Shaundra L., In re

• Decision Date: 22 March 1995
• Docket Number: No. B090134,B090134
• Citation: 39 Cal.Rptr.2d 299,33 Cal.App.4th 303
• Court: California Court of Appeals Court of Appeals
• Parties: In re SHAUNDRA L., et al., Persons Coming Under the Juvenile Court Law. MINDY B. et al., Petitioners and Objectors, v. The SUPERIOR COURT of Los Angeles County, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Real Party in Interest.

Page 299

39 Cal.Rptr.2d 299

33 Cal.App.4th 303

In re SHAUNDRA L., et al., Persons Coming Under the Juvenile Court Law.

MINDY B. et al., Petitioners and Objectors, v. The SUPERIOR COURT of Los Angeles County, Respondent;

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Real Party in Interest.

No. B090134.

Court of Appeal, Second District, Division 5, California.

March 22, 1995.

Warren D. Camp and Thomas R. Hayes for petitioners and objectors.

No appearance for respondent.

De Witt W. Clinton, County Counsel, Joe Ben Hudgens, Deputy County Counsel, Auxiliary Legal Services and Dawyn Harrison, for real party in interest.

TURNER, Presiding Justice.

I. INTRODUCTION

Petitioners, Mindy B. and David L., parents of the minors, Brittany L. and Shaundra L., have, pursuant to rule 39.1B of the California Rules of Court, ¹ filed separate petitions for writs of mandate seeking to compel the respondent court to set aside its order setting the underlying dependency proceedings for a hearing pursuant to WELFARE AND INSTITUTIONS CODE SECTION 366.26². We conclude: (1) the 1994 amendments to section 366.26, subdivision (1) require us to reach the merits of the petitions; (2) consistent with the intent of the Legislature, we have issued an order to show cause directed at the respondent court and the real party in interest, the Los Angeles Department of Children's Services, and afforded the parties the opportunity to orally argue the cause; and (3) substantial evidence supports the determination of the respondent court to set the dependency proceedings for a hearing pursuant to section 366.26. As a result, the petitions are denied.

II. PROCEDURAL HISTORY

On December 2, 1992, the second amended petition to declare the minors dependent wards of the court was filed. The minors were declared wards of the court on February 16, 1993, and dispositional orders were entered on April 8, 1994. The minors were suitably placed. Eventually, on January 26, 1995, pursuant to section 366.21, the court ordered a hearing be held on May 25, 1995, which would consider possible termination of parent and child relationship. (§ 366.26.) On February 21, and 24, 1995, the father, David L., and the mother, Mindy B., filed mandate petitions with this court pursuant to rules 39.1B and 1436.5. For reasons we will explain, we issued an order to show cause on February 24, 1995. The cause was set for oral argument on March 20, 1995.

III. THE 1994 AMENDMENTS CONCERNING EXTRAORDINARY WRIT REVIEW OF ORDERS SETTING A CASE FOR A SECTION 366.26 HEARING

The procedure to be followed in setting a dependency matter for a hearing pursuant to section 366.26 was described by our Supreme Court in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249, 19 Cal.Rptr.2d 698, 851 P.2d 1307, as follows: "When the court has found jurisdiction under section 300, it then must conduct a disposition hearing. (§ 358; Cal. Rules of Court, rules 1451, 1455.) If the court declares the child to be a dependent child of the juvenile court, it then considers whether the child may remain with the parents or whether the child must be removed from the parents pursuant to section 361, subdivision (b). At the dispositional hearing, the standard of proof for removal from a custodial parent is clear and convincing evidence. (§ 361, subd. (b); Cal. Rules of Court, rule 1456(c).) [p] If the child is removed from the parents' custody, the court must make orders regarding reunification services. (§ 361.5.) The court must also notify the parents that their parental rights may be terminated if they do not reunify within 12 months. (Ibid.; Cal. Rules of Court, rule 1456(f).) The parents have the right to challenge both the jurisdictional and dispositional findings and orders on appeal. (§ 395.) [p] Thereafter the juvenile court must review the case at least once every six months. (§ 366.) At these review hearings there is a statutory presumption that the child will be returned to parental custody unless the court finds by a preponderance of the evidence that 'the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.' The department of social services, not the parent, bears the burden of establishing that detriment. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) The court must also determine whether reasonable reunification services have been offered. (Ibid.) [p] At the 12-month review, if the court does not return the child and finds that there is no substantial probability of return to the parent within 18 months of the original removal order, the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. (§ 366.21, subd. (g).) Even then, the court must determine by clear and convincing evidence that reasonable reunification services have been provided or offered to the parents. (§ 366.21, subd. (g)(1).) If the child is not returned to the parents at the 18-month review, the court must set the matter for a section 366.26 hearing. [p] The selection and implementation hearing pursuant to section 366.26 is to be heard within 120 days of the hearing from which it was set. (§§ 361.5, subd. (f), 366.21, subds. (e), (g), 366.22, subd. (a).) The court may terminate parental rights 'only if it determines by clear and convincing evidence that it is likely that the minor will be adopted.' (§ 366.26, subd. (c)(1).) If the court so determines, the findings, 'pursuant to Section 366.21 or Section 366.22 that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor' due to any of certain specified circumstances. (§ 366.26, subd. (c).)" (Footnotes omitted.)

Prior to January 1, 1995, a determination pursuant to section 366.21, subdivision (a) to set a dependency proceeding for a hearing to determine the issues set forth in section 366.26 was normally reviewable on direct appeal after: an order terminating the parental relationship and directing the child be adopted; a determination that adoption was a proper permanent placement option; an order appointing a guardian and issuing guardianship letters; or an order placing the minor in long-term foster care. (In re Matthew C. (1993) 6 Cal.4th 386, 390-401, 24 Cal.Rptr.2d 765, 862 P.2d 765.) However, in response to criticisms of the Matthew C. decision and the delays in bringing prompt finality to dependency proceedings (Sen.Com. on Judiciary, Rep. on Sen. Bill No. 1531 (May 10, 1994) p. 2 (1994 Reg.Sess.), the Legislature amended section 366.26, subdivision (1) as follows, effective January 1, 1995: "(l )(1) An order by the court that a hearing pursuant to this section be held is not appealable at anytime unless all of the following applies: [p] (A) A petition for extraordinary writ review was filed in a timely manner. [p] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [p] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. [p] (2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section. [p] (3) The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following: [p] (A) A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if they are present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order. [p] (B) The prompt transmittal of the records from the trial court to the appellate court. [p] (C) That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision. [p] (D) That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision. [p] (4) The intent of this subdivision is to do both of the following: [p] (A) Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21 and 366.22 for holding a hearing pursuant to this section. [p] (B) Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits. [p] (5) This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995." (Stats.1994, ch. 1007, No. 8 Deering's Adv.Legis. Service, pp. 5741-5742.)

In compliance with the foregoing directive in section 366.26, subdivision (l )(3), the Judicial Council adopted various rules designed to insure prompt appellate resolution of disputes concerning orders issued pursuant to section 366.21, subdivision (a) to hold the hearing envisioned by section 366.26. Effective January 1, 1995, rule 39.1B was adopted, and it provides: "(a) [Purpose] The purpose of this rule, as mandated by statute, is to facilitate and implement the following policies: [p] (1) To achieve a substantive and meritorious review by the appellate court within the period specified in Welfare and Institutions Code sections 361.5, 366.21, and 366.22 for the commencement of a hearing under ...