Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County Nos. DP003315, DP010242. James P. Marion, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
BEDSWORTH, J.
Michael C. appeals from an order that denied a modification petition seeking increased visitation with his children, Melanie C. and Donovan C. The order was made at a continued selection and implementation hearing before another date was set for that hearing. Michael argues the juvenile court abused its discretion in denying the petition and a request for a bonding study. The Orange County Social Services Agency (SSA) moves to dismiss the appeal on the ground the order is not appealable because Micheal did not previously seek writ review. We agree with SSA and dismiss the appeal.
FACTS
This appeal is from a December 7, 2007 order that denied Michael’s second modification petition. In a prior opinion, we affirmed the denial of a July 2007 modification petition. (In re Melanie C. (Apr. 3, 2008, G039226 [nonpub. opn.].) In another prior opinion, we denied a writ petition by the children’s mother, Dianna H., who sought to vacate the December 7, 2007 order, to the extent it denied her own modification petition. (Dianna H. v. Superior Court (Apr. 3, 2007, G039661 [nonpub. opn.].)
Michael has a long history of substance abuse and domestic violence that has led to three sustained dependency petitions since 2000. The details are set forth in our prior opinions and will not be repeated here. In October 2006, reunification services were terminated and a selection and implementation hearing set.
That selection and implementation hearing was held in February 2007. The juvenile court found the children were likely to be adopted but were hard to place. SSA was ordered to seek to identify a prospective adoptive family, and the hearing was continued for 180 days. Michael was in custody at the time, having been incarcerated for violating probation by engaging in one of many fights with Dianna. The court awarded Michael visitation upon his release, twice a month for one hour provided he tested clean, along with telephone calls during the weeks he did not visit.
In July 2007, Michael filed a modification petition that was essentially identical to the instant matter. As we said in our prior opinion affirming the denial of the July 2007 petition, “[c]oming on the heels of seven years of drug abuse, violence, and disobeying court orders, Michael’s four months of sober living showed nothing that approaches a change of circumstances. He had remained drug free and avoided violence for longer periods in the past, only to relapse each time. . . . Far from showing changed circumstances, the record shows a disturbing continuation of some of the conduct that led to dependency in the first place.” (In re Melanie C., supra, G039226 [nonpub. opn.] at p. 8.)
The December 2007 petition now before us requested removal of the monitor, increased visitation away from SSA’s offices, and increased telephone contact. Michael’s accompanying declaration said he continued to reside in a sober living home, tested drug free, was attending a batterer’s program, therapy and parenting classes, and remained employed. Accompanying letters supported these claims. Michael declared he had made all scheduled visits and telephone calls, he brought food and toys to the visits, and the children said they missed him and wanted to go home with him.
The petition was considered on December 7, 2007, in conjunction with the continued selection and implementation hearing. That hearing again was postponed. After argument on the petition, the juvenile court found Michael failed to show changed circumstances. It explained “it wasn’t just drugs or alcohol . . . it was [also] domestic violence. The reason why Donovan and Melanie have . . . nightmares and . . . problems is because of what they witnessed as little kids. . . . [¶] . . . [I]t’s going to take a lifetime for them to get over what they’ve gone through. [¶] I don’t think it’s . . . changed circumstances. I think [it’s] changing. But I don’t think based on what I see . . . [that] it’s changed circumstances.”
Michael also requested a bonding study of his relationship with the children. He cited his “positive efforts” to improve and rehabilitate himself, and a court-ordered bonding study of the relationship between Melanie and Donovan. That study found the siblings were bonded with each other and should continue visiting their biological parents. The request for a further bonding study was denied.
Following the hearing, SSA served Michael with notice that a selection and implementation hearing was scheduled for April 7, 2008. On December 19, 2007, Michael filed a notice of intent to file a writ petition. The notice stated the juvenile court made an order on December 7, 2007 “setting a hearing under Welfare and Institutions Code section 366.26” and Michael intended to file a writ petition to challenge the findings and orders made by the court on that date. No writ petition was filed. Instead, Michael chose to seek review by appeal, filing a notice of appeal on February 4, 2008.
DISCUSSION
SSA argues the order is not appealable under Welfare and Institutions Code section 366.26, subdivision (l), so it must be dismissed. It also requests we take judicial notice of the record in the prior appeal (In re Melanie C., supra, G039226), and in the prior petition for a writ of mandate by Dianna. (Dianna H. v. Superior Court, supra, G039661.) Since the present record is sufficient to decide this matter, the request for judicial notice is denied. But the appeal must be dismissed.
An order setting a hearing pursuant to section 366.26 is not appealable unless a petition for extraordinary writ review is timely filed, and various other statutory requirements met. (§ 366.26, subds. (l)(1)(A), (l)(1)(B)-(C).) “Failure to file a petition for extraordinary writ review . . . shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.” (§ 366.26, subd. (l)(2) .) The rule applies as well to orders made at the same time as an order setting a section 366.26 hearing. (See, e.g., In re Anthony B. (1999) 72 Calp.4th 1017 [modification petition]; In re Rashad B. (1999) 76 Cal.App.4th 442, 447-448 [collecting cases]; In re Charmice G. (1998) 66 Cal.App.4th 659 [modification petition].)
All subsequent statutory references are to the Welfare and Institutions Code.
In re Anthony B., supra, 72 Cal.App.4th 1017 is of particular note. The court considered an appeal from an order that denied a modification petition and referred the matter for a new selection and implementation hearing, to consider whether to change the permanent plan from guardianship to adoption. The modification petition sought a change in visitation, but the court observed “overturning the order denying [the] . . . petition would not necessarily require vacation or reversal of the contemporaneous setting order.” (Id. at p. 1022.) The parent filed a notice of intent to file a writ petition, abandoned the writ petition, and then filed a notice of appeal.
The court dismissed the appeal, holding it was barred by section 366.26, subdivision (l). It reasoned both the state and child have a strong interest in concluding dependency proceedings expeditiously and achieving finality, and “the[se] goals . . . would be compromised if the validity of these types of contemporaneous, collateral orders were permitted to be raised by appeal . . . and therefore allowed to remain undecided until well after the permanent plan was decided upon.” (In re Anthony B., supra, 72 Cal.App.4th at p. 1023.) Recognizing the order in question might not be inconsistent with the permanent plan selected, the court explained “it would be impracticable to except from section 366.26, subdivision (l) orders [that] turned out to be compatible with the plan selected at the later section 366.26 hearing. The parent would be left in the dark about whether a collateral order was subject to subdivision (l) until the conclusion of the permanency planning hearing, too late . . . to seek review under subdivision (l) in one instance and perhaps too late to file a notice of appeal from the collateral order in the other.” (Id. at. p. 1023.)
We find Anthony B. persuasive and dispositive. Indeed, this case is indistinguishable save for the fact the instant order was made in conjunction with a referral for a continued, rather than an initial, hearing under section 366.26. Michael argues the order is appealable because “a continuation is not a referral,” without explaining why that should make a difference or citing any supporting authority. The argument is not well taken.
Our view is that section 366.26, subdivision (l) applies to an order that sets a continued section 366.26 hearing as well as an initial one. To begin with, referring a matter for a continued section 366.26 hearing falls comfortably within the language of section 366.26, subdivision (l), which provides “[a]n order . . . that a hearing pursuant to this section be held is not appealable at any time” unless a petition for extraordinary writ review is filed. (§ 366.26, subd. (l)(1).) That is what the December 7, 2007 order did – set a section 366.26 hearing, as well as denying the modification petition. And there can be no suggestion Michael misunderstood either the nature of the order or the requirement of seeking writ review. To the contrary, he filed a notice of intent to file a writ petition, which said “[o]n December 7, 2007, the juvenile court made an order setting a hearing under . . . section 366.26. Petitioner intends to file a writ petition to challenge the findings and orders made by the court on that date . . . .” Since Michael understood the December 7, 2007 order was a referral or setting order that had to be challenged in the first instance by seeking writ review, and he failed to do so, that failure bars review of the order by appeal. (§ 366.26, subd. (l)(2).)
We understand the present decision may be seen as inconsistent with our prior opinion, in which we reviewed on appeal a July 2006 order that denied Michael’s prior modification petition and also referred the matter for a continued selection and implementation hearing. (In re Melanie C., supra, G039226.) But any inconsistency is simply explained – no motion to dismiss for lack of an appealable order was made on the prior appeal.
In light of our granting SSA’s motion to dismiss the appeal for lack of an appealable order, we do not consider its second motion to dismiss and second request for judicial notice, both filed May 20, 2008. For the record, we note the second motion argued Michael’s parental rights had been subsequently terminated, so the present appeal was moot. The second motion to dismiss and second request for judicial notice are denied.
Since the order appealed from is not appealable, the appeal is dismissed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.