Gwendolyn M. v. Superior Court

Filed 2/26/10 Gwendolyn M. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

GWENDOLYN M. et al.,

Petitioners, A126926, A126927

v. (AlamedaCounty

Super. Ct. No.

THE SUPERIOR COURT OF ALAMEDA OJ06003309)

COUNTY,

Respondent;

ALAMEDACOUNTYSOCIAL SERVICES

AGENCY,

Real Party in Interest.

______________________________________/

Gwendolyn M. and Eden B. and have filed petitions under California Rules of Court rule 8.456[1] seeking review of a posttermination of parental rights placement order.[2] We conclude the challenged ruling is well supported and will deny the petitions.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this dependency are well known to the parties and this court and need

not be set forth at length.[3] For purposes of the present petitions, it should suffice to say that Eden, who is the subject of these proceedings, was born in 2005. She was exposed to cocaine and methadone while in her mothers womb and she spent the first month of her life in the hospital due to withdrawal symptoms. In February 2006, the Alameda County Social Services Agency (the Agency), filed a petition alleging Eden was a dependent child within the meaning of Welfare and Institutions Code section 300.[4] Eden was removed from her parents custody and placed with Gwendolyn, a foster parent. In April 2007, Gwendolyn was granted de facto parent status.

The parental rights of Edens mother and father were terminated in January 2008. The court selected adoption as the permanent plan.

Gwendolyn told child welfare officials that while she wanted to care for Eden, she preferred guardianship over adoption because the former was more beneficial financially. However, Gwendolyn also said that if adoption was the only alternative, she would pursue that option. In November 2007, Gwendolyn completed an adoption home study application.

The adoption home study uncovered some disturbing information. First, Gwendolyn stated in her application that she had never been arrested. However adoption officials learned that appellant had been convicted two times: a misdemeanor conviction in 1988 for making false statements regarding aid, and a felony conviction in 1989 for a food stamp violation. Second, the report stated that Gwendolyn, who had cared for many foster children over the years, had been the subject of 12 referrals to child protective services, three of which were found to be substantiated. The report also noted Gwendolyns admission that she had been accused of child abuse after she whipped her own son. Third, the report stated that Gwendolyn had a difficult relationship with Yolanda, the teenage foster child with whom she lived. Yolanda had gotten in trouble with the law and she had run away from home several times. A social worker described the relationship between Gwendolyn and Yolanda as being very adversarial and stated that Yolanda cant wait to move out of Gwendolyns home. Fourth, the report noted that Yolanda appeared to be Edens primary caregiver, and that Gwendolyn and Eden did not seem to demonstrate much affection. Fifth and finally, the report questioned Gwendolyns motivation for wanting to adopt. Gwendolyn had told officials originally that she wanted Eden to be adopted by others, but when she learned that the Agency was considering placing Eden with a lesbian couple, she changed her mind. The report summed up its conclusions as follows: Ms. [M.] has a lengthy history of child abuse and neglect allegations as outlined in this report. While many of the allegations were deemed to be unsubstantiated or unfounded, there are three allegations of neglect and abuse that were substantiated after investigation. The overall picture, including statements made by Ms. [M.], is one of a caregiver who appears to have great difficulty with empathy, minimizes Edens developmental and attachment needs, and whose statements regarding corporal punishment are often contradictory to her statements regarding her actions and beliefs pertaining to her son and other children she has provided care for. The attachment between Eden and Ms. [M.] as described by the doctor who conducted the developmental assessment of Eden is not optimistic. In fact, it bears a worrisome similarity to Ms. [M.s] contentious relationship with Yolanda. [] . . . [] In summary, despite the length of time that Eden has spent in Ms. [M.s] home, and taking into consideration Edens attachment needs, it is the determination of this Worker that the adoption of Eden by Ms. [M.] would not be in Edens best interest.

Gwendolyn challenged the home studys findings through an administrative appeal. It was denied.

On June 4, 2008, the Agency provided written notice that it intended to move Eden from Gwendolyns home. Gwendolyn and Eden objected to the plan. While a hearing on the removal request was pending, Gwendolyn and Eden each filed section 388 petitions arguing the Agency abused its discretion when it found adoption by Gwendolyn to be unsuitable. The court conducted a hearing on the section 388 petitions and denied them on November 18, 2008, finding the Agency had not abused its discretion. The court also denied the Agencys request to remove Eden from Gwendolyns home.

Gwendolyn and Eden both filed writ petitions and appeals challenging the courts November 18, 2008 ruling. While the writs and appeals were pending, Gwendolyn filed a motion in the juvenile court to stay any visits with prospective adoptive parents. The court denied the stay request on December 4, 2008.

This court rejected the writ petitions in a written opinion dated March 10, 2009. Subsequently on May 29, 2009, this court issued a written decision dismissing the appeals as duplicative of the previously decided writ petitions.

On June 8, 2009, the court addressed various aspects of Edens dependency at a review hearing. One portion of that hearing is relevant here. The court ordered the Agency to provide notice to Gwendolyn should it decide to remove Eden from her home. The court also stated that Gwendolyn was entitled to a contested hearing with any future notice of removal.

The Agency had refrained from moving Eden while the writ petitions and appeals were pending. Once those matters were decided, the agency went forward. Because the court had selected adoption as the permanent plan, child welfare officials intensified their efforts to identify prospective adoptive parents.

On July 21, 2009, Eden filed a section 388 petition asking that Gwendolyn be appointed as her legal guardian. The court conducted a hearing on Edens request August, 31, 2009. The court denied Edens petition ruling the evidence did not support a change of the permanent plan from adoption to guardianship. After the court made that ruling, the Agency asked that it be allowed to remove Eden from Gwendolyns home if a suitable adoptive home was found. The court granted the request stating as follows: all parties can come back to court with respect to any motion or objection as to any activity or placement with respect to this child. But right now, this child is subject for adoption, and if theres an appropriate home in which this child can be placed for prospective adoption, that child can be removed and placed there. The courts written order tracked its oral statement. It states: The Agency may remove the child and place the child in the home of a prospective adoptive home if necessary. [] All parties are to be given notice if the child is removed from her current placement.

Gwendolyn and Eden both appealed the August 31, 2009 ruling. Those appeals are currently pending in this court.

On September 14, 2009, a child welfare worker called Gwendolyn and asked Gwendolyn to start talking to Eden about the upcoming transition to another home. Gwendolyn denied the request, and when the worker suggested she call Edens therapist to discuss the impending move, Gwendolyn hung up the phone.

On September 16, 2009, a social worker met with a therapeutic team from Oaklands Childrens Hospital to discuss Edens case. The Agency had concluded that given Gwendolyns long history of litigation, and the multiple delays that had already occurred in the adoption process, it was not realistic to implement a gradual transition plan to move Eden from Gwendolyns home. Hoping to avoid a traumatic fight and possible police involvement, the consensus of those at the meeting was for David Hess, a child welfare worker whom Eden knew, to pick her up from preschool. As Hess explained, By removing Eden from preschool, Eden would not need to be a witness if her caregiver became distraught or hostile, or refused to cooperate or support Eden during the removal. Police presence would be unnecessary . . . .

The plan was implemented on the afternoon of September 18, 2009. Hess picked Eden up from preschool and took her to a park where she met her prospective adoptive family. Later that day, Hess, Eden, and the family went to the prospective adoptive familys home. That same afternoon, Agency officials notified Gwendolyn of the move by telephone, and Edens and Gwendolyns attorneys by fax.

Upon learning that Eden had been moved, Edens counsel immediately contacted the court and asked for an ex parte hearing to determine whether Eden should be returned to Gwendolyns home immediately. She was told the earliest the court could schedule a hearing was 10 days later on September 28, 2009.

On September 21, 2008, Gwendolyn filed a motion asking the court to stay the August 31, 2009 order that allowed Eden to be moved without notice and asked that Eden be returned to her custody immediately. That same day, Edens counsel filed a similar motion. She objected to the removal, and sought an order to show cause why Eden should not be returned to Gwendolyns custody.

The following day, a hearing was conducted to determine whether Eden should be returned to Gwendolyn immediately. The court declined to order an immediate return noting that Eden appeared to doing well in her new home. The court said it was disinclined to send Eden back only to potentially remove her again at a later date. The court said an additional delay of six days was unlikely to be detrimental to Eden.

Gwendolyn challenged the courts decision by filing a petition for a writ in this court. We denied it.

Four days after Eden was removed from Gwendolyns home, she disclosed to her new family that Gwendolyn had whoop[ed] her. Specifically Eden said that Gwendolyn had slapped her on the face and that Yolanda, her former foster sister, had hit her with a belt. Eden subsequently made similar allegations of abuse to Stephanie Gomez, her therapist, and to Dr. David Brodzinski, a psychologist who had been hired to evaluate Edens adjustment to her hew home. On September 23, 2009, Gomez reported the allegations to child protective services.

A report prepared prior to the September 28, 2009 hearing indicated that Eden was doing exceptionally well in her new home. She showed no signs of distress and was described as being happy and comfortable. The therapist, Gomez, who visited with Eden in her new home, agreed she was doing well. She described Eden as demonstrating frequent moments of joy and as having a strong attachment to her new prospective adoptive mother. Gomez summed up her recommendations as follows: Based on the recent disclosure of physical abuse, it is my recommendation that Eden remain in her current placement. There is a critical risk of physical and/or emotional retaliation should Eden be placed again with Ms. [M.]. Furthermore, it would be sending a confusing and dangerous message to Eden that the grown-up[s] that are meant to protect her could place her back with the person she reports has hurt her. This is a critical healing point for Eden in that after only five days, she is beginning to feel a sense of trust and safety with her pre-adoptive family. It is essential that she continue to feel supported, trusted, protected and empowered with her current family.

Gwendolyn, by contrast presented a declaration from a therapist, Fortunee Kayra-Stuart, who stated that Eden should be returned to Gwendolyns home immediately. Stuart described Gwendolyn as a good mother who had provided Eden all that she needed. She characterized Edens recent allegations of physical abuse as being not reliable and attributed them to the confusion loss and turmoil to which Eden had been exposed.

The court began the September 28, 2009 hearing, by addressing the issue of notice. The court said the Agency erred when it failed to provide notice to Edens counsel prior to the move. However, the court considered that error to be harmless because Eden was doing so well in her new placement. The court then allowed the parties to present their evidence, a process that ultimately spanned five court days over the following two months. Gwendolyn presented testimony from Dr. Kayra-Stuart (Stuart) who said Eden maintained a secure and strong attachment to Gwendolyn. She claimed the removal was disastrously traumatic for Eden and characterized her recent allegations of abuse as definitely not credible. Dr. Stuarts conclusions of these points was undermined by her acknowledgement that she had never observed Eden in her new home, and she had never spoken with Edens child welfare worker, her therapist, or her new foster parents.

The Agency countered Dr. Stuarts testimony with testimony from Dr. Brodzinski. He said he had met with Eden in her new home, observed her interact with her new caregivers, and reviewed several reports, declarations, and evaluations related to the case. Dr. Brodzinski said Eden appeared to be adjusting quite well to the transition and he had not observed any signs that would indicate that she had been traumatized by the move. He attributed Edens success to three factors: (1) Edens ability to make accommodations easily, (2) the childs internal resiliency, and (3) the high quality of care Eden was receiving in her new home. Dr. Brodzinski described Edens new family as very child-focused, empathetic and very warm, very involved people physically, emotionally and communicatively[.] [Eden] is responding very well to them. The doctor also strongly opposed returning Eden to Gwendolyns home. Not only was he concerned about the recent allegations of physical abuse, he was adamant that Eden should not be treated like a ping-pong ball. As the doctor explained, research shows that every time you move a child you increase the risk of subsequent problems.

The court also heard testimony from Michael Gutierrez, the social worker who had been assigned to investigate the allegations of abuse. He said that while Eden also told him she had been whipped in Gwendolyns home and hit by her former foster sister, she later recanted the allegations. Ultimately, the Agency characterized the allegations of abuse as inconclusive.

The court also heard testimony from Stephanie Gomez, Edens therapist. Gomez said she met with Eden approximately eight times since she had been moved to her new prospective adoptive home. Like Dr. Brodzinski, Gomez had not seen Eden exhibit any signs of trauma since the move. Rather, Eden appeared to be making significant progress in her social and emotional development. Gomez agreed with Dr. Brodzinski that Eden should not be returned to Gwendolyns home. As she explained, My most immediate concern is that this is a child who is now starting to adjust to her home. In the past few sessions shes really stressed that it is our home, she says. To ping-pong a child back and forth would be more confusing. . . . [] We expect there to be a general adjustment period for a child of this age, that the first usually two to three months are the most difficult and usually after about the third month you really start to see a settling-in period. That is exactly the trajectory that we have seen Eden take. As we are approaching the third month, shes really starting to settle in. I would be greatly concerned about disrupting that at this point.

The final day of the hearing took place on November 23, 2009. The court heard testimony from Edens former step-sister Yolanda who said she had visited with Eden about five times since she was moved and that each time, Eden asked to come home with her.

At that point two witnesses remained: David Hess, Edens social worker who was involved in the removal from Gwendolyns home, and Gwendolyn herself. The court apparently was becoming dissatisfied with the slow progress of the hearing and it asked the parties to state the substance of each witnesss testimony. After hearing those descriptions, and after hearing argument from counsel, the court ruled it would not be in Edens best interest to remove her from her current placement.

On November 30, 2009, Gwendolyn and Eden each filed notices under rule 8.454 that they intended to file a petition for a writ challenging the courts November 23, 2009 placement order.

Gwendolyn and Eden then filed their petitions on January 19, 2010.

II. DISCUSSION

Before we address the merits of the petitions, we must briefly address some procedural issues.

First, as we have stated, on November 30, 2009, Gwendolyn and Eden each filed a notice under rule 8.454 that they intended to filed a petition for a writ challenging the November 23, 2009 placement order. However, the actual petitions Gwendolyn and Eden have filed are broader. Both appear to challenge not only the November 23, 2009 placement order, but also the courts August 31, 2009 order that allowed Eden to be moved from Gwendolyns home without notice. Rule 8.454(e)(4) states that a party who seeks writ review under that rule must file a notice that he or she intends to file a petition for a writ no more than seven days after the order is made. Gwendolyns and Edens notices of intent, filed on November 30, 2009, were far too late to trigger a valid review of the August 31, 2009 order.

Second, the Agency argues that Gwendolyn, as a de facto parent, lacks standing to pursue the present petition for a writ. The argument may well have merit. The general rule is that a de facto parent lacks standing to challenge a placement decision on appeal. (See In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) The rule is premised on the principle that while a de facto parent is allowed to participate in hearings concerning a child, the status does not grant her the rights accorded to a parent or legal guardian. (Ibid.) While there is also authority that a de facto parent can have standing to appeal under certain circumstances, (such as where the de facto parent has completed an adoption home study and has been approved for adoption (In re Vincent M. (2008) 161 Cal.App.4th 943, 953), those facts are not present here. However, we decline to dismiss Gwendolyns petition on this ground. The petitions Gwendolyn and Eden have filed are, in essence, identical. Thus, dismissing Gwendolyns petition would have no practical effect. Under these circumstances, we will address both petitions on the merits.

Third, Gwendolyn and Eden both make what could be construed as legal arguments in the factual portion of their briefs. Because those arguments are not properly presented through appropriate headings, Gwendolyn and Eden have forfeited the right to have us consider them. (See rule 8.456(b)(2).) Indeed, because many of the arguments are not supported by appropriate authority, they are doubly forfeited. (Rule 8.456(b)(2).)

Fourth, Gwendolyns petition asks this court to take judicial notice of our records in a prior appeal (A123723), one of the pending appeals (A126033), and two of the prior writ proceedings (A123500 & A123501.) The request is procedurally defective. (See rule 8.252(a)(1).) Nevertheless, in the interests of justice, we grant it.

With this background, we turn to the specific arguments made. The fundamental question in this case is whether the juvenile court erred when it ruled Eden should remain with her prospective adoptive family rather than be returned to Gwendolyns home. Our review of a placement decision such as this is highly deferential. The juvenile court is granted broad discretion to determine what placement is appropriate, and its ruling will be reversed on appeal only where the court abused its discretion. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420-1421.)

Applying that standard, we note that the juvenile court here was faced with a delicate decision. On the one hand, Eden had spent the vast majority of her life in Gwendolyns home. Many of the reports prepared for the hearings in the juvenile court describe Eden as bright and engaging, traits that speak well of the care Eden received while in Gwendolyns home. Furthermore, Dr. Stuart characterized Edens removal from Gwendolyns home as being disastrously traumatic for the child and opined that she would experience significant and long-lasting negative effects. Moreover, the very fact that Gwendolyn, through her own efforts, and Eden, through counsel, have fought so hard to have Eden returned to Gwendolyns custody is suggestive of an affection between them.

On the other hand, there is a strong statutory preference in this state in favor of adoption (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888), and Gwendolyns adoption home study made it clear that Gwendolyn was not an appropriate adoptive parent. Indeed, Gwendolyns lack of candor about her prior criminal history, her difficult relationship with her foster daughter Yolanda, and the multiple sustained findings of abuse and neglect cast considerable doubt about whether it was appropriate for Eden to even remain in Gwendolyns home. Furthermore, Dr. Brodzinski and Stephanie Gomez, both of whom actually evaluated Eden after she had been removed from Gwendolyn care, found that the move had not been traumatic for Eden and that she was doing remarkably well in her new prospective adoptive home. Indeed, Brodzinski and Gomez both expressed considerable concern about the negative effects that would occur if Eden was returned to Gwendolyns home. Neither wanted Eden to be treated as a ping-pong ball and both strongly recommended that she remain where she was. The juvenile court weighing this conflicting evidence could reasonably conclude that Eden should remain with her prospective adoptive parents rather than being returned to Gwendolyns care. We conclude the juvenile court did not abuse its discretion. (In re Sabrina H., supra, 149 Cal.App.4th at pp. 1420-1421.)

None of the arguments Gwendolyn and Eden make convince us a contrary conclusion is appropriate under the facts of this case. First, Gwendolyn and Eden note that time is of the essence in dependency matters (In re O.S. (2002) 102 Cal.App.4th 1402, 1409), and they argue that the delays that occurred in this case (10 days from the removal until the initial hearing, and 2 months for a final ruling), were too long. We agree that time is critical in juvenile cases and we also agree that these proceedings took longer than they should have. But it is also true there were circumstances that necessitated some of the delays. For example, the initial delay from removal on September 18, 2009 to the first hearing on September 28, 2009 was caused by the fact that the latter date was the first day the court could hear Gwendolyns and Edens motions on its contested calendar. The record also indicates the juvenile court was well aware that time was critical and it repeatedly stated its intent to proceed with the case as fast as was possible. Another factor is important here. Within days after Eden was moved from Gwendolyns home, Eden started making multiple allegations that Gwendolyn and Yolanda had abused her. Given Gwendolyns past history of abuse as reflected in the adoption home study, a delay sufficient to investigate and evaluate those allegations was both prudent and reasonable. Another important factor is the strong evidence that Eden was doing so well in her new placement with her prospective adoptive family. The fact that Eden appeared to be thriving made the time issue less critical. Weighing all these factors together, we conclude the admittedly lengthy proceedings were not grounds for reversal.

Next, Eden and Gwendolyn argue a delay of what they describe as the detention hearing is inconsistent with the statutory scheme. We reject this argument because it is based on a false premise: that hearing in question was a detention hearing. That is incorrect. When a peace officer or a social worker has reason to believe that a child is in danger, he or she may take that child into temporary custody. (See  305, 306.) The social worker then has 48 hours to either release the child to his or her parent or legal guardian or to file a dependency petition with the court. ( 313, subd. (a).) Thereafter, a hearing is conducted to determine whether the minor should be further detained. That detention hearing shall be held as soon as possible, but in any event before the expiration of the next judicial day after a petition to declare the minor a dependent child has been filed. ( 315.) Here, Eden was not removed from Gwendolyns home because she was in danger and no subsequent petition was filed alleging she was a dependent child. Rather, Eden was removed from Gwendolyns home because her permanent plan was adoption and a prospective adoptive family had been found. The statutes and rules that govern detention hearings are not relevant here.

Next, Gwendolyn and Eden appear to argue that the Agency was required to file a section 387 petition before removing Eden from Gwendolyns home. That is plainly incorrect. Section 387, subdivision (a) states: An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition. (Italics added.) Gwendolyn had physical custody of Eden and she had been granted de facto parent status, but she was not a parent, guardian, relative or friend of Eden. Section 387 did not apply. The primary case upon which Gwendolyn and Eden rely, In re Cynthia C. (1997) 58 Cal.App.4th 1479, does not change that conclusion. Indeed, the court there specifically ruled that a section 387 petition need not be filed before removing a child from a de facto parents home. (Id. at pp. 1489-1490.)

Gwendolyn and Eden argue next that a delay of over two months is not consistent with the due process rights of the child and de facto parent, [the] best interests of the child, and the exigencies of the circumstances.[5] We will assume for purposes of this argument that Gwendolyn and Eden each have a due process right to a prompt hearing. However, even with that assumption, we find no basis for reversal. As we have noted, the extended hearing was caused by several factors including the courts crowded calendar, and the need to investigate the allegations of abuse that had been made. Given Gwendolyns well documented history of abusive conduct, Edens best interests surely included the time needed to determine whether those allegations were valid. The time factor was then made less critical by the fact that Eden was doing so well in her new placement. We find no basis for reversal on this ground.

In a variant of the argument we have just discussed, Gwendolyn and Eden argue that Eden had the constitutional right to a hearing which should have occurred before she was removed from Gwendolyns home. Even if we were to assume Eden had such a right, a hearing occurred here. On August 31, 2009, the juvenile court specifically ruled that Eden could be removed from Gwendolyns home if an appropriate adoptive family was found. While Gwendolyn and Eden contend that hearing was inadequate in several respects, the validity of that hearing is not at issue in these writ proceedings.

Finally, Gwendolyn and Eden argue the Agency erred when it failed to provide notice to Edens counsel before moving Eden from Gwendolyns home. We agree the Agency erred. Section 16010.6, subdivision (a) states, As soon as possible after a placing agency makes a decision with respect to a placement or a change in placement of a dependent child, the placing agency shall notify the childs attorney and provide to the childs attorney information regarding the childs address, telephone number, and caregiver. The record here indicates the Agency made the decision to remove Eden from Gwendolyns home on September 9, 2009, but the Agency did not notify Edens counsel until September 18, 2009, after the move had taken place. As the trial court found, this was error. However, like the trial court, we find the error to be not prejudicial. After Eden was removed, the court then conducted a lengthy hearing to determine whether it was in Edens best interests to remain in the home of her new adoptive family or whether she should be returned to Gwendolyns care. The record indicates Edens counsel participated in all aspects of that hearing and that she had ample opportunity to represent her clients interests. We conclude the Agencys error was harmless. (Cf. In re Angela C. (2002) 99 Cal.App.4th 389, 395.)

In sum, we conclude the juvenile court did not err when it ruled that Eden should remain in the home of her prospective adoptive parents rather than being returned to Gwendolyns home.[6]

III. DISPOSITION

The orders to show cause issued on January 21, 2010, are discharged. The petitions for an extraordinary writ are denied.

_________________________

Jones, P.J.

We concur:

_________________________

Needham, J.

_________________________

Bruiniers, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further rule references will be to the California Rules of Court.

[2] The court has consolidated both petitions for purposes of decision.

[3] Thus far, the dependency has been the subject of 12 appellate proceedings and has resulted in two written opinions.

[4] Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.

[5] Edens petition calculates the delay as being three and one-half weeks. We will analyze the issue using the longer time period.

[6] Having reached this conclusion, we summarily deny Gwendolyns request that Eden be returned to her custody immediately pending resolution of the underlying appeals.