Opinion
E081519
04-19-2024
In re V.L., a Person Coming Under the Juvenile Court Law. v. T.F., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J-275197, Cara D. Hutson, Judge. Dismissed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
In 2020, the juvenile court terminated the parental rights as to the dependent minor V.L. (child), and she was placed with her grandmother. Grandmother now appeals from a 2023 order removing V.L. from her custody. The county welfare department argues the order is not appealable and can be reviewed only via extraordinary writ. We agree with the department that the statutory conditions that would make the order appealable were not satisfied here and therefore dismiss the appeal.
BACKGROUND
The child (born 2016) was initially removed from her parents in 2018. Her parents' parental rights were terminated in 2020, and she was placed with grandmother the same year.
On May 3, 2023 the department received a referral alleging grandmother had engaged in domestic violence in the child's presence, that there was an unauthorized person living in the home, and that she was physically abusing the child. The department removed the child the next day, and grandmother objected.
The child told the department that she and grandmother's biological children get "pow pow" and "whooping[s]" from grandmother. She said grandmother sometimes used her hand and sometimes used a belt. She also told the department grandmother had a boyfriend who visited and who was "nice sometimes but sometimes is mean when him and [grandmother] argue." A medical examination revealed scars on the child's neck which were "highly suspicious for nail gouge injuries and for strangulation," as well as injuries to her cheeks. The child claimed these injuries were from her sister. None of these scars were present when the child was removed from her parents.
The court held a contested removal hearing on May 17, 2023. After hearing from the department and minor's counsel, the court told grandmother "I'll give you the final word if you have anything you'd like to say." Grandma told the court the child's scratches were from fights with grandma's other children. She also admitted "what I did wrong was Grandma gonna give them a 'pow-pow' with a belt, but I never whooped them." Grandmother said the child has "behavior issues and imagination stuff going on," and "she is telling stories." Grandmother also denied any domestic violence.
The court ultimately removed the child from grandmother and placed her in a new foster home. Grandmother did not file an extraordinary writ challenging this ruling. Instead, nearly a month later on June 14, 2023, she filed a notice of appeal. In this notice grandmother stated she was appealing "due to an improper judicial hearing," and alleged she "was not allowed to review the documents."
ANALYSIS
"Subject to certain narrow constitutional limitations, there is no right to appeal. [Citations.] The California Supreme Court has repeatedly held that the right to appeal is wholly statutory." (Cobb v. University of So. California (1995) 32 Cal.App.4th 798, 801.)
There is no statutory right to appeal a court's placement decision after parental rights have been terminated. Welfare and Institutions Code section 366.26, subdivision (n), governs the court's ability to place a child with a prospective adoptive parent, and to remove that child under certain circumstances. (See, e.g., § 366.26, subd. (n)(4) [governing removals from prospective adoptive parent "due to a risk of physical or emotional harm"].) This includes procedures to permit prospective adoptive parents to request a contested hearing on any removal. (Ibid.) Nevertheless, a decision under this subdivision is not appealable "[e]xcept as provided in subdivision (b) of Section 366.28." (§ 366.26, subd. (n)(5).) Section 366.28 reiterates the non-appealability of these orders, stating "[a]fter parental rights have been terminated pursuant to Section 366.26, an order by the court that a dependent child is to reside in, be retained in, or be removed from a specific placement, is not appealable at any time unless," certain conditions are met. (§ 366.28, subd. (b)(1).) These conditions are "(A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record," and "(C) The petition was summarily denied or otherwise not decided on the merits." (§ 366.28, subd. (b)(1)(A)-(C).)
Undesignated statutory references are to the Welfare and Institutions Code.
Thus, to preserve the right to appeal a juvenile court's posttermination placement order, a party must first seek an extraordinary writ. California Rules of Court require that any such extraordinary writ "must be served and filed within 7 days after the date of the posttermination placement order." (Cal. Rules of Court, rule 8.454(e)(4).) "Failure to file a petition for extraordinary writ review within the period specified by rule of court, to substantively address the specific placement order that is challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section." (§ 366.28, subd. (b)(2).)
Grandmother did not file an extraordinary writ within seven days, as required. Instead, she filed a notice of appeal nearly a month after the contested hearing. Accordingly, the conditions that would render the order appealable have not been satisfied.
"We have discretion to treat a purported appeal as a petition for writ of mandate," and grandmother requests we exercise this discretion. (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515 (A.M.).) However, "[t]hough we . . . have power to treat the purported appeal as a petition for writ of mandate, we should not exercise that power except under unusual circumstances." (Olson v. Cory (1983) 35 Cal.3d 390, 401.) Such unusual circumstances are present where, for instance, "all the conditions necessary for issuing a writ of mandate are present, and a refusal to decide the issues raised by an improvident appeal would result in unnecessarily dilatory and circuitous litigation." (In re Albert B. (1989) 215 Cal.App.3d 361, 372-373, citing Olson v. Cory, supra, at p. 401.)
No such unusual circumstances exist here. Dismissing this appeal will not result in "unnecessarily dilatory and circuitous litigation." Indeed, it will result in the exact opposite: an end to this case. Such finality here would benefit the child, as it would allow the court to permanently place her without concerns about whether such a placement will be disrupted by further litigation. Nor are there any other unusual circumstances that would excuse grandmother's failure to file an extraordinary writ.
Grandmother cites several cases in support of her position that we should treat her appeal as a writ petition, most notably In re Cathina W. (1998) 68 Cal.App.4th 716 (Cathina W.), Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254 (Jennifer T.), In re Merrick V. (2004) 122 Cal.App.4th 235 (Merrick V.), and A.M., supra, 237 Cal.App.4th 506. We find each distinguishable.
As the department correctly points out, three of the four cases involved section 366.26 subdivision (1). That section instructs the Judicial Council to adopt rules requiring that "after issuance of an order directing a hearing pursuant to this section be held," the juvenile court "shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues." (§ 366.26, subd. (1)(3)(A).) In response, the Judicial Council adopted California Rules of Court, rule 5.590(b), which lays out how and when these advisements must be given. In Cathina W., Jennifer T., and Merrick V., the court of appeal addressed the parties' arguments on their merits because the juvenile court failed to advise them as required by this rule. (See Cathina W., supra, 68 Cal.App.4th at pp. 722-723; Jennifer T., supra, 159 Cal.App.4th at pp. 259-260; Merrick V., supra, 122 Cal.App.4th at pp. 247-249.)
Neither section 366.26, subdivision (1), nor the implementing rule of court, applies here. This case concerns section 366.28 (by way of section 366.26, subdivision (n)), which has its own implementing rules of court. "[T]he rules of court implementing section 366.28 do not require the trial court to advise the parties of the writ requirement." (A.M., supra, 237 Cal.App.4th at pp. at 514-515.) The juvenile court was therefore not required to advise grandmother of the writ requirement, and its failure to do so does not relieve her of that requirement.
The fourth case grandmother emphasizes, A.M., is distinguishable for different reasons. The minor there appealed two days after the challenged order, well within the seven-day writ petition deadline. (A.M., supra, 237 Cal.App.4th at pp. 512, 515.) The department also "responded to the appeal on the merits," and did not argue the appeal should be dismissed until the court of appeal "spotlighted the issue and requested further briefing." (Id. at p. 515.) The circumstances here are different. Grandmother filed her appeal well after the deadline for filing a writ petition, and the department actively contested the appealability from the start. Moreover, in A.M., we published our decision to "warn the bar and the public that we will not grant relief from the writ requirement so readily in the future." (Id. at p. 516.)
We decline to exercise our discretion to consider grandmother's appeal as a writ petition, and therefore dismiss the appeal.
DISPOSITION
We dismiss the appeal.
We concur: CODRINGTON Acting P.J., FIELDS J.