Wednesday, March 17, 2004
Finding on Reunification Services Must Be Challenged by Writ—C.A.
By DAVID WATSON, Staff Writer
A judge’s finding that reasonable family reunification services have been provided, when made part of an order not adverse to a party’s interest, cannot be directly appealed but must be challenged by writ petition, this district’s Court of Appeal ruled yesterday.
In an opinion for Div. Two, Justice Kathryn Doi Todd rejected a mother’s contention that the finding made by Los Angeles Superior Court Judge Philip Soto was appealable under Welfare and Institutions Code Sec. 395, which authorizes appeal from a “judgment” and “any subsequent order” in a family law proceeding. That section has been held to make dispositional orders appealable, she noted.
But Doi Todd pointed out that Soto, acting at a six-month review hearing, continued reunification services for another six months. As a result, the mother was not adversely affected by the finding, she observed.
The mother was identified only as Melinda K. The child, then nine years old, was ordered detained after her father and uncle were arrested for sexually abusing her.
The child had been living with the father and the father’s girlfriend.
“We do not believe that section 395 permits a party to appeal a finding in the absence of an adverse order resulting from that finding,” Doi Todd wrote. “Accordingly, we conclude that there is no right to appeal a finding that reasonable reunification services were provided to the parent or legal guardian unless the court takes adverse action based on that finding, because, in the absence of such action, there is no appealable order resulting from that finding.”
Doi Todd noted that while Soto had ordered that Melinda K.’s daughter not be returned to her custody, Melinda K. did not challenge that order, nor was it based on a finding that the mother had failed to avail herself of the reunification services. Direct appeal would be available under those circumstances, she explained.
“In that event, the juvenile court’s order that the minor not be returned to mother would be premised on its finding that reasonable services had been provided, and a direct appeal from that order would be appropriate and necessary to address the issue,” the justice said.
“Where the two findings of reasonable services and detriment are intertwined, we agree that any challenge to those findings would be waived by the parent’s failure to timely appeal the six-month review order which contained those findings. The cases relied on by mother, where courts addressed reasonable services findings on appeal, likewise involved challenges to interrelated findings that resulted in some negative consequence to the parent.”
Melinda K.’s circumstances were different, Doi Todd said.
“Here, in contrast, the reasonable services finding stands alone; it was not connected to the finding of detriment either by the juvenile court or by the mother,” the justice said.
Doi Todd conceded that under the rule the court announced, unappealable findings could later have negative consequences for a family law litigant.
“Generally, the findings made at each hearing—to the extent they are against a parent or legal guardian’s interest in reunification—will form the basis of an adverse order which is immediately appealable,” she declared. “In certain circumstances though, as evidenced by the instant matter, it is possible that a finding which is not appealable now may later become part of the factual basis for a subsequent appealable order.
Case law establishes, she observed, citing In re Cicely L. (1994) 28 Cal.App.4th 1697, that an earlier finding cannot be challenged by appeal from a subsequent order.
Doi Todd declared:
“Thus, mother cannot appeal the reasonable services finding now, nor can she raise the issue by way of an appeal from any subsequent adverse order. But we decline to leave mother without any means by which to challenge the juvenile court’s finding. We therefore hold that a petition for writ of mandate is the appropriate method by which to challenge a finding made by a juvenile court at a review hearing which does not result in an appealable order. In this way, a parent or legal guardian will be afforded meaningful appellate review of a finding which may ultimately have a significant effect on the dependency proceedings. Moreover, sequential appeals and their accompanying delays will be avoided.”
Exercising its discretion to treat Melinda K.’s appeal as a writ petition, the court said substantial evidence supported Soto’s finding that reasonable reunification services had been provided.
The mother was represented on appeal by Ellen Bacon of Dodd & Associates in Tustin, under a Court of Appeal appointment. Deputy County Counsel Stephanie Jo Farrell represented the Los Angeles County Department of Children and Family Services.
The case is Melinda K. v. Superior Court (Los Angeles County Department of Children and Family Services), B168139.
Copyright 2004, Metropolitan News Company