Opinion
Rehearing Granted Feb. 17, 1988.
Previously published at 198 Cal.App.3d 42
Mary A. Delsman, Riverside, under appointment by the Court of Appeal, for appellant.
Gerald J. Geerlings, County Counsel, and Beauford T. Miller, Jr., Deputy County Counsel, for respondent Dept. of Public Social Services.
Philip A. Zywiciel, Los Angeles, under appointment by the Court of Appeal, for minors.
OPINION
HEWS, Associate Justice.
The father of three minor children appeals from an order directing the county counsel to initiate an action to declare the children free from the custody and control of their parents under Civil Code section 232. We hold that the order is not appealable, and we dismiss the appeal.
FACTS
Appellant Claude F. is the father of the three minor children who are the subject of these proceedings. The three children, Brandy K., now age 6; Amanda K., now age 5; and Claude F., Jr., now age 4, were brought to the attention of the Department of Public Social Services (DPSS) on May 26, 1985, when their mother reported to the Riverside Sheriff's office that her three children had been kidnapped by the boyfriend of their paternal grandmother.
Investigation by the sheriff's deputies revealed that the grandmother and her boyfriend had taken the children to the grandmother's home because the children were being neglected by their alcoholic mother. A visit to the mother's home revealed an unsanitary home with what appeared to be human feces on the beds and the floor. The children were found to be dirty and uncared for, wearing nothing but dirty pants or diapers. The children had a number of marks and bruises on their bodies, including stitches on one of the children which had not been properly cleaned or cared for. The decision was made by the sheriff's deputies to turn the children over to DPSS until a case worker could evaluate the home.
During this time the children's father, appellant Claude F., was confined at the Banning Rehabilitation Center, a jail facility operated by the Riverside Sheriff's office. The children's parents had separated in September of 1984, and the children had lived with appellant and his girlfriend until appellant had been incarcerated on February 6, 1985.
A petition was filed on May 29, 1985, alleging that the three minors had been physically abused, that they were neglected, and that they were not provided with the necessities of life. At a detention hearing held May 30, 1985, the children were detained upon a finding by the court that a prima facie showing had been made that the children came within the meaning of Welfare and Institutions Code section 300, subdivisions (a), (b), and (d). On June 17, 1985, an amended superseding petition was filed which added allegations of sexual abuse with respect to Brandy and Amanda. At the jurisdiction hearing held July 17, 1985, the court found by clear and convincing evidence that the allegations in the petition were true, and that the minors came within Welfare and Institutions Code section 300, subdivisions (a), (b), and (d).
At a disposition hearing held the same day the minors were adjudged dependent children of the court. The court directed that they be placed in foster care, but held that portion of the order in abeyance and placed the children in the custody of their paternal grandmother on a trial basis. A reunification plan was read, considered and accepted at that hearing.
At the request of the paternal grandmother, who said that she was unable to continue to care for the minors, the placement of the minors was changed to foster care by a Modification of Placement order filed November 21, 1985.
At review hearings on January 10, 1986, and June 27, 1986, the court continued the children as dependent children of the court and continued them in suitable foster home care. A further review and permanency planning hearing was held on December 9, 1986. The court continued the minors as dependent children and in foster care, and then continued the permanency planning hearing to permit DPSS to screen the minors for adoptability.
A contested permanency planning hearing was held on January 26, 1987. After the hearing the court found by clear and convincing evidence that reasonable reunification services had been made available to the parents; that return of the minors to their parents would be detrimental to the minors; and that the minors were likely to be adopted. The court ordered the county counsel to initiate proceedings within 45 days to free the minors from the custody and control of their parents pursuant to Civil Code section 232. Appellant now appeals from that order.
DISCUSSION
We do not reach the merits of appellant's argument in this case because we hold that the order directing the county counsel to initiate Civil Code section 232 proceedings was not an appealable order. We recognize that there is a split of authority on this issue among the different appellate districts in the state, and we join with those districts which have concluded that the rights of the parties are adequately protected without permitting an appeal at this stage of the proceedings.
In re Candy S. (First Dist., Div. 1, 1985) 176 Cal.App.3d 329, 222 Cal.Rptr. 43 held that an order merely "referring" a dependency case to the county counsel or other agency for initiation of a 232 proceeding was not appealable, as the parties (i.e., the natural parents, the child, and the department of social services) were not "aggrieved" by the order. At least two other opinions have adopted the holding in In re Candy S. (In re Debra M. (Second Dist., Div. 1, 1987) 189 Cal.App.3d 1032, 1037-1039, 234 Cal.Rptr. 739; In re Lisa M. (First Dist., Div. 1, 1986) 177 Cal.App.3d 915, 225 Cal.Rptr. 7.)
However, the reasoning of In re Candy S. was criticized in In re Joshua S. (Fifth Dist., 1986) 186 Cal.App.3d 147, 152-153, 230 Cal.Rptr. 437, which pointed out that the court in In re Candy S. had not considered Welfare and Institutions Code section 395, which provides, in relevant part: "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 after judgment; ..." (See also, In re Linda P. (Second Dist., Div. 6, 1987) 195 Cal.App.3d 99, 105, 240 Cal.Rptr. 474; In re Venita L. (Fifth Dist., 1987) 191 Cal.App.3d 1229, 236 Cal.Rptr. 859; In re Sarah F. (First Dist., Div. 2, 1987) 191 Cal.App.3d 398, 236 Cal.Rptr. 480; and In re Lorenzo T. (Second Dist., Div. 6, 1987) 190 Cal.App.3d 888, 893, 235 Cal.Rptr. 680, which follows In re Joshua S.)
In our opinion, the court in In re Candy S. was correctly concerned with whether or not the parties appealing were "aggrieved" The question therefore is whether the natural parents, who have already been deprived of the unsupervised control and, in most cases, of the physical custody of their children by the earlier, and appealable, jurisdictional and dispositional orders, are further "aggrieved" by an order "referring" the child for the initiation of 232 or guardianship proceedings. Because an order which merely refers the matter for initiation of 232 or guardianship proceedings does not, in and of itself, have any impact on the parents, they are not "aggrieved" by it, and therefore an order merely referring a dependency matter for initiation of further proceedings is not appealable. The ultimate outcome of the further proceedings will, of course, result in a reviewable judgment from which the parents may then appeal, as the court noted in In re Debra M., supra, 189 Cal.App.3d 1032, 234 Cal.Rptr. 739. ( Id., at p. 1039, 234 Cal.Rptr. 739.)
DISPOSITION
The appeal from the order authorizing county counsel to initiate 232 proceedings is dismissed.
CAMPBELL, P.J., and McDANIEL, J., concur.