Opinion
Review Granted July 14, 1988.
Previously published at 200 Cal.App.3d 869
Adrian Kuyper, County Counsel, and David Beales, Deputy County Counsel, Santa Ana, for plaintiff and respondent.
No appearance for the Minor.
OPINION
SONENSHINE, Associate Justice.
A father challenges a juvenile court permanency planning order authorizing the initiation of a Civil Code section 232 action to free his minor daughter from his custody and control. We conclude the order is not appealable; thus, the appeal must be dismissed.
I.
Sharon W., born December 6, 1979, was declared a dependent of the juvenile court in February 1983, her parents having failed to provide her with the necessities of life. (Welf. & Inst. Code, § 300, subd. (a).) Since then, she has been living with her adult sister, Susan.
A permanency planning hearing was held in February 1987. Sharon's father, Delbert W., having previously waived his right to counsel, appeared on his own behalf; Sharon's mother was not present.
In an unpublished opinion (In re Elijah W. and Sharon W., G003607 and G004439, November 23, 1987), we addressed the father's contention he was denied his right to counsel at a periodic review hearing concerning Sharon and his son, Elijah, born December 2, 1969, who had been declared a dependent of the court in August 1982. Relying on Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, he argued the trial court erred in finding him competent to represent himself.
Although she was maintaining a regular visitation schedule, Sharon's mother apparently had no desire to raise the child and, in fact, was in favor of adoption by Susan.
The court approved a permanent plan recommending the commencement of a Civil Code section 232 proceeding to free Sharon for adoption by Susan. It found the minor's return home would create a substantial risk of detriment to her physical or emotional well-being (Welf. & Inst. Code, § 366.2, subd. (e)), there was not a substantial probability she would be returned to her parents within six months (Welf. & Inst. Code, § 366.25, subd. (d)), the minor was adoptable, and the conditions specified in subsections (A), (B) and (C) of Welfare and Institutions Code section 366.25, subdivision (d)(1) did not exist.
Pursuant to Welfare and Institutions Code section 366.25, subdivision (d)(1), if the court finds adoption is likely to occur, it shall authorize the commencement of a Civil Code section 232 proceeding unless it finds any of the following conditions exist: "(A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing this relationship. [p] (B) A minor 10 years of age or older objects to termination of parental rights. [p] (C) The minor's foster parents ... are unable to adopt the minor...."
Further, the court ordered the father to participate in counseling. And, at his request and with the approval of the Department of Social Services (DSS), monitored monthly visits would be permitted, at a place to be selected by the DSS.
Finally, the court ordered placement to continue with Susan, subject to semiannual monitoring by the DSS, and continued the matter to June 17, 1987, for periodic review. This appeal followed.
II.
Delbert W. complains he was denied his right to counsel at the permanency planning hearing. The gist of his argument is he would have obtained a different result had he been represented by an attorney, and the court should have known he was incompetent to represent himself. He also challenges the court's finding the conditions described in Welfare and Institutions Code section 366.25, subdivision (d)(1)(A) did not exist. He asserts he maintained We do not reach the merits of these contentions because the order is not appealable. "[W]e 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 Brandy K. (1988) 198 Cal.App.3d 42, 45, 243 Cal.Rptr. 484.)
This issue is currently pending in the California Supreme Court. On February 25, 1988, review was granted in In re Julia C. (1987) 196 Cal.App.3d 840, 242 Cal.Rptr. 172 (S003755) and In re Eric R., E004149 [nonpub. opn.] (S003804).
"The question ... 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 [section] 232 ... proceedings. Because an order which merely refers the matter for initiation of [section] 232 ... 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." (Id., at p. 46, 243 Cal.Rptr. 484.)
For this reason, the father's contention he was denied his right to counsel would not be reviewable at this juncture even if we had not addressed it in his prior appeal.
The rationale may be stated simply: If the court finds the minor is adoptable, it "shall authorize the appropriate county or state agency to proceed to free the minor from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code...." (Welf. & Inst. Code, § 366.25, subd. (d)(1), emphasis added.) The ultimate decision rests with the agency, however, and it is conceivable a termination proceeding may never be instituted. Moreover, even if a Civil Code section 232 petition is filed, termination of parental rights, i.e., the appealable consequence, may not necessarily result.
Appellate review is not precluded. Indeed, any errors which are foundational to the ultimate determination of parental rights may be decided in an appeal from the Civil Code section 232 proceeding. (In re Kristin B. (1986) 187 Cal.App.3d 596, 605, 232 Cal.Rptr. 36.) Furthermore, "relief from an erroneous ruling of the juvenile court [need not] await review of the judgment entered in the termination proceeding. Extraordinary relief, including a stay of pending termination proceedings, may be obtained upon a proper showing the appeal remedy is inadequate." ( Id., at p. 605, fn. 8, 232 Cal.Rptr. 36.)
Appeal dismissed.
SCOVILLE, P.J., and CROSBY, J., concur.
Not only were we unable to find any reported case applying Faretta to juvenile proceedings, but also, the record established the father had knowingly and intelligently waived his right to counsel. And, citing In re Grayson (1966) 242 Cal.App.2d 110, 51 Cal.Rptr. 145, we held once he waived that right, he was not entitled at each subsequent hearing to a renewed advisement.
Despite her nonappearance, the court's minute order indicates all findings made at the hearing also applied to her.
The question presented in In re Julia C. is whether an appeal arising from a juvenile court dependency proceeding is moot where a subsequent Civil Code section 232 judgment terminating parental rights became final during the appeal's pendency. In In re Eric R., the court will decide whether an appeal lies from a permanency planning order authorizing proceedings to free minors from the custody and control of their parents, an issue identical to the one presented here.