Jesse W. (father), a parent of three children made dependents of the juvenile court in proceedings initiated in December of 1998, appeals from a final-stage order of January 4, 2001, denying his motion for modification (Welf. & Inst. Code, § 388; all unspecified section references are to this code), appointing his parents guardians of the children, and vacating the dependencies. He claims no substantive error in any aspect of the order itself but claims it is void because of a procedural error committed 18 months earlier, when a referee’s dispositional order on a supplemental petition (§ 387) removed the children from the home of their mother, Jacque C. (mother), without being countersigned by a juvenile court judge as required by section 249. We will reject his challenge.
Background
Petitions for Jessie W. (age four), Jacob W. (age two) and Jasmine W. (age 7 months) were filed by the Contra Costa County Social Service Department (department) first on December 18, 1998. Father and mother had lived together for years with the two older children in the home of the
Both parents appeared with counsel, and on January 19, 1999, mother admitted the petitions as amended to delete elaboration on her plan failures. At a dispositional hearing before Referee Bruce Stirling on February 9, the children were adjudged dependents and ordered to remain in mother’s (i.e., the grandparents’) home, with visits for father. Father voiced interest in having custody should foster care become necessary but had no job or stable
Mother did poorly in her residential program and left it without permission on May 23, leaving behind Jasmine, who had evidently come to live with her there. Mother disappeared for a time. Supplemental petitions for each child (hereafter referenced in the singular) filed on May 25th alleged an ineffective prior disposition. The children were detained the next day, but placed with the paternal grandparents, where they had been before. Mother and father each appeared for the detention hearing.
On June 15, 1999, the supplemental petition was sustained by Referee Stirling on mother’s admissions to having left and been discharged from a residential program, having left Jasmine in the care of another resident, and having had patch tests that were positive for methamphetamine. It appears that mother had not returned to the grandparents’ home, but had lived for a time with a sister in Vallejo and then with her own mother. She contemplated entering another residential drug program. Father had no known address. He visited the children but otherwise had made little progress on his reunification plan.
By the time of a six-month review as initially set for January 2000, mother had relapsed repeatedly, and father had made little progress, amid reports that he, too, was abusing drugs. The department recommended terminating services for both parents as to the two younger children, Jacob and Jasmine, setting a (.26) hearing (§ 366.26 [selection and implementation]) for them, and continuing services for both parents only as to Jesse. Then in February, responding to late progress made by father, the department changed its recommendation to extending services for him as to the younger children. By an order of February 10, Judge Lois Haight adopted the full recommendations (ending services only for mother as to the younger children) and set a 12-month review. No appeal was taken.
By the 12-month review, the recommendation was to terminate all services and set a .26 hearing for all three children. Father’s progress had stalled, and it surfaced that he had been arrested in 1999 for possessing methamphetamine and a ninja star, and had been convicted and placed on probation. Mother was in jail for a drug offense. The children were thriving in the grandparents’ care, and the grandmother had been ruled a de facto parent. Neither parent appeared personally at the review hearing held on July 28 before Judge Haight. Father’s whereabouts were unknown to his counsel. The court denied counsel’s requests for a continuance and family maintenance for father. It then followed the recommendations and set a .26 hearing. Each parent filed a defective petition for writ review of that order (Cal. Rules of Court [hereafter cited by rule only], rule 39.IB), without raising any issue about lack of countersigning on the June 1999 dispositional order, and this court dismissed their petitions in an unpublished opinion (case Nos. A092353 & A092354).
Father thereafter filed a modification motion (§ 388), seeking further services or family maintenance, and the matter was heard and denied at the .26 hearing of January 4, 2001, before Judge Haight. Father favored long-term foster care and was the only party not supporting the department’s report recommendations for guardianship with the grandparents, vacation of the dependencies, and dismissal of the petitions. The judge followed those recommendations, also issuing letters of guardianship, and father appeals from the .26 hearing order.
Discussion
Section 249 states, “No order of a referee removing a minor from his home shall become effective until expressly approved
The department claims father lacks standing (see generally In re Caitlin B. (2000)
The waiver rule as applied in dependency cases flows from section 395, under which the dispositional order is an appealable judgment, and all subsequent orders are directly appealable without limitation except for post-1994 orders setting a .26 hearing, which are subject to writ review (rule 39.IB) and related limitations (§ 366.26, subd. (l)). A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. (In re Meranda P. (1997)
Father attempts just such a sabotage. He could have appealed the dispositional order of June 1999 and/or the six-month review order of February 2000, but did not. He did seek writ review of the 12-month review order of July 2000, which included a setting order made reviewable by rule 39. IB, but did not attempt, even at that late stage, to attack the lack of countersigning of the dispositional order. He makes that argument for the first time now, on an appeal from a January 2001 order establishing grandparent guardianship and dismissing the dependencies. Clearly, with three appealable prior orders in his wake, he cannot be allowed to sabotage the process now and, as he requests, return the case to a fictional state where the children were never removed from a parent’s custody.
Father offers this answer to the waiver problem: because the June 1999 disposition
We find that reasoning flawed. First, Heather P. was expressly disapproved in its premise that the written-stipulation requirement is jurisdictional; the Supreme Court has since held that the requirement, while constitutionally derived, is directory only and that parties, by otherwise stipulating (e.g., to a referee acting as temporary judge) waive any objection based on failure to strictly comply. (In re Richard S. (1991)
Under our Constitution, “The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties” (Cal. Const., art. VI, § 22), and the Legislature responds in the Welfare and Institutions Code that “[t]he judge of the juvenile court. . . may appoint one or more referees to serve on a full-time or part-time basis” (§ 247) and that “[a] referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court, except that a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge” (§ 248, italics added; In re Mark L. (1983)
Nonjurisdictional impact is also indicated here, for the statute says a referee’s removal order is not “effective” until approved
All orders by a referee are subject to de novo review by a juvenile court judge (§ 254) should a party seek a rehearing within 10 days after service of the order (§ 252) or a judge grant rehearing on his or her own motion within 20 days (§ 253). Thus while section 249 provides that a referee’s removal order is not “effective until” approved by a judge, section 250 goes on to provide: “Except as provided in Section 251 [authorizing judges to require approval for other orders as well], all orders of a referee other than those specified in Section 249 shall become immediately effective, subject also to the right of review [by rehearing] as hereinafter provided, and shall continue in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court. In a case in which an order of a referee becomes effective without approval of a judge of the juvenile court, it becomes final on the expiration of the time allowed by Section 252 for application for rehearing, if application therefor is not made within such time and if the judge of the juvenile court has not within such time ordered a rehearing pursuant to Section 253.” (Italics added.)
Thus the term “effective” in section 249 connotes not a conferral of jurisdiction but the point at which the order may be carried out, and this is reflected in a case (not cited to us) that said of the predecessor statute, former section 555: “[T]he approval of a referee’s order . . . is a safeguard against summary removal of the child from the custody of his parent or guardian. Approval of the order is not grounded upon a rehearing on the merits, it is merely an evaluation of the custody aspect of the order, keeping in mind that an application for a rehearing may be filed by a parent or guardian of the child. [Citation.] Otherwise the referee’s order would become effective immediately . . . and the child would be subjected to the psychological trauma of a change of custody which might be reversed if a rehearing is granted.” (In re Dale S. (1970)
No published opinion seems to have squarely held whether failure to comply with section 249 is jurisdictional. (But see In re Rashad B. (1999)
This implicit view of judge approval as nonjurisdictional and directed only to implementing the order, was stressed more recently as follows: “Section 249 provides that ‘[n]o order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court.’ [Citation.] ‘[T]he requirement of approval by a juvenile court judge derives from the constitutional mandate that referees are restricted to performing “subordinate judicial duties.” [Citations.] . . . [T]hat consti-tutional requirement is fully satisfied by obtaining the countersignature of a juvenile court judge, so long as opportunity to seek a full rehearing remains available on request.’ ” (In re Clifford C. (1997)
Standing against that implicit judicial view is father’s implicit position, underlying his contention that a direct appeal is unnecessary, that lack of approval under section 249 renders an order “void” in the sense reserved for fundamental lack of jurisdiction such as might allow collateral attack. (See generally Armstrong v. Armstrong (1976)
Father insists that because the approval requirement is of constitutional origin (Cal. Const., art. VI, § 22), it cannot be waived by mere conduct or inaction but must be waived by an express, informed waiver. But his cited authority (In re Mark L., supra,
•Father claims failure to comply with section 249 is a defect so fundamental to due process that it falls outside the waiver rule. Such a defect, however, must be “[one] that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the [dependency] scheme as a whole” (In re Janee J., supra, 74 Cal.App.4th at pp. 208-209), and nothing of the kind occurred here. Assuming for sake of argument that the right to a de novo rehearing before a judge of a removal order rises to such due process heights in the dependency scheme as a whole, the defect here did not in any way prevent father from seeking such review. Nor does he dispute that the June 1999 order was authentic—i.e., actually made by the referee.
Even if we could properly reach the issue, as in an appeal from the dispositional order, father would be hard pressed to show any prejudice (Cal. Const., art. VI, § 13). His children were not placed at risk of being traumatized by a too hasty removal that might be undone by a grant of rehearing. Father never sought a rehearing. If he had, the “removal” in this case did not change the children’s home. Father had not lived there for 17 months, and the mother had left the home for a residential drug treatment program. The children remained in the care of the grandparents, with whom they had always lived.
Father’s final effort to escape the waiver rule is to argue that the June 1999 removal order was never “effective” under section 249, thus was “void” and therefore was never appealable. The effort fails. Even if we could agree that the order was void, “where the law allows an appeal from a judgment or order, it is appealable even though void.’’’’ (Phelan v. Superior Court (1950)
Father’s challenge to the lack of countersigning of the June 1999 removal order is accordingly barred by the waiver rule. His failure to make the challenge on direct appeal from the now final June 1999 order forecloses raising it now, on appeal from an order at a .26 hearing held over 18 months later.
Anticipating this outcome, he requests that we treat his briefing as an application for writ of habeas corpus. We deny the request. First, purporting to conduct writ review outside the usual procedural and substantive safeguards governing writ review poses serious questions, making a separate and proper application by petition far preferable. (Adoption of Alexander S. (1988)
Disposition
The appeal is dismissed, and father’s request to treat his briefing as a petition for writ of habeas corpus is denied.
Kline, P. J., and Ruvolo, J., concurred.
Appellant’s petition for review by the Supreme Court was denied January 23, 2002.
Notes
A judge had countersigned the earlier detention order of May 26—in two of the cases on May 27 and, in Jacob’s case, on June 2. Then, in a separate postdisposition order by the same countersigning judge on August 2, in apparent response to a letter from the department erroneously stating that there had been no signed detention order in Jacob’s case, the judge countersigned another one that had been forwarded with the letter (and originally signed on July 30 by a referee) that had typed on it, “Nunc Pro Tunc to May 26, 1999,” the detention date. The record thus betrays some confusion.