Opinion
E083484
05-08-2024
T.C., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
David Knuchell for Petitioner. No appearance for Respondent. Tom Bunton, County Counsel, Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; Super. Ct. No. J290902 petition for extraordinary writ. Lynn Poncin, Judge. Petition granted.
David Knuchell for Petitioner.
No appearance for Respondent.
Tom Bunton, County Counsel, Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.
OPINION
CODRINGTON J.
I. INTRODUCTION
Following months of family maintenance services and six months of reunification services, the juvenile court found the statutory timeframes for reunification services to T.C. (Mother) had been exhausted as to her two-year-old daughter E.C. and set a section 366.26 hearing.Mother seeks an extraordinary writ under California Rules of Court, rule 8.452 from the juvenile court's order setting the section 366.26 hearing. Mother contends the juvenile court should have followed the Fourth District's rulings in In re A.C. (2008) 169 Cal.App.4th 636 (A.C.) and In re T.W. (2013) 214 Cal.App.4th 1154 (T.W.) and erred in finding the statutory timeframes for reunification services had been exhausted. The San Bernardino County Children and Family Services (CFS) agree with Mother's contentions. We also agree and grant the petition.
E.C.'s alleged father's whereabouts were unknown, and he is not a party to this writ appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
E.C. came to the attention of CFS when she was 15 days old due to Mother's history with CFS, her mental health issues, and her refusal to participate in services. Mother, who was a dependent child herself, had a history of running away from her group home and had her parental rights terminated as to E.C.'s half-sibling.
On October 13, 2021, a petition was filed on behalf of E.C. pursuant to section 300, subdivisions (b)(1) (failure to protect), (g) (no provision for support) and (j) (abuse of sibling) based on Mother's untreated/unresolved mental health issues, her failure to resolve the issues that led to the removal of E.C.'s half-sibling, alleged father J.H.'s unknown whereabouts, and parental rights terminated for E.C.'s half-sibling.
At the October 14, 2021, detention hearing, the juvenile court formally detained E.C., removed her from Mother, and placed her in the temporary care of CFS. CFS was directed to provide services to Mother in order to reunify her with E.C. pending development of the case plan. Mother was provided with visitation twice per week for two hours, and CFS had authority to increase frequency and duration. CFS's counsel noted a willingness by CFS to return E.C. to Mother under certain conditions. The court desired to wait for more information to make a determination.
On November 4, 2021, CFS recommended the court find true the allegations in the petition and that E.C. be returned to Mother with in-home court ordered supervision. Since being placed in her group home in January 2021, Mother had engaged in services to address her poor decision-making and careless behavior. Mother's case manager from the group home reported that Mother was an active parent for E.C., and confirmed Mother fed her, changed her and met her needs. At the time of the report, E.C. remained placed in foster care with Mr. and Mrs. A.
At the November 4, 2021, jurisdictional/dispositional hearing, E.C.'s counsel opposed CFS's recommendation to return E.C. to Mother's care on family maintenance services and requested a contested hearing. The court set the matter for a further contested hearing, and in the interim, ordered an extended 29-day visit between E.C. and Mother.
Mother was doing well with the extended visit with E.C. She was adjusting to motherhood and the group home staff helped her when necessary. She was back in high school full time and found employment. Mother was in contact with her parent partner, was enrolled in individual therapy and parenting classes, abstained from leaving her group home, got along well with others in the home, was learning to place her child's needs over hers, and her services were to begin November 30, 2021.
The further jurisdiction/disposition hearing occurred on December 6, 2021. At that time, E.C.'s counsel withdrew the contest and submitted on CFS's recommendation. The juvenile court found true the allegations in the petition as amended, declared E.C. a dependent child of the court, ordered E.C. maintained in Mother's care, and ordered Mother to participate in family maintenance services.
E.C. remained in Mother's care on family maintenance services until November 11, 2022, when CFS detained E.C. and filed a section 387 supplemental petition. The petition alleged that E.C., who was then 13 months old, was no longer safe in Mother's care due to concerns regarding Mother engaging in domestic violence in front of E.C. (§ 300, subd. (b)) and Mother hitting E.C. (§ 300, subds. (b), (a)). The juvenile court formally detained and removed E.C. from Mother's care on November 16, 2022, and ordered CFS to provide Mother with reunification services pending development of a case plan.
The contested jurisdictional/dispositional hearing on the section 387 supplemental petition was held on December 22, 2022. The juvenile court dismissed the section 300, subdivision (a) allegation (serious physical harm) without prejudice and found true the remaining allegations. The court found E.C. came within the provisions of sections 300 and 387, continued E.C. as a dependent of the court, removed her from Mother's care, and provided Mother with reunification services. The matter was continued to April 11, 2023, for an 18-month review hearing pursuant to section 366.22.
The section 366.22 18-month review hearing was held on May 31, 2023. The juvenile court vacated the 18-month review hearing, concluding the matter should have been set for a six-month status review hearing pursuant to section 366.21, subdivision (e) instead of an 18-month status review hearing. The court then continued the matter to June 22, 2023, for a section 366.21, subdivision (e) six-month review hearing.
At the June 22, 2023, six-month review hearing, the juvenile court noted the recommendation was to continue reunification services to Mother, to which there was no objection. The court thereafter ordered CFS to provide Mother with additional reunification services and continued the matter to December 22, 2023, for a 12-month review hearing.
By the December 22, 2023, 12-month review hearing, CFS recommended Mother's reunification services be terminated and a section 366.26 hearing be set to establish a permanent plan of adoption.
The contested 12-month review hearing set for February 9, 2024, was continued for counsel to brief whether return of E.C. to Mother following the original detention tolled the maximum period of time for reunification services.
On March 6, 2024, Mother's counsel submitted a brief setting forth a split of authority regarding whether the timeline for reunification services is tolled when a child is detained at detention but returned at disposition, citing A.C., supra, 169 Cal.App.4th 636, T.W., supra, 214 Cal.App.4th 1154, and In re Damian L. (2023) 90 Cal.App.5th 357 (Damian L.). Counsel argued the reasoning in A.C. and T.W., which are from the Fourth District, rather than Damian L., which is case from the Fifth District, supported the position that services are tolled when a child is returned to a parent.
At the contested hearing on March 8, 2024, Mother's counsel restated the position that the timeline should be tolled. Minor's counsel asked the court to follow Damian L. as it was more recently published and the other cases were distinguishable. CFS's counsel argued Damian L. was distinguishable from T.W., as well as the present case, as the disposition hearing in Damian L. was set five months from the original detention. CFS's counsel noted T.W. would apply in this case, but that ultimately the court could still terminate Mother's services based on the timeline. Following argument, the juvenile court found Damian L. to be more persuasive and factually similar to this case. The court explained that, as in Damian L., E.C. was originally removed from Mother and placed in foster care at detention. As such, Mother had run out of time for services based on the detention date and the two-year period being October 11, 2023. The court held statutorily Mother was not entitled to further reunification services. The court thereafter terminated Mother's services and set a section 366.26 hearing. The court encouraged the parties to appeal the matter and ordered a stay pending appeal. Mother filed a timely notice of intent to file a writ petition.
III. DISCUSSION
Mother argues the juvenile court erred in finding the statutory timeframes for reunification services had statutorily expired because the court should have followed the Fourth District's rulings in A.C., supra, 169 Cal.App.4th 636 and T.W., supra, 214 Cal.App.4th 1154, as opposed to the Fifth District's decision in Damian L., supra, 90 Cal.App.5th 357. CFS agrees with Mother's contention.
Section 361.5 provides that "whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." (Id., subd. (a).) In situations where "a child is adjudged a dependent of the court, on the ground that the child is a person described by [s]ection 300, and the court orders that a parent or guardian shall retain custody of the child subject to the supervision of the social worker, the parents or guardians shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court." (§ 362, subd. (c).)
Section 361.5 generally requires the juvenile court to order the social services agency to provide reunification services to the parents. However, the services are limited under section 361.5 to 12 months, with a possible extension to 18 or 24 months. Section 361.5, subdivision (a) provides, in pertinent part: "(1) Family reunification services, when provided, shall be provided as follows: [¶] . . . [¶] (B) For a child who, on the date of initial removal from the physical custody of the child's parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing as provided in subdivision (e) of [s]ection 366.21, but no longer than 12 months from the date the child entered foster care, as provided in [s]ection 361.49, unless the child is returned to the home of the parent or guardian." (Italics added.)
A child is "deemed to have entered foster care on the earlier of the date of the jurisdictional hearing . . . or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent...." (§ 361.49.) The juvenile court must conduct a six-month status review hearing "6 months after the initial dispositional hearing, but no later than 12 months after the date the child entered foster care as determined in [s]ection 361.49, whichever occurs earlier ...." (§ 366.21, subd. (e)(1).) The same 12-month date generally governs the 12-month review hearing, which under the statute "shall be held no later than 12 months after the date the child entered foster care ...." (§ 366.21, subd. (f)(1).)
Section 361.5, subdivision (a)(3)(A), in relevant part provides, ". . . court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of the child's parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of [s]ection 366.21, that the permanent plan for the child is that the child will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of the child's parent or guardian within the extended time period, or that reasonable services have not been provided to the parent or guardian...." Section 361.5, subdivision (a)(3)(B), in pertinent part, states: ". . . Physical custody of the child by the parents or guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1) shall not serve to interrupt the running of the time period." (Italics added.)
Services may be further provided for a maximum period not to exceed 24 months "after the date the child was originally removed from physical custody of the child's parent or guardian" in certain circumstances. (§ 361.5, subd. (a)(4)(A).) Like subdivision (a)(3)(B) of section 361.5, subdivision (a)(4)(B) provides, "Physical custody of the child by the parents or guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1) shall not serve to interrupt the running of the time period." (Italics added.)
"Eighteen months is therefore generally considered the outer statutory time limit for reunification services. [Citations.] Indeed, the statutory scheme requires the permanency review hearing (when services have been extended beyond the 12-month review hearing) to occur 'within 18 months after the date the child was originally removed from the physical custody' of the parent. [Citation.] In other words, if the court does not return the child at the 12-month review hearing and finds there is no substantial probability of return to the parent within 18 months of the initial removal from parental custody, 'the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. [Citation.]'" (In re M.F. (2022) 74 Cal.App.5th 86, 102.)
The issue of whether the services provided to Mother fell short of the statutory requirements is a question of statutory interpretation. As such, we apply a de novo standard of review. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849 [issues of law and statutory construction are reviewed de novo]; In re Alanna A. (2005) 135 Cal.App.4th 555, 562 [where facts are not disputed, the effect or legal significance of those facts is a question of law to be reviewed de novo]; In re Anthony Q. (2016) 5 Cal.App.5th 336, 344 ["When the issue on appeal involves the interpretation and proper application of the dependency statutes, however, our review is de novo."].)
"'"Our primary task in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]" [Citation.] We construe the statute's words in context, and harmonize statutory provisions to avoid absurd results.' [Citation.]" (Damian L., supra, 90 Cal.App.5th at p. 372, quoting John v. Superior Court (2016) 63 Cal.4th 91, 95-96.)
In Damian L., supra, 90 Cal.App.5th, the children were initially detained at the original detention hearing on September 14, 2019. (Id. at p. 361.) The contested jurisdictional hearing was held about five months later on February 13, 2020. (Id. at p. 362.) After the juvenile court found true the allegations in the petition, the court set a disposition hearing for February 27, 2020. (Ibid.) In setting the disposition hearing beyond the statutory time limit, the court found exceptional circumstances existed "'due to the length of time it took for the jurisdiction hearing.'" (Ibid.) The contested disposition hearing, however, did not begin until April 27, 2020, approximately seven months after the children were detained. (Id. at p. 364.) On June 4, 2020, following the contested dispositional hearing, the juvenile court returned the children to the mother's custody on family maintenance services. (Ibid.) On January 27, 2021, the children and their infant sibling were taken into protective custody pursuant to section 387. (Id. at p. 365.)
The juvenile court held a contested section 387 disposition hearing about eight months later on October 1, 2021. (Damian L., supra, 90 Cal.App.5th at p. 367.) At that time, the parties questioned when the timeline for services began, with the children's counsel believing it did not begin until the children were removed from the mother's home pursuant to the section 387 petition on January 27, 2021. (Damian L., supra, at p. 367.) The department's counsel argued that the 24-month review date is calculated from the date that the children were initially placed into protective custody despite the initial disposition of family maintenance services for the mother. (Ibid.) After a brief recess, the juvenile court noted that it had reviewed the cases of In re N.M. (2003) 108 Cal.App.4th 845, 854 (N.M.), superseded by statute as stated in T.W., supra, 214 Cal.App.4th at page 1168, and T.W. requested the parties to brief the issue to determine if it could order continued reunification services for the mother as to the children. (Damian L., supra, at p. 367.) The juvenile court ultimately followed T.W. and ordered continued family reunification services to the mother with a 12-month review hearing in March 2022. (Id. at p. 368.)
The department subsequently appealed, contending "the juvenile court erred as a matter of law by relying upon the case of T.W. and ordering continued reunification services for mother beyond 24 months from the date the children were originally removed from mother's physical custody." (Damian L., supra, 90 Cal.App.5th at p. 372.) The department argued that the children's subsequent return to the mother's custody at the disposition hearing did not toll the maximum time period for reunification services. (Ibid.) The Fifth District in Damian L., partly relying on this court's decision from a different panel in N.M., supra, 108 Cal.App.4th 845, and distinguishing the decisions of A.C., supra, 169 Cal.App.4th 636 and T.W., supra, 214 Cal.App.4th 1154, agreed with the department and reversed the juvenile court's order granting the mother additional reunification services. (Damian L., supra, at pp. 372-384.)
Damian L. found "a child's initial or original removal occurs at the time a child's removal is ordered at a detention hearing." (Damian L., supra, 90 Cal.App.5th at p. 373.) The court read the provisions of section 361.5, subdivisions (a)(3)(A) and (a)(4)(A) to relate to the initial removal and determined, Once a child is initially removed from their parent's custody, a deadline is set, and it is not reset if the parent regains custody at some point during the time period. To construe section 361.5's language as requiring the court to reset the 18-month deadline simply because a parent succeeded in temporarily regaining physical custody "'"'would scuttle the purpose of the statute merely to preserve its form.'"' [Citations.]" (Damian L., supra, at p. 376, quoting N.M., supra, 108 Cal.App.4th at pp. 854, 855 [a panel of this court concluded "[m]other's 18-month period commenced at the time of the original detention and not later when she lost custody on the section 387 petition"].) The court explained, "Resetting the 18-month time limit in situations where a parent regains custody after receiving nine months of predispositional services while their children are in foster care runs contrary to the purposes of the statutory scheme. It would only incentivize parents to delay the proceedings while undergoing a quasi-reunification period before the disposition hearing can even be completed." (Damian L., supra, at p. 377.)
We find Damian L. distinguishable from the present case. First, as acknowledged in Damian L., "the applicable version of section 361.5, subdivision (a) relied upon in N.M. differs from the amended version applicable in the instant case." (Damian L., supra, 90 Cal.App.5th at p. 382.) N.M., which Damian L. relied upon to reach its conclusion, interpreted an earlier version of section 361.5 which differs from the current version. (T.W., supra, 214 Cal.App.4th at pp. 1167-1168; see A.C., supra, 169 Cal.App.4th at pp. 647-648.) More importantly, N.M.'s analysis ignores the crucial distinction between temporary detention and removal from parental custody after all necessary findings are made. The current version of section 361.5 limits subdivision (a)(1)(A) to reunification services, as opposed to the former version that encompassed "child welfare services" in general, and clarifies the term, "foster care," as defined in section 361.49. In addition, N.M. concluded the limited time then-allotted for reunification services under section 361.5 began to run at the child's initial detention from parental custody. But the Legislature has since clarified that the six-month period of reunification services specified in subdivision (a)(1)(B) of section 361.5 begins to run when the disposition hearing is held and, further, that court-ordered services are constrained by a presumptive limit of 12 months from the date the child entered foster care under section 361.49.
Second, as pointed out by CFS, Damian L.'s rationale applies in circumstances where a child is removed from his or her parent at disposition, reunification services are provided pursuant to section 361.5, and the child is returned to the parent at a later date. However, in this case, E.C. was not formally removed from Mother at the December 6, 2021 jurisdictional/dispositional hearing on the original section 300 petition. Rather, after sustaining the allegations in the petition, the juvenile court returned E.C. to Mother's custody. The court specifically ordered, "Child is returned and placed in the custody of Mother" with CFS to supervise and report. There was no formal removal by the court at disposition on December 6, 2021. Thus, we agree with CFS, that services were offered to Mother under section 362, not section 361.5, when E.C. was returned to Mother's custody at disposition. Damian L. completely ignores the distinction in services provided under section 362 versus section 361.5, and the language at the end of section 361.5 relating to return of the child to the home of the parent or guardian. These distinctions are critical in determining the correct time period, and when the clock begins to run for offering services to a parent.
In A.C., supra, 169 Cal.App.4th 636, Division Three of our court discussed the interplay between sections 361.5 and 361.2 when parents receive some services under each provision. In A.C., the children were removed from their mother's home and, prior to disposition, placed with their previously noncustodial father. At the May 2007 dispositional hearing, family maintenance services were ordered for the father. (Id. at pp. 639-640.) The mother was offered "enhancement services," defined as non-reunification child welfare services designed to "enhance the child's relationship with that parent by requiring that parent to address the issues that brought the child before the court." (Id. at pp. 640, 641-642, fn. 5.) Thereafter, the children were removed from their father's custody in September 2007 pursuant to a section 387 supplemental petition and placed with a relative. (A.C., supra, at p. 640.) At the November 2007 dispositional hearing on the section 387 petition, reunification services were ordered for both parents pursuant to section 361.5. After these reunification services were continued at the June 2008 sixmonth review hearing, the children appealed, arguing that both parents had already received more than the 18 months of services statutorily authorized by section 361.5 and that the continuation of such reunification services was therefore improper. (A.C., supra, at pp. 639-640.)
The Court of Appeal in A.C. disagreed with the children, concluding that the continuation of reunification services at the six-month review hearing was appropriate. (A.C., supra, 169 Cal.App.4th at p. 639.) Specifically, the court determined that the "[s]ection 361.5 time limits for reunification services start to run when a child is removed from all parental custody at the disposition hearing." (Ibid.) In contrast, "[t]he clock does not start running when the child is placed with a noncustodial parent pursuant to section 361.2." (Ibid.) Thus, in A.C., the parents were entitled to reunification services based on the children's November 2007 removal from the custody of both parents, despite the previous provision of section 361.2 services. (A.C., supra, at p. 649; see T.W., supra, 214 Cal.App.4th at pp. 1167-1169.)
Services provided pursuant to section 361.2 are viewed as similar to family maintenance services provided under section 362, subdivision (c), when a dependent child is maintained in the family home. There are no statutory time limits on the provision of family maintenance services. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 312.) Rather, at review hearings held at six-month intervals, the juvenile court may continue such services if it determines that "conditions still exist which would justify initial assumption of jurisdiction under [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn." (§ 364, subd. (c).) Thus, at issue is whether "continued supervision is necessary." (Ibid.) In In re Joel T. (1999) 70 Cal.App.4th 263, the Third District Court of Appeal concluded that, when a minor is removed from parents who have been receiving family maintenance services, those family maintenance services cannot be counted as section 361.5 reunification services. Instead, the court must still provide such parents with the full measure of statutorily mandated reunification services pursuant to section 361.5, based on the child's subsequent removal from parental custody. (In re Joel T., supra, at pp. 267-268.) Courts of Appeal have consistently concluded that services provided pursuant to subdivision (b)(3) of section 361.2 and section 362 are "wholly discretionary and analytically distinct from the mandatory reunification efforts required by section 361.5." (In re Jaden E. (2014) 229 Cal.App.4th 1277, 1285; see A.C., supra, 169 Cal.App.4th at pp. 648-649; In re Erika W. (1994) 28 Cal.App.4th 470, 475; In re Joel T., supra, 70 Cal.App.4th at pp. 267-268.)
In its analysis of the issue, Division One of this court in T.W. also analyzed the interplay between sections 361.2 and 361.5, which were enacted as parts of a single legislative scheme and agreed with the court in A.C. (T.W., supra, 214 Cal.App.4th at p. 1165; see also In re Erika W., supra, 28 Cal.App.4th at p. 475.) The T.W. court noted that the goal of section 361.5 is to promote the return of the child to parental custody. With this goal in mind, the statute contains general rules for providing family reunification services to parents of children removed from parental custody and, that under the statute, reunification services are mandatory except in certain specified circumstances. (T.W., supra, at p. 1165, citing § 361.5, subds. (a) &(b)(1)-(15).)
The court determined that, under the plain language of section 361.5, subdivision (a)(1)(A), the period for mandatory reunification services begins at the time of disposition and continues while the child is in foster care or until the child is returned to the home of the parent. "The statute does not apply if, at the disposition hearing, a child does not enter foster care, but is placed with a parent. [Citation.]" (T.W., supra, 214 Cal.App.4th at p. 1165.) "Thus, the 'clock' for services under section 361.5, subdivision (a), does not start to run unless and until the child is removed from the physical custody of the parents and the court determines whether they are entitled to reunification services according to the lengthy analysis set forth in that statute. [Citations.]" (T.W., supra, at p. 1165.)
The T.W. court recognized that "[s[ection 361.5 applies only when a child is 'removed' from parental custody, not 'detained' out of the home. Before the court holds a hearing where jurisdiction is established, it lacks authority to remove a child from a parent's custody." (T.W., supra, 214 Cal.App.4th at p. 1167.) The court highlighted the need to adhere to the high standard of proof by which a removal decision is made to avoid a violation of the constitutional rights of parents, recognizing the crucial distinction between removal and detention. (Ibid.)
The reasonings articulated in A.C. and T.W. make logical sense in analyzing the statutory scheme at issue in this case. Under section 362, there is no outer time limit imposed for providing family maintenance services when a child is in the care of their parent. Thus, the timeframes of section 361.5 were not triggered until after E.C. was formally removed from Mother's custody at the December 22, 2023 dispositional hearing on the section 387 subsequent petition, when E.C. was "removed" from Mother, placed in foster care, and Mother was provided services pursuant to section 361.5. In other words, the juvenile court here did not order E.C. removed from Mother's custody by clear and convincing evidence until December 22, 2022. As pointed out by Mother's counsel, when a child is removed at an original detention hearing, returned at or before disposition, then subsequently removed again at the supplemental detention after a period of family maintenance services, a juvenile court would not make section 361.5 findings based on clear and convincing evidence until the disposition hearing is held on the section 387 supplemental detention. If the timeline were not tolled, the reunification timeline would then be predicated solely on the prima facie finding based on the allegations at the original detention, which in this case, were different from the reasons for removal at the supplemental detention.
Based on the foregoing, we grant Mother's writ petition. The matter is remanded for the juvenile court to vacate the order setting the section 366.26 hearing and to determine whether Mother should be granted additional reunification services from the December 22, 2023 hearing.
IV. DISPOSITION
The petition for an extraordinary writ is granted. The juvenile court's order denying Mother additional reunification services and setting a section 366.26 hearing is vacated and the matter is remanded to the juvenile court.
We concur: McKINSTER Acting P. J. RAPHAEL, J.