Jacqueline E. v. Superior Court

Filed 3/9/07 Jacqueline E. v. Superior Court CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

More than two years ago, 10-year-old Alexis E. was declared a dependent of the juvenile court and was subsequently placed in long-term foster care in the home of her maternal grandmother. Alexiss mother, Jacqueline E., seeks review by extraordinary writ of a juvenile court order setting a hearing pursuant to Welfare and Institutions Code section 366.26[1] in order to consider a new permanent plan for Alexis. We grant Jacquelines petition and issue a peremptory writ of mandate directing the juvenile court to vacate its order and enter a new order granting Jacquelines request for a contested status review hearing.

II. STATEMENT OF FACTS

A. Background/Reunification Period

On March 12, 2004, the San Francisco Department of Human Services (the

Department) filed a juvenile dependency petition alleging that Alexis came within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b). The petition was supported by allegations that Alexiss mother, Jacqueline, had been hospitalized on March 4 because of suicidal tendencies, that she abused drugs and alcohol, had mental health problems and was homeless. With regard to the March 4 incident, there was evidence that Jacqueline took drugs and alcohol while Alexis was in her care and that she admitted to police officers that she would kill herself. On March 4, Alexis went to stay with her maternal grandmother, Jacky B.

On March 12, 2004, the juvenile court formally detained Alexis and approved her temporary placement with Jacky B. On June 30, 2004, Alexis was declared a dependent of the juvenile court based on findings that Jacqueline (1) had been 5150d due to suicidal tendencies, (2) had a mental health issue requiring assessment and possible treatment, and (3) had a substance abuse issue requiring assessment and possible treatment. After conducting a contested dispositional hearing in October 2004, the court removed Alexis from Jacquelines custody, continued her placement with Jacky B. and ordered supervised visits and reunification services for Jacqueline.

In January 2006, the court conducted a contested combined 6, 12 and 18-month review hearing. At the conclusion of that hearing, the court found that conditions still existed which would justify the initial assumption of jurisdiction or such conditions were likely to exist if supervision was withdrawn and that returning Alexis to Jacqueline would create a substantial risk of detriment to the childs safety, protection, emotional or physical well-being. On January 26, the court terminated reunification services to Jacqueline finding her progress toward alleviating or mitigating the causes necessitating Alexiss out of home placement had been minimal. The court found that Alexis was not a proper subject for adoption, that she was to be placed in long-term foster care and that it was in her best interest to maintain a relationship with her parents. For a permanent plan, the court selected permanent placement with Jacky B. with a specific goal of return to Jacqueline.

B. Post Permanent Plan Proceedings

In a July 11, 2006, status review report, the Department recommended that Alexiss dependency status be renewed, that she remain in her out-of-home long-term placement with Jacky B. and that the matter be continued to January 9, 2007, for a 12-month review.

According to this status report, Jacqueline reported that she was working full-time in the sales field but would not provide the name of her employer. She stated that her health status was the same as it had always been and declined to discuss her individual therapy with the Department case worker because she felt it had nothing to do with her daughter. Alexis, who was now 10, had completed the fourth grade, and was doing well. She appeared to have bonded with her grandparents and was happy in their home. According to the Department, [e]veryone involved, with the exception of the mother, believe[s] that this is a positive, supportive placement for Alexis. Jacqueline and Alexis had weekly visits supervised by a family therapist.

Although the Department recommended continuing the current placement of long term foster care, it also advised that it may consider a recommendation of legal guardianship in the future. The Department had considered proposing a guardianship with Jacky B., but did not recommend that change at the time because . . . the involvement of the Department seems necessary. The Department also advised that Jacqueline remained hopeful that her daughter would be returned to her soon but she was still maintaining that the only reason Alexis was removed from her care was because of lies told by Jacky B. According to the status report the Department advised Jacqueline that it will be difficult to progress in therapy and improve her relationship with her daughter unless she begins to take some responsibility for her daughters removal. The Department stated that, until Jacqueline could be receptive of this advice it would not recommend increased visitation, let alone return to [the] mothers care.

A six-month post permanent plan status hearing was scheduled for August 8, 2006, but was continued to September 5, 2006. On September 1, 2006, the Department filed an addendum report in which it recommended that Alexiss dependency status be renewed, that Alexis remain in her out of home placement subject to the Departments supervision and that the matter be set for a selection and implementation hearing pursuant to section 366.26 (a .26 hearing) in order to modify the permanent plan from long-term placement to legal guardianship. The report stated that, after its initial status report was filed, the Department had the opportunity to further explore the option of a guardianship for Alexis and was now asking the court to modify the permanent plan and set a hearing to appoint Jacky B. and her husband as Alexiss legal guardians.[2]

The six-month status review hearing was continued to September 19, 2006, and then to October 3, 2006. At the October 3 hearing, Jacquelines counsel stated that [t]he mother is not satisfied with [the Departments] recommendation and is seeking a hearing on this recommendation to change the permanent plan from long-term placement to guardianship. The Department took the position that Jacqueline was not entitled to a hearing at that time but could contest the recommendation at the section 366.26 hearing. The court continued the matter to October 24 to give the parties the opportunity to brief the specific issue of whether Jacqueline was entitled to a hearing to contest the Departments request to change the permanent plan. The court then proceeded to find that Alexiss placement continued to be necessary and appropriate, and that the Department had made reasonable efforts to return Alexis to a safe home and finalize a permanent placement. It also set a .26 hearing for January 17, 2007, which was to remain in place unless otherwise ordered by the Court at a later date.

On October 5, 2006, Jacqueline filed her notice of intent to file a writ petition from the October 3 order setting the section 366.26 hearing for January 17, 2007.

On October 24, 2006, the court denied Jacquelines request for a hearing to contest the Departments new permanent plan recommendation. At the hearing, the court stated that its decision was consistent with sections 366.3 and 366.26 and that it was also in the best interests of the child. The court denied a request by Jacquelines attorney to be heard on that matter.

On November 30, 2006, Jacqueline filed her petition for extraordinary writ pursuant to rule 38.1 of the California Rules of Court[3] wherein she also requested a stay of the section 366.26 hearing. On December 4, 2006, this court temporarily stayed the .26 hearing.

III. DISCUSSION

A. Jacquelines Contentions

Jacqueline contends the order setting the section 366.26 hearing in this case must be reversed for two reasons. First, according to Jacqueline, the juvenile court cannot change a permanent plan of long-term foster care at the six-month post permanency planning status hearing absent a finding of a change of circumstances. Second, Jacqueline contends that she has a due process and statutory right to contest the Departments proposed change to Alexiss permanent plan at an evidentiary hearing before the .26 hearing may properly be held.

B. Change of Circumstance

Jacquelines first claim is that, if the permanent plan is long-term foster care and dependency has been continued, the juvenile court does not have the authority to set a section 366.26 hearing at the six-month status review unless it finds there has been a change of circumstance. Since there allegedly was no such change in this case, Jacqueline maintains that the October 3, 2006, order setting the .26 hearing must be reversed.

Section 366.3 provides for a six-month status review hearing when a child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed . . . . ( 366.3, subd. (d).)

Section 366.3, subdivision (g) (section 366.3(g)), further 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, if compelling reasons exist for finding that none of the foregoing options are in the best interest of the child, whether the child should be placed in another planned permanent living arrangement. 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. . . . Only upon that determination may the court order that the child remain in foster care, without holding a hearing pursuant to section 366.26.

Thus, section 366.3 expressly contemplate that, absent a compelling reason, a section 366.26 hearing will be scheduled at any status review hearing conducted by the juvenile court pursuant to section 366.3 in a case in which the previously selected permanent plan was long-term foster care and the courts jurisdiction over the case has not been terminated. We find nothing in the language of section 366.3(g) (or anywhere else) which supports Jacquelines contention that this subdivision applies only to 12-month post-plan review hearings.

We note that the juvenile court is not required to conduct the six-month status review. Section 366.3, subdivision (d) provides that the agency may conduct the review in cases like this in which parental rights have not been terminated. However, when as here the court does conduct the review, it is required by section 366.3(g) to order a section 366.26 hearing absent a compelling reason.

Jacqueline contends that former rule 1466, now rule 5.740, requires that the juvenile court find a change of circumstance before it can schedule a section 366.26 hearing at a six-month post permanent plan status review.[4] Rule 1466 pertains to hearings conducted after selection of a permanent plan. Subdivision (a) of this rule applies to cases in which the permanent plan is adoption or guardianship. Subdivision (b) states:

(b) Following the establishment of a plan other than those provided for in (a), review hearings must be conducted every six months by the court or by a local review board.

(1) At the review hearing, the court or review board must consider the report of the petitioner, the report of any Court Appointed Special Advocate (CASA) volunteer, and any report submitted by the childs caregiver pursuant to section 366.21(d); inquire about the progress being made to provide a permanent home for the child; consider the safety of the child; and enter findings regarding each item listed in section 366.3(e).

(2) No less frequently than once every 12 months, the court must conduct a review of the previously ordered permanent plan to consider whether the plan continues to be appropriate for the child. The 12-month review may be combined with the 6-month review.

(3) If circumstances have changed since the permanent plan was ordered, the court may order a new permanent plan under section 366.26 at any subsequent hearing, or any party may seek a new permanent plan by a motion filed under rule 1432.

(4) Notice of the hearing must be given as provided in section 295.

(5) The court must continue the child in foster care unless the parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order reunification services for a period not to exceed six months.

(6) At a review held 12 months after an original or subsequent order for the child to remain in foster care, the court must consider all permanency planning options, including whether the child should be returned to a parent or guardian, placed for adoption, or appointed a legal guardian. If the court orders that the child remain in foster care, it must identify the foster care setting by name and identify a specific permanency goal for the child. The court may order that the name and address of the foster home remain confidential.

(7) At a review held 12 months after an original or subsequent order for the child to remain in foster care, the court must order a hearing under section 366.26 unless the court finds by clear and convincing evidence that there is a compelling reason for determining that a section 366.26 hearing is not in the childs best interest because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or there is no one available to assume guardianship.

(8) If the court makes the findings in subdivision (7), the court may order that the child remain in foster care.

Jacqueline acknowledges that rule 1466 requires the juvenile court to schedule a section 366.26 hearing at the 12-month review absent a compelling reason for not ordering the hearing, but she argues that this rule also precludes the court from scheduling a section 366.26 hearing before that 12-month review unless it finds a change of circumstance.

No language in rule 1466 compels us to accept Jacquelines argument. Rule 1466(b)(3) expressly authorizes the court to set a section 366.26 hearing at any time if circumstances have changed. However, neither this provision nor any other part of this rule states or intimates that a section 366.26 hearing can be ordered prior to the 12-month review only if circumstances have changed. Furthermore, if rule 1466(b)(3) imposed such a requirement it would be at odds with section 366.3(g) which expressly authorizes the juvenile court to schedule a .26 hearing at any status review that it conducts in a case in which the previously selected plan is long term foster care. Indeed, as discussed above, regardless when the review is undertaken, the juvenile court is required to schedule a .26 hearing in a case in which the permanent plan is long term foster care and the dependency has not been dismissed, unless it finds a compelling reason not to set the hearing. ( 366.3(g).)

Jacquelines interpretation of rule 1466 is also inconsistent with express legislative policy. The Legislature has determined that foster-care should be only a temporary method of care for the children of this state . . . . ( 396.)[5] Consistent with this express policy, the Legislature has established a mandatory preference for adoption over guardianship over long-term foster care. (See San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 885 & 888 (Sylvia A.).) This legislative policy and mandatory preference are implicit in section 366.3(g) and further reinforce our conclusion that rule 1466 does not preclude the juvenile court from scheduling a section 366.26 hearing to consider changing the permanent plan from foster care to guardianship prior to the 12-month review unless it finds changed circumstances.

Jacqueline contends that Sylvia A., supra, 13 Cal.4th 882, confirms that a change of circumstance is required in order to schedule a section 366.26 hearing prior to the 12-month review. In that case, the juvenile court selected long-term foster care as the permanent plan for dependent siblings Sylvia and Victoria. (Id. at p. 886.) At the combined six-month status review, the Department asserted that circumstances had changed and requested that the court schedule a hearing to consider adoption as the new permanent plan for the girls. The court denied the Departments request, ruling that it had to file a petition for modification on the ground of changed circumstances. The court of appeal granted the Departments petition for writ of mandate and directed the juvenile court to vacate its order to the extent it refused to schedule a .26 hearing unless and until the Department filed a petition for modification on the ground of changed circumstance. (Id. at p. 887.) The Supreme Court affirmed. (Ibid.)

The Sylvia A. court construed rule 1466(b) as providing that if the juvenile court determines that circumstances have changed since it ordered long-term foster care as the permanent plan, it may order adoption or legal guardianship as a new permanent plan at a subsequent hearing, as appropriate. (Sylvia A., supra, 13 Cal.4th at p. 887.) The court reasoned that the juvenile court has sufficient information before it at the six-month review to make such a determination and that it should make that determination even in the absence of a petition by a party for modification on the ground of changed circumstances. In reaching this conclusion, the Court emphasized that, at every post-permanent plan status hearing, the juvenile court is obligated to proceed under the presumption that long-term foster care is inappropriate and to observe the mandatory preference for adoption over legal guardianship over long-term foster care. (Id. at p. 888.)

The Sylvia A. court rejected the argument that allowing the juvenile court to find changed circumstances at a status review hearing threatens due process rights of the parents that would otherwise be protected if submission of a formal petition for modification was required. (Sylvia A., supra, 13 Cal.4th at p. 889.) The court reasoned that, [l]ike such a petition, a determination of this sort also depends on a change of circumstances at the threshold and entails a subsequent noticed hearing on the merits. (Ibid.)

Jacqueline construes this part of the Sylvia A. opinion as holding that a threshold determination of a change of circumstance is required before a juvenile court can schedule a section 366.26 hearing at a six-month review hearing. Jacqueline is mistaken. The issue presented in Sylvia A. was whether a request to set a .26 hearing because of a change of circumstance had to be presented in the form of a petition for modification. As Jacqueline concedes in this court, there was no dispute as to whether circumstances had actually changed but rather a disagreement as to how such a change could be formally established under rule 1466(b)(3). Therefore, the Sylvia A. court was not asked to consider and did not decide whether a juvenile court can order a section 366.26 hearing at the six-month review hearing if the circumstances have not changed.

More importantly, both Jacqueline and the Department appear to have overlooked that section 366.3 has been amended several times since Sylvia A. was decided in August 1996. Specifically, in 1996, section 366.3 provided that, at the 12-month review hearing, the juvenile court was required to schedule a section 366.26 hearing to reconsider a permanent plan of long-term foster care unless it determined by clear and convincing evidence that the child was not a proper subject for adoption or that there was no one willing to accept legal guardianship. (See former  366.3, subd. (f).) Now, as noted above, section 366.3 requires the juvenile court to make that order at every status review hearing that it conducts pursuant to section 366.3, subdivision (d). (See  366.3(g).) Since the current version of section 366.3(g) was not in effect when Sylvia A. was decided, that case does not assist us in resolving the discrete issue presented to us here.

We hold that the juvenile court has the authority (and often an obligation) to order a section 366.26 hearing to change the permanent plan of a dependent minor placed in long-term foster care at any status review hearing that it conducts pursuant to section 366.3. The court is not required to find a change of circumstances in order to take such action prior to the 12-month review hearing.

B. Evidentiary Hearing

Jacqueline next contends that the juvenile court committed reversible error by denying her request for a contested six-month review hearing. We agree.

Section 366.3, subdivision (e) (section 366.3(e)) states that, with an exception not applicable here, at the review held every six months pursuant to subdivision (d), the reviewing body shall inquire about the progress being made to provide a permanent home for the child, shall consider the safety of the child, and shall make several other determinations regarding specific issues. Section 366.3(e) further provides: Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in, those hearings. It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents for a period not to exceed six months. ( 366.3(e)(10).)

[S]ubdivision (e) of section 366.3 expressly entitles the parents of a minor in long-term foster care to notice of and participation in the six-month status review hearing. Notice of that hearing must include notice to the parent of any proposed departmental modifications to existing juvenile court orders. Moreover, to participate in the hearing connotes involvement as a party to the proceeding, one essential aspect of which is the reasonable expectation that parents could challenge departmental proposals and proposed court modifications. (In re Kelly D. (2000) 82 Cal.App.4th 433, 438 (Kelly D.).)

In the present case, Jacqueline did receive notice of the six-month status review hearing and of the Departments proposal to change the plan for Alexis from foster care to a guardianship. Further, the notice expressly acknowledged Jacquelines right to be present, to present evidence and to be represented by an attorney. Despite this notice, when Jacqueline appeared at the hearing and objected to the Departments recommendation, the trial court refused to conduct a contested hearing. By making that order, the court violated section 366.3(e). (See Kelly D., supra, 82 Cal.App.4th at pp. 438-439; In re Josiah S. (2002) 102 Cal.App.4th 403 (Josiah S.).)

In Kelly D., the court of appeal held that the juvenile court erred by denying the parent of a dependent child in long-term foster care a contested section 366.3 hearing to challenge the Departments proposal to change his visitation rights. (Kelly D., supra, 82 Cal.App.4th at pp. 438-439.) The court based its decision on the express statutory right conferred on parents by section 366.3(e). It acknowledged the goal of expeditious resolution of dependency proceedings but found that the Legislature has decided that accommodating the wishes of, and, indeed, rights of parents to attempt to reestablish the parents relationship with a child is a vital objective as well. (Id. at p. 439.)[6]

In Josiah S. the court held that a juvenile court erred by denying a mothers request to contest continued long-term placement of her son at a section 366.3, six-month status review hearing, (Josiah S., supra, 102 Cal.App.4th at pp. 416-418.) The court was persuaded by and adopted the reasoning of Kelly D, supra, 82 Cal.App.4th 433. It emphasized in particular that, despite the fact that this review occurs after the child has been put in a placement other than with the parents, that situation is not necessarily a permanent one because section 366.3(e) gives the parent the opportunity to demonstrate that additional efforts at reunification will promote the best interests of the minor. In such a case, the court may order further reunification services for the parent. ( 366.3, subd. (e).) Thus, it is possible that parent and child could be reunited. (Josiah S., supra, 102 Cal.App.4th at p. 417, quoting Kelly D., supra, 82 Cal.App.4th at p. 438.)

Like the parents in Kelly D. and Josiah S., Jacqueline objected to the Departments recommendation at the post permanency planning review and requested a contested hearing. She was entitled to that hearing pursuant to section 366.3(e). Therefore, we hold that the juvenile court erred by failing to afford Jacqueline a contested hearing.

The Departments response regarding this issue is perplexing and inadequate. First, the Department argues waiver; it contends that Jacqueline did not object to the court conducting the review hearing under section 366.3 nor did she make an offer of proof to show that she had evidence for the court to consider that was relevant to the review hearing. We can conceive of no reason why Jacquelines counsel would or should have objected to the court conducting a section 366.3 hearing particularly since Jacqueline clearly wanted such a hearing to be held so that she could contest the Departments recommendation for a section 366.26 hearing to be scheduled.

Furthermore, it is clear from this record, that the juvenile court based its order on the Departments erroneous advisement that Jacqueline was not entitled to a contested hearing and not on any determination that Jacqueline had no evidence to present. In any event, the record clearly demonstrates that Jacquelines counsel expressly objected to the Departments request that a section 366.26 hearing be scheduled and sought a contested hearing to dispute that recommendation. Therefore, the claim of error has not been waived.

The Department also contends that Jacqueline will have an opportunity to object to the Departments recommendation to change Alexiss permanent plan at the section 366.26 hearing. However, as Jacqueline points out, the substantive inquiry at the section 366.26 hearing is significantly different from the inquiry the juvenile court is required to conduct as the section 366.3 hearing. At the section 366.3 hearing, the juvenile court is required to consider all permanency planning options, including returning the child to his or her parent ( 366.3(g)), and can also elect to restart reunification services ( 366.3(e)). At the section 366.26 hearing, by contrast, reunification with a parent is not an option. (See In re Marilyn H. (1993) 5 Cal.4th 295, 304.)

Furthermore, the Department fails to acknowledge that Jacquelines actual objection was not just to the proposal to change Alexiss permanent plan, but more specifically to setting a section 366.26 hearing at this stage in the proceeding. Obviously, that objection could not be made or pursued at the section 366.26 hearing itself. As we have already discussed, at a section 366.3(g) review hearing the juvenile court is required to set a section 366.26 hearing 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 . . . . ( 366.3(g).) This statutory language would be meaningless if the parent had no right to present evidence that scheduling a section 366.26 hearing was not in the best interest of the child.

Finally, the Department contends that any error in failing to conduct a contested hearing was harmless because Jacqueline has failed to demonstrate that she would have received a result more favorable to her had she been able to present additional evidence at the review hearing. But, since Jacqueline was denied a contested hearing, she was also denied the opportunity to develop the evidence which could have impacted the courts decision regarding the next proper step to take in this case. Under these circumstances, we cannot find that denying Jacquelines request for a contested hearing was harmless error.

IV. DISPOSITON

Let a peremptory writ of mandate issue directing respondent juvenile court to vacate its October 3, 2006, order and enter a new order granting petitioners request for a contested hearing. This decision is final forthwith. (Cal. Rules of Court, rule 8.264(b)(3).)

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Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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[1] All further statutory references are to the Welfare and Institutors Code unless otherwise noted.

[2] The addendum report recommended that the court make three additional orders in this case. First, it sought an order authorizing Jacky B. to apply for a passport for Alexis because Jacqueline had refused to consent to the application Second, the Department sought an order requiring written correspondence between Jacqueline and Alexis to be pre-screened by the Department. According to this report, on more than one occasion, Jacqueline had given cards to Alexis during supervised visits which contained inappropriate messages such as promises of a speedy reunification and the family therapist was not comfortable policing this situation. Finally, the grandparents had complained about frequent phone calls from Jacquelines creditors and the Department sought an order directing Jacqueline to cease using the grandparents address as her own.

[3] All references to rules are to the California Rules of Court.

[4] All references to rule 1466 are to former rule 1466, which was renumbered rule 5.740 and amended effective January 1, 2007. (See 23 Wests Ann. Court Rules, rule 1466.) The language in rule 1466 upon which Jacqueline relies was notchanged when the rule was renumbered and amended while this writ was pending. For the sake of clarity and the convenience of the parties, we refer to this rule by its formernumber.

[5] Section 396 states: It is the policy of the Legislature that foster care should be a temporary method of care for the children of this state, that children have a right to a normal home life, free from abuse, that reunification with the natural parents or another alternate permanent living situation such as adoption or guardianship are more suitable to a childs well-being than is foster care, that this state has a responsibility to attempt to ensure that children are given the chance to have happy and healthy lives . . . .

[6] In Kelly D., the Department relied on Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1141 (Maricela C.), a case in which the appellate court held the juvenile court was not obligated to grant a parents request for a contested review hearing pursuant to a former version of section 366.3(f). (Kelly D., supra, 82 Cal.App.4th at p. 439.) The Kelly D. court found that Maricela C. was inapposite because, among other things, the court in that case had no occasion to construe language similar to the language found in subdivision (e). (Id. at p. 439.)

In the present case, the Department argued to the juvenile court that Maricela C. supported its contention that Jacqueline had no right to a contested hearing. Although the Department appears to have abandoned that argument we note for the record that we agree with the Kelly D. court that Maricela C. does not pertain to this case. (Kelly D., supra, 82 Cal.App.4th at p. 439.)