Opinion
B166788.
7-14-2003
DELL N., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Roland Koncan, for Petitioner. No appearance, for Respondent. Lloyd W. Pellman, County Counsel, and Kenneth Richards, Deputy County Counsel, for Real Party in Interest. Law Offices of Anne E. Fragasso, Devora Navera and Leslie Heimov, for the Minor.
Petitioner is Dell N., the mother of Ashley. She contends the juvenile court erred in setting a Welfare and Institutions Code section 366.26 hearing and in failing to consider returning Ashley to her. We disagree, and deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Petitioner also prematurely challenges orders that might be made at the section 366.26 hearing.
SUMMARY OF FACTS AND PROCEDURE
Ashley was declared a dependent of the juvenile court in December 1999, when she was six years old. In October 2001, when Ashley was in placement in Fresno with her de facto parents, Robert and Ruth B., (the Bs) at what was to have been a contested section 366.22 hearing, petitioner and the Department of Children and Family Services (DCFS) stipulated that Ashley be in long-term foster placement with the Bs. The juvenile court found that return of Ashley to petitioner would cause substantial risk of detriment, terminated reunification services, found it unlikely that Ashley "can or will be adopted," ordered long-term foster care, and set a hearing under section 366.26 for late April 2002.
At the April 2002 section 366.26 hearing, the juvenile court again found that return of Ashley to petitioner would cause substantial risk of detriment and that adoption was unlikely. The juvenile court continued long-term foster care.
In October 2002, the juvenile court made the same finding regarding risk of detriment that it had earlier, found no substantial probability that Ashley could be returned to petitioners custody within six months, and found it was likely that DCFS would finalize Ashleys permanent plan in April 2003. The juvenile court continued existing orders, but decreased visits between petitioner and Ashley from twice a month to once a month and added weekly phone calls.
The next hearing was in late April 2003, under section 366.3. DCFS informed the juvenile court that the Bs wanted to adopt Ashley, and she wanted to be adopted by them. The Bs continued to encourage Ashley to maintain strong bonds with her brothers and sisters, arranged for Ashley to participate in holidays and birthdays with them, and transported Ashley to Palmdale for monthly family visits. DCFS had completed an adoption home study of the Bs home, and recommended that petitioners parental rights be terminated and Ashley placed for adoption.
Over petitioners objection, the juvenile court set a contested section 366.26 hearing for late August 2003. Petitioner contended that holding a section 366.26 hearing would breach the agreement she had made with DCFS in October 2001. The juvenile court stated that it would review the October agreement prior to the section 366.26 hearing.
The juvenile court advised petitioner of a right to file a writ petition under California Rules of Court, rule 39.1 B. Petitioner filed a timely petition that, although deficient (Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000, 1005; Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956), we address on the merits.
DISCUSSION
As noted above, the challenged orders were made at a section 366.3 hearing. At a section 366.3 periodic review hearing, the court considers what progress is being made to provide the child with a permanent home. ( § 366.3, subd. (d).) Section 366.3 provides, in pertinent part: "The court shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, or appointed a legal guardian, or whether the child should remain in long-term foster care. The court shall order that a hearing be held pursuant to Section 366.26 unless it determines by clear and convincing evidence, that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interest of the child because the child is being returned to the home of a parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship." (§ 366.3, subd. (g), italics and emphasis added.)
Thus, the juvenile court was required to set a section 366.26 hearing unless petitioner met her clear and convincing evidence burden of proving a compelling reason why a section 366.26 hearing was not in Ashleys best interest. But petitioner offered no evidence. Petitioners counsel simply argued, without any supporting authority, that an agreement between petitioner and DCFS in October 2001 required Ashley to remain in foster care in perpetuity. The argument was insufficient to meet petitioners burden.
Petitioner also contends the juvenile court did not consider Ashleys return to her at the hearing, as it was required to do. This contention is refuted by the juvenile courts specific findings that placement was necessary and appropriate, Ashleys return to petitioners custody would create a substantial risk of detriment, and no substantial probability existed that Ashley would be returned to petitioners custody within six months.
DISPOSITION
The petition for writ of mandate is denied. The order to show cause is discharged.
We concur: BOREN, P. J., and NOTT, J.