Opinion
D041865.
7-2-2003
TIFFANY M., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Tiffany M. is the mother of several dependent children. Only her daughter M., born in 1999, is the subject of this petition. The juvenile court declared M. a dependent on June 21, 2001, because of Tiffanys methamphetamine use and incarceration ( § 300, subds. (b) & (g).) On June 6, 2002, the court found returning M. to Tiffany would create a substantial risk of detriment to M., Tiffany was provided reasonable reunification services, and Tiffany did not make substantive progress in overcoming the problems that resulted in the dependency proceeding. The court terminated reunification services and set a permanency hearing for October 3, 2002.
Tiffany filed a notice of intent to file a writ petition on June 13, 2002, seeking review of the findings and order (Cal. Rules of Court, rule 39.1B(f), all rule references are to the Cal. Rules of Court). The matter was dismissed on July 11, 2002, after Tiffanys attorney notified this court on her behalf that no petition would be filed because there were no viable issues for writ review (D040322).
The court continued the permanency hearing numerous times because of improper notice to David H., one of M.s alleged fathers. On January 23, 2003, the court vacated the permanency hearing date.
On March 25, 2003, the court conducted a contested disposition hearing and denied Davids requests for custody of M. and for reunification services. Over Tiffanys objection, the court granted the Health and Human Services Agencys (HHSA) request to place M. with maternal relatives in Texas. The court reset the permanency hearing for July 22. (§ 366.26)
Tiffany filed a second notice of intent to file a writ petition challenging only M.s placement in Texas. We asked the parties whether the placement order can be reviewed by petition for extraordinary writ as provided in section 366.26, subdivision (l ), and implemented by rule 39.1B. Tiffany did not respond. HHSAs response contends that all orders and findings made contemporaneously with setting a permanency hearing are properly reviewed by a rule 39.1B petition and the placement order "sprang from the referral hearing." However, HHSA acknowledges Tiffany does not challenge the setting of the permanency hearing and that reversal of the placement order would not require the section 366.26 hearing to be vacated.
The express purpose of rule 39.1B is to achieve a substantive and meritorious review of the "findings and orders of the juvenile court in setting a hearing under section 366.26" before that hearing is commenced. (Rule 39.1B(a) & (b).) The extraordinary writ procedure is intended to "ensure that error in the proceedings underlying the order setting a section 366.26 hearing does not fatally infect that hearing." (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1514.) The order placing M. in Texas is not an issue subsumed within an order setting a section 366.26 hearing. It is a disposition order reviewable by appeal. ( § 395; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 405.) On March 25 the court did not address issues leading to a permanency hearing; it merely recalendared that hearing. Under these circumstances we conclude the placement order is not reviewable by a rule 39.1B writ petition.
DISPOSITION
The order to show cause is discharged and the petition is dismissed.
WE CONCUR: NARES, Acting P. J., and OROURKE, J.