Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for extraordinary writ. Los Angeles County Super. Ct. No. CK25693, Stanley Genser, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
N.D., in pro. per., for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Real Party in Interest.
MALLANO, P. J.
In this petition for an extraordinary writ, N.D. (Mother) challenges a July 18, 2008 order setting a permanency plan hearing on November 13, 2008, for her 13-year-old son, A.S. (Child), born in March 1995. We deny Mother’s petition, which contains no argument or citation of authority and shows no error or abuse of discretion.
BACKGROUND
When Child was 20 months old, the Los Angeles County Department of Children and Family Services (DCFS) detained him, and he was placed briefly with his paternal grandmother and then with an unrelated foster family. In March 1997, Child was declared a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) (failure to protect), based on Mother’s history of substance abuse, and subdivision (g) (no provision for support), based on the incarceration of Child’s father. Child was removed from his parents’ custody and the parents were afforded reunification services. By late 1997, Mother had progressed to overnight visits, and in February 1998, the court ordered Child placed in Mother’s home with family maintenance services.
During the pendency of these proceedings, Child had only sporadic contact with his father, who was incarcerated when Child was detained in 1996 and was again incarcerated in 2008. Child’s father was not opposed to Child’s adoption.
Unspecified statutory references are to the Welfare and Institutions Code.
After Mother tested positive for cocaine in August 1998, Child was again removed from Mother’s custody. In September 1998, Child was placed with a foster family, with whom he has lived for 10 years. The foster parents are now Child’s legal guardians and prospective adoptive parents.
In late 1998, Mother’s reunification services were terminated. When Mother tested positive for cocaine in May 1999, her visits became monitored. Child was diagnosed with ADHD, and DCFS reported that he regressed after visits with Mother, so her visits were curtailed to one hour per week. In March 2000, Child’s foster parents were appointed his legal guardians. By 2001, Mother was no longer in contact with DCFS and her visits were minimal. Child was attached and bonded with his legal guardians. In 2004, Mother visited Child less than once a month. In August 2004, the court terminated jurisdiction. In August 2005, Mother filed a section 388 petition, seeking to reinstate jurisdiction and to have Child placed with her. Jurisdiction was reinstated, but her petition was denied.
In June 2006, the legal guardians and Child moved to Texas, where they remain. Mother did not visit Child in Texas, and her last telephone contact with Child was in 2007. In July 2008, Child’s attorney filed a section 388 petition to change the permanent plan from legal guardianship to adoption. The petition stated that the legal guardians had held off on adopting Child because he was having some behavioral problems at home and at school, but those problems substantially subsided and both Child and the legal guardians now wanted to proceed with adoption. On July 18, 2008, the juvenile court granted the petition, set a permanent plan hearing for November 13, 2008, and ordered DCFS to proceed with an adoption assessment of the legal guardians in Texas.
Mother filed a notice of intent to file a writ petition on August 4, 2008. On August 19, 2008, Mother, in propria persona, filed a petition for extraordinary writ on a Judicial Council form upon which Mother did not fill in the portions identifying the order from which relief was sought nor any grounds for challenging the order. No supporting documents were attached to the petition. On August 19, 2008, the Clerk of the Court of Appeal notified the parties that the matter was to be decided on its merits. On August 21, 2008, Mother’s writ attorney sent a letter to the court, informing us that after reviewing the record and consulting with trial counsel, he was unable to file a petition for an extraordinary writ on the merits. On September 3, 2008, DCFS filed its response to the petition.
DISCUSSION
We agree with DCFS that the juvenile court had discretion under section 366.3, subdivision (c), to set a new permanency planning hearing, and that the setting of the hearing to consider the permanent plan of adoption was not an abuse of discretion and was in Child’s best interests.
Section 366.3, subdivision (c), provides in pertinent part: “If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child. . . .”
“Inasmuch as the juvenile court is subject to the mandatory preference for adoption over legal guardianship [citation], this policy is only furthered by the fact that section 366.3, subdivision (c), permits the court to more readily hold a new section 366.26 hearing to determine whether adoption or continued guardianship is the most appropriate plan.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1107.) The juvenile court may set a new section 366.26 hearing when there is a prima facie showing of changed circumstances. (David L. v. Superior Court (2008) 166 Cal.App.4th 387, 394.) “We see no reason to require . . . the more exacting preponderance standard to protect parental interests; under section 366.3, the juvenile court adjudicates no rights but only decides whether to set a .26 hearing. The merits of that hearing remain for future determination; merely setting the hearing does not tip the scales for or against the parent on the merits. In any event, once the court terminates reunification services, ‘the child’s interest in stability is the court’s foremost concern, outweighing the parent’s interest in reunification.’” (David L., at p. 394.)
Here, prima facie evidence supported the juvenile court’s decision to set a new section 366.26 hearing. Child had thrived under the care of his legal guardians and both they and Child were in favor of adoption. Child’s father also was not opposed to the adoption. Mother had only minimal contact with Child in recent years. And because Child’s interest in stability was the court’s foremost concern, the setting of a section 366.26 hearing was in Child’s best interests. The court’s setting of the hearing was not an abuse of discretion.
DISPOSITION
The petition for extraordinary writ of N.D. is denied.
We concur: ROTHSCHILD, J., HASTINGS, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.