IN RE LORENZO T

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Docket Number

Docket No. B019421.

Attorney(S)

COUNSEL Steve Pell, under appointment by the Court of Appeal, for Objector and Appellant. James L. McBride, County Counsel, and Harry E. Barnes, Assistant County Counsel, for Petitioner and Respondent.

Judges

Arthur Gilbert

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Smart Summary

Factual and Procedural Background

Lorenzo T., born August 21, 1984, was detained in foster care shortly after birth due to his mother Michelle R.'s incarceration for illegal drug use and his father's incarceration on drug-related charges. The juvenile court adjudicated Lorenzo a dependent child, removed custody from his parents, and placed him in foster care under the supervision of the Ventura County Public Social Services Agency (PSSA). Over time, permanency planning hearings were held because reunification with the mother was unlikely given her ongoing incarceration and history of substance abuse. The juvenile court found that returning Lorenzo to his parents posed a substantial risk to his well-being and that he was adoptable. Consequently, the court ordered the County Counsel to initiate proceedings to terminate parental rights pursuant to Civil Code section 232. Michelle R. appealed this order.

Legal Issues Presented

Whether a juvenile court order to initiate proceedings to free a minor from parental custody and control pursuant to Welfare and Institutions Code section 366.25 and Civil Code section 232 is appealable.
Whether the juvenile court’s findings supporting the initiation of termination of parental rights proceedings were legally sufficient.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Candy S. (1985) 176 Cal.App.3d 329	Distinction between an order merely referring a case for termination proceedings and an order commencing such proceedings; appealability of preliminary orders.	Rejected as inapposite because the order here was a directive to initiate termination proceedings, not merely a referral.
Stanley v. Illinois (1972) 405 U.S. 645	Parental rights are fundamental civil rights deserving high protection.	Affirmed the principle that termination of parental rights must be justified by preventing harm to the child.
In re Carmaleta B. (1978) 21 Cal.3d 482	Parenting is a fundamental right disturbed only in extreme cases incompatible with parenthood.	Supported the standard that termination requires showing the necessity to avert harm to the child.
In re B.G. (1974) 11 Cal.3d 679	Termination of parental custody requires showing that nonparental custody is essential to prevent harm.	Reinforced the requirement of protecting the child's welfare over parental rights.
In re Angelia P. (1981) 28 Cal.3d 908	Focus on the best interest of the child and liberal construction of termination statutes to protect child welfare.	Supported the court’s emphasis on the child’s best interest in termination decisions.
In re Mark K. (1984) 159 Cal.App.3d 94	Best interest of the child as the paramount consideration in dependency and termination proceedings.	Used to justify the court's approach prioritizing the child's welfare over parental rights.
In re La Shonda B. (1979) 95 Cal.App.3d 593	Dependency proceedings protect both the child's welfare and parents’ rights to raise their child.	Confirmed the dual protection role of dependency proceedings referenced by the court.
In re Syson (1960) 184 Cal.App.2d 111	Order authorizing initiation of termination proceedings is an order after judgment and thus appealable.	Supported the court’s holding that the order to initiate termination proceedings is appealable.
Lois R. v. Superior Court (1971) 19 Cal.App.3d 895	Dependency petitions are adversarial and result in deprivation of valued parental rights.	Used to emphasize the serious nature of dependency proceedings against parents.
In re Lisa M. (1986) 177 Cal.App.3d 915	Order of reference to initiate termination proceedings is not appealable; appeal moot after termination order.	Distinguished as inapplicable because the current order was a directive to commence proceedings, not merely a reference.
In re Joshua S. (1986) 186 Cal.App.3d 147	Section 366.25 orders authorizing termination proceedings are appealable as they affect substantial rights.	Relied upon to hold that the order here is appealable and that procedural safeguards are meaningful only if appeal is allowed.
In re Clarence I. (1986) 180 Cal.App.3d 279	Errors in permanency planning hearings cannot be raised in subsequent termination proceedings or appeals.	Supported the court’s reasoning that appealing the authorization order is the appropriate procedural vehicle.

Court's Reasoning and Analysis

The court first addressed the appealability of the juvenile court order directing initiation of parental termination proceedings. It rejected the respondent’s argument that the order was preliminary and thus not appealable, relying on statutory provisions (Welf. & Inst. Code § 395) and case law indicating that any subsequent order after a dependency judgment may be appealed. The court emphasized the fundamental nature of parental rights but recognized that such rights may be terminated when necessary to protect the child’s welfare. The statutory scheme under section 366.25 mandates permanency planning hearings and requires the court to order initiation of termination proceedings if reunification is unlikely and the child is adoptable.

The court distinguished prior cases where orders were mere referrals rather than directives to commence termination actions, finding those cases inapposite. It agreed with the reasoning in In re Joshua S. that such authorization orders are appealable because they affect substantial rights, including the parent’s right to custody and the child’s permanent placement. The court further noted that the appellant, Michelle R., was a party aggrieved by the order because it implied permanent nonparental placement and would require her to defend termination proceedings. The court affirmed the juvenile court’s findings that supported the order to initiate termination proceedings, concluding the order was both legally proper and appealable.

Holding and Implications

The court affirmed the juvenile court’s order directing the County Counsel to initiate proceedings to terminate Michelle R.'s parental rights under Civil Code section 232.

The decision confirms that orders authorizing the initiation of parental termination proceedings under Welfare and Institutions Code section 366.25 are appealable. The ruling directly affects the parties by upholding the juvenile court’s findings that the minor cannot be safely returned to parental custody and is adoptable, thereby allowing termination proceedings to proceed. The opinion does not establish new precedent beyond clarifying the appealability of such orders within the existing statutory and case law framework.

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In re LORENZO T., a Minor. VENTURA COUNTY PUBLIC SOCIAL SERVICES AGENCY, Petitioner and Respondent, v. MICHELLE R., Objector and Appellant.

OPINION

GILBERT, J.

Here we hold that that a juvenile court order to initiate proceedings to free a minor from the custody and control of his parents (Welf. Inst. Code, § 366.25; Civ. Code, § 232) is appealable. Nevertheless, we affirm the order from which Michelle R. appeals.

All statutory references are to the Welfare and Institutions Code unless otherwise stated.

FACTS

Lorenzo T. was born August 21, 1984, while his mother Michelle R. was incarcerated in the Ventura School for Girls (Ventura School) for illegal drug use. The father, Alex T., was serving a term on drug-related charges in the California Youth Authority (CYA) at Chino. On August 27 the court ordered the infant detained in foster care pursuant to a Public Social Services Agency (PSSA) petition.

On October 1 Lorenzo T. was adjudicated a dependent child (§ 300, subds. (a) and (b)), his custody was removed from his parents and he was placed in a foster home under PSSA supervision. Dependency was continued at each review. A permanency planning hearing (§ 366.25, subd. (a)) was held January 6, 1986, because the mother's sentence extended beyond the statutory 18-month period for reunification and there appeared to be no substantial probability Lorenzo T. could be placed in her custody.

Michelle R.'s history of illegal activities, including drug and alcohol abuse, started at 13. She had been incarcerated ever since her son's birth except for a brief interval following her release from Ventura School January 27, 1985. Within 15 days she was rearrested for being under the influence of a controlled substance (PCP). Her release from Ventura School was not anticipated before May 1986.

On return to Ventura School in July 1985 Michelle R. had biweekly hour long visits with Lorenzo T., with a one month interruption when he suffered a minor injury, and she interacted well with him. Michelle R. was unable to undertake a residential drug treatment program while at Ventura School, but she participated in support services and was interested in reunification. PSSA, however, had no way to evaluate her ability to care for her son in an independent living situation. The antisocial behavior she exhibited before incarceration and during her release indicated it was unlikely she would be able to provide a healthy environment for him. Michelle R. testified she loved her son, hoped eventually to be able to take care of him, and requested visitation wherever he was placed.

The father did not appear, but wrote to the court stating he was not interested in reunification or in continuing his relationship with the mother.

Lorenzo T. had been continuously cared for by his foster parents since January 19, 1985. The social worker reported he was thriving in their home and his foster parents had become his psychological parents. The foster parents stated in a letter that they had treated Lorenzo T. like their own child, provided him with medical treatment, nurtured him through fears and illness, and wished to make him a permanent member of their family should he be available for adoption.

The juvenile court concluded, among other things, that return of the minor to the physical custody of the parents would create a substantial risk of detriment to his physical or emotional well-being. The juvenile court further found: "The extent of progress to alleviate the causes necessitating placement in foster care has been minimal; . . . There is not a substantial probability the minor will be returned home within six months; [and] [¶] . . . The minor is adoptable." The court concluded "that the minor is adoptable and appears to be eligible for consideration for further court action to terminate parental rights pursuant to section 232 of the California Civil Code. . . . [¶] Therefore, the Court orders the County Counsel to initiate an action under Civil Code section 232 . . ." The matter was scheduled for review in six months.

DISCUSSION I

(1a) We reject respondent's contention that the order requiring the filing of a parental termination action is subject to dismissal because it is in effect preliminary only. ( In re Candy S. (1985) 176 Cal.App.3d 329 [ 222 Cal.Rptr. 43].) Section 395 which governs appeals in dependency cases provides in pertinent part that: ". . . any subsequent order [after a judgment in a proceeding under § 300] may be appealed from as from an order after judgment. . . ."

(2) Parental rights to conceive and raise children are deemed essential, basic civil rights of man, rights far more precious than property, which should be accorded a high degree of protection. ( Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558-559, 92 S.Ct. 1208].) It is established that "[p]arenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood." ( In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [ 146 Cal.Rptr. 623, 579 P.2d 514].) Therefore, termination of parental custody must be supported by a showing that nonparental custody "is essential to avert harm to the child." ( In re B.G. (1974) 11 Cal.3d 679, 699 [ 114 Cal.Rptr. 444, 523 P.2d 244]; Civ. Code, § 4600, subd. (c).)

The parenting right may thus be compelled to yield to rights inherent in the child. "More recently the primacy of another consideration [than the traditional parental right or preference doctrine] has evolved in the reasoning of courts, legislatures and commentators which have focused on the child's well-being, seeking to ascertain the `best interest' of and the `least detrimental alternative to the child.' Our Legislature's concern is manifest in its direction that the statutes concerning the termination of parental rights `shall be liberally construed to serve and protect the interests and welfare of the child.' (§ 232.5. . . .)" ( In re Angelia P. (1981) 28 Cal.3d 908, 916 [ 171 Cal.Rptr. 637, 623 P.2d 198]; In re Mark K. (1984) 159 Cal.App.3d 94, 107-108 [ 205 Cal.Rptr. 393].) Dependency proceedings therefore protect the welfare of the minor and safeguard the right of the parents to raise their own child. ( In re La Shonda B. (1979) 95 Cal.App.3d 593, 599 [ 157 Cal.Rptr. 280] .)

Section 366.25 provides in pertinent part: "(a) In order to provide stable, permanent homes for children, a court shall, if the minor cannot be returned home pursuant to subdivision (e) of Section 366.2, conduct a permanency planning hearing to make a determination regarding the future status of the minor no later than 12 months after the original dispositional hearing in which the child was removed from the custody of his or her parent, . . . and in no case later than 18 months from the time of the minor's original placement. . . ."

Subdivision (d) of section 366.25 provides: "If the court determines that the minor cannot be returned to the physical custody of his or her parent . . . and that there is not a substantial probability that the minor will be returned within six months, the court shall develop a permanent plan for the minor. In order to enable the minor to obtain a permanent home the court shall make the following determinations and orders: [¶] (1) If the court finds that it is likely that the minor can or will be adopted, the court shall authorize the appropriate county or state agency to proceed to free the minor from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code. . . ."

Once the juvenile court makes the section 366.25 findings, it is required to instruct the county counsel to initiate Civil Code section 232 proceedings. The order for commencement of termination proceedings is an order after judgment of dependency. (Cf. In re Syson (1960) 184 Cal.App.2d 111 [ 7 Cal.Rptr. 298].) Furthermore, there can be no doubt Michelle R. is a party aggrieved (Code Civ. Proc., § 902) since the order impliedly determines permanent nonparental placement is necessary and the mother to protect her interests will be required to defend an action for termination of parental custody.

"In most dependency matters the focus is against the parent and the prospect faced is the drastic result of loss of his child. Although legal scholars may deemphasize the adversary nature of dependency proceedings and characterize the removal of the child from parental custody as nonpunitive action in the best interests of the child, most parents would view the loss of custody as dire punishment. . . . [T]he section [300] petition is in a sense brought against the parents to deprive them of a valued right." ( Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 901 [ 97 Cal.Rptr. 158].)

(1b) We find the holdings of In re Candy S., supra, 176 Cal.App.3d 329 and In re Lisa M. (1986) 177 Cal.App.3d 915 [ 225 Cal.Rptr. 7] (same court) inapposite and unpersuasive. In Candy S., the juvenile court merely referred the case for possible termination proceedings rather than ordering their commencement, and in Lisa M., the same court noted that an "order of reference to initiate proceedings to terminate parental control is not itself appealable . . .," citing Candy S. (In re Lisa M., supra, at p. 918.) The court then declared the appeal moot because of the intervening Civil Code section 232 order terminating the mother's parental rights. ( Id., at p. 919.)

We agree with the reasoning in In re Joshua S. (1986) 186 Cal.App.3d 147 [ 230 Cal.Rptr. 437]. Section 366.25 affords both procedural safeguards to the parties and sets out factual predicates to the making of the authorization order. Unless the authorization order is appealable, the statutory requirements are meaningless. ( Id., at p. 154.) Moreover, "[a]ny order emanating from the juvenile court which `affects the substantial rights of the juvenile,' including a plan for the adoption of the child, is appealable." ( Id., at p. 155.) Since the order impliedly determines that out-of-home placement is necessary and Michelle R. will have to defend a parental termination action, there is no question that she is aggrieved by such order. Additionally, Michelle R. would be precluded in the superior court Civil Code section 232 proceedings, or on an appeal from those proceedings, from alleging any error the court made at the permanency planning hearing, e.g., not ordering legal guardianship in lieu of adoption. ( In re Clarence I. (1986) 180 Cal.App.3d 279, 282 [ 225 Cal.Rptr. 466].)

II-IV

See footnote, ante, page 888.

. . . . . . . . . . . . . . . . . . . .

The juvenile court's findings pursuant to section 366.25 support its order that county counsel institute proceedings to terminate parental custody and control. (Civ. Code, § 232)

The judgment is affirmed.

Stone, P.J., and Abbe, J., concurred.