Opinion
Review Granted Feb. 25, 1988.
Previously published at 196 Cal.App.3d 840
Philip H. Pennypacker, Conflict Adm'r, and Ann Jory Howell, Carmel, for defendant and appellant under appointment by the Court of Appeal.
Ralph R. Kuchler, Monterey County Counsel, and Richard H. West, Uemura & West, Salinas, for plaintiff and respondent.
CAPACCIOLI, Associate Justice.
Appellant Daniel C. appeals a juvenile court order authorizing the Monterey County counsel to file a petition to free his daughter, Julia C., from parental custody and control. For the reasons stated herein, we dismiss the appeal as moot.
Julia C. was born on July 10, 1984, with symptoms of heroin withdrawal. She was placed in protective custody on July 18, and a Welfare and Institutions Code section 300, subdivision (a) petition was filed on July 19. Her mother, who is not a party to this appeal, left the hospital without authorization the day after Julia's birth. Appellant visited Julia once during her nine-day hospitalization.
Appellant's first appearance in the dependency proceedings was at the disposition hearing on October 4, at which time he was appointed counsel. At the continued disposition hearing, Julia was adjudicated dependent and ordered to remain in foster care. The social service report filed for this hearing indicated that appellant had visited Julia only twice.
Appellant was absent at the six-month review hearing on April 9, 1985. The report filed for this hearing indicated that appellant's failure to respond to social worker inquiries suggested his lack of interest in reunifying with Julia. The court ordered Julia to remain in foster care. Appellant and Julia's mother were ordered, inter alia, to attend drug treatment and counselling programs.
A permanency planning hearing was held on October 8, 1985. Appellant was present and represented by counsel. The social service report filed for this hearing indicated that the last contact social services had had with appellant was on April 8, 1985. The report indicated a lack of likelihood of reunification within the next six months and recommended that Julia be freed for adoption.
On October 8, 1985, the court authorized the county to file a Civil Code section 232 petition to free Julia from her parents' custody. Appellant filed a timely notice of appeal from this order.
Although this was not an issue raised by the parties, we have no difficulty concluding that this order is appealable under Welfare and Institutions Code section 395. (In re Joshua S. (1986) 186 Cal.App.3d 147, 149-155, 230 Cal.Rptr. 437; In re Lorenzo T. (1987) 190 Cal.App.3d 888, 235 Cal.Rptr. 680; In re Sarah F. (1987) 191 Cal.App.3d 398, 236 Cal.Rptr. 480; In re Linda P. (1987) 195 Cal.App.3d 99, 240 Cal.Rptr. 474.)
In his appeal appellant argues that he was not informed that his parental rights could be terminated if he failed to reunify with Julia within 12 months; that notice of various hearings in the dependency proceeding was defective; that the court failed to state its findings; and that it failed to investigate the possibility of Julia's placement with relatives.
While this appeal was pending this court, on respondent's request for augmentation, took judicial notice of an order and judgment filed on June 26, 1986, freeing Julia from parental custody and control. We also took judicial notice of the Civil Code section 232 file and indicated that we would decide the issue of mootness raised by the subsequent termination judgment with the appeal on its merits.
The Civil Code section 232, termination of parental rights, file reveals the following: The petition was filed on March 28, 1986. It alleged that Julia had been in out-of-home placement for over a year (Civ.Code, § 232, subd. (a)(7)); that neither parent had communicated with her for a period of over six months (abandonment) (Civ.Code, § 232, subd. (a)(1)); and that both parents had disabilities as a result of heroin addiction (Civ.Code, § 232, subd. (a)(3)). The Civil Code section 233 report was filed on June 17, 1986. It reiterated that neither parent had shown any interest in working toward reunification with Julia and recommended that the petition be granted. A hearing was held on the petition on June 24. It is unclear from the court's minutes whether either appellant or Julia's mother was present at this hearing, although both In less than two years, no less than five appellate districts, in seven published opinions, have discussed the question of mootness in the context of appeals from juvenile dependency or termination proceedings. Since the law in this area is less than clear, we will review these opinions before we discuss our decision in this case.
In January 1986 the First Appellate District, Division One, decided In re Lisa M. (1986) 177 Cal.App.3d 915, 225 Cal.Rptr. 7, in which a mentally retarded mother appealed the juvenile court's failure to appoint her a guardian ad litem during a dependency proceeding. Although the appellate court agreed that this was error, it concluded that it had no jurisdiction over any appealable order (given its previous holding, in In re Candy S. (1985) 176 Cal.App.3d 329, 222 Cal.Rptr. 43, that an order authorizing the initiation of termination proceedings is not itself appealable) and that it could afford her no remedy in light of her failure to appeal the subsequent termination judgment. (In re Lisa M., supra, 177 Cal.App.3d at p. 919, 225 Cal.Rptr. 7.) Commenting on the manner in which that judgment might be attacked, the appellate court dismissed the appeal for lack of jurisdiction. (Id. at p. 920, 225 Cal.Rptr. 7.)
In March 1986 the First Appellate District, Division Four, decided In re Clarence I. (1986) 180 Cal.App.3d 279, 225 Cal.Rptr. 466. In that appeal from a termination judgment the court stated that "Any perceived error in the earlier Welfare and Institutions Code section 300 proceedings should have been raised by appealing from that judgment." (Id. at p. 282, 225 Cal.Rptr. 466.)
In May 1986 this court decided In re Ruby T. (1986) 181 Cal.App.3d 1201, 227 Cal.Rptr. 8, an appeal from a permanency planning order in a dependency proceeding. This court dismissed the appeal as moot in view of appellant's subsequent voluntary relinquishment of her children for adoption.
In September 1986 the Fifth Appellate District decided In re Joshua S. (1986) 186 Cal.App.3d 147, 230 Cal.Rptr. 437, in which the court stated that termination of a parent's rights would effectively moot any alleged errors in the juvenile proceedings. (Id. at p. 154, 230 Cal.Rptr. 437, citing Lisa M., supra, 177 Cal.App.3d at p. 919, 225 Cal.Rptr. 7 and In re Terry E. (1986) 180 Cal.App.3d 932, 946-947, 225 Cal.Rptr. 803.)
In November 1986 the Fourth Appellate District decided In re Kristin B. (1986) 187 Cal.App.3d 596, 232 Cal.Rptr. 36, a consolidated appeal from a dependency order and a termination judgment. The court concluded that errors in the dependency proceeding were not necessarily rendered moot by the subsequent termination judgment since the proceedings were separate and distinct and designed to serve different purposes. (Id. at p. 604, 232 Cal.Rptr. 36.) It held that "where a judgment terminating parental rights is challenged on appeal, an earlier appeal arising out of a juvenile court dependency proceeding is not moot if the purported error is of such magnitude as to infect the outcome of the ensuing termination action or where the alleged defect undermines the juvenile court's initial jurisdictional finding. Consequently, the question of mootness must be decided on a case-by-case basis." (Id. at p. 605, 232 Cal.Rptr. 36, fn. omitted.)
In April 1987 the First Appellate District, Division Two, decided In re Sarah F. (1987) 191 Cal.App.3d 398, 236 Cal.Rptr. 480, in which the court stated that termination would moot any error in the dependency proceedings. (Id. at p. 403, 236 Cal.Rptr. 480.)
Most recently, in September 1987, the Second Appellate District, Division Six, decided In re Linda P. (1987) 195 Cal.App.3d 99, 240 Cal.Rptr. 474, which holds that a dependency appeal is not rendered moot by a subsequent, final termination judgment. (Id. at p. 106, 240 Cal.Rptr. 474.) We agree with Kristin B. that mootness determinations should be made on a case-by-case basis. We conclude, however, that the posture of the case may, as in this case, determine the result.
Here we review an appeal from a juvenile court order authorizing the initiation of termination proceedings. Subsequently, a termination judgment was filed. No appeal has been taken from that now-final order. Of the published cases we have reviewed, only two stand in this posture; Lisa M. and Linda P. Clarence I. was an appeal from a termination judgment. Kristin B. involved two consolidated appeals, one from a similar juvenile court order and the second from a termination judgment. Joshua S., Ruby T., and Sarah F. were all appeals from similar juvenile court orders, but in Joshua S. and Sarah F. there is no indication that termination proceedings had been initiated and in Ruby T., since appellant voluntarily relinquished her parental rights, there was no termination judgment.
In Lisa M., as here, a subsequent, final judgment had terminated appellant's parental rights. Even though we disagree with Lisa M.'s premise that an order authorizing the initiation of termination proceedings is not appealable, we agree with its conclusion that a reversal of a dependency order would afford appellant no relief in view of the subsequent termination.
Although there was a subsequent termination judgment in Linda P., the opinion is silent on whether that judgment was final. We assume that it was, and that that case stands in the same posture as that before us here. We decline to follow the Second Appellate District's holding that, in this situation, the appeal should not be dismissed as moot.
In differing with Lisa M., Linda P. relied on language in In re Lorenzo T. (1988) 190 Cal.App.3d 888, 235 Cal.Rptr. 680 concerning the appealability of an order authorizing the filing of a termination petition. This language suggests that if such an order is not appealable, an appellant in a subsequent termination proceeding would be precluded from alleging errors which occurred at the permanency planning hearing. That conclusion, with which we have already stated our agreement, does not resolve the mootness issue.
We see nothing in Lorenzo T. or any other case which persuades us that the result in Lisa M. should not be followed here. In light of the subsequent, final termination judgment, a reversal of the order appealed from here would have no practical effect. We therefore conclude that this appeal must be dismissed as moot. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 243, p. 249; § 517, p. 499.)
The appeal is dismissed.
AGLIANO, P.J., and BRAUER, J., concur.