In re Ashlie S.

Filed 6/19/07 In re Ashlie S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Order is reversed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel and Kim Nemoy, for Plaintiff and Respondent.

___________________________________________

In this juvenile dependency case (Welf. & Inst. Code, 300 et seq.)[1], Mark S., Sr., the father of the dependent minor children Mark S., Jr. and Ashlie S. (Father, Mark and Ashlie) has appealed from an order made by the juvenile court on October 11, 2006. That order granted the ex parte written request of the Los Angeles County Department of Children and Family Services (the Department) for permission to initiate an Interstate Compact on Placement of Children (ICPC) under the Family Code (Fam. Code, 7900 et seq.) for Mark and Ashlie. The order also vacated a section 366.26 hearing that had been set.[2]

The appeal raises issues of appealability, standing, and whether the lack of notice for the ex parte hearing is a harmless error. We find Father prevails on all of the issues and we will reverse the order.

BACKGROUND OF THE CASE

This case was commenced with a dependency petition filed on May 28, 2004. The sustained allegations in the petition are that Father has sexually abused Ashlie since February 2004, which endangers her physical and emotional health and safety and places her at risk of further sexual abuse; Father improperly physically disciplined Ashlie by grabbing her by her chin and shoving her, which caused her to fall and suffer pain, and such discipline endangers her physical and emotional health and safety and places both children at risk of physical and emotional harm; and Father is an abuser of alcohol, which periodically renders him incapable of providing regular care for the minors, endangers their physical and emotional health and safety, and creates a detrimental home environment.

Father has brought this case before us on four prior occasions. Our presentation of the facts and procedural occurrences at issue in the instant appeal will begin where we left off in Fathers last appeal, to wit, our denial of Fathers petition for extraordinary writ which he filed after the dependency court made an order setting a section 366.26 hearing. The trial courts order setting the section 366.26 hearing was made on September 14, 2006, and our opinion denying Fathers petition was filed on November 30.

The placement plan for the minor Mark (who was born in January 1995 and was 11 years old at the time the order for a section 366.26 hearing was made), had been long-term foster care, but by the time of the September 14 section 366.3 hearing to review that plan, both Mark and his caregiver had indicated an interest in having the caregiver become Marks legal guardian. The caregiver is Joanne B, who is a family friend.

It was because of this interest in guardianship that the trial court set the section 366.26 hearing. However on October 11, the Department walked on an ex parte application (that is, presented its ex parte application to the court on a day when there was no hearing set), seeking an order vacating the section 366.26 hearing date and directing the Department to initiate an ICPC for Mark and Ashlie.[3]

The Departments ex parte application states the Department social worker handling this case received telephone calls on September 7 and 12 from the childrens paternal aunt, Lisa P., who lives in the State of Washington. The aunt indicated she and her husband would be willing to care for Mark and Ashlie. The aunt had previously been a caregiver for Mark when she lived in Long Beach. While she was caring for him there, she considered having him replaced to another foster home because Father was harassing her family and causing conflict, but she reconsidered and continued to care for him until she and her family moved to Washington. The Departments ex parte application also states that on September 21, caregiver Joanne B. indicated to the social worker that because of ongoing problems she was having with Father, she could no longer care for Mark. The social worker interviewed Mark that same day to obtain his view on moving to Washington to live with his paternal aunt and uncle. Mark stated he would like to live with them so long as he would not be replaced there until football season was over.

The social worker interviewed Father by telephone on October 3 regarding the possible replacement of the minors to Washington. Father stated Mark should stay with Joanne B. so that Father can get things straightened out. Father stated Ashlie is better off where she is (wherever that is), because being in foster care did not help her. When the social worker opined that Ashlie is currently not able to enroll in school to complete her education, Father responded that Ashlie doesnt have to be in school to learn and she can educate herself and get her education the best way she can. Father declined to tell the social worker whether he had enrolled in any programs to comply with the case plan ordered by the court (individual counseling to address his sexual abuse of Ashlie; parenting classes; alcohol counseling; and weekly random drug and alcohol testing). He stated he would only disclose that information directly to the court and to his attorney. He also declined to state why he had not notified the social worker that he had changed his address in April or May of 2006.[4]

On October 11, the trial court granted the Departments ex parte application. It ordered the Department to initiate, by October 20, an ICPC placement with the paternal aunt and uncle in Washington, and it vacated the December 12 section 366.26 hearing on the ground a legal guardianship for Mark was no longer in the minors best interest. The court also ordered that the previously-set date of March 7, 2007 for a review of the minors permanent plans would remain set,[5] and the court gave the Department discretion to permit the minors to have holiday visits with their relatives in Washington. Thereafter, Father filed a written application for a rehearing on the grounds he was not properly notified of the ex parte hearing, the social worker gave him the wrong date for the hearing, and the case was heard by a commissioner rather than by the judge to whom the case is assigned. His request for a rehearing was denied and this appeal from the October 11 order followed.

ISSUES RAISED BY THE PARTIES

The parties disagree over whether the October 11 order granting the Departments ex parte application is appealable, and whether Father has standing to challenge the order. Father also contends he was not notified of the October 11 ex parte hearing and such lack of notification is not a harmless error. The Department contends that if Father was not notified, the error is harmless because the outcome of the hearing on October 11 would not have been different had Father appeared and challenged the Departments ex parte request.

DISCUSSION

1. Appealability

In a dependency case, the disposition order is the judgment. ( 360; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) Section 395 provides that [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. (Italics added.) Under section 395, all orders made after the disposition order/judgment are directly appealable, except for the appeal limitation imposed on post-1994 orders that set section 366.26 hearings. (In re Janee J. (1999) 74 Cal.App.4th 198, 206;  366.26, subd. (l) .)

Here, the order granting the Departments ex parte application for permission to initiate an ICPC for the minors and for vacation of the section 366.26 hearing is an order after judgment and is therefore appealable under the express terms of section 395. We do not agree with the Departments position that whereas an order to place the minors with their aunt and uncle in Washington would be appealable, the order to simply initiate an ICPC is interlocutory and not appealable. Contrary to the Departments position, dependency appeals are governed by section 395, not by Code of Civil Procedure section 904.1. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1251.) Because all post-disposition orders can be appealed (except as provided in subdivision (l) of section 366.26 regarding setting a section 366.26 hearing), interlocutory appeals of post-disposition orders are not prohibited. (In re Melvin A., supra, 82 Cal.App.4th at p.1251.) In Melvin A., the trial court stayed its February 10, 1999 order that terminated the parents parental rights, but it did not stay the other orders it made that same day. Those other orders terminated the mothers visitation with the minors, denied a substitution of attorneys, and denied a continuance. The Melvin A. court held that because those other three orders were not stayed, they were separately appealable from the stayed order terminating parental rights, and therefore the mothers notice of appeal that was filed after the stay was lifted the following October was too late to challenge those three orders.

We also reject the Departments contention that permitting an appeal from the ex parte order will give Father no relief because the ICPC activities will be concluded before Fathers appeal is final. There is no such restrictive provision in section 395, and the argument presumes a procedural fact not in evidence. Moreover, Father appealed from all of the orders made on October 11, and that includes the trial courts vacating the section 366.26 hearing, a hearing which the court had set to take up the issue of guardianship. The Departments ex parte application stated that Marks caregiver, Joanne B. is no longer interested in being his guardian, and Father told the social worker he felt the guardianship should proceed. Thus, the instant appeal is also a challenge to the denial of a section 366.26 hearing on the guardianship issue and to the trial courts specific finding that the guardianship would not be in Marks best interest.

2. Standing, Lack of Notice of the October 11 Hearing,
and the Claim of Harmless Error

Standing to appeal is jurisdictional. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Persons who are aggrieved parties have standing to appeal judgments and orders of the dependency court, however the issues they raise must affect their own rights. (Ibid; In re Crystal J. (2001) 92 Cal.App.4th 186, 189.) To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) The issue of standing should be liberally considered and doubts should be resolved in favor of finding standing. (In re H.G. (2006) 146 Cal.App.4th 1, 9.) It is clear to us that Father has standing to challenge the October 11 order, and also clear that the trial courts failure to hold a hearing on the matters raised in the Departments ex parte application is not a harmless error.

Section 349 states the following persons are entitled to be present at juvenile court hearings and be represented by counsel of their choice: (1) the minors who are the subject of juvenile court hearings and (2) the persons whom sections 290.1 and 290.2 state are entitled to notice of juvenile court hearings. Among the persons entitled to notice under sections 290.1 and 290.2 are the minors mother, the minors father (presumed and alleged) and their respective attorneys. Section 349 further provides that if the minor is 10 years of age or older (like Mark) and is not present at a hearing, the juvenile court must determine whether the minor was properly notified of his or her right to be present. Additionally, a parents presence at a hearing is coupled with his or her right to adequate notice of the hearing (including notice of the Departments recommendations to the court), and the right to be heard there. (In re Josiah S. (2002) 102 Cal.App.4th 403, 412, 416.)

Father indicated to the Department that he did not want Mark placed with relatives in Washington. He further indicated that his preference was to have the minor remain placed with Joanne B. and she be made the childs guardian. It was that potential guardianship that was to be the focus of the scheduled section 366.26 hearing, but on October 11, 2006, the trial court took that hearing off calendar at the Departments ex parte request, and substituted an ICPC exploration in its place. The courts October 11 order vacating the scheduled section 366.26 hearing specifically states: Legal guardianship is not the best plan for the child at this time. Thus, the court made a determination about a particular type of permanent plan without holding a noticed hearing and giving Father an opportunity to address the matters of legal guardianship and ICPC.

Because Father did not receive notice of the ex parte hearing, he was not able to challenge, or even address, the Departments key assertions of fact, to wit, that the Washington aunt represented that she and her husband desire to care for Mark and Ashlie, and that Joanne B. has changed her mind regarding being Marks guardian. Had a hearing been held, the court may have concluded that Father has sufficient motivation to refrain from continuing his bullying, aggressive, and generally ill tempered behavior towards Joanne B., and that Joanne B. would be willing to try a legal guardianship. Fathers motivation to behave civilly would be to keep Mark here in legal guardianship rather than see him go to Washington to live with his relatives there in long-term foster care. While Fathers reunification with Mark is no longer a goal of the dependency proceedings, Fathers parental rights have not been terminated. Thus Father still has a fundamental interest in [Marks] companionship, custody, management and care. (In re H.G., supra, 146 Cal.App.4th at p. 9.) But for the courts failure to hold the required meaningful hearing on the issues raised by the Department in its ex parte application, Father would have been able to exercise his right to address the guardianship vs. long-term foster care in Washington issue. Thus, it is clear that the trial court erred in making its determinations solely on the basis of a walk on presentation, and the error is not harmless.

An additional aspect of Fathers aggrieved status is that the Departments prior reports show that Mark appeared to have a good relationship with Father despite Fathers bullying and aggressive behavior towards the people who have volunteered to care for Mark so that the child does not have to be placed with strangers in foster care. If Mark is replaced to long-term foster care with his relatives in Washington and at some point in time the Washington relatives are of a mind to adopt Mark, Fathers claim to a section 366.26, subdivision (c) (1) (A) parental relationship exception to termination of his parental right could be diminished because his lack of contact with Mark could result in a deterioration of their relationship. Likewise, if Mark is replaced to long-term foster care in Washington, Fathers opportunity to demonstrate, at the section 366.3, subdivision (d) and (e) six-month review hearings, that (1) resumption of reunification services would be in Marks best interest, or (2) there is no longer any need to have Mark removed from Fathers home, could also be diminished for that same reason.

We do not mean to say that replacement to the relatives in Washington should not occur. We make no finding on that question. Rather, we are merely finding that the Departments claims of no standing and harmless error lack merit.

3. Ex Parte Hearings

Lastly, a few words about ex parte hearings are in order. Although the Department contends the record is unclear as to whether Father was notified of the October 11 hearing, nothing in the record supports that assertion. The record is quite clear regarding the matter of notice. There is no evidence that anyone of the following persons was noticed for the October 11 ex parte hearingFather, his attorney, the minors Mother, her attorney, the minors themselves, the minors respective attorneys, and the Departments attorney/county counsel. Moreover, none of those people appeared for the hearing. The minute order for the Departments ex parte application simply indicates that the court was making a determination on the Departments walk on request.

We also observe that the Departments ex parte application was signed by the social worker and her supervisor on October 4, a full week before the hearing on the ex parte application. Certainly that was sufficient time to give notice of the ex parte hearing, assuming arguendo that an ex parte hearing on the matter of the Departments request for an ICPC order and vacation of the section 366.26 hearing would be proper. However, the hearing at issue here does not conform to the requirements in section 213.5 for ex parte orders.

Section 213.5 provides for ex parte restraining and exclusion (stay away) orders to keep children safe in dependency cases. And section 213.5 states that application for such orders must be made in the manner provided by Section 527 of the Code of Civil Procedure for issuance of injunctions, which states that no temporary restraining order may be made without notice unless, among other things, great or irreparable injury will result to the applicant if notice is given. None of that applies to the ex parte application and walk on hearing at issue here. The same can be said for the Departments citation to a case involving an ex parte application for appointment of a guardian ad litem. A section 388 petition from the Department would have been a proper vehicle for the Department to raise the question whether guardianship should be on the table any longer and whether the court should direct an ICPC inquiry. Alternatively, the guardianship/ICPC issues could have simply been addressed at the scheduled section 366.26 hearing.

DISPOSITION

The order from which Father has appealed is reversed. No costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J. KITCHING, J.

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[1] Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

[2] The ICPC facilitates cooperation, among the states that sign the ICPC, in the placement and monitoring of dependent children who are placed in foster care or as a preliminary to a possible adoption (but not children who are placed with their parent in another state). (In re Johnny S. (1995) 40 Cal.App.4th 969, 974 et seq.) Cooperation is intended so that [children] shall receive the maximum opportunity to be placed in a suitable environment, [t]he appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, [t]he proper authorities of the state from which the placement is made may obtain the most complete information on the basis on which to evaluate a projected placement before it is made, and [a]ppropriate jurisdictional arrangements for the care of children will be promoted. (Fam. Code, s 7901.) Among other things, the ICPC sets out requirements for both the sending state and the receiving state that must be accomplished before there is an interstate placement of a child. (Ibid.)

[3] Ashlie was born in March 1990, and was 16 years old at the time the order for the section 366.26 hearing was made. Her whereabouts have been unknown since late May 2006, and a protective custody warrant was issued for her on June 2.

[4] Father testified at the September 14, 2006 hearing that he attended 12 sessions of a parenting class at Joint Efforts, Inc. and completed the program. The Departments report for the September 14 hearing contains a certificate of completion for that program.

[5] The parties did not indicate in their appellate briefs what transpired at the March 7, 2007 hearing.