IN RE: SAMUEL H. (1983)

Appellant, the parent of a minor, attempts to appeal from an order of the juvenile court declaring the minor to be a dependent child and also from a dispositional order and judgment placing the minor in a foster home.   Appellant filed her notice of appeal after the jurisdictional hearing but before the dispositional hearing.   In the published portion of this opinion, we hold that the order of dependency, made at the jurisdictional hearing, is a non-appealable order;  however, we exercise our discretion to treat the notice of appeal as one filed prematurely so as to permit review of appellant's claims that error occurred at the jurisdictional hearing.¹  We hold further that the premature notice of appeal cannot confer jurisdiction on this court to review any alleged error at the dispositional hearing, which had not even occurred when the notice of appeal was filed.

PROCEDURAL HISTORY

The procedural history of the case, material to the published portion of the opinion, is as follows:  On December 16, 1981, the court conducted a jurisdictional hearing,² at which appellant was represented by counsel, and determined that Sam was a dependent child of the court pursuant to section 300 subdivision (a).³  The matter was set for a dispositional hearing ⁴ on January 18, 1982, and, on that date, was continued until February 16, 1982, to allow the Welfare Department to prepare a study of the home of the minor's father, who lived in Kern County.   Meanwhile, on February 4, 1982, appellant filed a pro. per. notice of appeal ⁵ attempting to appeal from prior proceedings.⁶

On February 16, 1982, appellant's attorney appeared for the scheduled dispositional hearing but appellant did not appear.   A representative of the Welfare Department informed the court that another member of the department had talked on the phone to appellant and that appellant refused to tell the department where she lived.   Appellant's attorney informed the court that appellant had visited the attorney's office but that she kept telling the attorney that she would not appear at a dispositional hearing.   The dispositional hearing was then continued for two weeks.

On March 1, 1982, the court held the dispositional hearing.   Appellant did not appear.   Her attorney informed the court that the attorney had received no word from her.   The court found that appellant was deliberately absenting herself from the hearing and proceeded to enter a dispositional order and judgment removing the minor from appellant's custody and placing him in a foster home pursuant to section 361.5 subdivision (b)(1).   Appellant did not appeal from the dispositional order and judgment.   The minor, who consistently took the position throughout the proceedings that he wanted to be removed from appellant's home, has not appealed.

DISCUSSION

I

We address first the question of whether the court's order declaring Sam to be a dependent child, entered at the conclusion of the jurisdictional hearing, is an appealable order.

Prior to 1963, it was unclear whether an appeal could be taken from an order made at a jurisdictional hearing.   Section 800 then authorized appeals only from “a judgment or decree” and from orders after judgment.  (See Stats.1961, ch. 1616, § 2, p. 3493.)   And section 702 provided that both an order and judgment should be entered in the event of a finding of dependency or wardship at a jurisdictional hearing.  (See Stats.1961, ch. 1616, § 2, pp. 3482–3483.)   In 1963, the Judicial Council issued its annual report, which commented on the confusion with respect to whether jurisdictional orders were appealable and made recommendations for legislative change.  (Judicial Council of Cal., 19th Biennial Rep. (1963) pp. 85–86.)   Section 702 was then amended so as to provide that only an “order” and not a “judgment” should be made at the conclusion of a jurisdictional hearing.  (Stats.1963, ch. 917, § 10, pp. 2167–2168.)

With regard to delinquency proceedings, it has been held that the 1963 amendment of section 702 was intended to “․ effect the recommendation of the Judicial Council that only the dispositional order to be [sic] appealable and that the jurisdictional order be subject to review on that one appeal.”  (In re Melvin S. (1976) 59 Cal.App.3d 898, 900, 130 Cal.Rptr. 844;  see also, In re David G. (1979) 93 Cal.App.3d 247, 255, 155 Cal.Rptr. 500;  In re Kelvin M. (1978) 77 Cal.App.3d 396, 399, 143 Cal.Rptr. 561;  In re William C. (1977) 70 Cal.App.3d 570, 577, 138 Cal.Rptr. 843.)   At the time of the amendment, section 702 governed the conduct of jurisdictional hearings in both dependency and delinquency cases; ⁷  consequently, the 1963 amendment was obviously designed to eliminate appeals from jurisdictional orders in both dependency and delinquency cases.

 The distinction between orders and judgments has been preserved in the current statutory scheme regulating dependency proceedings.   Whereas findings and orders are made at the conclusion of a dependency jurisdictional hearing, a judgment is entered only at the conclusion of the dispositional hearing.⁸  Pursuant to section 395, “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 ․”  The orders, judgments, and decrees of a juvenile court which are appealable are restricted to those enumerated in the Welfare & Institutions Code.  (In re Conley (1966) 244 Cal.App.2d 755, 760, 53 Cal.Rptr. 321.)   Accordingly, since an order of dependency made at a jurisdictional hearing is neither a judgment nor a “subsequent order” described by section 395, it is not an appealable order.   Any alleged error in the conduct of a jurisdictional dependency hearing should be challenged by an appeal from the dispositional judgment.

II

 Appellant asks that we review alleged error in the conduct of the jurisdictional hearing by exercising discretion pursuant to rule 2(c) of the California Rules of Court.⁹  That rule provides in relevant part:  “A notice of appeal filed prior to rendition of the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment.”

Preliminarily we address the question of whether rule 2(c) applies to an appeal from a juvenile dependency proceeding.  Rule 2(c) applies only to civil cases and is inapplicable to criminal cases which are governed solely by rule 31.  (People v. Burns (1957) 152 Cal.App.2d 329, 332, 314 P.2d 79.)   Juvenile dependency proceedings have been characterized as “․ a true civil cause, comparable in essentials to a child custody controversy between parents, except that the controversy is not between parents but one between a parent (or parents) and the state as parens patriae.”  (In re Robinson (1970) 8 Cal.App.3d 783, 786, 87 Cal.Rptr. 678, cert. den. sub nom. Kaufman v. Carter (1971) 402 U.S. 964, 91 S.Ct. 1624, 29 L.Ed.2d 128;  see also § 203.)   Recently, juvenile delinquency proceedings have been characterized as quasi-criminal in character for certain purposes.  (See, e.g., Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 801, 91 Cal.Rptr. 594, 478 P.2d 26;  In re Abdul Y. (1982) 130 Cal.App.3d 847, 859, fn. 10, 182 Cal.Rptr. 146;  In re Brian S. (1982) 130 Cal.App.3d 523, 529, fn. 2, 181 Cal.Rptr. 778.)   However, dependency proceedings have not been characterized as quasi-criminal, in part because our Supreme Court has noted that the minor faces different prospects of “personal deprivations” in delinquency and dependency cases.   (See In re Richard E. (1978) 21 Cal.3d 349, 355, 146 Cal.Rptr. 604, 579 P.2d 495, app. dism. sub nom. Ezzell v. Los Angeles County Department of Adoptions (1979) 439 U.S. 1060, 99 S.Ct. 822, 59 L.Ed.2d 26, rehg. den., 440 U.S. 940, 99 S.Ct. 1290, 59 L.Ed.2d 500.)   We thus conclude that dependency proceedings remain essentially civil in character and that rule 2(c) applies to appeals in dependency cases.

 Keeping in mind that rule 2(c) can be used only in the event that “․ the judge has announced his intended ruling ․” we next consider the suggestion that, at the time the jurisdictional hearing was conducted in 1981, the words “intended ruling” had a technical legal meaning and referred only to an “intended decision” described by former section 632 of the Code of Civil Procedure and by former rule 232,¹⁰ both of which required the announcement of an intended decision by the trial judge following a court trial in a civil case.¹¹  We note, however, that former Code of Civil Procedure section 632 required the announcement of an intended decision and entry of findings of fact and conclusions of law only upon the trial of a question of fact and not upon the granting or denial of a motion (In re Marriage of Simmons (1975) 49 Cal.App.3d 833, 836, 123 Cal.Rptr. 213), or upon the sustaining of a demurrer without leave to amend.  (Miller v. Bakersfield News-Bulletin, Inc. (1975) 44 Cal.App.3d 899, 903, 119 Cal.Rptr. 92.)   And we note further that rule 2(c) has been frequently applied so as to allow an appeal from an order sustaining a demurrer without leave to amend where no judgment of dismissal has been entered.  (See, e.g., A.L. Castle, Inc. v. County of San Benito (1964) 227 Cal.App.2d 602, 604–605, 38 Cal.Rptr. 855;  Evola v. Wendt Construction Co. (1958) 158 Cal.App.2d 658, 660–661, 323 P.2d 158;  cf. Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920–921, 167 Cal.Rptr. 831, 616 P.2d 813.)   Since rule 2(c) has been routinely applied to allow appeals from orders and judgments not subject to former Code of Civil Procedure section 632,¹² we conclude that the words “intended ruling,” as set forth in the rule, have a different and larger meaning than the words “intended decision” as they appeared in former section 632 of the Code of Civil Procedure.   Thus, rule 2(c) is not limited in its application to civil court trials.   Rather, the rule allows appellate courts in their discretion to entertain an appeal from an order made after any hearing in a civil case where (a) the order indicates the ruling of the court;  (b) the court need only enter a judgment, in accordance with the order, from which an appeal may be taken;  and (c) the judgment has been entered at the time the appellate court reviews the sufficiency of the notice of appeal.

 In the instant case, the preconditions for the exercise of our discretion under rule 2(c) have been satisfied.   At the jurisdictional hearing, the judge announced his “intended ruling” in the most certain possible terms when he found the minor to be a dependent child of the court pursuant to section 300 subdivision (a).   A notice of appeal was filed thereafter but prior to the entry of the dispositional judgment, and an appealable dispositional judgment has been entered.

In deciding whether to exercise our discretion to entertain the appeal, we are mindful that, “Under the rule that a notice of appeal must be liberally construed in favor of its sufficiency (Cal.Rules of Court, rule 1(a)), notices of appeal referring to an ‘order’ have been interpreted to apply to a ‘judgment’ so as to protect the right of an appeal where it is reasonably clear from what appellant was attempting to appeal, and where respondent could not possibly have been misled or prejudiced.  [Citations.]”  (Musgrove v. Ambrose Properties, supra, 87 Cal.App.3d at pp. 50–51, fn. 3, 150 Cal.Rptr. 722.)   In the instant case, respondent has been well aware of appellant's contentions with respect to alleged error at the jurisdictional hearing.   There has been no surprise or prejudice.   Moreover, we find good cause for allowing review of the jurisdictional hearing.   The record indicates that appellant apparently believed that collusive forces were at work and that she could get no justice in the courts.   We hardly think that it would improve her attitude or the chances for the ultimate reunification of the family if we were to dismiss her appeal on the technical ground that her notice of appeal was not timely filed.

III

 Although we have chosen to exercise our discretion to review alleged error at the jurisdictional hearing, we find that we are without discretion to review certain claims of error related to the dispositional hearing and urged by appellant's counsel on appeal.  Rule 2(c) allows consideration of an appeal based upon a premature notice of appeal only in the event that “․ the judge has announced his intended ruling ․”  Here, at the time the notice of appeal was filed, the trial judge had not even conducted a dispositional hearing upon which an intended ruling could be based.   We are aware of no authority that allows a litigant to appeal from any proceedings in advance of the time they are conducted.   After all, it's simply not fair to complain about the food until the chef has had a chance to cook it.

Appellant suggests that the trial judge indicated an intended ruling to remove the minor from the home at the jurisdictional hearing of December 16, 1981, when he remarked to appellant that, “He's not going to go back to you.”   However, our reading of the record indicates that, when the remark is placed in context, it is clear that the judge was referring to the temporary detention of the minor pending the dispositional hearing and not to any dispositional order and judgment.

Appellant further suggests that the judge somehow made an intended ruling at a hearing on January 18, 1982, when he authorized a study of the father's home.   But a judge does not indicate an intended ruling simply by asking for information, and a request for information is all that happened at the January hearing.   It was on March 1, 1982, after the Welfare Department had received a study of the father's home in Kern County, and almost a month after the notice of appeal had been filed, that the court conducted its dispositional hearing and first announced its dispositional orders and judgment.

For the foregoing reasons, we cannot review the dispositional hearing.   In an unpublished opinion, we do, however, review appellant's claims of error at the jurisdictional hearing.   And just so our most patient readers are not left wondering anxiously what happened to Sam, we choose to tell you that we have affirmed the orders of the trial court.

FOOTNOTES

1.   Since, as it turns out, appellant's assignments of error at the jurisdictional hearing are unremarkable, we treat those issues in an unpublished portion of this opinion.  (Cal.Rules of Court, rule 976.1)

2.   Pursuant to Welfare and Institutions Code sections 355 and 356.

3.   All code references are to the Welfare & Institutions Code unless otherwise indicated.

4.   Dependency proceedings in Shasta County vary in some respects from those in the majority of this state's counties, since Shasta County is one of the two demonstration counties under the Welfare and Institutions Code.  (Stats.1976, ch. 977;  Stats.1980, ch. 1311;  Stats.1981, ch. 104.   See 6 Witkin, Summary of Cal.Law (8th ed., 1982 Supp. to vol. 6) Parent and Child, § 257A, pp. 298–299.)   Although the statutory scheme affecting demonstration counties is the same as other counties with respect to the issues raised on this appeal, the legislature has enacted statutes, applicable to demonstration counties, that allow hearings to be continued beyond time deadlines applicable in other counties.  (See, e.g., §§ 352.5, 366.3.)

5.   Appellant continued to be represented by counsel at the time she filed her notice of appeal.

6.   The scope of the four-page notice of appeal is somewhat unclear.   Relevant excerpts are as follows:“UNDER THIS PENAL CODE I FILE AN APPEAL ON THE JUNVINLE CASE, AND ALSO MINE PROBATION WHICH MINE HOLD FAMILY WERE FAMES TO AND PEDA BRAINGE IN THE [H.]”S CLEANCE SAMUEL STELLA [W.].   FRED VALETIME:  for brain washing my child ,ALSO THE JUDGE DID”T GIVE ME THE COPY OF THE COMPLAINT NOR WERE I THERE WHEN GIVE MR VANTIME JUCTIDUCTION OVER MINE SON [H.]   THERE FORE THIS WERE IN BETWEEN THE FRIEND OF THE STAFF OF SHASTA COUNTRY WELFARE WHICH THIS NO EVENDENCE OF TAKE MINE SON OUT OF THE HOME WHEN MINE OWN SON TOLD ME HE WANT TO COME HOME:  BUT HE WERE AFFAIR OF MR VANLETIME MRHEART:  THE JUDGE PAT GAVE THE BRITH TO THAT CHILD MEAN DID THE JUDGE HAVE THE CHILD ARE DID MR VANLETIME GIVE BRITH TO EATHER KIDS WHICH SAMUEL [H.] IS A MINNER:”  HE nor cleance [h.] did not know the the judge were saying there under propress of the 5,6, 14 of the constitutionpenal code Nearther :  ․  [¶]  These redness law have thearth mine son live the child stode.   I stella will nt explan the statement of the the stode meaning because it would envoable of the judge am not speaching of the fault thea country have causemine famaily me to move out of shasta there I will see You,:”ll in the Unstated court.   Mr vantime has no reason nor say the child has no reason that this tipe of thing shall contiully nor shall this sought of thing that I cha rge the judge the friend of the country welfare departed ․”

7.   Dependency proceedings were then initiated pursuant to section 600.  (See Stats.1961, ch. 1616, § 2, p. 3471.)

8.   Thus, section 356, governing the dependency jurisdictional hearing, provides in relevant part:  “If the court finds that the minor is [a person described by section 300], it shall make and enter its findings and order accordingly and shall then proceed to hear evidence on the question of the proper disposition of the minor.”  (Italics added.)   And section 358, related to dispositional hearings, states in part:  “The court shall receive in evidence the social study of the minor made by the probation officer and such other relevant and material evidence as may be offered, and in any judgment and order of disposition, shall state the social study made by the probation officer has been read and considered by the court.”  (Italics added.)   And section 360 provides:  “After receiving and considering the evidence on the proper disposition of the case, the juvenile court, ․  (b) If the court finds that the minor is a person described by Section 300, ․ may order and adjudge the minor to be a dependent child of the court.”  (Italics added.)

9.   All references to rules are to the California Rules of Court.

10.   Code of Civil Procedure section 632 was amended effective January 1, 1982, so as to substitute a “tentative decision” for an “intended decision.”  (Stats.1981, ch. 900, § 1.)   Rule 232 was amended at the same time so as to pick up the change in nomenclature.

11.   The Welfare and Institutions Code and the California Rules of Court have not required that decisions in juvenile cases be made according to the procedures set forth in former Code of Civil Procedure section 632, to wit, an announcement of intended decision by the court, to be followed by findings of fact and conclusions of law only if requested.   Instead, after hearing evidence at a jurisdictional hearing the court must make a finding whether the minor is a person described by sections 300, 601 or 602, and, if so, shall enter its findings and order accordingly.  (§§ 356, 702;  rules 1355(f), 1365(g).)   Additionally, the court must support a dispositional order with appropriate findings.  (§§ 361, 726;  In re Robert P. (1976) 61 Cal.App.3d 310, 320, 132 Cal.Rptr. 5;  cf. In re B.G. (1974) 11 Cal.3d 679, 695, 114 Cal.Rptr. 444, 523 P.2d 244.)   No particular form for findings is required, however.  (See In re Richard E., supra, 21 Cal.3d at p. 357, 146 Cal.Rptr. 604, 579 P.2d 495.)

12.   In Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 50–51, footnote 3, 150 Cal.Rptr. 722, the rule was also applied so as to allow an appeal from an order granting judgment notwithstanding the verdict.

SIMS, Associate Justice.

CARR, Acting P.J., and SPARKS, J., concur.