When is an Order not an Order on the Merits?

When it trails the present hearing to another date, for one — at least if it purports to be an order terminating parental rights.  Thus, the court of appeal dismisses an appeal from such an order in In re Q.D., case no. G038343 (4th Dist. Sept. 18, 2007).

Mother appealed from a purported order terminating her parental rights.  Mother, her attorney, and a Vietnamese translator were at the hearing on her behalf.  Mother, through her counsel, waived her right to a contested hearing.  Only after the court stated its findings and orders from the bench, including an order that parental rights be terminated, did Mother object.  She claimed her waiver of a contested hearing was inadvertent and due to an ambiguity in the translation to Vietnamese.  The trial court, again from the bench, “trailed” the hearing to the following day.  Its minute order did likewise, but not before setting forth “the full panoply of orders and findings normally associated with the termination of parental rights.”

At the next day’s hearing, mother’s counsel moved to set aside the findings of the previous day’s minute order.  The trial court was inclined to set aside the previous day’s order and give the mother a contested hearing on the termination issue, but concuded it could not because the minute order it entered the previous day had terminated appellant’s parental rights and Welfare and Institutions Code section 366.26, subdivision (i) precludes modification of an order terminating parental rights.

Mother appealed from the minute order entered at the conclusion of the first day’s proceedings.  The court of appeal finds that “there is actually no ‘order’ to appeal from” based on the following analysis:

As section 366.26, subdivision (i)(1) reflects, the order terminating parental rights must come at the end of the hearing. This must be so because when the court makes that order, it has no power to do anything further with respect to the issue. The proceeding is finished. Thus, the court cannot both officially make that order and trail the hearing to another day for further consideration.

In this case, as reflected in both the court’s oral statements and its minute order, the section 366.26 hearing did not end on February 8, 2007. Instead, the hearing was trailed for what the minute order characterized as a “366.26 hrg.” the next day. That provision for a further section 366.26 hearing the next day is simply incompatible with the conclusion the hearing had already been completed, and the final order entered, on that first day.

When the totality of the February 8, 2007 minute order is considered, it cannot be reasonably construed as a final order terminating M.’s parental rights. Accordingly, we have no choice but to dismiss this appeal and remand the case for further proceedings to complete the “trailed” section 366.26 hearing, including a ruling on whether or not to re-open and allow M. to contest the termination of her parental rights.

Had the mother’s lawyer asked the trial court at the conclusion of the first day’s hearing to explicitly defer ruling on the termination issue, I think the court would have accommodated that request, especially in light of the court’s willingness to grant relief the following day had it not found its hands tied.