Rosa S. v. Superior Court
Filed 4/3/07 Rosa S. v. Superior Court CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
ROSA S. Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. | F052107 (Super. Ct. No. JJV056029C) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDING; petition for extraordinary writ. Charlotte A. Wittig, Juvenile Court Referee.
Rosa S., in pro. per., for Petitioner.
No appearance for Respondent.
Kathleen Bales-Lange, County Counsel, and Jonna M. Thomas, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 (rule)) to vacate the order of the juvenile court issued at a post-permanency review hearing (Welf. & Inst. Code, 366.3)[1]setting a section 366.26 hearing as to her son, R.J. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
Petitioner and Ralph[2]are the parents of two sons, R.L. and R.J., and a daughter, R.R. In 2003, all three children were detained by the juvenile court because of the parents domestic violence, substance abuse and untreated mental illness. At the time, R.J. was three years old and his brother and sister were ten and seven years old, respectively. The children were very bonded to each other, but had to be placed in separate foster homes because they fought with each other. However, the three foster families were neighbors and the children were able to see each other daily.
Meanwhile, petitioner and Ralph were provided services to reunify with their children, but were unsuccessful. Consequently, the court conducted a section 366.26 hearing in September 2005 to establish a permanent placement for the children. However, because the children had such a strong sibling bond and because only R.R. and R.J. were considered adoptable and no one was willing to adopt all three, the court found adoption would be detrimental and ordered the children into long-term foster care.
Over the next year, the children remained in foster care while the social services agency attempted unsuccessfully to place all three children in one adoptive home. In November 2006, R.J. was placed in San Diego with a relative who wanted to adopt him and was willing to facilitate sibling visitation as well as visitation with petitioner and Ralph. In addition, R.J. was happy and adjusting well with his adoptive family.
In January 2007, at an uncontested post-permanency review hearing, the juvenile court set a section 366.26 hearing as to R.J. to consider a permanent plan of adoption. The court also reduced his visitation with his parents and siblings to once monthly. Petitioner and Ralph were present, represented by counsel and did not object to the courts setting a section 366.26 hearing as to R.J. This petition ensued.
DISCUSSION
Petitioner does not make an express claim of juvenile court error. Rather, she seeks to stop the adoption proceedings, raising the unfairness of separating R.J. from his siblings because of her negligence. She also claims she and Ralph are active in their efforts to resolve the problems that necessitated juvenile court intervention.
Real party in interest urges this court to dismiss the petition as facially inadequate because it does not technically comport with the content requirements of rule 8.452. However, we decline to do so in this case. Rather, we will liberally construe the petition as challenging the courts order setting the section 366.26 hearing and in not continuing reunification services. (Rule 8.452(a)(2).)
Adoption is the preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Consequently, if the juvenile court determines that a child is adoptable, it must set a section 366.26 hearing unless it finds by clear and convincing evidence that conducting a section 366.26 hearing is not in the childs best interest. ( 366.3, subd. (g).) Whether adoption is the best permanent plan is a decision the court makes at the section 366.26 hearing. ( 366.26, subd. (c)(1).)
In this case, having found R.J. happily placed in an adoptive home, the juvenile court had no choice but to set a section 366.26 hearing. Therefore, the court did not err in setting the hearing. Further, since the court did not order R.J. placed for adoption but merely set a hearing to decide the matter, the issue of adoption is premature for our review. Nevertheless, petitioner may still challenge the recommendation to permanently place R.J. for adoption by appearing at the section 366.26 hearing and arguing her case before the juvenile court.
Finally, to the extent petitioner seeks to reopen reunification services, she may file a section 388[3]petition before the juvenile court. However, since we find no error on this record, we will dismiss the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
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*Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Ralph also filed an extraordinary writ petition from the juvenile courts setting order (F052108).
[3] Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.
