Emotional interest falls short of legal standing to appeal dependency ruling

As a general rule, only a person “aggrieved” by a judgment has standing to appeal from it. Is a mother without reunification services “aggrieved” by a judgment granting her 18-year-old child’s request for the termination of dependency jurisdiction? The Court of Appeal answers “no” in In re J.C., case no. G048720 (4th Dist. January 21, 2014), and dismisses the appeal.

J.C., the child of divorced parents, had been living with her father before being declared a dependent of the court a few months after her 15th birthday, when the court found that her father failed to ensure she attended school or get treatment for a psychiatric condition. After treatment at a facility, J.C. was placed in foster care and continued to improve. On her 18th birthday, she asked the court to terminate dependency jurisdiction (though she could have remained a dependent until age 21) so she could return to living with her father. Her mother appealed.

Emotion naturally runs high in dependency cases, but standing based on emotional concern for a child is not enough to confer legal standing to appeal:

Mother asserts she has standing because the termination of jurisdiction resulted in J.C. living with father, and mother worries father will neglect J.C.’s psychiatric treatment, which will damage mother’s relationship with J.C. That interest, while perfectly understandable on an emotional level, does not confer legal standing.

The court does not casually dismiss mother’s interest here. The opinion walks the reader through the standing analysis rather clearly, starting with the proposition that while standing to appeal is liberally construed, only a person “aggrieved” by a decision may appeal from it. That requires a court to “precisely identify [the appellant’s] interest in the matter.”

The court noted that a parent’s interest in the companionship, care, custody and management of a child “is no longer paramount” once reunification services end; at that point, “the focus shifts to the needs of the child for permanency and stability.” Mother this faced an uphill battle to prove standing because her interest had been “significantly reduced” upon the termination of reunification services

But it was the fact that J.C. had turned 18 that ultimately precluded standing. The Court stated that J.C.’s decision to ask for termination of dependency jurisdiction was an exercise of her “rights and responsibilities that come with adulthood” and thus not subject to parental oversight — a point illustrated by the fact that mother was not even entitled to notice of the hearing on J.C.’s request for termination of dependency jurisdiction.

The limits to switching gears on behalf of a minor on appeal

A pre-teen in a juvenile proceeding has counsel appointed for her in the trial court (the counsel is also appointed as her guardian ad litem). Her counsel argues at the dispositional hearing that the minor’s repeated hospitalizations are due to mother’s refusal to acknowledge the seriousness of the minor’s diabetes diagnosis or appropriately monitor her treatment, and the trial court removes the minor from her mother’s custody.

The mother appeals, and appellate counsel is appointed for the minor. The minor did not appeal, and you would think the minor’s position is pretty well solidified at this point, right?

Wrong. Or may, “it all depends.”

On the appeal In re Felicity .S, case no. A137439 (1st Dist. Oct. 31, 2013), the minor’s appointed counsel on appeal reversed course completely. The minor’s appellate counsel asked for more time to file her appellate brief, then filed a whopper of 75 pages that, instead of focusing on “how the issues raised by the mother’s appeal impacted the minor’s best interests,” instead backed up all of the mother’s arguments, without offering any explanation for the change in course.

In a huge understatement, the appellate court stated that the attorney’s “failure to provide any explanation for taking a position conflicting with that taken by the minor’s trial counsel is highly problematic.”  So, the judge asked the attorney for a declaration explaining her reasons for the about-face. The Court of Appeal found her 25-page declaration unconvincing, to say the least. She stated she spoke with minor’s trial counsel, but did not give the substance of the conversations or even claim that trial counsel recommended the change in position.

But wait, there’s more! The attorney tried to “backdoor” new issues into the appeal, outside the scope of those raised by the mother, her declaration and despite the fact that the minor had not even appealed.

In sum, we conclude that when this court exercises its discretion to appoint counsel for the minor in a situation where the minor has not appealed, it is improper for the appellate counsel to reverse the position taken by minor’s trial counsel without authorization by the minor’s guardian ad litem and/or without an explanation as to how the reversal of position is in the child’s best interests. When, after careful analysis of the record and briefs of the parties, minor’s counsel fully adopts the arguments of a party to the appeal, preparation of a full statement of the case and repetition of that party’s arguments will rarely be helpful to the court or serve the best interests of the minor.

(Footnote omitted.) These limitations hardly impose a straightjacket on appointed counsel. The court explicitly left open the possibility that such reversals of position might be justified; they just have to be adequately explained.

Peremptory Challenge to Judge After Remand Has Its Limits

Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case.  Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once.

Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.  Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.  The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the first instance, the ability to “paper the judge” after a reversal on appeal is a critically important consideration.  It may be the one thing that convinces an aggrieved party to appeal, when that party might otherwise have been resigned to accept an adverse judgment because the prospect of having to retry the case before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as the real parties in interest learned in C.C. v. Superior Court, case no. G040580 (4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after succeeding on appeal by obtaining a reversal of a reunification order, real parties “papered the judge.”  Petitioner filed a petition for writ of mandate, and the court of appeal grants the petition.

The language allowing a peremptory challenge on remand was added in 1985 to avoid perceived bias against an appellant of a trial judge whose judgment or order had been reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576.)  But the statute applies only where the remand requires “a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.”  (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)  It does not apply to the performance of a ministerial act.  (Stegs Investments v. Superior Courtsupra, 233 Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to perform only ministerial acts.  Those were: (1) to enter a new order denying reunification services and (2) setting a permanent plan selection hearing.  The court rejected the real parties’ argument that the subsequent hearing would require a reexamination of the same issues considered in the reunification hearing.

The real parties in interest claim, “the juvenile court in the present case will undoubtedly revisit the core determinations upon which this Court based its reversal,” meaning it will have to consider the strength of the bond between the children and the mother at the permanent plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the permanent plan selection hearing is not for purposes of reunification; rather, it is to determine whether to avoid the termination of parental rights and select a different permanent plan.  (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a different legal context from the disposition hearing and will involve facts as they then exist.  On remand, however, the juvenile court was merely directed to enter an order denying reunification services and to set a permanent plan selection hearing.  The implementation of these directions will not constitute a reexamination of an issue of fact or a retrial of the dispositional issues. 

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to [the challenged judge].”

The same considerations should not apply in the typical civil trial, where past facts are what are at issue.  But any time that future consideration of an issue will depend on facts as they then exist, “papering the judge” is apparently not an option after remand.

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.

Mother Ordered to In-Patient Drug Rehabilitation has Standing to Appeal, but Her Kids Don’t

The mother of three minor children is determined to be incapable of providing regular care and supervision for them.  (Welf. & Inst. Code, § 300.)  The children are placed with their maternal grandmother, with supervised visits from the mother.

The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan and leaves all prior orders in effect, including the children’s placement and supervised visits from the mother.

Do the children have standing to appeal?  In In re Neil D., case no. B195487 (2d Dist. August 28, 2007, ordered published Sept. 17, 2007), the Court of Appeal says “no.”  Since the order appealed from leaves prior orders in effect, including the children’s placement and visitation, the children are not aggrieved parties.

That answer surprises me a little, because it seems to me that in-patient drug rehabilitation would necessarily interfere with visitation.  Even though the court later notes that the mother could continue to visit while in rehab, it does not rely on that fact in determining that the children lack standing.

Mother, on the other hand, has standing to appeal.  Her claim that the in-patient requirement amounts to coerced incarceration raises a constitutional issue, and the order “arguably affects Mother’s task of reunifying with her children.”