In Re Kevin S.

California Court of Appeal Jan 4, 1996 No. B093018Published

Before: Turner

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Holding. The court held that a parent waives the right to challenge an order setting a section 366.26 hearing on appeal if they fail to object to the order or submit the matter on the agency's recommendation in the trial court.

Issues

Whether an order setting a section 366.26 hearing is appealable when issued prior to January 1, 1995.
Whether a parent waives the right to challenge the setting of a section 366.26 hearing by failing to object or by submitting the matter on the agency's recommendation in the trial court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We find the issue has been waived.”

“Appellant has waived her right to assert error on appeal as to the superior court's order setting a section 366.26 hearing by not properly raising the issue below.”

“By submitting the matter on the DCFS's recommendation a section 366.26 hearing be set, appellant waived any purported error in setting the matter for such hearing.”

41 Cal.App.4th 882 (1996) 48 Cal. Rptr.2d 763 In re KEVIN S., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

SARA W., Defendant and Appellant.

Docket No. B093018. Court of Appeals of California, Second District, Division Five.

January 4, 1996. [884] COUNSEL

Paula C. Mendell, under appointment by the Court of Appeal, for Defendant and Appellant.

De Witt Clinton, County Counsel, Joe Ben Hudgens, Deputy County Counsel, Jones, Day, Reavis & Pogue, Elwood Lui, Laura A. Matz and Michelle Nuszkiewicz for Plaintiff and Respondent.

OPINION

TURNER, P.J.

This appeal is from dependency proceedings under the Welfare and Institutions Code.[1] Sara W. appeals from an order appointing the foster parents of her minor son, Kevin S., as his legal guardians. [885] (§ 366.26.) She argues the court erred in referring this case to a section 366.26 hearing after finding, at a combined 12- and 18-month review hearing, reasonable efforts to reunite her with the minor had not been made. We find the issue has been waived. Accordingly, we affirm.

(1) Preliminarily, we must address appealability. The department of children and family services (DCFS) contends the order terminating reunification services is not cognizable on appeal from an order pursuant to section 366.26. The DCFS cites section 366.26, subdivision (l)(1), which provides an order setting a section 366.26 hearing is not appealable unless a timely writ petition has been filed and not decided on the merits. However, section 366.26, subdivision (l)(1) does not apply to cases in which the order setting a section 366.26 hearing was issued prior to January 1, 1995. (§ 366.26, subd. (l)(5).) The order setting the section 366.26 hearing in the present case was issued on March 7, 1994. Therefore, this case is not governed by section 366.26, subdivision (l)(1). Moreover, under In re Matthew C. (1993) 6 Cal.4th 386, 399 [24 Cal. Rptr.2d 765, 862 P.2d 765], and former section 366.26, subdivision (k),[2] an order setting a section 366.26 hearing (and findings subsumed within that decision) entered prior to January 1, 1995, is subject to review on appeal from a section 366.26 order. (In re David H. (1995) 33 Cal. App.4th 368, 385, & fn. 10 [39 Cal. Rptr.2d 313]; see Robin V. v. Superior Court (1995) 33 Cal. App.4th 1158, 1160-1161, fn. 1 [39 Cal. Rptr.2d 743]; In re Shaundra L. (1995) 33 Cal. App.4th 303, 307 [39 Cal. Rptr.2d 299].)

In Re Kevin S.

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OPINION

TURNER, P.J.

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