Opinion
D041466.
7-22-2003
In re D. M. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T. M., Defendant and Appellant.
T. M., the presumed father of D. M. and K. M. (collectively, the children), appeals from orders issued at a Welfare and Institutions Code section 366.26 hearing in which the court ordered the children placed in long-term foster care. T. M.s sole contention on appeal is that the court abused its discretion by ordering that his visitation with the children remain supervised. We dismiss the appeal on the ground the challenged order does not exist.
A separate order was filed for each child.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2002, the San Diego County Health and Human Services Agency (the Agency) filed petitions on behalf of five-year-old D. M. and three-year-old K. M. under section 300, subdivision (b), alleging the children had suffered or were at substantial risk of suffering serious physical harm or illness due to the mothers excessive use of methamphetamine and alcohol. The Agencys jurisdiction/disposition report noted the children were detained with the maternal grandmother and T. M. was their alleged father. T. M. was interested in obtaining custody of the children upon positive paternity testing. The court sustained the petitions and ordered the children placed with a relative (the maternal grandmother). At the six-month review hearing the court ordered paternity testing for T. M.
The Agencys 12-month review report noted the children remained placed with the maternal grandmother and were difficult to handle as a result of the mothers neglect and history of drug and alcohol abuse. Paternity testing established that T. M. was K. M.s biological father. The children had occasional contact with T. M., who had requested unsupervised visitation and placement of the children with him.
In a report filed in June 2002, the Agency reported T. M. had "an extensive criminal history, which involved burglary, false identification to a peace officer, carrying a concealed weapon, battery, and possession of stolen goods and narcotics; however[,] many of the charges were dropped to misdemeanors." The Agency recommended T. M. comply with his case plan and have consistent supervised visitation with the children. The Agency stated it could allow unsupervised visitation and a 60-day trial visit once T. M. had made "a considerable amount of progress."
In an addendum report filed in June 2002, the Agency recommended the court set a section 366.26 hearing and terminate services to the parents. The report stated T. M. had been allowed supervised visitation with the children and that he had been inconsistent with visitation "due to various excuses." Although he requested unsupervised visitation, he had not complied with his case plan, had not been cooperative with the Agency or his attorney and had not recently contacted either the social worker or the children. The report noted the children were "a handful and demanded full supervision and care at all times." At the 12-month review hearing, the court found T. M. was the presumed father of both of the children. The court terminated the parents reunification services and set a section 366.26 hearing.
In its assessment report for the section 366.26 hearing, the Agency concluded it was unlikely the children would be adopted because of their "extensive emotional concerns" and because they were a part of a bonded sibling group. The maternal grandmother was caring for the children and their two half-siblings, in addition to caring for her totally disabled husband and providing part-time child care to the childrens toddler cousin. The Agency concluded long-term foster care was in the childrens best interests because the maternal grandmother had her "hands full" caring for the children and their siblings, and it would be detrimental to them to terminate jurisdiction and not have continued intervention by the Agency to monitor their well being.
The childrens two-siblings who are not the subject of this appeal were also removed from the mother and placed with the maternal grandmother.
At the section 366.26 hearing in October 2002, T. M. requested trial. The court set the matter for a contested hearing on December 6. On November 22, T. M. filed a section 388 petition seeking modification of the order terminating reunification services and setting the section 366.26 hearing. T. M. asked the court to vacate the section 366.26 hearing date, place the children with him and order family maintenance services. As changed circumstances, T. M. alleged he was participating in visitation with the children and was willing to participate in family maintenance services.
At the December 6 hearing, which T. M. did not attend, the court summarily denied the section 388 petition and admitted the Agencys assessment report into evidence on the section 366.26 matter. The social worker who prepared the report was available to testify, but none of the parties wanted to cross-examine her or present additional evidence. The court found the children were not adoptable and ordered long-term foster care as their permanent plan. The court ordered that all prior orders not in conflict remained in full force and effect. The court did not expressly address visitation and no prior order in the record addresses visitation.
Because the visitation order at issue was not in the record, we sent the parties a letter requesting that T. M. submit a copy of the order appealed from, or, in the alternative, that the parties submit letter briefs addressing whether the appeal should be dismissed on the ground the challenged order does not exist. We received letter briefs from T. M.s and minors counsel. The Agency did not respond.
DISCUSSION
An appealable judgment or order is a jurisdictional prerequisite to an appeal and when doubt exists as to whether the trial court has entered an appealable judgment or order, the reviewing court must raise the issue on its own initiative. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 876 P.2d 1074; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 14, pp. 73-74; Code Civ. Proc., § 901.) If an appeal is not from an appealable judgment or order, the reviewing court must dismiss the appeal on its own motion. (Munoz v. Florentine Gardens (1991) 235 Cal. App. 3d 1730, 1732.)
An order is ineffective unless it is filed in writing with the court clerk or entered in the courts minutes. (Jablon v. Henneberger (1949) 33 Cal.2d 773, 775, 205 P.2d 1.) Here, T. M. concedes the court never entered a visitation order. However, he argues that visitation orders were implicit in the courts adoption of the Agencys recommended finding at the 12-month review hearing that reasonable services had been provided. T. M. additionally argues that the court impliedly ordered supervised visitation at the section 366.26 hearing because (1) the court was required under section 366.26, subdivision (c)(4) to make a visitation order upon ordering long-term foster care unless it found visitation would be detrimental to the children; (2) the court made no finding that visitation would be detrimental to the children; and (3) in the assessment report for the section 366.26 hearing the social worker recommended that visitation continue to be supervised.
The social worker stated: "Visitation and contact with the parents should continue to be monitored by the social worker."
Our research regarding appellate review of implied orders yielded several cases in which appellate courts have reviewed an order the trial court did not expressly make. In In re Kristin W. (1990) 222 Cal. App. 3d 234, 271 Cal. Rptr. 629 (Kristin W.) the father in a juvenile dependency case filed a notice of appeal and a writ petition challenging, among other things, an implied order terminating reunification services. The order was implied in the courts express order that the social services agency " . . . provide permanency planning services with the goal of adoption and to proceed under [former section] 232 of the Civil Code if that is necessary . . . ." (In re Kristin W., supra, at p. 246.) The Court of Appeal stated: "It might be argued that such an implied order should not be reviewable either by appeal or by petition for extraordinary relief. However, this approach is too narrow. An implied order can have the same adverse impact on a party as an express order. Thus, any order that is necessarily implied from a permanency planning order authorizing termination of parental rights should be reviewable either by appeal or by writ. [Citations.]" (Ibid., italics added.)
Civil Code section 232 (repealed Stats. 1992, ch. 162, § 2, p. 464) is the predecessor statute of current Family Code section 7822, which authorizes a proceeding to have a child under the age of 18 declared free from the custody and control of a parent "where the child has been left . . . by one parent in the care and custody of the other parent for a period of one year without any provision for the childs support, or without communication from the parent . . . with the intent on the part of the parent . . . to abandon the child." (Fam. Code, § 7822, subd. (a).)
In People v. Berkowitz (1977) 68 Cal. App. 3d Supp. 9, 137 Cal. Rptr. 313 (Berkowitz), the trial court suspended imposition of sentence on two convictions and the People contended appellate review of those convictions was precluded by the rule that there is no judgment from which to appeal when the court suspends imposition of sentence. The appellate court concluded the appeal was proper because an order granting probation was statutorily deemed to be a final judgment and was necessarily implied in the order suspending imposition of sentence. (Id. at Supp. 12-13.)
In Dunton v. United Assn. of Journeymen, etc. of United States & Canada (1988) 206 Cal. App. 3d 44, 47, 253 Cal. Rptr. 374, the court granted the defendants post-trial motion for a new trial but did not rule on their motion for judgment notwithstanding the verdict (JNOV). The defendants appealed from the implied order denying of their motion for JNOV and the Court of Appeal reversed the implied order, directing that JNOV be entered in defendants favor on the ground federal law preempted state court jurisdiction. (Ibid.) Like the implied orders in Berkowitz and Kristin W., the order denying the motion for JNOV was necessarily implied in an express order (the order granting the new trial motion). Because the defendants were entitled to judgment in their favor as a matter of law, the Court of Appeal properly directed the court to grant the JNOV motion the trial court impliedly and necessarily denied.
These cases support the proposition that an appellate court can properly review an order that was not actually made but is necessarily implied in an express order. An order not expressly made is necessarily implied in an express order when the issuance of the latter is tantamount to the issuance of the former. Here, a supervised visitation order was not necessarily implied in any of the courts express orders — i.e., none of the courts express orders was tantamount to the issuance of a supervised visitation order. A finding of an implied visitation order in this case would have to be based on the Agencys actions and the courts inaction in the face of its awareness that supervised visitation had occurred. We are unwilling to find an implied visitation order under these circumstances, particularly in light of the courts express statutory obligation to make visitation orders in connection with reunification services (& sect; 362.1, subd. (a)), and in connection with an order for long-term foster care (§ 366.26, subd.(c)(4)).
We conclude that unless an order absent from the record is necessarily implied in a properly entered express order, the controlling rule is that an order must be filed in writing or entered in the courts minutes in order to be effective and subject to review. (Jablon v. Henneberger, supra, 33 Cal.2nd at p. 775; People v. Burnham (1961) 194 Cal. App. 2d 836, 838, 843, 15 Cal. Rptr. 596 [appeal from nonexistent order denying motion for new trial dismissed].)
Because there is no visitation order in the record, T. M. is essentially asking us to review the actions of the Agency. However, he acknowledges in his letter brief that the juvenile court, not the Agency, has the power and responsibility to define a noncustodial parents right to visitation in a dependency case. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.) Although the Agency has a certain amount of discretion in administering the details of visitation, "the juvenile court must first determine whether or not visitation should occur . . . and then provide the [Agency] with guidelines as to the prerequisites of visitation or any limitations or required circumstances." (In re Danielle W. (1989) 207 Cal. App. 3d 1227, 1237, 255 Cal. Rptr. 344, fn. omitted.) On appeal, we can review only the actions of the juvenile court, not the Agency. "If the trial court has taken no action, we have nothing to review." (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 667.)
T. M. argues that to dismiss his appeal on the ground the court made no explicit visitation order would deprive him of his statutory right to appeal under section 395. We disagree. As noted, an appealable order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle, supra, 8 Cal.4th at p. 126.) T. M. has no statutory right to appeal from a nonexistent order. The ultimate responsibility to obtain an appealable order for the purpose of perfecting appeal rights rests with the appealing party. (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21.) Our dismissal of this appeal does preclude T. M. from seeking a visitation order from the juvenile court and appealing that order if he believes it is erroneous.
DISPOSITION
The appeal is dismissed.
WE CONCUR: BENKE, Acting P. J., NARES, J.