We, the Courts of Appeal, have also been enforcing the requirement of section 366.26, subdivision (k) that review of referral orders from a section 366.21 or 366.22 hearing be accomplished by timely writ. At times relenting in terms of treating appeals as writs (see In re Rebecca H., supra, 227 Cal.App.3d 825 and In re Amber U. (1992) 3 Cal.App.4th 871 [ 4 Cal.Rptr.2d 726]), we have more recently been "closing the door" on improperly filed or late-filed petitions for review (see In re Amanda B., supra, 3 Cal.App.4th 935; In re Michelle M. (1992) 4 Cal.App.4th 1024 [ 6 Cal.Rptr.2d 172]).3d We believe that our "closed door" approach is essential to protect the rights of all interested parties.
All statutory references are to the Welfare and Institutions Code. (1a) A referral order pursuant to section 366.22 is made nonappealable by section 366.26, subdivision (k), but may be reviewed by extraordinary writ. (§ 366.26, subd. (k); In re Amber U. (1992) 3 Cal.App.4th 871, 880 [ 4 Cal.Rptr.2d 726].) Because of the circumstances of this case we will treat the appeal as a petition for a writ of mandate.
We note that the appellate decisions now final on this issue are in conflict. In re Amanda B. (1992) 3 Cal.App.4th 935 [ 4 Cal.Rptr.2d 922], In re Amber U. (1992) 3 Cal.App.4th 871 [ 4 Cal.Rptr.2d 726], and In re Cory M. (1992) 2 Cal.App.4th 935 [ 3 Cal.Rptr.2d 627], hold that challenges to orders made at review hearings are not appealable. [*] See 5 Cal.4th 242 for Supreme Court opinion.
This question turns on whether orders from a 12-month review and referral hearing under section 366.21 are reviewable in the context of an appeal from a subsequent section 366.26 permanency planning hearing, where no petition for extraordinary writ was filed from the decisions made at the earlier review and referral hearing. Recent cases have uniformly held that any review of an order terminating reunification services and determining that a child cannot be returned to a parent must be undertaken by writ petition, and if not so brought will be deemed waived. ( In re Arturo A. (1992) 8 Cal.App.4th 229, 234-237 [ 10 Cal.Rptr.2d 131] ; In re Amanda B. (1992) 3 Cal.App.4th 935, 941 [ 4 Cal.Rptr.2d 922]; In re Amber U. (1992) 3 Cal.App.4th 871, 879-881 [ 4 Cal.Rptr.2d 726]; In re Cory M. (1992) 2 Cal.App.4th 935, 945-947 [ 3 Cal.Rptr.2d 627]; In re Taya C. (1991) 2 Cal.App.4th 1, 6-9 [ 2 Cal.Rptr.2d 810].) (2) (See fn. 2.)
An appeal from such a termination order, therefore, is barred by section 366.26, subdivision (k). ( In re Amber U. (1992) 3 Cal.App.4th 871, 879-881 [ 4 Cal.Rptr.2d 726] [applying § 366.26, subd. (k), in context of § 366.22]; In re Michelle M. (1992) 4 Cal.App.4th 1024, 1028-1031 [ 6 Cal.Rptr.2d 172] [same, in context of § 387]; In re Rebecca H. (1991) 227 Cal.App.3d 825, 836 [ 278 Cal.Rptr. 185] [same, in context of § 361.5, subd. (b)]; In re Catherine S. (1991) 230 Cal.App.3d 1253, 1256 [ 281 Cal.Rptr. 746] [same]; cf.
The department maintains the findings made by the juvenile court at the December 1990 status hearing may not be reviewed by appeal from either the order directing a permanency planning hearing or the subsequent order terminating parenthood. This court has held that subdivision (k) of section 366.26 prohibits a parent from challenging the evidentiary basis of a juvenile court's findings concerning detriment and the adequacy of reunification services by way of appeal from a referral order made at an 18-month review hearing. (In re Amber U. (1992) 3 Cal.App.4th 871, 880-881, 4 Cal.Rptr.2d 726.) In addition, section We reaffirm In re Amber U. However, we are unwilling to say in this case that the parents gave up the right to question the constitutionality of the termination order based upon the earlier finding of detriment by failing to timely file a writ petition after the juvenile court found detriment and ordered a section 366.26 hearing. Essential to the parents' contention is the assertion California's new statutory scheme for the termination of parental rights is fatally flawed to the extent the crucial finding of detriment may be based upon the minimum "preponderance of the evidence" standard.
( In re Matthew C., supra, 3 Cal.App.4th at p. 264; In re Amanda B., supra, 3 Cal.App.4th at pp. 941-942; cf. In re Amber U. (1992) 3 Cal.App.4th 871, 879 [4 Cal.Rptr.2d 762].)