In re P.S. CA3 ( 2015 )

Filed 3/16/15 In re P.S. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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In re P.S et al., Persons Coming Under the Juvenile C076799
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD230366,
HEALTH AND HUMAN SERVICES, JD230367, JD230368,
JD230369)
Plaintiff and Respondent,
v.
N.C.,
Defendant and Appellant.
Nicole C., the mother of 13-year-old Al. S., 12-year-old An. S., 10-year-old C.S.,
and nine-year-old P.S., appeals from a May 8, 2014 order of the Sacramento County
Juvenile Court denying her motion to reopen her reunification services or return the
children to her care. (Welf. & Inst. Code, § 388.)1 The juvenile court found that mother
had established changed circumstances, but she had not established that granting the
1 Undesignated statutory references are to the Welfare and Institutions Code.
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motion was in the children’s best interest. The juvenile court found that it was in the
children’s best interest to schedule a selection and implementation hearing (§ 366.26)
to consider a permanent plan of legal guardianship with the current caretakers.2 The
hearing was set for September 2, 2014. Mother was advised orally and in writing of her
right to seek review by extraordinary writ. (§ 366.26, subd. (l).)
On May 12, 2014, mother timely filed a notice of intent to file a writ petition.
This court received the notice of intent on May 19, 2014. (N.C. v. Superior Court
of Sacramento County, case No. C076509.) But mother never acted upon her expressed
intent. On July 8, 2014, this court notified mother and all counsel that, because no writ
petition had been filed, the case was closed.
The Sacramento County Department of Health and Human Services contends
mother’s failure to file a writ petition seeking review of the order setting a selection and
implementation hearing bars her present appeal seeking return of the children or further
reunification services. We agree.
“Section 366.26, subdivision (l), applies to all ‘issues arising out of the
contemporaneous findings and orders made by a juvenile court in setting a section 366.26
hearing.’ [Citation.] This includes issues based upon the denial of a parent’s section 388
petition where a reversal of such denial would require vacation or reversal of the setting
order itself. [Citation.]” (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022, citing
In re Charmice G. (1998) 66 Cal.App.4th 659, 670.) As in In re Charmice G., mother’s
section 388 petition sought return of the children to parental custody or services designed
2 The juvenile court found that mother had not addressed her longstanding mental health
issues, in that she had attended just four counseling sessions and had been on a
medication regimen for just six weeks. The juvenile court relied on two mental health
experts who opined that mother would require a prolonged period of treatment. Absent
that treatment, mother could revert to her lifelong pattern of treating her mental health
issues by using unlawful drugs. The record amply supports the juvenile court’s
conclusion.
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to facilitate their return. Either of those outcomes would have been inconsistent with any
of the long-term placement alternatives authorized by section 366.26, subdivision (c).
Reversal of the juvenile court’s denial would have required vacation or reversal of the
setting order.
Mother asks that, if we conclude section 366.26, subdivision (l) precludes her
appeal, we treat the appeal as a writ petition because “she has no other avenue to
challenge the denial of her section 388 petition.” But mother did have another avenue;
she could have timely filed a writ petition consistent with her notice of intent. She does
not explain her failure to pursue that remedy and she does not argue that due process now
requires us to treat her appeal as a writ petition. We decline her request.
DISPOSITION
The appeal is dismissed.
MAURO , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
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