San Diego County Department of Social Services v. Mary J.

Opinion

WIENER, J. Mary J., the mother of Sean E. and Seana E., born on April 15,1989, appeals from the judgment terminating her parental rights pursuant to Welfare and Institutions Code section 366.26, subdivision (b)(1).1 We decide the court’s ruling granting Mary’s section 3882 motion vacated its previous order scheduling the section 366.26 hearing. Absent the legal predicate for that hearing the court did not have the power to terminate Mary’s parental rights. We must therefore reverse the judgment.

I

For analytical convenience we depart from our usual form of opinion in which we start with a narrative of the factual and procedural background before discussing the legal issues. Here we first comment briefly on the pertinent statutory provisions governing dependency proceedings so that we more easily identify and examine the dispositive issue involving the interplay between sections 366.26 and 388.

II

After the juvenile court acquires jurisdiction under section 300, it proceeds along a legislatively mandated time grid defining when and under what circumstances it may act. Generally the legislative track requires the [1597]court to conduct hearings every six months for a period not to exceed eighteen months. The purpose of these hearings is to make sure the court will be fully apprised of the status of the dependent child enabling it to make appropriate orders, either promptly returning the child to his or her parents or for some other placement. (See §§ 366, 366.21, 366.22, 366.25 and 366.26.)

At the review hearings held six months and twelve months after the initial dispositional hearing, the court must order the return of the minor to the physical custody of his or her parents unless by a preponderance of the evidence, it finds returning the child would create a substantial risk of detriment to his or her well-being. (§ 366.21, subds. (e) and (f).) Subject to certain exceptions not relevant here, where the court determines the minor should not be returned to his or her parents the process culminates in the hearing provided by section 366.26. At the conclusion of the section 366.26 hearing and in order to provide a permanent and stable home for the minor the court must choose one of four statutorily specified options. Included within this category is section 366.26, subdivision (b) which authorizes the court to permanently sever the parent or parents’ rights and order the child placed for adoption.3 The court cannot terminate parental rights, however, unless it finds by clear and convincing evidence that the minor will be adopted. (§ 366.26, subd. (c)(1).) In addition the court shall have made the requisite finding under section 366.21 that the minor should not be returned to his or her parent. (§ 366.26, subd. (c)(1).)