Andrea E. v. Sup. Ct.

Filed 5/30/07 Andrea E. v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceeding; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition granted.

Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Dennis Nolan and Paul T. DeQuattro, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

* * *

After the police arrested petitioner Andrea E. (mother) for allegedly inflicting physical injuries on the child of an acquaintance, real party in interest Orange County Social Services Agency (SSA) detained mothers minor children, Rodolfo E. and Sierra K., and petitioned to have them declared dependents of respondent juvenile court. SSA attempted to locate and notify the alleged father of each child about the proceedings, but neither one appeared, and the court entered defaults as to each of them. At a combined jurisdictional and dispositional hearing, mother submitted on the petitions amended allegations. The court found the allegations to be true, declared the children dependents, placed them in SSAs custody, and approved a family reunification plan.

At the time of the 18-month hearing, mother remained incarcerated awaiting trial on the criminal charges. SSA submitted a report recommending termination of reunification services and the scheduling of a permanency planning hearing under Welfare and Institutions Code section 366.26.

Mothers attorney requested an evidentiary hearing. He argued mother had participated in the case plan to the extent possible while incarcerated and was recently examined by a psychologist, although he had not yet received a report summarizing the psychologists conclusions. In addition, claiming the services tendered to petitioner were unreasonable, counsel explained he wanted to cross-examine the social worker on that issue, what efforts the social worker made to assist mother, and whether the social worker perceived exceptional circumstances existed to extend the period of family reunification services. Declaring the request for an evidentiary hearing a sham and an attempt to delay without a reasonable basis, the court denied the request, admitted the social workers report, found a factual basis for the reports recommendations, terminated reunification services, and set a permanency planning hearing.

Mother relies on our recent decision in David B. v. Superior Court (2006) 140 Cal.App.4th 772, and contends the court violated her right to due process by denying her request for an evidentiary hearing at the 18-month status review hearing. SSA filed a brief conceding the juvenile court improperly proceeded without giving [mother] the opportunity to participate in an evidentiary hearing. In light of this concession and our holding in David B. to that effect (id. at p. 779), we grant the petition.

The petition is granted. The order to show cause is discharged. The orders entered by the court on February 27, 2007 are vacated, and the matter is remanded for a contested 18-month review hearing.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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