IN RE: BRIAN P. (1988)

In May 1984 the infant Brian P. was declared a dependent child of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (a), on the ground he suffered from malnutrition due to being fed an inadequate diet while in the custody and control of his mother, appellant Colleen P.   He was removed from the custody of appellant and suitably placed in foster care.   Permanency planning hearings were held April 19, 1985, and February 4, 1986, and the prior suitable placement was ordered to remain in effect.   In addition, at the latter hearing the juvenile court, pursuant to Welfare and Institutions Code section 366.25, subdivision (d), referred the minor to the Department of Adoptions (now Department of Children's Services) for adoptive planning.¹  Appellant appeals from the order referring the minor for adoptive planning.

 Although a conflict of opinion exists among the Courts of Appeal, we agree with the view that an order of the juvenile court referring the minor for adoptive planning pursuant to Welfare and Institutions Code section 366.25 is an interim order which is not appealable.  (In re Debra M. (1987) 189 Cal.App.3d 1032, 1036–1039, 234 Cal.Rptr. 739;  In re Candy S. (1985) 176 Cal.App.3d 329, 330–331, 222 Cal.Rptr. 43;  In re Lisa M. (1986) 177 Cal.App.3d 915, 918, 225 Cal.Rptr. 7;  In re Sarah F. (1987) 191 Cal.App.3d 398, 405–411, 236 Cal.Rptr. 480 [dis. opn. of Benson, J.].)  The technical rationale for this rule is that such an order merely “refers” the case to the agency, merely “authorize[s]” the agency to file an action under Civil Code section 232 but does not bind the agency, and therefore lacks sufficient final, immediate or substantial consequences to be appealable.   (In re Debra M., supra, 189 Cal.App.3d at pp. 1036–1037, 234 Cal.Rptr. 739;  In re Candy S., supra, 176 Cal.App.3d at p. 331, 222 Cal.Rptr. 43;  In re Sarah F., supra, 191 Cal.App.3d at pp. 405–409, 236 Cal.Rptr. 480 [dis. opn. of Benson, J.].)

The policy rationale for the rule was compellingly stated by the court in Debra M., supra, 189 Cal.App.3d at pages 1037–1039, 234 Cal.Rptr. 739:  “In 1982, the Legislature enacted a statutory scheme to deal with the ‘red tape’ and delays that cause a dependent child ․ to live in limbo, so to speak, while a solution is sought for their care․  In enacting section 366.25 of the Welfare and Institutions Code, the Legislature expressed its preference for ‘stable, permanent homes for children’ as opposed to foster care placements and other potentially temporary provisions for care given to dependent children.   The inclusion in the section of carefully prescribed time periods to report and review of the living situation of dependent children support the conclusion that the Legislature is concerned with the early adoptability of such children, and cognizant that the passage of time operates to deprive such children of their chance in this regard.  [¶]․  [¶] ․ The reality is that childhood is brief;  it does not wait while a parent rehabilitates himself or herself.   The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.  [¶] The Legislature has expressed increasing concern with the perceived and accurate reality that time is of the essence in offering permanent planning for dependent children.   We do not think the legislative intent and purpose is best served by rendering appealable, as an order after judgment, an interim ruling merely referring a dependent child for adoptive planning.”  (Emphasis in original.)

Other Courts of Appeal have expressed a contrary view, that a reference order under Welfare and Institutions Code section 366.25 is appealable as an order after judgment, pursuant to Welfare and Institutions Code section 395.  (In re Joshua S. (1986) 186 Cal.App.3d 147, 152–153, 154–155, 230 Cal.Rptr. 437;  In re Lorenzo T. (1987) 190 Cal.App.3d 888, 893, 235 Cal.Rptr. 680;  In re Sarah F., supra, 191 Cal.App.3d at pp. 402–404, 236 Cal.Rptr. 480;  In re Linda P. (1987) 195 Cal.App.3d 99, 104–105, 240 Cal.Rptr. 474;  In re Julia C. (1987) 196 Cal.App.3d 840, 842, fn. 1, 242 Cal.Rptr. 172.)   We disagree with the reasoning of these cases.   Although the order is made “after judgment” (Welf. & Inst. Code, § 395, the judgment being the original order of wardship under Welf. & Inst. Code, § 300), it is still interim in nature, since its consequences depend on the discretion of the agency.

 It is argued that as a result of the juvenile court order the parent “will have to defend a parental termination action [Civil Code, § 232].”  (In re Lorenzo T., supra, 190 Cal.App.3d at p. 893, 235 Cal.Rptr. 680.)   Contrary to this reasoning, the juvenile court order does not of itself determine that the parent “will” have to defend such a proceeding.   The decision whether to file such a proceeding will be up to the agency, and a prior referral from the juvenile court is not a prerequisite to agency action.  (In re Candy S., supra, 176 Cal.App.3d at p. 331, 222 Cal.Rptr. 43.) ²  If the agency does not file a Civil Code section 232 action, the parent is not aggrieved by the referral order.

 If the agency does file a section 232 action to free the child for adoption, this results from the agency's exercise of discretion.   At that point in time, the nature of the statutory scheme requires that the parent's remedy be a timely attack on the section 232 proceedings rather than an appeal from the juvenile court's referral order.

In matters where time is of the essence, appeal is not an expeditious remedy.   The normal appeal process takes many months.  (In re Debra M., supra, 189 Cal.App.3d at pp. 1038–1039, 234 Cal.Rptr. 739;  In re Sarah F., supra, 191 Cal.App.3d at p. 411, 236 Cal.Rptr. 480 [dis. opn. of Benson, J.].)  In cases such as this it is not unusual that while a juvenile court appeal is pending, proceedings taken in the superior court under Civil Code section 232 render moot and ineffective the appeal from the juvenile court order.   (See In re Julia C., supra, 196 Cal.App.3d at p. 845, 242 Cal.Rptr. 172;  In re Joshua S., supra, 186 Cal.App.3d at p. 154, 230 Cal.Rptr. 437;  In re Sarah F., supra, 191 Cal.App.3d at p. 403, 236 Cal.Rptr. 480;  In re Lorenzo T., supra, 190 Cal.App.3d at p. 893, 235 Cal.Rptr. 680.   But see In re Linda P., supra, 195 Cal.App.3d at pp. 105–106, 240 Cal.Rptr. 474;  In re Kristin B. (1986) 187 Cal.App.3d 596, 603–605, 232 Cal.Rptr. 36.)

It is also argued that since errors at the juvenile court hearing could not normally be raised in the Civil Code section 232 proceedings, the procedural safeguards in Welfare and Institutions Code section 366.25 would be “meaningless” if the referral order is not appealable.  (In re Joshua S., supra, 186 Cal.App.3d at p. 154, 230 Cal.Rptr. 437;  In re Lorenzo T., supra, 190 Cal.App.3d at p. 893, 235 Cal.Rptr. 680.)   The implication of this argument is that unless the order is appealable, important issues will never be subject to appellate review.   We disagree with this reasoning.   The same could be said of many types of interim orders.   The fact that a judicial order is not appealable does not mean that it is unreviewable.

 Normally, an error at the juvenile court permanency planning hearing would not be relevant to the Civil Code section 232 proceeding, because the two procedures are separate and distinct.  (In re Kristin B., supra, 187 Cal.App.3d at p. 604, 232 Cal.Rptr. 36.)   If an error in the juvenile court proceeding were truly relevant to the section 232 proceeding, the parent could raise the point there or, if threatened with irreparable harm, could seek extraordinary relief to attack or stay the section 232 matter.  (In re Kristin B., supra, 187 Cal.App.3d at pp. 604–605 & fn. 8, 232 Cal.Rptr. 36;  In re Linda P., supra, 195 Cal.App.3d at p. 105, 240 Cal.Rptr. 474.   See Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 229 Cal.Rptr. 771.) ³

 Furthermore, although error at the juvenile court hearing normally could not be raised in the Civil Code section 232 proceeding, similar substantive issues are likely to be common to both proceedings.   The superior court must make its own findings under section 232.   Under Civil Code section 232, subdivision (a)(7), the superior court would not free the minor for adoption unless it found “that return of the child to the child's parent or parents would be detrimental to the child and that the parent or parents have failed during [a period of at least one year of out-of-home placement under the supervision of the juvenile court], and are likely to fail in the future, to maintain an adequate parental relationship with the child, which includes providing both a home and care and control for the child.”   The parent can raise there her defenses and excuses concerning her relationship with the child and the likelihood of being able to provide a permanent home.  (See In re Sarah F., supra, 191 Cal.App.3d at p. 411, 236 Cal.Rptr. 480 [dis. opn.].)  Those issues would be reviewable on appeal from a Civil Code section 232 judgment.

 It is also argued that as a practical matter the juvenile court's order will effectively terminate reunification services designed to assist the parent's rehabilitation and the return of the child to the parent, and that this is a substantial effect on the parent which should render the order appealable.  (In re Sarah F., supra, 191 Cal.App.3d at p. 403, 236 Cal.Rptr. 480;  In re Linda P., supra, 195 Cal.App.3d at p. 105, 240 Cal.Rptr. 474.)   This is not a valid reason for holding the order appealable, in light of the entire statutory scheme.   As conceded by In re Sarah F., supra, 191 Cal.App.3d at page 403, 236 Cal.Rptr. 480, “It was surely the intent of the Legislature in enacting the new scheme of juvenile law adopted in 1982 to bring dependency actions to a faster resolution—either by returning the child to its parents or freeing it for adoption.”   An appeal of the reference order does not itself provide the parent with continuation of reunification services;  restoration of services by means of reversal after the normal appeal process could take many months.  (In re Sarah F., supra, 191 Cal.App.3d at p. 411, 236 Cal.Rptr. 480 [dis. opn.].)  Reunification services are important, but they should also be timely.   Furthermore, in appropriate circumstances, reunification services could be continued by the superior court pending the Civil Code section 232 action.  (In re Clarence I. (1986) 180 Cal.App.3d 279, 283, 225 Cal.Rptr. 466.)

 We therefore conclude the better view is that the order of which appellant complains is not appealable.⁴

The appeal is dismissed.

FOOTNOTES

1.   Welfare and Institutions Code section 366.25, subdivision (d), provides in pertinent part:  “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.   We have not been informed whether a Civil Code section 232 action has been filed against appellant.

3.   The issue appellant seeks to raise on this appeal does not appear to be such an issue.   She does not allege a fundamental defect in the original order declaring the minor a dependent child of the juvenile court.  (Cf. In re Kristin B., supra, 187 Cal.App.3d at p. 604, 232 Cal.Rptr. 36.)   She contends the juvenile court should have sustained her trial counsel's objection that appellant was not properly served with notice of the February 4, 1986, permanency planning hearing (Welf. & Inst. Code, § 366.25, subd. (b)).  We are satisfied in view of the nature of appellant's argument and all the circumstances preceding the hearing, that appellant's claim is a technical one which does not involve a failure of due process notice.   Thus, even if we were to treat appellant's appeal as a petition for extraordinary relief, we would not regard it as sufficient to justify restraining a Civil Code section 232 action filed by the agency.

4.   Recognizing the substantial authority that the order is not appealable, appellant also suggests that, contrary to the notice of appeal, she is not really appealing from the reference order, but from “the juvenile court's ruling permitting respondent to be heard in her absence.”   Appellant does not persuade us that such a ruling would itself be appealable.

ASHBY, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J.*, concur.