In re Abdul K. CA1/4 ( 2020 )

Filed 12/16/20 In re Abdul K. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
In re ABDUL K., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
A159758
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. D02769709)
N.M.,
Defendant and Appellant.
Abdul K. is a medically fragile dependent child who did not receive
adequate care in his parents’ home. In December 2019, this court denied a
petition for an extraordinary writ filed by Abdul’s mother, N.M. (mother),
which challenged an order setting this case for a permanency planning
hearing pursuant to Welfare and Institutions Code, section 366.26.1 (N.M. v.
Superior Court (Dec. 5, 2019, A158385) [nonpub. opn.].) Subsequently,
mother appealed the juvenile court’s denial of her trial counsel’s petition for
Unless otherwise indicated, statutory references are to the Welfare &
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Institutions Code.
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an order returning Abdul to mother’s care based on changed circumstances.
(§ 388.) This court affirmed the denial of that petition in August 2020. (In re
Abdul K. (Aug. 18, 2020, A159443) [nonpub. opn.].)
In the present appeal, mother challenges two rulings the juvenile court
made in February 2020, during Abdul’s section 366.26 hearing. Mother
contends the juvenile court committed prejudicial errors by (1) denying her
request for a bonding study and (2) excluding testimony from two of Abdul’s
siblings. Mother filed her notice of appeal while the section 366.26 hearing
was in progress, purporting to base her appeal on a juvenile court minute
order issued the day the allegedly objectional rulings were made.
In their appellate briefs, the parties fail to address the threshold issue
of appealability, so this court requested supplemental briefs on the matter.
(See Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [appellate court must
raise jurisdictional issue on its own initiative].) Both parties take the
position that mother is challenging appealable post-judgment orders. We
reject this contention. The juvenile court’s evidentiary rulings are not
directly appealable. Therefore, we dismiss the present appeal.
DISCUSSION
“Because the right to appeal is strictly statutory, a judgment or order is
not appealable unless a statute expressly makes it appealable.” (In re
Michael H. (2014) 229 Cal.App.4th 1366, 1373 (Michael H.).) Dependency
appeals are governed by section 395, which provides in pertinent part: “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.” “Under section 300, a dispositional order is a
judgment.” (In re Keisha T. (1995) 38 Cal.App.4th 220, 229; see § 360 [entry
of “judgment” follows consideration of “the evidence on the proper disposition
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of the case”].) “Once a juvenile court asserts jurisdiction and issues a
dispositional order, the ‘ “dependency proceedings [become] proceedings of an
ongoing nature and often result in multiple appealable orders.” ’ ” (In re
Nicholas E. (2015) 236 Cal.App.4th 458, 463.)
The “general rule in juvenile dependency cases is that all orders (except
for an order setting a section 366.26 hearing), starting chronologically with
the dispositional order, are appealable without limitation.” (In re Gabriel G.
(2005) 134 Cal.App.4th 1428, 1435, italics omitted.) This broad precept is
tempered by authority establishing that “ ‘section 395 “should be interpreted
to be in harmony, to the extent possible, with basic appellate principles” ’
[citation], and that the ‘basic appellate principles codified in Code of Civil
Procedure sections 901 through 923 apply in juvenile dependency
proceedings, at least to the extent not inconsistent therewith.’ ” (Michael H.,
supra, 229 Cal.App.4th at p. 1373, fn. 9; see also In re Cassandra B. (2004)
125 Cal.App.4th 199, 208.)
Applying these rules, we conclude that mother’s appeal is premature
because she is seeking review of evidentiary rulings that were prefatory to a
post-judgment order that had not been made when her appeal was filed.
Indeed, although the appellate record does not contain information regarding
the current status of this case, both parties intimate that the section 366.26
hearing has yet to be concluded due to COVID-related delays.
Outside the dependency context, courts have long held that evidentiary
rulings are not directly appealable but may be reviewed upon appeal from the
judgment (or appealable order) to which they relate. (Dabney v Wilhelm
(1923) 190 Cal. 340; Fraser-Yamor Agency, Inc. v. County of Del Norte (1977)
68 Cal.App.3d 201, 207; see Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2017) ¶ 2:253.1.) This principle is
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consistent with the dependency system. Evidentiary rulings are not
substantive dependency orders; they are preliminary rulings juvenile courts
make at every stage of a dependency case—before, during and after
disposition. The rulings that mother objects to here were prefatory to a post-
judgment order, but were not themselves post-judgment orders.
Pertinent dependency cases reinforce our conclusion. Importantly, the
parties do not cite a single case in which an evidentiary ruling at a section
366.26 hearing was construed as an independently appealable order. On the
other hand, appeals from orders terminating parental rights often entail
review of juvenile court rulings regarding the use or admissibility of bonding
studies. (See e.g. In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1162; In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338–1341; In re Richard C. (1998) 68
Cal.App.4th 1191, 1197; In re S.R. (2009) 173 Cal.App.4th 864, 866.) By the
same token, restrictions on the presentation of witness testimony at a section
366.26 hearing are routinely challenged in appeals from orders terminating
parental rights. (See e.g. In re Grace P. (2017) 8 Cal.App.5th 605, 613–616;
In re J.S. (2017) 10 Cal.App.5th 1071, 1079; In re Hector A. (2005) 125
Cal.App.4th 783, 790–799; In re Earl L. (2004) 121 Cal.App.4th 1050, 1052–
1053.)
The social services agency argues that juvenile court rulings made
during an ongoing permanency planning hearing are contemporaneous orders
that are made separately appealable by section 395. As support for this
contention, the agency cites In re Melvin A. (2000) 82 Cal.App.4th 1243(Melvin A.). In that case, a mother’s parental rights were terminated in
February 1999, but the order was stayed for several months pending
completion of an adoption home study. (Id. at pp. 1246–1247.) After the stay
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was lifted, the mother filed a timely appeal from the order terminating her
parental rights.
However, the Melvin A. court found that the mother failed to timely
appeal from other orders the juvenile court made in February 1999, including
orders discontinuing visitation, denying mother’s request for a continuance,
and denying a request by mother’s trial counsel to withdraw from the case.
(Melvin A., supra, 82 Cal.App.4th at p. 1246.) These orders were
independently appealable, the court found, because they were “separate and
apart” from the order terminating parental rights. (Id. at p. 1251.) The court
elaborated as to the visitation order, explaining: “While the visitation order
followed and could be said to be a result of the order terminating parental
rights, the court could also have ordered continued visitation; the order
regarding visitation was not part and parcel of the order terminating
parental rights.” (Ibid.)
Melvin A. does not support the agency’s contention that an evidentiary
ruling is an independently appealable collateral order. Each of the juvenile
court rulings that were found to be appealable orders in Melvin A. was
separate from, apart from, and not part and parcel to the order terminating
parental rights. (Melvin A., supra, 82 Cal.App.4th at p. 1251; see also In re
Kristin W. (1990) 222 Cal.App.3d 234, 248 [“A decision whether to grant
visitation rights to a parent is independent of any decision authorizing the
termination of parental rights”].) The opposite is true of the evidentiary
rulings mother attempts to challenge in this case. These rulings have no
function or effect aside from assisting the juvenile court in deciding whether
to terminate parental rights. In particular, there is no independent legal
right to have a court secure a bonding study to assist it in making this
determination. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.)
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Mother contends that making the juvenile court’s evidentiary rulings
immediately appealable would further legislative intent and public policy by
expediting resolution of dependency cases. According to this argument, if we
do not address the merits of mother’s appeal, she will have to wait until after
the permanency planning hearing is complete and bring another appeal in
the future (assuming her parental rights are terminated). Mother posits that
prolonging dependency proceedings in this way would not serve the best
interests of dependent children. (Citing In re H.S. (2010) 188 Cal.App.4th
103, 108 [“delay is antithetical to the primary focus of dependency
proceedings, the best interests of the child”].) Mother fails to consider delays
that would result from a rule requiring parties to file separate appeals from
evidentiary rulings that are made during an ongoing dependency hearing, not
to mention the problems that could result from requiring an appellate court
to review interim juvenile court rulings without the context of a complete
record.
Mother also contends that dismissing her appeal would “sow confusion”
and “muddy the waters” by discouraging parties from filing timely appeals
from interlocutory orders that are appealable under section 395. This
argument assumes erroneously that there is no distinction between an
interim evidentiary ruling and an appealable post-judgment order in a
dependency case. If we do not dismiss this appeal, our decision could well
sow confusion by creating a conflict with settled authority demonstrating
that evidentiary rulings made during a section 366.26 hearing are routinely
reviewed pursuant to an appeal from an order terminating parental rights,
not before that order is made.
Finally, we express no view regarding the merits of mother’s arguments
that the juvenile court should have ordered a bonding study and should not
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have excluded sibling testimony at the section 366.26 hearing. We hold only
that these evidentiary rulings are reviewable pursuant to an appeal from the
post-judgment order to which they relate.
DISPOSITION
The appeal is dismissed.
TUCHER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
In re Abdul K. (A159758)
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