Tanika B. v. Sup. Ct.

Filed 2/28/07 Tanika B. v. Sup. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Tanika B., in pro. per., for Petitioner.

No appearance for Respondent.

David A. Prentice, County Counsel, and Miranda Neal, 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 [formerly rule 38-38.1]) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter E. We will grant the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner has a longstanding pattern of drug use, homelessness and domestic violence, which prevents her from adequately protecting and caring for E. who first drew the attention of child protective services in 1998 when she tested positive for cocaine at birth. Since that time, E. has been intermittently under the jurisdiction of the juvenile court while petitioner received either family maintenance or family reunification services. Despite extensive services, petitioner was unable to break free from her destructive lifestyle. Consequently, the supervising agency, the Madera County Department of Social Services/Child Welfare Services (department), recommended the court terminate services and conduct a section 366.26 hearing in May 2006 to select a permanent plan for E.

In March 2006, petitioner and then seven-year-old E. completed a court-ordered bonding study. The psychologist, who completed the study, reported that petitioner and E. exhibited a strong positive relationship and that petitioner demonstrated strong overall parental skills with no parenting problems noted. Based on her observations, the psychologist concluded that severing E.s relationship with petitioner through adoption would be very damaging to E. In light of the bonding study, the juvenile court ordered a permanent plan of legal guardianship at the May 2006 section 366.26 hearing and set a permanency plan review hearing ( 366.3) for August 4, 2006.

In June, 2006, petitioner entered an inpatient substance abuse treatment program and continued to enjoy supervised visitation with E. At that point, no one had requested legal guardianship, however, E.s foster parents expressed a willingness to adopt E. In its status report for the August hearing, the department recommended that E. remain placed with her foster family and that legal guardianship remain the permanent plan.

On August 4, 2006, the court conducted the permanency plan review hearing. Petitioner informed the court she had nearly completed her substance abuse program and was working full-time. She informed the court she would be filing a section 388 petition to modify the courts permanent plan and requested increased visitation. The court denied her request for increased visitation, ordered that guardianship remain the permanent plan and set the next permanency plan review hearing for February 2, 2007.

On or about September 7, 2006, the department lodged with the court a Request for Calendar Setting asking for a section 366.26 hearing to be set. On November 2, 2006, the court ordered that it be placed on calendar and on or about that date, copies of the request form were provided to the attorneys. The hearing date was set for November 7, 2006.

On November 2, 2006, petitioner filed a Request to Change Court Order (JV-180) pursuant to a section 388 petition asking the juvenile court to dismiss dependency proceedings and return E. to her custody. She stated in her petition that she had been free from substance use for two years, was employed and had a three-bedroom rental home. She also asked the court to increase her visitation. On the third page of the JV-180 form, the court approved a November 7, 2006 hearing date.

On November 7, 2006, the court convened a combined hearing on the departments request to set a section 366.26 hearing and petitioners request to regain custody of E. The only parties present were the attorneys and the social worker. E.s attorney and petitioners attorney informed the court they were unaware that the court would be considering the section 388 petition and setting a section 366.26. As a consequence, petitioners attorney advised the court she was unable to notify petitioner of the proceedings. The court stated petitioner had not presented any new information, her opportunity to reunify had lapsed and there was not a likelihood the court could return custody of E. to petitioner without supervision. In addition, the court stated it did not intend to conduct multiple hearings and that any issues petitioner wanted to raise by way of a section 388 petition, she could raise at the section 366.26 hearing. Consequently, the court set a combined section 388 and 366.26 hearing for March 7, 2007.

On December 14, 2006, petitioner challenged the courts order setting the section 366.26 hearing. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in setting the section 366.26 hearing (setting hearing) because she was not properly notified of the departments recommended change in E.s permanent plan. Real party in interest argues its request to calendar the setting hearing constituted sufficient notice. Alternatively, real party argues petitioner waived any defect in notice by failing to object at the setting hearing.

We conclude trial counsels assertion that petitioner did not receive notice of the setting hearing suffices as an objection and reject real partys waiver argument. Moreover, we find merit to petitioners claims of error.

Though the juvenile court ordered E. into a permanent plan of legal guardianship, it is undisputed that E. was effectively in long-term foster care since no one had come forward to assume a guardianship role. Moreover, the law is well-settled with respect to the due process protections afforded a parent whose child has been placed in long-term foster care. Section 366.3 requires the juvenile court to conduct review hearings at six-month intervals to evaluate the appropriateness of the childs placement. ( 366.3, subd. (d).) It is presumed continued care is in the childs best interest. ( 366.3, subd. (e).)

However, section 366.3 also entitles the childs parent to a noticed hearing on the departments recommendations with respect to the childs status. (366.3, subd. (e).) If the parent proves to the court by a preponderance of the evidence that further efforts at reunification are in the in the childs best interest, the court may order further reunification not to exceed six months. ( 366.3, subd. (e)(10).)

The issue in this case is whether a parent is entitled to a noticed hearing on the departments recommendation to change the permanent plan between the regularly scheduled review hearings. California Rules of Court, rule 1466(b)(3) (rule) in effect during these dependency proceedings and now renumbered rule 5.740(b)(5)^[2]provides: 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 a party may seek a new permanent plan by motion filed under rule 1432.

The motion required under rule 1432 (now rule 5.570) is a petition for modification, which must contain, inter alia, [a] concise statement of any change of circumstance or new evidence that requires changing the order and [a] concise statement of the proposed change of order . (Rule 1432(a)(6)-(a)(7).) As such, a petition for modification under rule 1432 is akin to a petition for modification under section 388, which allows a party to a dependency action to petition the juvenile court for a modification of any prior order on a showing of changed circumstances, providing such modification serves the best interest of the child. ( 388.) Further, the juvenile court must set a noticed hearing on the petition under rule 1432 if the petition asserts a change of circumstances, the childs best interest may be promoted by the proposed change of order and it appears the requested modification will be contested. (Rule 1432(c)-(e).)

Real party argues it was not required to file a section 388 petition nor was the juvenile court required to conduct a separate noticed hearing on its request to change E.s permanent plan under the holding of San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882 (San Diego County). We conclude San Diego County is not factually on point. Moreover, to the extent it is legally relevant, it supports petitioners position.

San Diego County is not factually on point because, unlike the instant case, it arose from a juvenile court judgment issued at a regularly scheduled review hearing at which the juvenile court refused to set a section 366.26 hearing unless the department filed a petition for modification alleging changed circumstances pursuant to rule 1466(b). (Id. at pp. 386-387.) The San Diego County court interpreted rule 1466(b) and held that, in keeping with the general presumption that long-term foster care is inappropriate, the juvenile court should consider the continuing appropriateness of such placement at each regularly scheduled review hearing even in the absence of a petition for modification. (Id. at pp. 887-888.) The court stated that if circumstances warrant a change in the permanent plan, the court may order adoption or legal guardianship as a new permanent plan at a subsequent hearing. (Id. at p. 887.)

San Diego County is legally relevant to the instant case in its interpretation of a recommended change brought by motion under rule 1466(b). The court held that where a party seeks a new permanent plan by motion under rule 1466(b), the court must still, as a threshold matter, determine if a change in circumstances has occurred and conduct a noticed hearing on the merits. (Id. at p. 889.)

While we do not interpret San Diego County as requiring the department to file a petition for modification under section 388, we find nothing in the analysis and holding in San Diego County that justifies depriving petitioner her right to a noticed hearing on the departments recommendation to change E.s permanent plan. Nor can we find any rationale for affording a parent fewer due process rights just because the recommended change in the childs permanent plan arose between review hearings rather than during a regularly scheduled review hearing. We thus reject real partys contention that its form request to place a setting hearing on calendar was sufficient notice.

Moreover, we do not interpret San Diego County as relieving the department of its burden of proving changed circumstances warranted a change in E.s permanent plan. A showing of changed circumstances is especially important in a case such as this where the court previously found adoption was detrimental based on the strength of the parent/child bond. Just because the foster parent expresses a willingness to adopt does not mean that the detrimental affect of permanent separation does not still exist.

On a final note, we are aware the court conducted hearings since petitioner filed her writ petition and, in doing so, the court may have remedied its errors. However, as we are confined to the appellate record, we can not make that determination and on this record, we must grant relief.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its order of November 7, 2006, setting the section 366.26 hearing. Respondent court is further directed to conduct a new review hearing and cause notice of the hearing to be provided as set forth in rule 5.570.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Effective January 1, 2007, rule 1466 as well as rule 1432, which we also discuss, was renumbered.