Supreme Court of California Justia
Citation 46 Cal. 4th 529, 207 P.3d 525, 94 Cal. Rptr. 3d 24

In re S.B.

Filed 5/28/09


IN THE SUPREME COURT OF CALIFORNIA

In re S. B. et al., Persons Coming
Under the Juvenile Court Law.
___________________________________ )

LASSEN COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES, )

Plaintiff and Respondent,
S162156
v.
Ct.App.3 C055838
SHARYL S.,
Lassen County
Defendant and Appellant;
Super. Ct. Nos. J4674 & J4675
____________________________________)

Welfare and Institutions Code section 366.26 authorizes the juvenile court
to find that adoption of a dependent child is probable but difficult, and to order a
search for an appropriate adoptive family. (Welf. & Inst. Code, § 366.26, subds.
(b)(3) & (c)(3).)1 The Courts of Appeal have divided over whether such orders are
appealable. We hold that they are.
1
Further statutory references are to the Welfare and Institutions Code,
unless otherwise noted. Hereafter, subdivisions (b) and (c) of section 366.26 are
cited as “section 366.26(b)” and “section 366.26(c).” At the time of the juvenile
court hearing in this case, the provisions now found in section 366.26(b)(3)
appeared in former section 366.26(b)(2). Like the Court of Appeal, we cite the
current version of the statute for reasons of convenience and clarity. For the same
reasons, we identify the orders at issue by reference to section 366.26(c)(3) only.
As shown below, section 366.26(c)(3) contains the operative provisions for the
placement option specified in section 366.26(b)(3).



In this case, the Court of Appeal dismissed as premature an appeal from
orders entered under section 366.26(c)(3). The mother of the affected children
asks us to review only the question of appealability. We need not consider the
facts to answer this question.
DISCUSSION
“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.” (§ 395, subd. (a)(1); see Sara M. v. Superior Court
(2005) 36 Cal.4th 998, 1018; In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1435
(Gabriel G.) [citing cases]; In re Ramone R. (2005) 132 Cal.App.4th 1339, 1350
(Ramone R.) [citing cases].) As a result of these broad statutory terms, “[j]uvenile
dependency law does not abide by the normal prohibition against interlocutory
appeals.” (In re Edward H. (1996) 43 Cal.App.4th 584, 590; see Ramone R., at p.
1350.) The dispositional order is the “judgment” referred to in section 395, and all
subsequent orders are appealable. (In re Daniel K. (1998) 61 Cal.App.4th 661,
668.) “ „A consequence of section 395 is that an unappealed disposition or
postdisposition order is final and binding and may not be attacked on an appeal
from a later appealable order.‟ (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.)”
(Sara M., at p. 1018; see Ramone R., at p. 1350.)
The Legislature has restricted the right of appeal in certain dependency
contexts. (See §§ 366.26, subd. (l)(1) [orders setting § 366.26 hearings], and 328
[placement orders following termination of parental rights].) As the mother here
notes, however, there is no such limiting provision for section 366.26(c)(3) orders.
We review the statutory context of these orders, before examining the parties‟
claims and the split that has developed among the Courts of Appeal on the issue
before us.
2

The section 366.26 hearing is a critical late stage in a dependency
proceeding. The child has been under juvenile court jurisdiction for an extended
period following the dispositional order, and the court has held one or more review
hearings to consider a return to parental custody. (See § 366.21.) At the section
366.26 hearing, the focus shifts away from family reunification and toward the
selection and implementation of a permanent plan for the child. (In re Marilyn H.
(1993) 5 Cal.4th 295, 309.) Section 366.26 sets out “the exclusive procedures for
conducting these hearings.” (§ 366.26, subd. (a).) If adoption is likely, the court
is required to terminate parental rights, unless specified circumstances compel a
finding that termination would be detrimental to the child.2 (§ 366.26(c)(1); In re
Celine R. (1993) 31 Cal.4th 45, 53.)
2
The exceptions provided in section 366.26(c)(1) are as follows:
“(A) The child is living with a relative who is unable or unwilling to adopt
the child because of circumstances that do not include an unwillingness to accept
legal or financial responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment through legal
guardianship, and the removal of the child from the custody of his or her relative
would be detrimental to the emotional well-being of the child. . . .

“(B) The court finds a compelling reason for determining that termination
would be detrimental to the child due to one or more of the following
circumstances:

“(i) The parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship.

“(ii) A child 12 years of age or older objects to termination of parental
rights.

“(iii) The child is placed in a residential treatment facility, adoption is
unlikely or undesirable, and continuation of parental rights will not prevent finding
the child a permanent family placement if the parents cannot resume custody when
residential care is no longer needed.

“(iv) The child is living with a foster parent or Indian custodian who is
unable or unwilling to adopt the child because of exceptional circumstances, that
do not include an unwillingness to accept legal or financial responsibility for the
child, but who is willing and capable of providing the child with a stable and
permanent environment and the removal of the child from the physical custody of
Footnote Continued on Next Page
3



Under section 366.26(b), the court must “make findings and orders in the
following order of preference: [¶] (1) Terminate the rights of the parent or
parents and order that the child be placed for adoption . . . . [¶] (2) Appoint a
relative or relatives with whom the child is currently residing as legal guardian or
guardians for the child, and order that letters of guardianship issue. [¶] (3) On
making a finding under paragraph (3) of subdivision (c), identify adoption as the
permanent placement goal and order that efforts be made to locate an appropriate
adoptive family for the child within a period not to exceed 180 days. [¶] (4)
Appoint a nonrelative legal guardian for the child and order that letters of
guardianship issue. [¶] (5) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section 366.3.”
Section 366.26(c)(3) comes into play “[i]f the court finds that termination
of parental rights would not be detrimental to the child . . . and that the child has a
probability for adoption but is difficult to place for adoption and there is no
identified or available prospective adoptive parent.” (Ibid.) In that case, “the
court may identify adoption as the permanent placement goal and without
terminating parental rights, order that efforts be made to locate an appropriate
adoptive family for the child . . . within a period not to exceed 180 days.” (Ibid.)
“At the expiration of this period, another hearing shall be held and the court shall

Footnote Continued From Previous Page
his or her foster parent or Indian custodian would be detrimental to the emotional
well-being of the child. . . .

“(v) There would be substantial interference with a child‟s sibling
relationship, taking into consideration the nature and extent of the relationship
. . . .

“(vi) The child is an Indian child and there is a compelling reason for
determining that termination of parental rights would not be in the best interest of
the child . . . .”
4


proceed pursuant to paragraph (1) [adoption] or (4) [guardianship] of subdivision
(b).” (Ibid.)
The Court of Appeal dismissed mother‟s appeal from orders entered under
section 366.26(c)(3). It was not persuaded by her reliance on the general rule of
appealability provided in section 395, reasoning that she was challenging only the
finding that her children were probably adoptable. This was error. It is true that
“one does not appeal from a finding; one appeals from a judgment or from an
order that the Legislature has designated as appealable.” (Gabriel G., supra, 134
Cal.App.4th at p. 1435.) However, review of findings is normally obtained by
appeal from the ensuing judgment or order. (Code Civ. Proc., § 906; In re
Matthew C. (1995) 6 Cal.4th 386, 396.) That is what occurred here. Mother
appealed from the “order that efforts be made to locate an appropriate adoptive
family.” (§ 366.26(c)(3).)
The Court of Appeal also rejected mother‟s reliance on Gabriel G., supra,
134 Cal.App.4th 1428, and Ramone R., supra, 132 Cal.App.4th 1339, both of
which hold that section 366.26(c)(3) orders are appealable. The court instead
followed In re Y.R. (2007) 152 Cal.App.4th 99 (Y.R.), which disagreed, in dicta,
with Gabriel G. and Ramone R. The Y.R. court reaffirmed its earlier decisions in
In re Jacob S. (2002) 104 Cal.App.4th 1011 (Jacob S.), and In re Cody C. (2004)
121 Cal.App.4th 1297 (Cody C.), holding that appeals by parents from section
366.26(c)(3) orders were premature. Jacob S. and Cody C. viewed these orders as
mere continuances of section 366.26 hearings, which did not aggrieve the parents
in any way. (Jacob S., at p. 1019; Cody C., at pp. 1300-1301; see Y.R., at p. 111.)
Respondent, Lassen County Department of Health and Human Services (the
Department), urges us to adopt this reasoning. However, the Ramone R. and
Gabriel G. courts provide the more convincing analysis.
5

In 2005, Ramone R. observed that the rationale of Jacob S. and Cody C. had
been undermined by recent amendments to section 366.26(c)(3), which limited the
placement options available to the trial court. The Legislature had deleted long-
term foster care as an option, identifying only adoption and guardianship as
possible permanent plans under section 366.26(c)(3). (Ramone R., supra, 132
Cal.App.4th at pp. 1349-1350.) Therefore, the Ramone R. court concluded that the
180-day period for seeking an adoptive placement could no longer be deemed a
continuance of the section 366.26 hearing, and that the usual rule permitting
appeals from postdispositional orders in dependency proceedings applies to
section 366.26(c)(3) orders. (Ramone R., at pp. 1350-1351; accord, Gabriel G.,
supra, 134 Cal.App.4th at p. 1438.)
As the Gabriel G. court explained, referring to the subdivisions as they
were lettered and numbered at the pertinent times, “[p]rior to 2003 [section
366.26] subdivision (c)(3) provided that following the expiration of the extra time
allowed for seeking an adoptive placement, „another hearing shall be held and the
court shall proceed pursuant to paragraph (1), (3), or (4) of subdivision (b). . . .‟
(Stats. 2001, ch. 747, § 3.) This meant that at the further hearing the juvenile court
could select adoption, legal guardianship, or long-term foster care, which,
arguably, made the further hearing like a continuance of the section 366.26
hearing. Now, however, the Legislature has eliminated the option of long-term
foster care when no adoptive placement is found. The court must „proceed
pursuant to paragraph (1) or (3) of subdivision (b) . . . .‟ (§ 366.26, subd. (c)(3).)
That is, at the expiration of the 180-day period, the court is limited to the choices
of adoption and legal guardianship. It follows that reversal of an erroneous
subdivision (c)(3) ruling would not be an idle gesture because it would have the
effect of returning the parties to the initial permanency planning stage and permit
the selection of long-term foster care as the permanent placement plan, a situation
6
that could not be achieved by allowing the matter to proceed along the course
directed by the current version of subdivision (c)(3).” (Gabriel G., supra, 134
Cal.App.4th at p. 1436.)
The Y.R. court found this reasoning “puzzling.” (Y.R., supra, 152
Cal.App.4th at p. 111.) It took the view that long-term foster is authorized by
section 366.3 regardless of the provisions of section 366.26(c)(3). “[I]t is plain in
section 366.3 that long-term foster care remains the de facto placement for
children who are not freed for adoption or placed with a guardian. (See § 366.3,
subds. (d) & (g).) For these children, [the social services agency] and the juvenile
court must continue efforts to obtain more permanent placement in the form of
adoption or a guardianship. (Ibid.) But that does not mean the children cannot
remain in foster care in the interim . . . .” (Y.R., at p. 111.)
These comments were dicta. The holding in Y.R. was limited to the
conclusion that the juvenile court‟s finding of a “probability” of adoption under
section 366.26(c)(3) did not preclude a mother from challenging the subsequent
determination that her children were “likely” to be adopted under section
366.26(c)(1). (Y.R., supra, 152 Cal.App.4th at p. 111.) In any event, the court‟s
statutory analysis was flawed. It ignored the plain terms of section 366.26(c)(3),
which require that “another hearing shall be held and the court shall proceed
pursuant to paragraph (1) or (4) of subdivision (b).” The omission of any
reference to paragraph (5), which authorizes long-term foster care, reflects a
legislative conclusion that long-term foster care is inappropriate once adoption is
found to be probable under section 366.26(c)(3). (See Gabriel G., supra, 134
Cal.App.4th at pp. 1436-1438 [discussing the provision‟s legislative history].)
The Y.R. court‟s suggestion that foster care may nevertheless be ordered
under section 366.3 does not withstand examination. Section 366.3 provides: “At
the review held pursuant to subdivision (d) for a child in long-term foster care, the
7
court shall consider all permanency planning options for the child . . . . The court
shall order that a hearing be held pursuant to Section 366.26, unless it determines
by clear and convincing evidence that there is a compelling reason for determining
that a hearing held pursuant to Section 366.26 is not in the best interest of the child
. . . .” (§ 366.3, subd. (h) (formerly subd. (g)).) Clearly, these provisions do not
apply at a hearing held under section 366.26(c)(3), which is itself “a hearing held
pursuant to Section 366.26.” (§ 366.3, subd. (h).)3 Section 366.3, subdivision (h)
applies to children placed in long-term foster care under section 366.26(b)(5),
which provides in turn for “periodic review of the juvenile court under Section
366.3.” When the court proceeds instead under section 366.26(b)(3) and (c)(3),
the Legislature has specifically limited the permanency planning options to
adoption or guardianship. Thus, the provisions of section 366.3, subdivision (h)
contemplating the initiation of another full hearing under section 366.26 cannot
apply.4
The Department argues that if neither adoption nor guardianship is a
feasible placement after the 180-day search period, long-term foster care is the
only practical alternative. However, the legislative scheme does not foreclose any
avenue toward a suitable placement. If adoption proves to be impossible, that
change of circumstances would justify a modification of the findings and order
3
The terms of section 366.3, subdivision (d) are also inconsistent with
those of section 366.26(c)(3). Section 366.3, subdivision (d) permits status review
by a local agency if parental rights have not been terminated, a provision with no
parallel in section 366.26(c)(3), and contemplates review by the court in
circumstances that do not ordinarily pertain to section 366.26(c)(3) hearings.

4 Amicus curiae San Diego County Health and Human Services Agency
argues that the Legislature‟s elimination of long-term foster care from the
placement options provided in section 366.26(c)(3) was unintentional. This claim
was soundly rejected by the Gabriel G. court, based on the legislative history.
(Gabriel G., supra, 134 Cal.App.4th at pp. 1436-1438.)
8


made by the court under section 366.26(b). (§ 388.) In a modification proceeding,
all the relevant circumstances will be before the court and long-term foster care
can be instituted with the appropriate provisions for periodic review, ensuring that
the child is not in danger of falling through the cracks. (§ 366.3.)
Accordingly, we find no persuasive reason for excepting section
366.26(c)(3) orders from the usual rule of appealability in dependency
proceedings. One might argue that an appeal is an unduly cumbersome process
for reviewing an order that provides only 180 days to search for an adoptive
family. Yet, orders made by the juvenile court at review hearings held every six
months are routinely appealable. (See, e.g., In re Meranda P. (1997) 56
Cal.App.4th 1143, 1147-1151.) In any event, the Legislature has neither
precluded appeals nor made any alternate arrangement for review of a section
366.26(c)(3) order.
“[W]e have repeatedly held that if the Legislature intends to abrogate the
statutory right to appeal, that intent must be clearly stated. „The right of appeal is
remedial and in doubtful cases the doubt should be resolved in favor of the right
whenever the substantial interests of a party are affected by a judgment . . . .‟
[Citations.]” (In re Matthew C., supra, 6 Cal.4th at p. 394.) The interests of
parents and children are substantially affected by a section 366.26(c)(3) order.
(Ramone R., supra, 132 Cal.App.4th at pp. 1351-1352; Gabriel G., supra, 134
Cal.App.4th at pp. 1436-1438.) A social services agency may also be substantially
affected and wish to pursue an appeal if, for instance, the court rejected its
recommendation for a relative guardianship under section 366.26(b)(2), and
9
proceeded instead under section 366.26(c)(3). We conclude that section
366.26(c)(3) orders are appealable under section 395.5
We note that section 366.26(c)(3), as it currently stands, invites legislative
reconsideration in another respect. After the search for an adoptive placement, the
statute permits the juvenile court to proceed only with adoption (§ 366.26(b)(1)) or
appointment of a nonrelative legal guardian (§ 366.26(b)(4)). As currently
framed, it does not permit the court to appoint a relative as legal guardian under
section 366.26(b)(2), even though the statutory scheme places a higher preference
on relative guardianship than on nonrelative guardianship.6 Should the Legislature
decide to correct this anomaly, it will have an opportunity to consider the matter of
appealability.
DISPOSITION
We reverse the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
5
To the extent they conflict with this conclusion, the opinions in In re Y.R.,
supra, 152 Cal.App.4th 99, In re Cody C., supra, 121 Cal.App.4th 129, and In re
Jacob S.
, supra, 104 Cal.App.4th 1011, are disapproved.
6
See Statutes 2007, chapter 565, section 4, pages 609, 610; Statutes 2008,
chapter 482, sections 5, 5.5, 5.6, page 2857 et seq.
10


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re S.B.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 160 Cal.App.4th 21
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S162156
Date Filed: May 28, 2009
__________________________________________________________________________________

Court:

Superior
County: Lassen
Judge: Stephen Douglas Bradbury

__________________________________________________________________________________

Attorneys for Appellant:

Gino de Solenni for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

R. Craig Settlemire, County Counsel, for Plaintiff and Respondent.

John J. Sansone, County Counsel (San Diego), John E. Philips, Chief Deputy County Counsel, and Caitlin
E. Rae, Deputy County Counsel, for San Diego County Health and Human Services Agency as Amicus
Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Gino de Solenni
384 G Street
Crescent City, CA 95531
(707) 464-6181

R. Craig Settlemire
County Counsel
221 South Roop Street
Susanville, CA 96130
(530) 251-8334

Caitlin E. Rae
Deputy County Counsel
4955 Mercury Street
San Diego, CA 92111-1703
(858) 492-2500

2


Petition for review after the Court of Appeal dismissed as premature an appeal in a dependency proceeding. This case presents the following issue: Is an order in a dependency proceeding - based upon a finding under Welfare and Institutions Code section 366.26, subdivision (c)(3), that termination of parental rights would not be detrimental to a minor and that the minor, although "difficult to place," has a "probability for adoption" - appealable at the time the order is made?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 05/28/200946 Cal. 4th 529, 207 P.3d 525, 94 Cal. Rptr. 3d 24S162156Review - Civil Appealclosed; remittitur issued

Parties
1B., S. (Overview party)
2Lassen County Department Of Health & Human Services (Plaintiff and Respondent)
Represented by Richard Craig Settlemire
Lassen County Counsel
221 S. Roop Street
Susanville, CA

3S., S. (Defendant and Appellant)
Represented by Gino Vincenti Desolenni
Desolenni Law Firm
384 G Street
Crescent City, CA

4B., D. (Overview party)
5San Diego County Health & Human Services Agency (Amicus curiae)
Represented by Caitlin E Rae
Office of the San Diego County Counsel
4955 Mercury Street
San Diego, CA


Opinion Authors
OpinionJustice Carol A. Corrigan

Disposition
May 28 2009Opinion: Reversed

Dockets
Mar 28 2008Petition for review filed
Sharyl S., appellant by Gino de Solenni, counsel crc.8.25(b)
Mar 28 2008Record requested
Apr 8 20082nd record request
via email
Apr 9 2008Received Court of Appeal record
one doghouse
May 21 2008Petition for review granted (civil case)
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Jun 13 2008Counsel appointment order filed
Upon request of appellant for appointment of counsel, Gino V. De Solenni is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. Your attention is directed to California Rules of Court, rule 8.520, for the briefing requirements. Please note also that, because this is a child dependency case, the court may grant an extension of time only on "an exceptional showing of good cause." (Code Civ. Proc., Section 45; Cal. Rules of Court, rule 8.454.)
Jul 8 2008Request for extension of time filed
30-days, until August 11, 2008, to serve and file the appellant's opening brief on the merits. S. B., appellant Gino de Solenni, counsel
Jul 9 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's opening brief on the merits is extended to and including August 11, 2008.
Aug 12 2008Request for extension of time filed
30-days, until September 11, 2008, to serve and file appellant's opening brief on the merits S. B., appellant Gino de Solenni, counsel
Aug 14 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's opening brief on the merits is extended to and including September 11, 2008. No further extension is contemplated.
Sep 15 2008Opening brief on the merits filed
Sharyl S., appellant Gino de Solenni, counsel CRC 8.25b
Sep 15 2008Request for judicial notice filed (granted case)
Sharyl S., appellant Gino de Solenni, counsel
Oct 16 2008Notice of intent to rely on CA brief (as answer brief)
Respondent, Lassen County Department of Health and Human Services by County Counsel, R. Craig Settlemire.
Oct 16 2008Compensation awarded counsel
Atty de Solenni
Nov 12 2008Reply brief filed (case fully briefed)
with permission Sharyl S., appellant by Gino de Solenni, counsel
Dec 12 2008Received application to file Amicus Curiae Brief
San Diego County Health and Human Services, amicus curiae by Caitlin E. Rae, counsel
Dec 19 2008Permission to file amicus curiae brief granted
The application of San Diego County Health and Human Services Agency for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 19 2008Amicus curiae brief filed
San Diego County Health and Human Services Agency in support of respondent, by Caitlin E. Rae, county counsel senior deputy
Jan 12 2009Response to amicus curiae brief filed
Sharyl S., appellant by Gino de Solenni, counsel CRC 8.25b
Mar 11 2009Case ordered on calendar
to be argued on Wednesday, April 8, 2009, at 9:00 a.m., in Los Angeles
Mar 24 2009Filed:
Letter from R. Craig Settlemire, counsel for respondent Department of Health & Human Services, asking to share 15 minutes of argument time with amicus curiae San Diego County Health & Human Services.
Mar 25 2009Order filed
The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amicus curiae San Diego County Health & Human Services Agency 15 minutes of respondent's 30-minute allotted time for oral argument is granted.
Apr 8 2009Cause argued and submitted
May 27 2009Notice of forthcoming opinion posted
May 28 2009Opinion filed: Judgment reversed
We reverse the judgment of the Court of Appeal. Majority Opinion by Corrigan, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Jul 1 2009Remittitur issued
Jul 8 2009Received:
Receipt of Remittitur received by Court of Appeal, Third Appellate District.
Jul 9 2009Returned record
records returned back to CA 3 (2 doghouses)
Jul 22 2009Compensation awarded counsel
Atty de Solenni

Briefs
Sep 15 2008Opening brief on the merits filed
Sharyl S., appellant Gino de Solenni, counsel CRC 8.25b
Oct 16 2008Notice of intent to rely on CA brief (as answer brief)
Respondent, Lassen County Department of Health and Human Services
Nov 12 2008Reply brief filed (case fully briefed)
with permission Sharyl S., appellant by Gino de Solenni, counsel
Dec 19 2008Amicus curiae brief filed
San Diego County Health and Human Services Agency in support of respondent, by Caitlin E. Rae, county counsel senior deputy
Jan 12 2009Response to amicus curiae brief filed
Sharyl S., appellant by Gino de Solenni, counsel CRC 8.25b
Brief Downloads
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Brief 05-28-08.pdf (207351 bytes) - Appellant's Petition for Review
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Appellant's Reply Brief.pdf (134458 bytes) - Appellant's Reply Brief
application/pdf icon
Amicus Curiae Brief.pdf (351654 bytes) - Amicus Curiae Brief
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Appellant's Answer to Amicus Curiae.pdf (171512 bytes) - Appellant's Answer to Amicus Curiae Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by jdcain

Procedural Posture

The trial court found that defendant mother’s children were probably adoptable and ordered a search for an appropriate adoptive family. The California Court of Appeal dismissed defendant’s appeal as premature.

Issue

Whether the usual rule of allowing interlocutory appeals in dependency proceedings applied to Welf. & Inst. Code, §366.26, subds. (b)(3) & (c)(3), an issue upon which courts had been divided.

Holding

The usual rule of allowing interlocutory appeals in dependency proceedings applies to Welf. & Inst. Code, §366.26, subds. (b)(3) & (c)(3). The mother should have been allowed to appeal from the court’s finding that the adoption was probable but difficult and the order for a search for an appropriate adoptive family. The judgment of the court of appeal was reversed.

Reasoning (Corrigan,J.)

Although interlocutory appeals are typically prohibited, juvenile dependency law Welf. & Inst. Code §395 allows a “judgment in a proceeding under Section 300” and subsequent orders to be appealed in the same manner as final judgments and orders after judgment. In certain dependency situations, the California Legislature has restricted the right to appeal. However, for the relevant section here - §366.26(c)(3)- the Legislature has not written in any such limiting provision and the Court found no reason for excepting §366.26(c)(3) from the usual rule of appealability. The Court of Appeal erred when it dismissed defendant’s appeal, believing she was challenging only the finding that the adoption was probable. Defendant actually appealed from the “order that efforts be made to locate an adoptive family.” Corrigan cites the Gabriel G. court in its finding that the reversal of a §366.26(c)(3) ruling would not be an “idle gesture” because the parties would be able to change the permanent placement plan of the dependents. Furthermore, absent a clear statement by the Legislature to preclude appeals from §366.26(c)(3), the court finds that §366.26(c)(3) orders are appealable under §395.