Sonoma County Department of Social Services v. Linda M.

— 400 — Opinion ROUSE, J.—Mother appeals an order directing the county counsel to file a petition for termination of parental rights (Civ. Code., § 232) which was issued after a permanency planning hearing held pursuant to Welfare and Institutions Code section 366.25.1 Facts and Procedural History Sarah F., who was bom October 31, 1983, and David F., who was bom October 24, 1982, are the children of Linda M. Both children were taken into custody on January 8, 1984, and two days later a petition was filed seeking to have them declared dependent children on grounds that they were destitute and lacking the necessities of life and that their half-brother, Timmy M., had been tied to his bed with an electrical cord. (§ 300, subds. (b), (d).) At a jurisdictional hearing held January 26, 1984, the children were declared dependents of the court. A six-month review hearing was held as to the status of the children on July 24, 1984. (§ 366.) A hearing on permanency planning for the children was continued first in January and again in February 1985. At the hearing, which had been put over to April 3, 1985, the department of social services recommended a six-month delay to permit additional time for reunification. The court adopted that recommendation, finding that there was a substantial probability that the children would be returned to the physical custody of their mother within six months. (§ 366.25, subd. (c).) On November 11, 1985, a hearing apparently combining both an 18-month review (§ 366) and the permanency planning hearing (§ 366.25) was held. On November 25, 1985, the juvenile court issued an order finding that there was no substantial probability that the children could be returned to their mother within six months, and directing that the matter be “transferred to the County Counsel for filing of a Petition pursuant to Civil Code Section 232 within 45 days of today’s date.” It is from this order of the juvenile court, made under section 366.25, that the mother seeks to appeal. I. The first question is whether this order by the juvenile court is an appealable order. Section 395 provides that “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 — 401 — after judgment____” A juvenile court “judgment, order or decree specified in section 395” which results from a proceeding undertaken in a section 300 action may be appealed by the county, the minor, the parent or guardian. (Cal. Rules of Court, rule 1396(b).) Linda M., the mother of the two children, argues that an order issued after a section 366.25 permanency planning hearing is an appealable order within the definition set out in section 395. Two cases decided by this court and a recent case from the Second District have taken the position that an order after a section 366.25 hearing which refers the case to the county counsel for institution of a Civil Code section 232 hearing is not an appealable order. (In re Debra M. (1987) 189 Cal.App.3d 1032, 1039 [234 Cal.Rptr. 739]; In re Lisa M. (1986) 111 Cal.App.3d 915, 918, 919 [225 Cal.Rptr. 7]; In re Candy S. (1985) 176 Cal.App.3d 329, 331 [222 Cal.Rptr. 43].) Two other recent cases, however, have adopted the opposite view to hold that a “reference” or “authorization” order is an appealable order. (In re Lorenzo T. (1987) 190 Cal.App.3d 888 [235 Cal.Rptr. 680]; In re Joshua S. (1986) 186 Cal.App.3d 147, 152 [230 Cal.Rptr. 437].) The first published case to address the question of appealability of the order was In re Candy S., supra, 176 Cal.App.3d 329. In Candy S. the court concluded that an order referring a case to the county for commencement of a Civil Code section 232 action was not appealable because until that action was both instituted and concluded with a termination of parental rights the parent was not an aggrieved party (Code Civ. Proc., § 902) suffering from immediate injury as a result of the reference ruling. (In re Candy S., supra, 176 Cal.App.3d 329, 331.) As the court pointed out, the county might choose not to institute the Civil Code section 232 proceeding, and even if it did that proceeding might be determined in the parent’s favor. (Ibid.) Thus, the court reasoned, the reference order issued after the section 366.25 hearing was not appealable. The same division of this court then applied this rule without further analysis in its subsequent decision in In re Lisa M., supra, 177 Cal.App.3d 915, 918.) In re Debra M., supra, 189 Cal.App.3d 1032 recently handed down by the Second District, followed the reasoning of Candy S. The court stressed what it saw as the interim nature of the reference order and found support for its view that the order was nonappealable in the Legislature’s intent to expedite the adoption process. (Id., at pp. 1038-1039.) While these three cases have found the reference order to be nonappealable, there is a separate line of authority, consisting of two opinions, holding — 402 — the eference order to be appealable. The first of these, In re Joshua S., supra, 186 Cal.App.3d 147, involved a combined dependency review and permanency planning hearing. The Joshua S. court expressly found the reference order was appealable. (Id., at p. 155.) It did so after rejecting the argument that the juvenile court order was not appealable because the mother was not an “aggrieved party” within the meaning of Code of Civil Procedure section 902. (See In re Candy S., supra, 176 Cal.App.3d 329, 331.) Instead, it correctly pointed out that the appealability of juvenile court orders is governed, not by the Code of Civil Procedure, but by the Welfare and Institutions Code. (§§ 395, 800.) It is clear from the language of rule 1396(b), California Rules of Court, that a parent may appeal from an otherwise appealable order in a dependency proceeding. The question is not really one of who may appeal, but whether the reference order itself is appealable. In Joshua S., Justice Pauline Hanson concluded that the order was appealable because she found it to be a “subsequent order” within the meaning of section 395. (Id., at pp. 150-152.) Furthermore, she noted that unless the order is appealable the various findings which the juvenile court is obliged to make under section 366.25 before it orders permanency planning and the other procedural safeguards prescribed by the statute are unenforceable and therefore “meaningless.” (Id., 186 Cal.App.3d 147, 154.) We concur. The reasoning of Joshua S. has most recently been followed in the case of In re Lorenzo T., supra, 190 Cal.App.3d 888. Lorenzo T. is especially similar to the case before us because in it there was no express order terminating reunification efforts as there was in Joshua S. Thus the only issue before the court was whether the reference order was appealable. The Lorenzo T. court concluded that the order to the county counsel “for commencement of termination proceedings is an order after judgment of dependency” and therefore is an appealable order under section 395. (Id., at pp. 891, 892.) The court emphasized “[sjection 366.25 affords both procedural safeguards to the parties and sets out factual predicates to the making of the authorization order.” (Id., at p. 893.) We find the reasoning of Joshua S. and Lorenzo T. persuasive. The dissent argues that the reference is merely an “authorization” from the court to the county or state agency and that it therefore is not an order. “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” (Code Civ. Proc., § 1003.) The order involved here is a delegation of authority to the county or state agency to decide whether or not to institute a parental rights termination action under Civil Code section 232. Regardless of what the county or state agency decides to do, it acts pursuant to the court’s order. We are not — 403 — persuaded that the question of appealability turns on the Legislature’s use of the verb “authorize” in lieu of “order.” If the reference order is not appealable and a termination of parental rights proceeding under Civil Code section 232 is instituted, the parent will only be able to appeal from an adverse decision in the superior court section 232 proceeding. Termination of parental rights under that code section moots any error in the earlier juvenile court proceedings. (See In re Terry E. (1986) 180 Cal.App.3d 932, 946, fn. 5 [225 Cal.Rptr. 803]; In re Lisa M., supra, 177 Cal.App.3d 915, 919; but see In re Kristin B. (1986) 187 Cal.App.3d 596, 605 [232 Cal.Rptr. 36].) The appealability of the reference order cannot turn on whether or not it is accompanied by an order which expressly terminates reunification efforts. As a practical matter the institution of a permanent plan for the child generally brings to an end any county-offered reunification services. (§ 366.2, subd. (e); Civ. Code, § 232, subd. (7); In re Clarence I. (1986) 180 Cal.App.3d 279, 283 [225 Cal.Rptr. 466] [once Civ. Code, § 232 proceeding has begun superior court has discretion to order reunification, but it need not do so].) Where a reference order does expressly terminate reunification efforts, the effect of the order may indeed have substantial impact upon the rights of the mother and the child. For example, without any reunification assistance from the county in visiting the child, the parent may be forced to rebut a charge in the section 232 action of abandonment based on “only token efforts” to communicate with the child. (Civ. Code, § 232, subd. (1).) We do not face that problem here because the juvenile court’s reference order expressly permits the mother continued visitation while the section 232 action is pending. 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. (Stats. 1982, ch. 978, §§ 1-78, pp. 3524-3557; see Review of Selected 1982 California Legislation (1982-1983) 14 Pacific L.J. 667.) Thus, it could be argued that permitting appeal from reference orders after section 366.25 hearings would frustrate the purpose of the statutory scheme by causing further delay. As Justice Pauline Hanson notes, however, since dependency review orders are appealable, and they often are made in conjunction with the permanency planning hearing, such additional delays caused by appeals from reference orders are not likely to significantly slow the juvenile process. (In re Joshua S., supra, 186 Cal.App.3d 147, 154.) Because the reasoning of Joshua S. and Lorenzo T. seems to take account of what is in reality, if not on paper, the drastic step of referring a case for — 404 — termination of parental rights, they are, we believe, the sounder approach. In light of our conclusion that the reference order from a permanency planning hearing held pursuant to section 366.25 is appealable, we proceed to address the merits of the mother’s claim. II. Linda M. contends that the juvenile court erred in ordering a permanency plan for the children after finding that “there is not a substantial probability that” they would be returned to her care within six months. She contends that there is not substantial evidence to support this determination. The court’s order, issued after it had considered both the documentary evidence and the testimony presented at the hearing, found Linda M. was “unable to adequately meet the needs of these two minors who have special needs.” In her review of the evidence the mother focuses only upon the testimony which was given at the hearing.2 She argues that this testimony was insufficient to demonstrate that she was unable to care for the two minors. Based upon our own review of all the evidence before the court, we find that there is substantial evidence to support the court’s finding. Dr. Gershom Thompson, a psychiatrist who had been most recently treating the mother, testified that Linda M. had not developed, through therapy, an ability to avoid a relationship with the children’s abusive father nor did she have any real understanding of the effects of abuse and neglect upon the children. He also testified that, even if she could avoid a relationship with their father, she would be vulnerable to similar relationships with other men likely to exploit her and abuse the children. This diagnosis was strikingly similar to that of the mother’s prior therapist, social worker Judith LaTendresse. Ms. LaTendresse had terminated her therapy of the mother when she realized that Linda M. was unable to accept the fact that the interests of the children required her to end her relationship, however tenuous, with their father. Finally, Dr. Thompson also stated that he believed Linda M. would not be able to handle these two children in addition to her other two small children, Timmy, then four, and Michael, an infant, who were presently in her care. Timmy, the child whose mistreatment originally led to the dependency proceeding, was returned to his mother’s care in August 1985. He is apparently a hyperactive child who has behavior problems. His siblings, Sarah and — 405 — David, have also exhibited behavioral and developmental difficulties; some of their behavior problems seem to be triggered by visits with their parent or parents. Dr. Kenneth Waldron, a clinical psychologist who evaluated Sarah and David, concluded that these difficulties were the result of “environmental problems’’ when they were younger and concluded it was “essential” they be placed soon in a home that could provide “a good deal of structure and guidance____” Three witnesses testified on the mother’s behalf at the hearing. Despite their generally positive appraisals of Linda M.’s parenting abilities, two of them conceded that the problems of raising two children were substantially different from those involved in raising four. Only the homemaker, Loma Remy, testified that she believed the mother would be able, within six months, to resume custody of all four children. Although her opinion was based on her observation of the mother with all four children, it was derived from only two months of contact with the family. While the evidence before the court was not uncontradicted, we find there was substantial evidence to support the court’s finding that there was not a substantial probability that the minors, Sarah and David, could return to the custody of their mother within six months. The order is affirmed. Kline, P. J., concurred. Footnotes [1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code. [2] As respondent points out, the factual statement in appellant’s brief is inadequate. However, instead of aiding this court by setting forth a factual summary in its brief, respondent has compounded the inadequacy of the briefing by submitting an extremely summary brief of its own which contains a few citations to the record but lacks any substantive discussion of the facts of the case.