Filed 7/27/16 K.S. v. Superior Court CA2/6

                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX

                                                                              2d Juv. No. B271265
K.S.,                                                                       (Super. Ct. No. J070478)
                                                                               (Ventura County)
     Petitioner,

v.

THE SUPERIOR COURT OF THE
COUNTY OF VENTURA,

     Respondent;

VENTURA COUNTY HUMAN
SERVICES AGENCY,

     Real Party in Interest.



                   K.S. (mother), appearing in propria persona, seeks review of the order made
at the 18-month review hearing (Welf. & Inst. Code, § 366.22)1 scheduling a permanency
planning hearing under section 366.26 for her daughter, A.A. She contends the juvenile
court should have bypassed the section 366.26 hearing and ordered a plan of long-term
foster care. The court, however, lacked discretion to do so because there was evidence
that A.A.’s current caregiver is willing to become the child’s legal guardian. (See
§ 366.22, subd. (a)(3).) We therefore deny mother’s petition for an extraordinary writ.

          1
              All further statutory references are to the Welfare and Institutions Code.
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                     FACTS AND PROCEDURAL BACKGROUND
              Mother came to the attention of the Los Angeles Department of Children
and Family Services in May 2014, when she left two of her young children unattended.
There also were allegations that mother was not providing adequate food for her five
children, including six-year-old A.A. After the children were detained, two of them were
placed with their respective fathers. A.A. and two other siblings, A.S. and R.M., were
placed with their maternal great-aunt.
              The dependency case subsequently was transferred to Ventura County.
Mother was provided with extensive family reunification services, with the goal of
returning A.A., A.S. and R.M. to her care. At the 18-month review hearing, HSA
recommended that family maintenance services be provided for R.M., and that long-term
foster care be provided for A.S. and A.A., “with the mother receiving continued
unsupervised visits, including overnight and weekend visits, and an extended visit with
the children, . . . At the conclusion of the extended visit, it is the intention of [HSA] that
a recommendation could be made for the mother to receive Family Maintenance Services
with [A.S. and A.A.] at that time.” Mother agreed with the recommendation, but A.A.’s
counsel requested that a section 366.26 hearing be set to determine a permanent plan for
A.A. other than a return to mother’s care.
              A.A.’s maternal great-aunt, who remains her caregiver, testified at the
contested hearing. She stated that she would be willing to become A.A.’s legal guardian.
The juvenile court found that A.A. is not a proper subject for adoption but, based on the
caregiver’s testimony, scheduled a section 366.26 hearing to assess, among other things,
whether a legal guardianship should be established in lieu of long-term foster care.
Mother challenges that decision.
                                         DISCUSSION
              Mother contends that scheduling a section 366.26 hearing was not in A.A.’s
best interest because she is not adoptable and because there is no person seriously willing
to assume legal guardianship. The record does not support this contention.


                                               2
                  Where, as here, a child is not returned to his or her parent at the 18-month
review hearing, section 366.22, subdivision (a) requires that the court “order that a
hearing be held pursuant to Section 366.26 in order to determine whether adoption,
guardianship, or long-term foster care is the most appropriate plan for the [child].”
(§ 366.22, subd. (a).) There is, however, one exception. “[I]f the court finds by clear and
convincing evidence, based on the evidence already presented to it, . . . that there is a
compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for
determining that a hearing held under Section 366.26 is not in the best interest of the
child because the child is not a proper subject for adoption and has no one willing to
accept legal guardianship as of the hearing date, [then] the court may, only under these
circumstances, order that the child remain in foster care . . . .” (§ 366.22, subd. (a)(3),
italics added; see Victoria S. v. Superior Court (2004) 118 Cal.App.4th 729, 732
(Victoria S.).)
                  The juvenile court found that A.A. is not a proper subject for adoption, but
could not find, by clear and convincing evidence, that there is no one willing to act as her
legal guardian. Although A.A.’s caregiver had previously expressed reluctance to
continue dealing with mother, she testified at the 18-month hearing that she would be
willing to serve as the child’s legal guardian. Based on this evidence, the court had no
choice but to set the matter for a section 366.26 hearing. (Victoria S., supra,
118 Cal.App.4th at p. 733.) “Section 366.22, subdivision (a) gives the court the
discretion to bypass a [section 366.26] hearing only if it finds by clear and convincing
evidence, the hearing is not in the child’s best interest because he or she is not adoptable
and no one is willing to accept legal guardianship [as of the hearing date]. Here, it is not
clear there is no one willing to assume legal guardianship.” (Ibid.) And because “legal
guardianship is preferable to long-term foster care as a permanent plan (§ 366.26,




                                                 3
subd. (b)), in the absence of clear and convincing evidence such a plan would not come to
fruition, it was necessary for the court to set a [section 366.26] hearing.”2 (Ibid.)
              We have reviewed each of mother’s contentions, and conclude she has not
demonstrated error.
                                       DISPOSITION
              The petition for extraordinary writ is denied.
              NOT TO BE PUBLISHED.




                                           PERREN, J.
We concur:



              GILBERT, P. J.



              TANGEMAN, J.




       2
         At oral argument, mother represented that since the trial court’s last hearing,
A.A.’s caregiver has again expressed reluctance to serve as her guardian. We are limited
to the evidence in the record. This, however, may be a consideration at the section
366.26 hearing.
                                              4
                                       Tari L. Cody, Judge

                            Superior Court County of Ventura
                           ______________________________

              K.S., in pro per, for Petitioner.
              No appearance for Respondent.
              Leroy Smith, County Counsel, and Alison L. Harris, Assistant County
Counsel, for Real Party in Interest.




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