Opinion
D042192.
7-24-2003
F. H., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
F. H. seeks review of a juvenile court order at a post-permanent plan review hearing setting a Welfare and Institutions Code section 366.26 hearing (all statutory references are to the Welfare and Institutions Code) for his son Emanuel. He contends the court erred when it found he had been offered reasonable reunification services and that there was no substantial probability Emanuel would be returned to him by the 18-month date. We conclude F.s arguments are inapposite and deny the petition.
BACKGROUND
Two-month-old Emanuel was taken into protective custody after his mother was arrested on four drug-related warrants. The mother denied knowing who fathered Emanuel. Emanuel was placed with his mother at the six-month review hearing. Eleven months after proceedings commenced, F. filed a paternity inquiry. The court ordered paternity testing after which it issued a judgment of paternity. The mother thereafter left Emanuel with F. and his wife. The stepmother told a nurse she sometimes felt "like smothering Emanuel with a pillow." The court sustained a supplemental petition filed under section 387 which alleged the mother was no longer able to provide adequate care and supervision for Emanuel, who she had left with inappropriate caretakers. Emanuel was placed in the home of his paternal grandparents.
In the status review report for the 18-month review hearing, the San Diego County Health and Human Services Agency (Agency) reported that the grandparents wanted to adopt Emanuel and recommended reference to a section 366.26 hearing. F. set a contested hearing. At the time of the contested hearing, Agency apparently amended its recommendations to which F. submitted. For reasons not apparent in the record, the court found Emanuel was not a proper subject for adoption and no one was willing to accept legal guardianship. The court selected a permanent plan of long-term foster care. The court found that reasonable services had been provided or offered to the parents and terminated reunification services. F. did not appeal.
In a section 366.3 post-permanent plan review hearing report, Agency reported the grandparents wanted to adopt Emanuel and recommended a section 366.26 hearing be set. After setting a contested hearing, F. submitted on the report. His counsel stated F. was receiving services in connection with his other child and might consider filing a section 388 petition before the section 366.26 hearing. The court found the permanent plan that had previously been established might no longer be appropriate and set a section 366.26 hearing. The court found reasonable services had been offered or provided to the parents.
F. seeks review of the courts findings and order by filing a petition for extraordinary relief. ( § 366.26, subd. (l ); Cal. Rules of Court, rule 39.1B.) This court issued an order to show cause and the San Diego County Health and Human Services Agency (Agency) responded. The parties declined oral argument. We now review the merits of F.s contentions.
DISCUSSION
The hearing in issue was a section 366.3 post-permanent plan review hearing where the juvenile court must order a section 366.26 hearing unless it finds by clear and convincing evidence that there is a compelling reason to find a section 366.26 hearing is not in the best interest of the child. ( § 366.3, subd. (g).) Here, the child was highly adoptable and in a home that wanted to adopt. Given the circumstances of this case, the court was required to set a section 366.26 hearing. (See In re John F. (1994) 27 Cal.App.4th 1365.)
F. contends the court erred when it found he had been offered or provided reasonable reunification services and that there was no substantial probability Emanuel would be returned to him by the 18-month date. The court did not make a finding on probability of return by the 18-month date. Nor would it be appropriate for it to have done so considering that the 18-month date had long since passed. Although the court made a reasonable services finding, the finding was not required by section 366.3. Moreover, it was not appropriate. F.s reunification services had been terminated eight months before at the 18-month review hearing when the court also made a reasonable services finding. If F. disagreed with that finding, he could have appealed. His arguments are inapposite in the context of review of the courts rulings at the section 366.3 hearing.
DISPOSITION
The petition is denied.
WE CONCUR: McDONALD, Acting P. J., OROURKE, J.