In re Brianna M.
Filed 10/1/07 In re Brianna M. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re BRIANNA M. et al., Persons Coming Under the Juvenile Court Law. | |
ORANGE COUNTY SOCIAL SERVICES AGENCY, Appellant, v. ESTELA M. et al., Respondents. | G038689 (Super. Ct. Nos. DP012195 & DP012198) O P I N I O N |
Appeal from an order of the Superior Court of Orange County,
Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Vacated.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio
Torre, Deputy County Counsel, for Appellant.
Leslie A. Barry for Respondents.
No appearance for the Minors.
The Orange County Social Services Agency (SSA) appeals from an order terminating dependency services, and finalizing the adoptions of eight-year-old
Brianna M., and two-year-old Mary Jane M. SSA asserts the court prematurely finalized the adoptions in direct violation of Welfare and Institutions Code section 366.26, subdivisions (e) and (j).[1] The minors adoptive parents, Sergio and Estela M.,[2]do not contest the appeal, and urge this court to provide the relief SSA seeks. We agree the courts order must be vacated as premature.
FACTS
The minors biological mother, Ana M. (Mother), timely filed a notice of appeal contesting the October 3, 2006 order terminating her parental rights and freeing for adoption her daughters Brianna and Mary Jane.[3] On appeal, Mother argued the juvenile court should have applied the benefit exception ( 366.26, subd. (c)(1)(A)) to select a permanent plan other than adoption for Brianna. Mother raised no error concerning Mary Jane. In July 2007, we affirmed the October 3 order as to both minors. (In re Brianna M. (July 19, 2007, G037670) [nonpub. opn.].) On August 6, in response to Mothers petition for modification, we filed an order modifying the opinion, but making no change in the judgment.
While the appeal of the October 3 order was pending, the juvenile court issued an order terminating dependency services and finalizing the minors adoptions. SSA filed an appeal to correct the juvenile courts actions.
DISCUSSION
A juvenile court has no power to grant a petition for adoption until the appellate rights of the natural parents have been exhausted. ( 366.26, subd. (j).) The record shows Mothers appeal was still pending and unresolved at the time the juvenile court terminated dependency proceedings and finalized the minors adoptions. Accordingly, the juvenile court had no jurisdiction to make the May 21 order, and it must be vacated.
DISPOSITION
The May 21 order is vacated, and the matter is remanded. At oral argument, the parties stipulated the remittitur should issue immediately. (Cal. Rule of Court, rule 8.272(c)(1).) Accordingly, we direct the clerk to issue the remittitur forthwith. Absent changed circumstances, and as soon as its jurisdiction is restored, the juvenile court is directed to enter a new order terminating dependency proceedings and finalizing the adoptions.
OLEARY, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
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[1] All further statutory references are to the Welfare and Institutions Code.
[2] The Respondents letter brief spells her name Estrela, but in the pleadings and throughout the record it appears as Estela. We adopt Estela for purposes of this opinion.
[3] The minors name is spelled Brianna in Mothers pleadings, but at different places in the record, it appears as Briana. We adopt Brianna as the correct spelling in this opinion.
