Filed 7/10/13 In re E.R. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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



In re E.R., et al., Persons Coming Under
the Juvenile Court Law.
DEL NORTE COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
         Plaintiff and Respondent,                                   A137569
v.
                                                                     (Del Norte County Super. Ct. Nos.
SARAH R.,
                                                                      JVSQ-11-6055, JVSQ-11-6056
         Defendant and Appellant.


         Following termination of her parental rights after a hearing held pursuant to
Welfare and Institutions Code section 366.26,1 S.R. (mother) filed this appeal, seeking
correction of the court’s written order memorializing the oral pronouncement of
judgment at the section 366.26 hearing, and requesting we direct the juvenile court to
strike the orders and findings in paragraph Nos. 14 and 16 of Judicial Council Forms,
form JV-320, which state that posttermination visitation by mother would be detrimental
to the minors E.R. and L.R., and require that the minors be allowed open contact with
their sister, D.C. Having reviewed the record, we conclude mother’s contention has merit
and shall grant her request.


1
  Further statutory references are to the Welfare and Institutions Code unless otherwise
specified.
                                      BACKGROUND
       This section 300 juvenile dependency case involves mother’s three minor
daughters, D.C. (born 1996), E.R. (born 1998), and L.R. (born 1998). We recently
chronicled the history of respondent Del Norte County Department of Health and Human
Services’ (Department’s) involvement with the family in Sarah R. v. Superior Court
(Dec. 6, 2012, A136491) [nonpub. opn.] (Sarah R.), which we incorporate by reference.
In Sarah R., we concluded the juvenile court’s finding that the Department provided or
offered mother reasonable services was supported by substantial evidence and, as a
consequence, denied mother’s petition for an extraordinary writ challenging the order
setting a hearing under section 366.26. We pick up the procedural and factual history of
the case after that point.
       On November 5, 2012, the Department filed and served notice the section 366.26
hearing would be held on January 4, 2013. The Department filed its section 366.26
report (report) on January 2, 2013, recommending that E.R. and L.R. remain dependents
of the court, parental rights be terminated and adoption be selected as the permanent plan.
The report states E.R. and L.R. are freshmen in high school and both have a 4.0 grade
point average; they are adjusting well to foster care and have not required counseling,
although both are aware counseling is available should they need it. The current foster
parents to E.R. and L.R. are willing and able to adopt the children.
       Regarding contacts between mother and the children, the report states mother had
22 scheduled visits with E.R. and L.R. and attended 10 of them; five were cancelled due
to illness or failure to appear by mother; seven of the 22 scheduled visits were between
mother and E.R. only, and mother attended five of those. The last visit mother had with
either of the children was on November 6, 2012.
       The Department recommended “no visitation at this time between the biological
parents and the children. Neither [mother] nor [father] has been consistent in visiting
with the children or in asking for visits. The prospective adoptive family does not wish
to have postadoption contact with the birth parents but are willing to allow the children


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continued contact with other family members and are willing to consider contact with the
parents if the children request it.”
       In regard to assessment and evaluation, the report states E.R. and L.R. “have
matured and thrived in their foster placement” and “have become attached to their foster
parents and wish to be adopted by them. The foster parents and the children have
developed a loving relationship and the children are happy.” Also, the report notes
whereas E.R. and L.R. state they love their biological parents, they “are also realistic
enough to know that they can’t live with them. [E.R. and L.R.] have expressed a wish to
be able to maintain contact with their mother and father but not on a regular basis.”
       Mother was represented by counsel at the section 366.26 hearing but did not
appear in person. The court stated: “I’ve read and considered the report as to each child.
And I will announce at the outset that I am prepared to adopt the recommendation. Does
anybody wish to be heard?” After counsel for mother and counsel for the minors replied
in the negative, the court announced its findings: “The children’s out-of-home placement
is necessary and appropriate. The agency has complied with the case plan. The services
provided to the children have been adequate. Court finds the children . . . were actively
involved in the development of . . . their plan. And they are age appropriate and
developmentally appropriate. Clear and convincing evidence shows that [it is] likely the
children will be adopted. Adoption is the permanent placement goal for both children.
[It is] ordered that the parental rights of [mother and father] are terminated. The children
are . . . ordered placed for adoption. All prior orders not modified by this Court remain in
full force and effect.”
       After the court set the matter for a six-month post-permanency review but prior to
the conclusion of the hearing, counsel for D.C., E.R. and L.R.’s older sister, stated she
understood the adoption would be open with regard to D.C. and “these three young
women will be permitted to have contact with each other. And I believe that is what
these two girls would like, and [that is] very much what my client would like.” Social
worker Farren responded, “It is in the adoption assessment. They do talk that the girls


                                              3
want to maintain contact.” Counsel for D.C. added, “My understanding is [it is]
agreeable with the adoptive parents, and [they are] nodding their heads.” The court
stated, “Everybody is on board. Perfect deal. Good. But I’m not addressing that. . . . [I
am] just making a finding that the plan is for the children to be adopted.” Thereafter, the
matter concluded. This proceeding was handled by Judge Leonard LaCasse.
       On January 11, 2013, the court filed a Judicial Council Form, form JV-320
“Orders Under Welfare and Institutions Code sections 366.24, 366.26, 727.3, 727.31”
(order), as submitted by counsel for the Department, in regard to each of the minors. In
both orders, one of the boxes under part b. of paragraph No. 14 is checked, specifying
that “Visitation between the child and . . . sibling, [D.C.,] is scheduled as follows
(specify): The minor will be allowed open contact with her sister.” Furthermore, part c.
of paragraph No. 14 is checked, providing that “Visitation between the child and
(names): [Mother] and [Father] is detrimental to the child’s physical or emotional well-
being and is terminated.” Parts b. and c. of Paragraph No. 16 are identical to those of
paragraph No. 14 and are completed in the same manner. Apparently, Judge LaCasse,
the judicial officer who handled the 366.26 hearing and made the findings and orders
terminating parental rights, was not involved in the written order of January 11, 2013.
That is the order appellant mother is now appealing. This January order was signed by
Judge Follett who had not presided over prior matters in this case. There is no evidence
he was personally familiar with the issues in the case or that he consulted with Judge
LaCasse before he checked paragraph Nos. 14 and 16 which are now attacked.
                                        DISCUSSION
       Mother contends the written finding terminating her visitation with minors as
detrimental to their physical or emotion well-being, set forth in paragraph Nos. 14 and 16
of the Judicial Council Forms, form JV-320 (JV-320), is inconsistent with the court’s oral
pronouncement of its findings at the section 366.26 hearing and should be stricken. The
Department, on the other hand, contends any inconsistency between the oral and written
orders amounts to harmless error, and moreover, that striking the order terminating


                                              4
visitation would not be in the best interests of the children. We conclude mother has the
better argument.
       The Judicial Council has adopted the JV-320 form for mandatory use by courts for
orders under section 366.26. (See Cal. Rules of Court, rule 1.31(b)-(c).) Section 366.26
lists several alternative permanent placement plans. (§ 366.26, subd. (b)(1)-(6).) In
regard to those alternatives, at the section 366.26 hearing the court “shall make findings
and orders in the following order of preference,” proceeding from termination of parental
rights and placement for adoption as the first preference, to placement in long-term foster
care as the least desirable preference. (Ibid.) Moreover, in choosing among these
alternatives, the court must also determine whether adoption and/or termination of
parental rights is in the best interests of the child. (See § 366.26, subd. (c).) Form JV-
320 tracks the alternate plans described under section 366.26 and the findings necessary
under each alternative, permitting the court, by checking the appropriate boxes, to
efficiently record in a clear, organized manner the findings and orders entered at the
section 366.26 hearing, as required by statute.
       Here, the court selected termination of parental rights and placement of the minors
for adoption as the preferred permanent plan, as described in section 366.26, subdivision
(b)(1). Furthermore, the court found by clear and convincing evidence that it is likely the
children will be adopted. Having found it likely the children will be adopted, the court
was statutorily required to terminate parental rights unless certain special circumstances
existed, none of which pertain here. (See § 366.26, subd. (c)(1).)
       Tracking these findings under form JV-320, the court checked the box at
paragraph No. 8, part a. of the order, stating, “There is clear and convincing evidence that
it is likely the child will be adopted.” Next the court checked the appropriate boxes at
paragraph No. 9 of the order, thereby terminating the parental rights of mother and father.
Paragraph No. 9 also states, “The adoption is likely to be finalized by (date): July 26,
2013.” The last line of paragraph No. 9 states: “(If item 9 is checked, go to item 17.)”



                                              5
       In short, paragraph Nos. 8 and 9 of form JV-320 encompass the juvenile court’s
oral pronouncement of the findings at the section 366.26 hearing as they relate to the
permanent placement selected for the minors. Accordingly, the court should simply have
left blank the boxes in paragraph Nos. 10 through 16, as those pertain to other permanent
placement options described in section 366.26.2 Thus, the court’s findings and orders
under paragraph Nos. 14 and 16 regarding visitation between the minors and their
mother, and visitation between the minors and their sister, should be stricken. Having
terminated mother’s parental rights, no further findings and orders in regard to mother’s
visitation were required; moreover, the court’s findings and orders in paragraph Nos. 14
and 16 regarding open contact between the minors and their sister were premature. (See
§ 366.29 [governing postadoptive sibling contact, and stating in pertinent part, “With the
consent of the adoptive parent or parents, the court may include in the final adoption
order provisions for the adoptive parent or parents to facilitate postadoptive sibling
contact.”], italics added.)
                                        DISPOSITION
       The juvenile court’s findings and orders terminating parental rights upon clear and
convincing evidence the minors are likely to be adopted are hereby affirmed. The matter
is remanded solely for the purpose of permitting the juvenile court to strike the
superfluous findings under paragraph Nos. 14 and 16 of its orders.




2
  In this regard, paragraph No. 14 applies where the court identified adoption as the permanent
placement goal, but did not terminate parental rights; paragraph No. 16 applies where the court
orders the permanent plan is placement with an identified person with one of seven enumerated
goals in mind, but did not terminate parental rights. Neither paragraph No. 14 nor paragraph No.
16 applies here, because the court terminated parental rights at the section 366.26 hearing.

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                                         __________________________________
                                         Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




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