Adoption of Ryan V.

Filed 9/13/06 Adoption of Ryan V. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Reversed and remanded with directions.

Mark V. appeals the May 12, 2006 judgment declaring his three children, two boys and one girl, free from his custody and control (Fam. Code, §§ 7820, 7824, subd. (b)(1)(B)) upon the petition of the children's mother, Terri C., and her husband, Neal C. Mark's counsel, Terri and Neal's counsel, and the children's counsel have filed a stipulation to vacate the judgment, remand the case to the superior court for further proceedings, and for immediate issuance of the remittitur. We accept the stipulation (Code Civ. Proc., § 128, subd. (a)(8); In re Rashad H. (2000) 78 Cal.App.4th 376) and reverse.

BACKGROUND

In December 2005, Terri and Neal filed a petition to declare the children free from Mark's custody and control (Fam. Code, §§ 7825 [parent convicted of felony], 7822, subd. (a) [abandoned child]). The petition alleged that on April 26, Mark was sentenced to 14 years in prison for sexually molesting his and Terri's daughter. It also alleged that on October 4, 2004, the court granted Terri sole legal and physical custody of the children.

On February 17, 2006, the court appointed counsel for Mark. That day, Mark filed a response to the petition, stating he wanted "to have some sort of communication with his children," but Terri had prevented it, and she had been awarded approximately 85 percent of the assets in the dissolution of their marriage. He asked to be transported from prison to court for the March 10 hearing on the petition.

On March 8, a social worker with the San Diego County Health and Human Services Agency filed an informational report. She requested the matter be set for trial, and noted she needed to review prior child abuse referrals and obtain background clearances. On March 10, the court continued the hearing to May 12 so Mark could be produced. On March 21, Terri and Neal filed an amended petition adding an allegation that Mark was morally depraved (Fam. Code, § 7824, subd. (b)(1)(B)). On April 10, the court ordered that Mark be transported to court for the May 12 hearing.

In a letter to the court clerk dated April 10, and filed on April 18, Mark said he was not transported to court on March 10, neither his appointed attorney nor the social worker responded to his letters and telephone calls, and he wished to know the status of the case. On April 14, the court received Mark's written waiver of his appearance, dated April 13. In a letter to the court clerk dated May 8 and filed on May 16, Mark said his attorney and the social worker still did not respond to letters and calls, he did not learn of the May 12 hearing date until May 8, his transportation waiver was based on his mistaken belief that the hearing was on May 2 and in a different case, and he wanted to be present for the May 12 hearing.

Meanwhile, on May 10, the social worker filed another informational report. In that report, she recommended the matter be continued for at least 90 days, noting, inter alia, that Terri had a Child Protective Services history. On May 11, an adoption social worker filed a report regarding the related matter of Neal's petition to adopt the children. She said she would recommend adoption after the children participated in individual therapy; the children, Terri, and Neal participated in family therapy; and the therapists recommended adoption.

Present at the May 12 hearing were Terri, Neal, the children, and the social worker, and counsel for Terri and Neal, the children, and Mark. Mark was not present. The court granted the petition and declared the children free from his custody and control pursuant to Family Code section 7824, subdivision (b)(1)(B). On May 26 and May 30, Mark filed notices of appeal from the May 12 judgment. On May 31, the court held another hearing. Mark was not personally present, but was represented by counsel. At the hearing, the court purported to set aside the May 12 judgment and set a trial for July 21.

The parties' stipulation states there was a hearing on July 20, at which time "the trial court vacated its ruling . . . pending determination of the subject appeal." This statement does not specify which ruling the court vacated and is not supported by the record on appeal. We therefore do not consider the statement.

DISCUSSION

The superior court had no power to set aside the May 12 judgment. (Fam. Code, § 7894, subd. (b); see In re Clarissa H. (2003) 105 Cal.App.4th 120, 124-125.) Its May 31 order purporting to do so is therefore void. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.) The parties' one reference to a dismissal of the appeal is incompatible with what appears to be their true aim: to have the judgment vacated and the case remanded for further proceedings, with immediate issuance of the remittitur. Our focus is therefore on the viability of the stipulation to vacate the judgment and remand the case to the superior court, and for immediate issuance of the remittitur.

"An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement." (Code Civ. Proc., § 128, subd. (a)(8).)

Our independent review of the record, summarized above, leads us to conclude we should accept the stipulation for reversal. There is no reasonable possibility that reversal will adversely affect the interests of nonparties, and the public can only benefit from the prompt correction of legal errors. The reason the parties request reversal is to allow the court to hold a new hearing with Mark's interests represented, in an expeditious manner that will serve the children's interests. A stipulated reversal will accomplish this without eroding the public trust. On the contrary, public trust in the courts and their judgments will be advanced by knowing that counsel and courts will seek to correct errors promptly and reasonably, avoiding delays that might affect children and families. Nor will reversal run the risk of reducing any incentive for pretrial settlement. (In re Rashad H., supra, 78 Cal.App.4th at pp. 381-381.)

DISPOSITION

The May 12, 2006 judgment is reversed. This matter is remanded to the trial court for a new hearing on the petition in a manner consistent with this opinion. The remittitur is to issue forthwith.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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