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In re A.B.

California Court of Appeals, Third District, Sacramento
Apr 22, 2009
No. C059618 (Cal. Ct. App. Apr. 22, 2009)

Opinion


In re A. B., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. K. B., Defendant and Appellant. C059618 California Court of Appeal, Third District, Sacramento April 22, 2009

NOT TO BE PUBLISHED

Super. Ct. No. JD227498

BLEASE, J.

K.B. (appellant), the mother of A.B. (the minor), purports to appeal from an order of the juvenile court dismissing a juvenile dependency petition. Appellant makes several contentions of alleged prejudicial error, including a claim that the order of dismissal is an appealable order. Disagreeing with that claim, we dismiss the appeal.

In light of our resolution of this appeal, we do not consider appellant’s remaining contentions.

FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2008, Department of Health and Human Services (DHHS) filed an original juvenile dependency petition on behalf of the seven-year-old minor. (Welf. & Inst. Code, 300; further undesignated statutory references are to the Welfare and Institutions Code.) That petition alleged the minor was at a substantial risk of suffering serious physical harm, in that P.L., the father of the minor (father), had physically abused the minor’s half sibling. The petition named appellant as the mother of the minor.

The detention report indicated appellant’s whereabouts were unknown. However, appellant appeared at a pre-jurisdictional status conference and the juvenile court appointed counsel for her. At the time the petition was filed, the minor lived with father, pursuant to a family law court order stating he was the minor’s father and awarding him custody of the minor with visitation for appellant.

The record does not contain a copy of the family law court order, which the parties agree exists.

A June 2008 DHHS report recommended dismissal of the dependency petition “without prejudice”, based on its finding that the minor was not at risk of harm in the home of father.

At the July 14, 2008, pre-jurisdictional status hearing, the juvenile court indicated it had considered the social worker’s report, and intended to follow the dismissal recommendation. The court then granted a request by appellant’s counsel to be relieved on the ground of a conflict of interest. The court also declined to appoint substitute counsel for appellant on the ground that she “lack[ed] standing to object to the dismissal of the petition.”

The juvenile court dismissed the petition, on the basis of the “[DHHS]’s analysis that the level of risk is acceptable ....” The court also stated it was dismissing the petition “without prejudice.” Appellant then addressed the court, arguing father’s household was unsafe for the minor.

DISCUSSION

Relying primarily on In re Lauren P. (1996) 44 Cal.App.4th 763, appellant contends the order dismissing the dependency petition was an appealable order. According to appellant, as the order was based on insufficiency of the evidence, it was a final order, precluding her from challenging the order in the family law court. Appellant also argues that even dismissals “without prejudice” may be appealable.

It is axiomatic that the scope of a party’s right to appeal, in dependency as in other actions, is a creature of statute. (In re Daniel K. (1998) 61 Cal.App.4th 661, 666.) Section 395 provides in part that “[a] judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.” In a section 300 proceeding, the order entered at the disposition hearing, and most orders entered thereafter, are appealable as orders after judgment. (In re Daniel K., supra, 61 Cal.App.4th at p. 667.)

In In re Lauren P., supra, 44 Cal.App.4th at page 768, the Court of Appeal held a juvenile court cannot preclude review of an otherwise appealable order by labeling it “without prejudice.” We agree with that statement. However, the factual setting presented in that case is far different from the circumstances here. There, dismissal followed a contested hearing on an issue of fact. (Ibid.) Under those circumstances, the appellate court concluded the dismissal order constituted a judgment based on the merits of the case, was res judicata, and therefore, an appealable order. (Id. at pp. 767-768.)

In this case, the dismissal order was not a final judgment, nor was it an order after judgment, for no judgment had been entered. (§ 395.) Moreover, the juvenile court did not make factual findings following a contested hearing on the dependency petition, for no contested hearing was held. As such, the dismissal did not determine the rights of the parties and, therefore, did not constitute an appealable order pursuant to section 395. (In re Tomi C. (1990) 218 Cal.App.3d 694, 698.)

We disagree with appellant’s claim that she cannot seek redress in the family law court. The reason for our disagreement is that, unlike in In re Lauren P., supra, 44 Cal.App.4th at page 768, and In re Sheila B. (1993) 19 Cal.App.4th 187, 197, also relied on by appellant, here there was no adjudication of the dependency petition. Thus, no judgment on the merits was rendered. (Cf. In re Sheila B., supra, at p. 197.) In any event, the issues before the family law court and juvenile court are not identical ones. (In re Carissa G. (1999) 76 Cal.App.4th 731, 736.) Accordingly, neither principles of res judicata nor collateral estoppel bar appellant from seeking redress in the family law court. (Ibid.)

We hold the dismissal order was not a final judgment and therefore not an appealable order, pursuant to section 395. (In re Tomi C., supra, 218 Cal.App.3d at pp. 698-699; cf. In re Carissa G., supra, 76 Cal.App.4th at p. 738.)

DISPOSITION

The appeal is dismissed.

We concur: SCOTLAND, P. J., ROBIE, J.


Summaries of

In re A.B.

California Court of Appeals, Third District, Sacramento
Apr 22, 2009
No. C059618 (Cal. Ct. App. Apr. 22, 2009)
Case details for

In re A.B.

Case Details

Full title:In re A. B., a Person Coming Under the Juvenile Court Law. SACRAMENTO…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 22, 2009

Citations

No. C059618 (Cal. Ct. App. Apr. 22, 2009)

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