Opinion
G058354
05-05-2020
In re CLARK R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.R., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DP0269) OPINION Appeal from a judgment of the Superior Court of Orange County, Dennis J. Keough, Judge. Dismissed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
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Appellant T.R., the mother of minor C.R., contends the juvenile court erred in summarily denying her modification petition made per Welfare and Institutions Code section 388. Mother lacks standing to appeal because she filed her petition after her parental rights were terminated. We therefore dismiss her appeal.
All further undesignated citations are to the Welfare and Institutions Code unless otherwise specified.
I
FACTS AND PROCEDURAL HISTORY
We incorporate the facts and procedural history described in our earlier two opinions in this case. Our first opinion affirmed the juvenile court's findings removing C.R. and his brother from the mother's custody and bypassing reunification services. (See In re Clark R. (Feb. 7, 2017, G053771 [nonpub. opn.].) Then, in October 2017, the juvenile court terminated Mother's parental rights to C.R., per section 366.26 (the termination order). In our second opinion, we affirmed the court's orders that delegated the mother's visitation rights to a therapist and denied a section 388 petition the mother filed before the court's termination order. (See In re Clark R. (June 15, 2018, G055542 [nonpub. opn.].)
Fifteen months after the termination order, in January 2019, the mother filed the section 388 petition at issue in this appeal and supplemented in the following months (posttermination petition). The petition claimed new evidence about the true wishes of C.R. and one of his brothers regarding the juvenile court proceedings. It requested the court to vacate its termination order and return C.R. to the mother's care or provide reunification and visitation services. The juvenile court summarily denied the petition.
II
DISCUSSION
Lack of Standing
Mother argues the juvenile court abused its discretion when it summarily denied her posttermination petition. She relies on section 395, subdivision (a)(1), as the statutory authority for her appeal. Respondent Orange County Social Services Agency (SSA) contends Mother had no standing to petition the juvenile court or to appeal the denial of her petition because she filed her modification request after the juvenile court had terminated her parental rights. Mother asserts SSA forfeited the issue because it did not raise standing in the juvenile court and, alternatively, "SSA should be judicially estopped from taking a contrary position on appeal than it did before the juvenile court."
Standing to appeal is a jurisdictional issue that cannot be forfeited. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295 (Marsh).) Section 395, subdivision (a)(1), specifies the juvenile court orders a party may appeal. Independently, a party also must be statutorily "'aggrieved'" to have standing to appeal. (Code Civ. Proc., § 902; In re K.C. (2011) 52 Cal.4th 231, 236.) "To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court's decision." (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) Of course, a parent may appeal directly from a termination order, but parents lack a "legally cognizable interest" in their children's affairs after the termination order becomes final. (In re K.C., supra, 52 Cal.4th at p. 237.)
Indeed, while section 388 generally authorizes a parent to petition a juvenile court to change, modify, or set aside a prior order (§§ 385, 388), section 366.26, subdivision (i)(1), provides, in relevant part, that: "Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation. . . . After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in [a paragraph not relevant in this case], but nothing in this section shall be construed to limit the right to appeal the order."
Because Mother appeals the juvenile court's denial of her posttermination petition and not its termination order, she lacked standing request a modification of a final termination order, which was nothing more than a disguised attempt to collaterally attack the juvenile court's disposition. It therefore follows Mother lacks standing to appeal the denial of her modification petition. (§ 366.26, subd. (i)(1); Code Civ. Proc., § 902; Amber R. v. Superior Court (2006) 139 Cal.App.4th 897, 902-903.) Because the issue cannot be forfeited (Marsh, supra, 43 Cal.App.4th at p. 295), Mother's lack of standing is dispositive.
Given SSA did not affirmatively assert any position on her standing in the juvenile court, we decline the mother's invitation to apply the equitable doctrine of judicial estoppel. (See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 ["'"Application of the doctrine is discretionary"'" and requires a party [to] assert contradictory positions on an issue].) --------
III
DISPOSITION
The appeal is dismissed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.