Opinion
A102553.
7-15-2003
JUANA C., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, et al., Real Parties in Interest.
Juana C. seeks review of a juvenile court order setting a hearing, under Welfare and Institutions Code section 366.26, to consider the appointment of legal guardians for her daughter Amy. Juana C. contends she was denied timely reunification services. We find, however, that the record does not support her contention. We deny her petition for extraordinary writ (Cal. Rules of Court, rule 39.1B) on the merits.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
BACKGROUND
The San Francisco Department of Human Services (Department) detained Amy and placed her with her maternal aunt in September 2000 after receiving reports that Juana C. had failed to protect and was unable to protect Amy. At the time, Amy was eight years old. A social workers report stated that Juana C. was developmentally disabled and had been receiving in home support services for over two years, but that she had failed to benefit from the services.
After Amys detention, reunification services were provided to Juana C. for over 18 months. Juana C. made some progress and at times lived in her sisters (the maternal aunts) home with Amy. But in a report prepared for the 18-month review hearing, a social worker concluded that Juana C. still did not have a home for Amy or the basic skills to care for her.
At the 18-month review hearing on May 16, 2002, the juvenile court found there was not a substantial probability of returning Amy to her mother within the maximum time allowed by law. (See §§ 361.5, subd. (a)(3), 366.21, subd. (f), (g).) The court further found that adoption was not an option and that no one was willing to accept legal guardianship. The court ordered Amy placed in long-term foster care and terminated reunification services.
Notwithstanding the courts order, Juana C. continued to receive services and she visited Amy on a regular basis. A status report dated October 1, 2002, noted Amy was doing well academically, physically and emotionally. The report recommended reunification if Juana C. was able to find housing near the maternal aunt. Juana C., however, was unable to obtain housing and the status quo was maintained.
On March 24, 2003, counsel for Amy petitioned to modify the juvenile courts previous orders (see § 388) on the ground that the maternal aunt and her husband were now willing to be appointed as Amys legal guardians. Counsel requested a hearing under section 366.26, at which the court could consider guardianship.
Juana C. and the Department opposed the petition. Juana C. argued she was entitled to additional time under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq. (ADA)) to complete her reunification plan. The Department was concerned about friction between Juana C. and the maternal aunt. A social worker reported that Amy was unable to have a "healthy loving relationship" with Juana C. or her maternal aunt and uncle because she "hears a lot of negative comments."
The juvenile court granted the petition and set the matter for a section 366.26 hearing to consider a permanent plan of legal guardianship. The court found the "tension" within the family "should be alleviated by the adoption of a permanent plan." The court also found that it was in the best interests of the child to proceed with a section 366.26 hearing "rather than leaving it in what is in essence limbo."
Juana C. filed her petition for extraordinary writ in order to challenge the juvenile courts order. (See Cal. Rules of Court, rule 39.1B.) We issued an order to show cause as to why the petition should not be granted, and we hereby decide the matter on the merits.
DISCUSSION
Juana C.s argument in support of her petition consists of little more than a plea for more time and more reunification services. There is, however, no legal or factual support for her plea.
First of all, it is far too late to revisit the issue of court-ordered reunification services, which the juvenile court terminated over a year ago. (See In re Casey D. (1999) 70 Cal.App.4th 38, 46 [challenge to termination of reunification services untimely when time for appeal from order terminating services had passed].) In any event, Juana C. does not cite to a single point in the record that would support a claim of inadequate reunification services. In fact, it does not appear the adequacy of the reunification services has ever been questioned in the juvenile court proceedings.
Juana C.s reliance on the ADA, under which she claims a "reasonable accommodation" must be made for her disability, is misplaced. "The ADA does not directly apply to juvenile dependency proceedings and cannot be used as a defense in them." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1139, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; see also In re Anthony P. (2000) 84 Cal.App.4th 1112, 1115-1116 [ADA does not preempt state law providing for termination of parental rights of persons who are gravely disabled].) But even if the ADA did apply in this case, it would be particularly difficult to maintain that a reasonable accommodation was not made for Juana C.s disability. She has received services far longer than normally permitted. (See § 361.5, subd. (a).) Further, the Department and the juvenile court were aware Juana C. was developmentally disabled, and she was offered services tailored to her case. (See In re Diamond H., supra, 82 Cal.App.4th at p. 1139.)
As pointed out by Amys counsel, this matter is governed by section 366.3, subdivision (g). That subdivision directs a juvenile court reviewing a case involving a child in long-term foster care to consider all permanency planning options, and to order a hearing pursuant to section 366.26 unless it determines by clear and convincing evidence that there is a compelling reason for not holding such a hearing. Given that there were persons willing to be appointed Amys legal guardians, a section 366.26 hearing was virtually mandated here.
Section 366.3, subdivision (g), provides: "At the review held pursuant to subdivision (d) for a child in long-term foster care, 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 the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship. If the licensed county adoption agency, or the department when it is acting as an adoption agency in counties that are not served by a county adoption agency, has determined it is unlikely that the child will be adopted or one of the conditions described in paragraph (1) of subdivision (c) of Section 366.26 applies, that fact shall constitute a compelling reason for purposes of this subdivision. Only upon that determination may the court order that the child remain in long-term foster care, without holding a hearing pursuant to Section 366.26."
Juana C. closes her argument with an assertion that it is not in Amys best interest to have her aunt and uncle appointed as her legal guardians "because their being in litigation with her mother will deteriorate this relationship." This argument, however, is premature as no decision has been made to appoint the aunt and uncle as legal guardians.
We agree with the juvenile court that the possibility of appointing as legal guardians Amys caretakers of close to three years is a development that offers the promise of additional stability to her life.
DISPOSITION
The petition is denied on the merits. (Cal. Rules of Court, rule 39.1B(o).) This decision is final immediately. (Id., rule 24(b)(3).)
We concur: Reardon, J., and Sepulveda, J.