 938, 4 Cal.Rptr.2d 922), must be scheduled within 120 days of the supra, dispositional hearing.   Accordingly, the judgment after the dispositional hearing, normally appealable per Welfare and Institutions Code section 395, includes the referral order, specifically not appealable per sections 366.26, subdivision (k) and 366.25, subdivision (j).   One appellate court has determined the proper remedy to challenge the dispositional judgment in those circumstances is a petition for extraordinary relief.  (In re Rebecca H. (1991) 227 Cal.App.3d 825, 836, 278 Cal.Rptr. 185.)   We agree.  (See infra, fn. 12.)

5.   In our experience, what happened in this case is typical;  i.e., the 18–month option is a de facto reality.   Because continuances are routinely granted for the dispositional and status review hearings, the 12–month review may occur at or near the 18–month anniversary of a child's out-of-home status.   This means the court loses the statutory discretion to postpone the scheduling of a selection and implementation hearing, unless an appropriate motion is made.  (See, e.g., Welf. & Inst.Code, §§ 352, 388.)   Nevertheless, the delays also mean that most parents receive 18 months of reunification services.  (See, e.g., In re Brian R. (1991) 2 Cal.App.4th 904, 924, 3 Cal.Rptr.2d 768.)

6.   Though more infrequent, the same issues arise at the dispositional hearing in those cases where the court refuses to order reunification services.   In that circumstance, a permanency planning hearing must be held within 120 days.   Accordingly, the orders at the dispositional hearing are of the same ilk as those more often made at the 12– or 18–month review.  (Fn. 4, ante;  In re Rebecca H., supra, 227 Cal.App.3d 825, 278 Cal.Rptr. 185.)

7.   This court was no exception.  (In re Rubin P. (1991) 2 Cal.App.4th 306, 313, 3 Cal.Rptr.2d 301;  In re Megan B., supra, 235 Cal.App.3d at p. 951, 1 Cal.Rptr.2d 177.)

8.   Accordingly, we will no longer adhere to those portions of In re Megan B., supra, 235 Cal.App.3d 942, 951, 1 Cal.Rptr.2d 177 and In re Rubin P., supra, 2 Cal.App.4th 306, 313, 3 Cal.Rptr.2d 301 that require bifurcated review of referral orders.

9.   Appellate courts are not of a single mind concerning what is a “final judgment” in juvenile dependency cases.   Because an appealable judgment is entered at the dispositional hearing, some courts treat all subsequent rulings, including the one terminating parental rights as post-judgment orders.   This appears to be an unduly academic approach that fails to recognize the realities of the subsequent proceedings.   As a practical matter, the termination ruling is the final decision in the dependency process.   In our view, it should be treated as a final judgment for appellate purposes.   It might also be the result of a too-narrow reading of Welfare and Institutions Code section 395, which provides, “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․”  (Italics added.)   Use of the indefinite article “a” preceding judgment suggests to us there may be more than one judgment in juvenile dependency cases.

10.   Petitions for review are pending in several others.

11.   We agree with this statement, of course, in cases where there was earlier writ review on the merits.

12.   As a practical matter, this rule will most often affect orders at the 12– or 18–month status reviews.   In those cases where reunification services were not ordered, the rule will apply to the orders at the dispositional hearing.  (In re Rebecca H., supra, 227 Cal.App.3d 825, 278 Cal.Rptr. 185.)   There are also some occasions when a referral order may be made at the six-month status review.  (E.g., Welf. & Inst.Code, § 366.21, subd. (e).)

13.   The federal government will reimburse states for foster care and adoption assistance expenses only for 18 months after a minor is removed from parental custody.  (42 U.S.C. §§ 670–676.)

14.   See In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632, 278 Cal.Rptr. 565:  “Children should not be required to wait until their parents grow up.”

15.   This will be apparent in light of the next section of the opinion.

CROSBY, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.