In re A.M. CA4/2

• Court: California Court of Appeal
• Decided: June 17, 2024
• Docket: E082307
• Status: Unpublished

Opinion

Filed 6/17/24 In re A.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.M. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E082307

Plaintiff and Respondent, (Super.Ct.Nos. J272793 & J274127) v. OPINION J.H.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Dismissed.

Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for

Tom Bunton, County Counsel, Joseph R. Barrell, Deputy County Counsel for

Plaintiff and Respondent.

1 The juvenile court ordered A.M. and A.G. (collectively, the children) removed

from their foster placement with defendant and appellant J.H., who was one of the

children’s prospective adoptive parents. (Welf. & Inst. Code, § 366.26, subd. (n)(3).)1

J.H. contends the juvenile court erred by (1) removing the children from her care; (2)

terminating her de facto parent status; and (3) denying her request to be the children’s

prospective adoptive parent. We dismiss the appeal.

FACTS

The juvenile court made the following series of orders: (1) in June 2018,

granting the request of J.H. and her wife, L.H. (Wife) (collectively, Foster Parents) to be

A.M.’s de facto parents; (2) in July 2018, granting Foster Parents’ request to be A.G.’s

de facto parents; (3) in October 2018, terminating A.M.’s biological parents’ parental

rights; (4) in April 2019, designating Foster Parents as A.M.’s prospective adoptive

parents; (5) in May 2019, designating Foster Parents as A.G.’s prospective adoptive

parents and A.G.’s educational rights holders; and (6) in June 2019, designating Foster

Parents as A.M.’s educational rights holders.

By October 2020, Foster Parents had separated and were in the process of

divorcing. By April 2022, the children were spending half of their time at Wife’s home,

which was their primary residence, and half of their time at J.H.’s home. In May 2022,

plaintiff and respondent San Bernardino County Department of Children and Family

1 All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

2 Service (the Department) filed a notice of its intent to remove the children from J.H.’s

care, leaving them full-time in their foster placement with Wife.

At a hearing in September 2023, the juvenile court found J.H. did not participate

in therapy or a psychological assessment, as advised by the Department; A.M. was

overeating while in J.H.’s care; and J.H. failed to provide the children with stability. In

contrast, the juvenile court found that Wife was a stable presence for the children. The

juvenile court ordered the children removed from their placement with J.H. and that

Wife be the sole prospective adoptive parent.

DISCUSSION

A. REMOVAL

J.H. contends the juvenile court erred by removing the children from their

placement with her. The Department asserts that after the biological parents’ parental

rights have been terminated the issue of removal is reviewable only by means of a

petition for extraordinary writ review. The Department is correct.

“After parental rights have been terminated pursuant to Section 366.26, an order

by the court that a dependent child is to reside in, be retained in, or be removed from a

specific placement, is not appealable at any time unless all of the following apply: [¶]

(A) A petition for extraordinary writ review was filed in a timely manner.” (§ 366.28,

subd. (b)(1); see also § 366.26, subd. (n)(5); Cal. Rules of Court, rule 5.727(i).) J.H. did

not file a writ petition.

Notice of intent to file a writ petition must be filed within seven days of the

removal order. (Cal. Rules of Court, rule 8.454(e)(4).) The juvenile court’s removal

3 order was entered on September 7, 2023. J.H. filed her notice of appeal on October 5,

2023. If we were to construe the instant appeal as a writ petition, then we would

conclude that the petition was untimely and must be dismissed.

J.H. contends that the juvenile court’s removal order caused her to lose her status

as a prospective adoptive parent, which is effectively a termination of parental rights,

and the termination of parental rights is appealable. “The right of a party to appeal . . .

is wholly statutory and no judgment or order is appealable unless expressly made so by

statute.” (In re Taya C. (1991) 2 Cal.App.4th 1, 6-7.) We will not engage in the fiction

that a removal order, which is reviewable by writ petition, is an order terminating

parental rights so as to evade the statutory limits on appeals. We will dismiss J.H.’s

appeal, but we briefly address J.H.’s two remaining contentions.

B. DE FACTO PARENT

In her opening brief J.H. contends the juvenile court erred by terminating her de

facto parent status. In her appellant’s reply brief, after conceding that the Department

was correct that the juvenile court did not terminate J.H.’s de facto parent status, J.H.

asserted that the juvenile court erred by not ordering visitation with her and the children

because she is a de facto parent. As a de facto parent, J.H. does not have a right to

visitation or reunification services. (Clifford S. v. Superior Court (1995) 38

Cal.App.4th 747, 752.)

C. PROSPECTIVE ADOPTIVE PARENT

In her opening brief J.H. contends the juvenile court erred by denying her request

to be the children’s prospective adoptive parent. As noted by the Department, the

4 juvenile court terminated J.H.’s status as a prospective adoptive parent—it did not deny

J.H.’s request.

D. CONCLUSION

J.H.’s contention regarding removing the children from her care is only

reviewable by way of a writ petition. J.H.’s contentions concerning termination of her

de facto parent status and denial of a prospective adoptive parent request are based upon

misunderstandings of the record. Accordingly, we dismiss the appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

CODRINGTON J.