Filed 6/6/14 J.L. v. Superior Court CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


J.L.,
         Petitioner,
                                                                     A141379
v.
THE SUPERIOR COURT OF ALAMEDA                                       (Alameda County
COUNTY,                                                             Super. Ct. Nos. OJ13021089,
                                                                    OJ13021090)
         Respondent;
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
         Real Party in Interest.


                                        MEMORANDUM OPINION1
         In June 2013, dependency petitions were filed in connection with the two children
of petitioner J.L. (Father) and S.T. (Mother), alleging Mother was no longer willing to
care for them. (Welf. & Inst. Code,2 § 300, subd. (g).) Both children were found to be
dependents of the court. Father was not living with Mother at the time, but he was
eventually located and declared to be a presumed father nine months after the
dependency petitions were filed.




         1
         We resolve this case by a memorandum opinion pursuant to California Standards
of Judicial Administration, section 8.1(1), (3).
         2
             All statutory references are to the Welfare and Institutions Code.
       Six days after Father was granted presumed father status, the juvenile court held a
hearing on Mother’s challenge to a recommendation by the Alameda County Social
Services Agency (Agency) that her reunification services be terminated. At the outset of
the hearing, Mother withdrew her challenge to the recommendation.
       Father’s counsel then informed the court he had prepared a petition under
section 388 for modification of the order denying reunification services to Father.
Counsel opposed the scheduling of a section 366.26 permanency planning hearing
“pending the outcome of our [section 388 request] and the request for either placement of
the minors with [Father] or having reunification services given to him.” To this, the court
responded, “Those are requests outside of the scope of the issues for today’s contest.”
Later in the hearing, the court denied the request for placement with Father “without
prejudice,” given counsel’s failure to provide notice to the parties.
       The Agency subsequently asked the court to make a finding that the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) “does not apply in this matter.” Father’s
counsel told the court Father was not sure whether he had Native American heritage. The
court asked Father “to investigate that matter” because “we need some answer as soon as
possible,” and it took no further action with respect to the Agency’s request. After
making appropriate findings, the court terminated Mother’s reunification services and
scheduled a section 366.26 hearing. Notwithstanding the court’s failure to make an
ICWA finding at the hearing, the minute order entered after the hearing states, “ICWA
does not apply.”
       Father seeks an extraordinary writ vacating the setting of the section 366.26
hearing on the ground the juvenile court erred in failing to address his request for
reunification services and in finding ICWA inapplicable. The issuance of such a writ is
ordinarily sought as a means of challenging a termination of reunification services.
(People v. Mena (2012) 54 Cal.4th 146, 156–157.)
       We find no abuse of discretion in the juvenile court’s decision to schedule a
section 366.26 hearing without ruling on Father’s oral request for reunification services.
It is clear the court anticipated the request would be made in a section 388 petition, with


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notice to the other parties. Because a section 388 petition can be made at any time up
until the section 366.26 hearing (In re Marilyn H. (1993) 5 Cal.4th 295, 309), there was
no need for the court to make a ruling prior to Father’s submission of a petition. In the
event the court grants services, it can readily vacate the section 366.26 hearing.
       Father argues that, as a presumed father, he was entitled to reunification services
as a matter of law under section 361.5, subdivision (a). On the contrary, there are at least
16 grounds for denying services to a presumed father listed in section 361.5,
subdivision (b)(1)–(16), and the juvenile court did not abuse its discretion in requiring the
submission of a petition to permit the consideration of these exceptions. Father also
argues he was not required to submit a section 388 petition under In re Zacharia D.
(1993) 6 Cal.4th 435, citing pages 445 and 453, but Zacharia D. contains no such
holding.
       As to the court’s finding regarding ICWA, the entry in the minute order appears to
be an error, since the court made no such finding at the hearing and appeared to intend no
such finding. Because the erroneous entry of a finding with respect to ICWA has no
direct connection to the setting of a section 366.26 hearing, and because the error can be
cured in advance of the hearing, we decline to exercise our discretion to vacate the order
scheduling the section 366.26 hearing. Should the court fail to correct the error,
assuming it is an error, the matter can be raised on direct appeal.
       The petition for an extraordinary writ is denied. The decision is final in this court
immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)




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                                               _________________________
                                               Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




      *
        Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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