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IN RE: MATTHEW C., a Minor. STANISLAUS COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. DEBORAH C., Respondent and Appellant.
Deborah C. gave birth to Matthew on March 14, 1989. Matthew was taken into protective custody because he was suffering from neonatal narcotic withdrawal. On March 20, 1989, the Stanislaus Department of Social Services filed a petition alleging Matthew came within the provisions of Welfare and Institutions Code sections 300(a), (b), and (g).1 The Welfare and Institutions Code section 300 2 petition was sustained and Matthew was declared a dependent and removed from Deborah's physical custody.
At the time of the dispositional hearing, Deborah apparently did not have a stable home, was living with friends and was working at a fruit stand in Stockton. Deborah's other three children had been living with their grandparents for the last five years because Deborah's heroin use precluded her from caring for them.
Deborah was present in court at the dispositional hearing when the court approved her reunification plan. The plan required Deborah to maintain regular contact of at least once a month with Matthew, to provide a suitable and stable home for him, to make significant progress in substance abuse counseling, to submit to drug testing as requested by the Supervising Social Worker or Substance Abuse Counselor, to successfully complete parenting counseling, and to cooperate with the social worker by allowing announced and unannounced home visits, signing releases of information, maintaining regular contact of at least once a month with the social worker, and keeping the social worker informed of her whereabouts.
A review hearing was held on September 11, 1989. At that time, Deborah's whereabouts were unknown to the social worker. Deborah had forged checks on her parents' account, was facing prosecution and had fled to avoid going to jail. During May 1989 she had visited weekly with Matthew. On June 1, 1989, Deborah failed to show for a visit with Matthew. The last contact with the social worker had been on May 23, 1989. Deborah did call the worker twice to leave messages after that date, but did not leave a message phone number to allow for a return call. The social worker recommended the court grant additional time for reunification.
Another review hearing was held on February 9, 1990. The social worker reported to the court that there had been no contact by Deborah with the minor or with the social worker until approximately January 8, 1990. Deborah was in the women's jail and called the social worker and requested that he visit her. He visited her at the jail on January 8, 1990. Matthew was taken to the jail for a visit on January 17, 1990. Deborah told the social worker she intended to reunify. Additional time to reunify was recommended to the court.
On April 17, 1990, the 12–month review hearing was held. The social worker's report stated Deborah had been incarcerated since December 26, 1989, for forgery convictions. As of April 17, 1990, Deborah had made relatively no progress on her reunification plan, even though she was out of custody from May 3, 1989, to December 26, 1989. She did attend some Narcotics Anonymous (NA) meetings while in jail.
The court found that reasonable services had been offered to Deborah, but she had failed to participate in her treatment program. Reunification services were terminated and a hearing pursuant to section 366.26 was set. Deborah applied for a rehearing pursuant to section 252 and her application was granted.
At the rehearing held on June 14, 1990, the social worker testified that Deborah had not completed or even started her reunification plan. Deborah testified she signed up for a 21–day detoxification program in April 1989. She attended a few classes, but did not complete the program. During her period of incarceration from December to March 1990, she was not able to contact her social worker. She attended NA meetings while in jail. After the 12–month review hearing before the referee, Deborah signed up for a 10–week parenting program. Deborah also testified that she had attended two substance abuse classes since her release from jail and had not used drugs since May 1989. She was “trying to find a job” so she “could get a home of my own.” She also testified she was now willing to make efforts to meet her reunification terms.
Deborah's attorney requested a continuance to obtain certain documents on behalf of his client. He wanted to obtain confirmation from the women's jail that Deborah had attended NA meetings. Also, he wanted to subpoena someone whose testimony would provide a foundation for admitting a letter into evidence that reflected an appointment for orientation at the agency providing parenting counseling. The judge inquired where the NA documentation was located and was advised it was at Deborah's house, approximately 10 blocks from the courthouse. The judge denied the motion for continuance. Later, the court indicated it would schedule an adjournment so that Deborah could go home to obtain the book.
Prior to the lunch recess, the judge directed the social worker and the deputy county counsel to go to the County Substance Abuse Program and verify if and when Deborah had signed up for counseling. After the lunch recess, which lasted from approximately 11:45 a.m. to 2:08 p.m., Deborah's counsel advised the court that Deborah had left for home to get her NA book, and never returned.
Deborah's counsel telephoned her and she said that she was at her parents' home and could not get back to court. She told her counsel that the NA book was in the trunk of a car that had been impounded and that she needed a one day continuance to get the book. The judge indicated there was not good cause to continue the matter. The Social Worker, Mr. Lower, then testified that he had visited the County Methadone Treatment Program and the Substance Abuse Program at two different locations during the lunch recess. He stated that the methadone program had a file on Deborah but had no signed release authorizing release of information. He further stated that the Substance Abuse Program had no record of Deborah having signed up. The judge found that reasonable services had been offered to Deborah but that she failed to participate in the programs. Reunification services were ordered terminated and a hearing pursuant to section 366.26 was set.
The 366.26 hearing was held on November 5, 1990. The court found Matthew was adoptable and there was “an exceedingly high likelihood that he would be adopted.” Deborah's parental rights were terminated. Deborah's notice of appeal, filed on December 28, 1990, states in relevant part: “mother ․ hereby appeals ․ on the Sections 366.21 and the 366.26 ․ hearing that was held on November 5, 1990․”
I.Failure to Comply with Rule 249 **
Review of Order Setting Permanency Planning Hearing
The procedures for status review hearings and termination of parental rights for minors declared dependents on or after January 1, 1989, are contained in part in sections 366.21, 366.22 and 366.26. Subdivision (f) of section 366.21 provides that at the 12–month review hearing, the court must return the minor to the parent's physical custody unless it finds by “a preponderance of the evidence” that return would be detrimental to the minor. If the court concludes return would be detrimental, it may continue the case for an additional 6 months [but in no case longer than 18 months after the date the child was taken from his parents' physical custody] if it finds a substantial probability that “the minor will be returned to the physical custody of his or her parent or guardian within six months or that reasonable services have not been provided to the parent or parents.” (§ 366.21, subd. (g)(1). The court may terminate reunification services and order that a hearing be held pursuant to section 366.26 within 120 days. (§ 366.21, subd. (g)(3).) If the court orders a section 366.26 hearing, it must “also order the termination of reunification services to the parent.” (§ 366.21, subd. (h).)
At the section 366.26 hearing, the court “shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted.” (§ 366.26, subd. (c)(1).) If the court so finds, the earlier finding at the section 366.21 hearing that it would be detrimental to return the minor to his or her parents constitutes a sufficient basis to terminate parental rights unless certain statutory exceptions are found to exist.
Under the statutory scheme, the findings made at the section 366.21 hearing provide part of the basis for the termination of parental rights at the section 366.26 hearing. The decision to terminate parental rights is based in part on the assumption that the orders terminating reunification and ordering a hearing pursuant to section 366.26 were correctly made. Accordingly, the Legislature has expressly provided a method of reviewing these orders prior to the section 366.26 hearing. Section 366.26, subdivision (k) provides: “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.”
In In re Rebecca H. (1991) 227 Cal.App.3d 825, 278 Cal.Rptr. 185, this court considered whether a denial of reunification services under section 361.5 constituted an appealable order. Section 361.5 requires that where the court denies reunification services a 366.26 hearing must be held within a set time period. This court held:
“Because the juvenile court must promptly conduct a permanency planning hearing when it rejects reunification entirely (§ 361.5, subd. (f)), a challenge to the complete denial of reunification ‘constitutes a direct attack’ on a provision in the disposition order which sets a section 366.26 hearing. [Citations.] Consequently, the propriety of the juvenile court's refusal to grant reunification is not reviewable by appeal from the dispositional order (§ 366.26, subd., (k)).” (In re Rebecca H., supra, 227 Cal.App.3d at p. 836, 278 Cal.Rptr. 185, fn. omitted.)
On appeal from the order terminating her parental rights, appellant seeks review of the order terminating reunification services and the order for a hearing pursuant to section 366.26. Under subdivision (h) of section 366.21, where the court orders “a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent.” Because the court must order termination of reunification services when it sets a section 366.26 hearing, a challenge to the termination of reunification services “ ‘constitutes a direct attack’ on a provision in the ․ order which sets a section 366.26 hearing. [Citations.] Consequently, the propriety of the juvenile court's [termination of reunification services] is not reviewable by appeal from [that] order (§ 366.26, subd. (k).)” (Id. at p. 836, 278 Cal.Rptr. 185.)
In the present case, appellant did not seek writ review of the order terminating reunification and setting a section 366.26 hearing. The section 366.26 hearing was held and appellant's parental rights were terminated. In the appeal from the order terminating parental rights, appellant seeks review of the order terminating reunification services and setting a section 366.26 hearing. The issue thus presented is whether an order that is rendered nonappealable pursuant to section 366.26, subdivision (k), is nonetheless reviewable on appeal from the order terminating parental rights.
“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations] But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ (Younger v. Superior Court (1978) 21 Cal.3d 102, 113 [145 Cal.Rptr. 674, 577 P.2d 1014], citations omitted, internal quotation marks omitted; see also People v. Davis (1985) 166 Cal.App.3d 760, 766 [212 Cal.Rptr. 673] [although reasonable doubts as to ambiguous criminal statute should normally be resolved in favor of defendant, rule does not apply where result is absurd or contrary to legislative intent]. Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citations.]” (People v. Pieters (1991) 52 Cal.3d 894, 898–899, 276 Cal.Rptr. 918, 802 P.2d 420.)
Appellant argues the order should be reviewable on appeal from the termination order because the legislative history suggests the Legislature did not intend to preclude review of the referral order on appeal from the order terminating parental rights. In support, she relies on the Legislative history of a similar provision contained in Section 366.25.
Section 366.25 sets forth the procedure governing status review hearings for children adjudged dependents prior to January 1, 1989. Where the court determines pursuant to section 366.2, subdivision (e) that the child cannot be returned home, section 366.25 requires that hearings be held within certain time constraints in order “to make a determination regarding the future status of the minor․” (§ 366.25, subd. (a).) The purpose of these hearings is “to provide stable, permanent homes for children․” (Ibid.) “The inclusion in the section of carefully prescribed time periods to report and review ․ 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.” (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, 234 Cal.Rptr. 739.)
Under section 366.25, if the court determines the child cannot be returned to the parent and also determines there is no substantial probability that the minor will be returned to the physical custody of the parent within six months, the court must develop a permanent plan for the child. “In developing a permanent plan, 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 [former] Section 232 of the Civil Code’ unless it finds certain conditions to exist.” (In re Kristin W. (1990) 222 Cal.App.3d 234, 245, 271 Cal.Rptr. 629.)
As the court explained in Kristin W., “[b]efore 1989, there was disagreement in the case law regarding whether such permanency planning orders were appealable. [Citation.] In an apparent attempt to clarify this issue, the Legislature added subdivision (j) to section 366.25, effective January 1, 1989.” (Ibid.) Subdivision (j) of section 366.25 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.”
Appellant asserts that subdivision (j) was added to section 366.25 simply to resolve the conflict regarding appealability of the reference order and was not intended to preclude review on appeal from a subsequent order. According to appellant, because a similar provision was added to section 366.26 it must also be intended to avoid any questions regarding appealability of the order to set a 366.26 hearing.
Appellant's argument falls short in several respects. First, it fails to recognize that in adding subdivision (j) to section 366.25 the Legislature rejected the conclusion previously reached by several courts that the reference order was appealable. In so doing, the Legislature opted for speedy review of the order in recognition that unnecessary delay is contrary to the underlying goal of bringing “dependency actions to a faster resolution—either by returning the child to its parents or freeing it for adoption.” (In re Sarah F. (1987) 191 Cal.App.3d 398, 403, 236 Cal.Rptr. 480.)
Secondly, subdivision (k) of section 366.26 may not be construed in isolation. Rather it must be construed “ ‘with reference to the entire scheme of law of which it is part․ [Citation.]’ ” (People v. Pieters, supra, 52 Cal.3d at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420.) Appellant's argument ignores the continued efforts on the part of the Legislature to develop a statutory scheme that affords protection against wrongful termination of parental rights while at the same time recognizing that the emotional well being of the child requires the dependency proceedings be resolved as rapidly as possible.
In his concurring opinion in In re Micah S. (1988) 198 Cal.App.3d 557, 243 Cal.Rptr. 756, Justice Brauer explained that procedural safeguards are required to guard against wrongful termination of a parent's rights. However, the procedures implemented to protect against this harm must be balanced against the recognition that delay in development of a permanent and stable home for the child removed from his or her parent's care “is purchased at the expense of the person who is in law and morality the primary object of judicial solicitude, namely the child.” (Id. at p. 565, 243 Cal.Rptr. 756, emphasis original.) In urging that delay in the proceedings is contrary to the child's best interest, Justice Brauer summarized the work of a leading expert in the field as follows:
“The child's interests take precedence over the rights, needs and wishes of biological parents. The state should not lightly intrude into the relationship between parent and child. But once neglect, abandonment or abuse has dictated removal, the separation of a child from a parent has devastating emotional consequences so as to make imperative an early new bonding with a person or persons who fulfill a child's psychological needs for stability, interaction, companionship, interplay and mutuality. Foster placement, being temporary, does not do the trick because it warns the adults against any deep emotional involvement with the child. Even adoptive parents may hesitate to make a full commitment to the child as long as the placement is not irrevocable. The absence of a psychological parent must reflect the child's, not the adult's, sense of time. Perhaps the most poignant as well as most frequently quoted passage is: ‘Three months may not be a long time for an adult decisionmaker. For a young child it may be forever.’ On the basis of their investigations and professional judgment the authors conclude that the ‘․ maximum intervals beyond which it would be unreasonable to presume that a child's residual ties with his absent parents are more significant than those that have developed between him and his longtime caretakers [are]: (a) 12 months for a child up to the age of 3 years at the time of placement; (b) 24 months for a child from the age of 3 years at the time of placement.’ ” (In re Micah S., supra, 198 Cal.App.3d at p. 566, 243 Cal.Rptr. 756. Citing The Free Press, Goldstein, et al., Beyond the Best Interests of the Child, (2d ed. 1979) fn. omitted.)
Other courts have recognized that the delay attendant in review by appeal from a juvenile court order precludes any practical relief and have urged “the Legislature to consider an alternative procedure for appellate review of dependency appeals which would allow relief, when appropriate, to be granted in a timely fashion.” (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 304–305, 272 Cal.Rptr. 733.)
Section 366.26 was added as part of a major revision in the procedures for terminating parental rights. (See Sen. Select Com.Rep. on Children & Youth, Sen. Bill No. 1195, p. 10 (1988 Reg. Session).) These new statutory procedures were the result of a Senate Select Committee Task Force convened to examine practices and make recommendations to protect child abuse victims. The task force explained the new procedures for terminating parental rights as follows:
“SB 243 substantially modifies the procedure for permanently severing parental rights in cases where the child is a dependent of the court. The new procedure will apply to minors adjudicated dependents of the court on or after January 1, 1989. Unlike current practice, which requires the filing and prosecution of a separate civil court action pursuant to Civil Code Section 232, all termination proceedings for children who are dependents will be heard in the juvenile court, as part of the regular review process. The task force reasoned that by eliminating the need to file the separate Civil Code Section 232 action, minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.
“Under the new provisions, a juvenile court must hold a ‘permanency’ hearing within 120 days of the time it decides that no further reunification services shall be provided to the parents. The procedures are specified in WIC Section 366.26. While the permanency hearing may be ordered following the initial dispositional hearing, pursuant to WIC Section 361.5(b), the six month review, pursuant to WIC Section 366.21(e), or the twelve month review, pursuant to WIC Section 366.21(g), it must be held within eighteen months of the time the minor was first removed from the parent's custody, pursuant to WIC Section 366.22. At the permanency hearing the court has only three options: Termination leading to adoption, guardianship, or long term foster care. The Court is to choose the disposition best for the child; however, as under present law, adoption is the preferred disposition, long term foster care the least preferred.
“The critical substantive change is that in order to terminate parental rights the court need make only two findings: (a) That there is clear and convincing evidence that it is likely that the minor will be adopted; and (b) that there has been a previous determination (at the dispositional or six, twelve or eighteen month hearing) that reunification services shall not be offered. In essence, the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.” (Id. at pp. 10–11)
Under the new statutory scheme, the decision to deny (361.5) or terminate reunification services (366.21 or 366.22) provides the basis for terminating “parental rights under section 366.26, subdivision (c)(1), unless one of the limited circumstances described in section 366.26, subdivisions (c)(1)(A) through (c)(1)(D), exists.” (In re Rebecca H., supra, 227 Cal.App.3d at p. 839, 278 Cal.Rptr. 185.) In making these orders nonappealable but reviewable by writ, the Legislature appears to have intended that any appellate review be sought prior to the holding of the section 366.26 hearing. As this court explained in In re Rebecca H.:
“In our view, section 366.26, subdivision (k) carves out an unambiguous and well-conceived exception to the general application of section 395 to disposition orders. Subdivision (k) is a testament to the Legislature's concern for stability in the lives of dependent minors. (See Sen. Select Com.Rep. on Children & Youth, Sen. Bill No. 1195, p. 10 (1988 Reg. Session).) When a juvenile court has decided against reunification altogether, an expeditious method must exist by which a parent may obtain review of the ruling before the court orders the termination of parental rights. The Legislature provided such a means by enacting section 366.26, subdivision (k). In so doing, it has created a scheme sensitive to both the goal of reunification where feasible and the recognition of the importance of providing ‘stable, permanent homes' (§ 366.26) for minor children whose parents are unable to care for them. The filing of a timely petition for an extraordinary writ permits appellate review of the denial of reunification prior to the date the section 366.26 hearing is held. Should the reviewing court conclude reunification services were improperly refused, seasonable extraordinary relief could be granted.” (Id. at p. 836, 278 Cal.Rptr. 185.)
The court in Rebecca H. did not address the issue presently before this court. Nonetheless, the explanation of the legislative purpose in enacting subdivision (k) indicates that it was designed to afford protection against wrongful termination of parental rights while at the same time recognizing that the delay attendant in review of juvenile court's rulings is not in the child's best interest. A conclusion that the orders are reviewable on the appeal from an order terminating parental rights creates substantial delay in the ultimate conclusion of the dependency proceedings and perpetuates the problems courts have complained of and the Legislature has sought to avoid.
In concluding that writ review was the appropriate means to review orders denying reunification and setting a section 366.26 hearing, this court stated:
“The procedural history of this case provides ample confirmation of the wisdom of this legislation. The juvenile court conducted the dispositionhearing in October 1989. Had writ review been sought of the dispositional order, relief could have been obtained before the section 366.26 hearing was held in February 1990. However, the matter was pursued by appeal rather than writ. The section 366.26 permanency planning hearing went forward. Appellant's parental rights were terminated in part on the assumption reunification services had been properly refused, and another appeal was filed. Rather than serving the object of expeditious review of the juvenile court's denial of reunification services, pursuit of the issue via appeal from the disposition order has delayed its resolution until early 1991.” (Id. at p. 837, 278 Cal.Rptr. 185.)
Similarly here, review of the procedural facts demonstrates that in order to effectuate the goals underlying the general statutory scheme, subdivision (k) of section 366.26 must be construed as precluding review of the orders in question on appeal from the order terminating parental rights. The orders appellant now seeks to challenge that terminated reunification and set a hearing pursuant to section 366.26 were entered on June 14, 1990. Although expressly authorized by statute (section 366.26, subdivision (k)), appellant did not seek writ review of this order. The section 366.26 hearing was held and appellant's parental rights were terminated. The court then ordered that the minor be placed for adoption.
Had appellant filed a timely petition seeking writ relief, the propriety of the court's order terminating reunification services and referring for a section 366.26 hearing could have been determined prior to the holding of the section 366.26 hearing. Had this court concluded reunification services should be continued as appellant asserts, the delay between the order terminating reunification services and this court's order that additional services be provided would have been relatively small. By waiting until after the 366.26 hearing and appealing from that order, more than a year has passed since the order was issued terminating reunification services. Yet, Matthew C.'s life has gone on. The parental tie, tenuous at best, has only been further distended.
Proceeding in such a fashion adds unnecessary delay and is contrary to the intent of the Legislature “to bring dependency actions to a faster resolution—either by returning the child to its parents or freeing it for adoption.” (In re Sarah F., supra, 191 Cal.App.3d at p. 403, 236 Cal.Rptr. 480.) A conclusion that writ relief is the exclusive means of appellate review of orders rendered nonappealable under section 366.26, subdivision (k) is consistent with the legislative purpose in designing a statutory scheme that avoids delay in the proceedings so that once a determination is made that the minor could not be returned to his or her parents custody, the “minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.” (Sen. Select Com. Rep. on Children & Youth, Sen. Bill No. 1195, p. 10 (1988 Reg. Session).)
A conclusion that these orders are reviewable only by writ is also consistent with strong public policy against protracted litigation in child custody matters. In Adoption of Alexander S. (1988) 44 Cal.3d 857, 245 Cal.Rptr. 1, 750 P.2d 778, the California State Supreme Court held: “[o]ut of concern for the welfare of children in adoption actions, we hold that habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.” (Id. at p. 867–868, 245 Cal.Rptr. 1, 750 P.2d 778.) The court found its holding supported by the sound public policy against protracted litigation in child custody cases. The court stated:
“Protracted litigation over the custody of a child may harm the child. For this reason, among others, the United States Supreme Court held that federal habeas corpus could not be used to litigate constitutional claims in child custody matters, observing that ‘[t]he State's interest in finality is unusually strong in child-custody disputes. The grant of federal habeas corpus would prolong uncertainty for children․ It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged.’ (Lehman v. Lycoming County Children's Services (1982) 458 U.S. 502, 513–514 [102 S.Ct. 3231, 3238, 73 L.Ed.2d 928]․)” (Id. at p. 868, 245 Cal.Rptr. 1, 750 P.2d 778.)
Neither does this construction deny meaningful review of the orders rendered nonappealable under section 366.26, subdivision (k). As this court noted in In re Kristin W., supra, 222 Cal.App.3d at p. 247, 271 Cal.Rptr. 629:
“In enacting subdivision (j), the Legislature must have been cognizant of Code of Civil Procedure section 1086 which provides that ‘The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ [Citations.] Under these circumstances, we conclude where a petition challenging an authorization order shows an abuse of trial court discretion, the appellate court must exercise its discretion to proceed to adjudicate the merits of the petition either by issuing a peremptory writ with a written opinion, by issuing an alternative writ and order to show cause if needed, or by issuing an order to show cause. [Citations.] If the order to show cause issues, the matter will be adjudicated by a written opinion following oral argument.”
Finally, this position is consistent with an opinion of the First District which indirectly addresses the question. In In re Catherine S. (1991) 230 Cal.App.3d 1253, 281 Cal.Rptr. 746, the court concluded that the order denying reunification services under section 361.5 was not appealable. The court then treated the purported appeal as a petition for an extraordinary writ. The court reasoned:
“Under normal circumstances, the purpose of a nonappealability rule is to preclude immediate appellate review of interim rulings in favor of subsequent review of all issues in a single appellate proceeding. Here, in contrast, the purpose of the nonappealability rule is just the opposite, to permit immediate writ review instead of the slower process of review by appeal. Subsequent review is not an option. As a practical matter, if we do not treat this purported appeal as a writ petition, the denial of reunification services will never be reviewed. The unavailability of subsequent review, and the profound significance of a denial of reunification services, constitute unusual circumstances justifying treatment of the purported appeal as a writ petition. (In re Albert B. (1989) 215 Cal.App.3d 361, 373 [263 Cal.Rptr. 694].)” In re Catherine S., supra, 230 Cal.App.3d at pp. 1256–1257, 281 Cal.Rptr. 746.)
Were we to adopt the argument tendered by appellant that termination of reunification services is reviewable on appeal from the 366.26 order, the ultimate consequence would likely be reinstituting reunification up to several years after termination of parental contact. The consequential emotional detachment, as well as the psychological confusion and damage caused to a child thrust into such a situation may well be without adequate remedy. Section 366.26 subdivision (k) assures that a writ will address the issue speedily and if reunification is to be reinstituted it will be done in a period of time that provides a meaningful remedy that is least disruptive to the minor. Appellant's argument would simply build in the same delay the Legislature has sought to avoid.
We view the termination of reunification services as a pivotal turning point in the life of all participants in these proceedings. At this point the biological parental role and relationship begins quickly to dissipate. If, for example, a baby has little or no contact with a parent for one and one-half to two years before an order terminating reunification is set aside, what is the evident effect on the parental relationship and emotional well-being of the child? The Legislature was confronted with the responsibility for and has adopted a statutory scheme that accommodates both the fundamental right to parent as well as the psychological well-being of the child. We gain nothing if our accommodation of the fundamental right to parent is without regard to the creation of emotional havoc in the life of a child.
In summary we would conclude that orders made nonappealable by section 366.26, subdivision (k) are not reviewable on appeal from the order terminating parental rights. Rather, such orders are only reviewable on a timely petition seeking writ relief. Such a conclusion is consistent with the legislative purpose in creating “a scheme sensitive to both the goal of reunification where feasible and the recognition of the importance of providing ‘stable, permanent homes' (§ 366.26) for minor children whose parents are unable to care for them.” (In re Rebecca H., supra, 227 Cal.App.3d at p. 836, 278 Cal.Rptr. 185.) Moreover, a contrary conclusion delays the ultimate resolution of dependency proceedings, is contrary to the strong public policy against protracted litigation in child custody cases, and perpetuates the problems the new statutory scheme was designed to avoid.
Appellant requests this court treat the appeal from the termination order as if it were a writ petition from the orders entered after the section 366.21 hearing. As appellant correctly notes, “[n]umerous cases exist wherein the reviewing court has treated a defective appeal (i.e., one coming from a nonappealable order) as a petition for a writ. [Citations.]” (In re Albert B. (1989) 215 Cal.App.3d 361, 372, 263 Cal.Rptr. 694.) Here appellant did not appeal from the order terminating reunification services and referring the matter for a section 366.26 hearing. Rather, she appealed from the order terminating her parental rights. Appellant cites no authority for the proposition that an appeal from an appealable order may be treated as a petition seeking writ review of a different nonappealable order. Moreover, to treat the appeal from the termination order as a writ petition from the previous order allows appellant to do indirectly what she could not do directly—obtain review of the orders from the 366.21 hearing on appeal of the order terminating her parental rights.
During oral argument in the present case, this court granted appellant's request to file additional supplemental briefing on the issue of whether the present appeal should be treated as a writ. In her supplemental brief, appellant contends writ treatment is justified due in part to this court's earlier denial of her request to expand her appointment to file a petition for writ of mandate. As appellant concedes, this request was not filed until almost a year after the order entered at the section 366.21 hearing.
Section 366.26, subdivision (k) contains no provisions regarding the time in which a petition for writ relief must be filed. However, in order to obtain seasonable relief, the petition must be filed prior to the date scheduled for the section 366.26 hearing. (In re Rebecca H., supra, 227 Cal.App.3d at p. 836, 278 Cal.Rptr. 185.) In the present case, the request to expand the appointment in order to file a writ petition was not filed until after the section 366.26 hearing had been held and parental rights terminated. Accordingly the request properly was denied. To conclude otherwise would delay review of the section 366.21 order and findings thereby circumventing the legislative intent in enacting the new statutory scheme.
Ineffective Assistance of Counsel ***
The judgment is affirmed.
1. Specifically, the petition stated “the minor ․ has suffered serious non-accidental harm in that the minor's mother habitually abuses illegal substances and the minor was born addicted to heroin and is being treated for neonatal narcotic withdrawal. And, that the mother's habitual use of illegal substance prevents her from providing regular care for the minor. And that the whereabouts of the father ․ are unknown.”
2. Unless otherwise indicated all further statutory references are to the Welfare and Institutions Code.
FOOTNOTE. See footnote *, ante.
FOOTNOTE. See footnote *, ante.
ARDAIZ, Acting Presiding Justice.
DIBIASO and THAXTER, JJ., concur.
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Docket No: No. F015208.
Decided: January 31, 1992
Court: Court of Appeal, Fifth District, California.
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