In Re Steven H.
FROEHLICH, J.
Appellant seeks review by appeal of orders made following a 12-month review hearing conducted in accordance with
PROCEDURAL BACKGROUND AND CONTENTIONS
Since our ruling is grounded in legal principles rather than being fact-related, we do not recite the detailed factual background of this case. Suffice it to say that the two minor children who are the subjects of this action were removed from their parents’ custody in October 1989 because of parental misconduct and neglect. The children were placed outside the parents’ home during the period of attempted reunification. A six-month review hearing was held in July 1990 and reunification efforts were ordered continued. It was at the subsequent review hearing on April 15, 1991, that the court determined there was no substantial probability the children could be returned to the parents within the next six months, and hence set a selection and implementation hearing under
The order which resulted from the 12-month hearing, and which referred the case for a selection and implementation hearing, included the requisite
The contentions on appeal can be summarized as follows:
I. Lack of jurisdiction of the hearing officer at the review hearing because he was a temporary judge sitting without benefit of stipulation.
II. Errors in (1) determining that reasonable reunification services had been offered to appellant, and (2) ruling that it would be detrimental to return the minors to the parent.
III. Error in the visitation order in terms of granting unfettered control over visitation to the department of social services.
We deal summarily with the contentions we have numbered I and II, but discuss at greater length contention number III, which we conceive to raise an issue not well settled by existing precedent.
DISCUSSION
I. Status of Hearing Officer.*
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II. Contentions of Error in Rulings Underlying Referral Order. As part of its April 15 ruling the court determined that (1) “The return of the minor[s] to the custody of the parents would create a substantial risk of detriment to the physical and/or emotional well-being of the minor[s],” and (2) “Reasonable services have been provided and/or offered to the parents which were designed to aid the parents to overcome the problems which led to the initial removal of the minors.” (1) Appellant‘s contentions boil down to an argument that the evidence was insufficient to support either conclusion.
Each of these findings and orders is a condition precedent to the setting of a selection and implementation hearing under
Since the order directing that a selection and implementation hearing be held is nonappealable, but reviewable only by writ petition (
This principle has been enunciated clearly as to prior parallel provisions of juvenile law. The procedure for terminating parental rights in place before January 1, 1989, involved similar determinations in juvenile court leading to the conclusion that the child could not be returned to the parent, and the making of an order authorizing the filing of a petition to free the minor from parental custody and control under
Persuasive authority construing these statutory provisions stands for the proposition that where the goal of the review effort is the overturning of the referral order, subsidiary findings and orders which lead to the referral order are not appealable but reviewable by writ petition only. In In re Eli F. (1989) 212 Cal. App.3d 228 at page 236 [260 Cal. Rptr. 453], for instance, the court‘s finding that reunification was not likely within the next six months, which led to the referral for a
The statutory framework in place after January 1, 1989, does not require the filing of a new petition to free the child from parental control, but
Thus, the objective of avoidance of delay, as contained in
We therefore rule that the subject findings were reviewable only by writ petition and are not cognizable on this appeal.
III. Review of the Visitation Order. As noted above, the visitation order provided visitation “at the discretion of the DSS” (meaning department of social services). The order also appeared to permit termination of visitation upon a determination by an “independent therapist” that visitation was detrimental to the minors. (2) Citing In re Danielle W. (1989) 207 Cal. App.3d 1227 [255 Cal. Rptr. 344] and In re Kristin W. (1990) 222 Cal. App.3d 234 [271 Cal. Rptr. 629], appellant contends this was an improper delegation of judicial discretion to a nonjudicial officer. “[A] visitation order granting the Department complete and total discretion to determine whether or not visitation occurs [is] invalid.” (In re Danielle W., supra, 207 Cal. App.3d at p. 1237.)
We do not reach the question of the validity of this visitation order, because we find it to be a nonappealable order. As with the orders referenced in part II of this discussion, we conclude this order was but a part of, and integrally related to, the order referring the case for a selection and implementation hearing, and hence was reviewable by writ only. In order to reach
The authority to which we refer is illustrated by the majority opinion in In re Megan B., supra, 235 Cal. App.3d at page 951; and by the decisions in In re Elizabeth M., supra, 232 Cal. App.3d at page 562; In re Kristin W., supra, 222 Cal. App.3d 234, 244-249; and In re Eli F., supra, 212 Cal. App.3d at pages 235-236. These cases stand for the proposition that some parts of an order referring the case for a final disposition hearing may be appealable, notwithstanding that the order of reference is reviewable by writ only. The concept of this authority is that the court may make numerous rulings following a 6-month, 12-month or 18-month hearing. These rulings are ordinarily subject to appellate review in accordance with
As stated in In re Eli F., supra, 212 Cal. App.3d at pages 235-236: “[A] juvenile court frequently makes several kinds of orders at the conclusion of a permanency planning hearing. Had the Legislature wished to make all such orders nonappealable it would have said so.... [¶] [W]e conclude that by its enactment of subdivision (j) of section 366.25 the Legislature intended to preclude appeals only from an order authorizing the filing of a parental termination action.... Other contemporaneous orders ... remain appealable pursuant to the general rule of section 395....”
These cases of course construe
We decline, however, to rest our decision upon an arguable distinction between the
We contend that the interests of early resolution of the disposition of the child who is the subject of the action require that any review of an order which is part of the order referring the case to a 366.26 hearing should be limited to writ review. We have in an earlier case considered the concept of bifurcated review set forth in Kristin W., and indicated our disapproval of same. We commented that permitting review by appeal of a portion of such order permits delay, and “delay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.” (In re Taya C. (1991) 2 Cal. App.4th 1, 8 [2 Cal. Rptr.2d 810].)
The inappropriateness of permitting a bifurcated appeal from a referral order can be demonstrated simply by reviewing the time requirements of the alternative proceedings. When an order is made referring the case to a
What, then, is the practical effect of permitting review by appeal of a portion of the referral order? If the order permitted by appeal is obviously related to the decisions to be made at the selection and implementation hearing, the appellant will likely request a stay of the selection and implementation hearing. While appellate courts have at times stayed the selection and implementation hearing to permit prior resolution of pending appeals or writ petitions, such is clearly not the preferred practice. The legislation we here review brims with admonitions not to delay the final selection and implementation of the ultimate placement of children.
The more likely alternative will be that the selection and implementation hearing will go forward and a final plan will be selected for the child, before the appeal is completed. In many, if not most, cases the adjudication of such final plan will cause the issues of the appeal to become moot. In this case, for instance, the issue is whether terms of visitation are proper. In the event the child is found adoptable at the 366.26 hearing, visitation will in all probability be terminated. The period of visitation in issue in the typical case, as in this case, will be the visitation possible in the interim between the referral hearing and the selection and implementation hearing. There is therefore no practicality in embarking upon an appellate procedure which cannot be completed in time to work any effect during the period the questioned visitation is continuing.
In ruling on this case we are tempted to state that there should never be a situation in which a portion of the order emanating from a
We need not attempt statement of a rule for all occasions, however. The issue in this case is whether the visitation order is so integrally related to the referral order as to preclude review by appeal. We find that it is. These were parents who lost care of their children initially because of alcoholism and inability to provide minimal care. During the period of attempted reunification the parents’ performance was sporadic; they did not participate regularly in the ordered treatment programs. The social worker was concerned that the children might suffer harm if they were returned to the parents. These determinations led the court to conclude that a referral for a selection and implementation hearing should be made. The same considerations, it appears, motivated the court to limit visitation pending the selection and implementation hearing.
The court, in other words, found appellant to be an irresponsible parent unable to relate positively to her children. This finding gave rise to two separate orders: one directed that a hearing be held to determine the selection of permanent placement for the children; and the other severely limited visitation pending that hearing. These orders are twin branches springing from the same root. It would be illogical to permit their review to take place in two different forums based on different petitions. Since the referral order may be brought only by writ, we find that the challenge to the terms of the visitation order may also be brought only by writ.
DISPOSITION
The orders of the superior court are affirmed.
Work, Acting P.J., and Nares, J., concurred.
A petition for a rehearing was denied June 24, 1992, and appellant‘s petition for review by the Supreme Court was denied September 3, 1992.