Mindy B. v. Superior Court

Opinion

TURNER, P. J. I. Introduction

Petitioners, Mindy B. and David L., parents of the minors, Brittany L. and Shaundra L., have, pursuant to rule 39.IB of the California Rules of Court,1 filed separate petitions for writs of mandate seeking to compel the respondent court to set aside its order setting the underlying dependency proceedings for a hearing pursuant to Welfare and Institutions Code section2 366.26. We conclude: (1) the 1994 amendments to section 366.26, subdivision (l) require us to reach the merits of the petitions; (2) consistent with the intent of the Legislature, we have issued an order to show cause directed at the respondent court and the real party in interest, the Los Angeles Department of Children’s Services, and afforded the parties the opportunity to orally argue the cause; and (3) substantial evidence supports the determination of [306]the respondent court to set the dependency proceedings for a hearing pursuant to section 366.26. As a result, the petitions are denied.

II. Procedural History

On December 2, 1992, the second amended petition to declare the minors dependent wards of the court was filed. The minors were declared wards of the court on February 16, 1993, and dispositional orders were entered on April 8, 1994. The minors were suitably placed. Eventually, on January 26, 1995, pursuant to section 366.21, the court ordered a hearing be held on May 25, 1995, which would consider possible termination of the parent and child relationship. (§ 366.26.) On February 21, and 24, 1995, the father, David L., and the mother, Mindy B., filed mandate petitions with this court pursuant to rules 39.1B and 1436.5. For reasons we will explain, we issued an order to show cause on February 24, 1995. The cause was set for oral argument on March 20, 1995.

III. The 1994 Amendments Concerning Extraordinary Writ Review of Orders Setting a Case for a Section 366.26 Hearing

The procedure to be followed in setting a dependency matter for a hearing pursuant to section 366.26 was described by our Supreme Court in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249 [19 Cal.Rptr.2d 698, 851 P.2d 1307], as follows: “When the court has found jurisdiction under section 300, it then must conduct a disposition hearing. (§ 358; Cal. Rules of Court, rules 1451, 1455.) If the court declares the child to be a dependent child of the juvenile court, it then considers whether the child may remain with the parents or whether the child must be removed from the parents pursuant to section 361, subdivision (b). At the dispositional hearing, the standard of proof for removal from a custodial parent is clear and convincing evidence. (§361, subd. (b); Cal. Rules of Court, rule 1456(c).) HD If the child is removed from the parents’ custody, the court must make orders regarding reunification services. (§ 361.5.) The court must also notify the parents that their parental rights may be terminated if they do not reunify within 12 months. (Ibid.; Cal. Rules of Court, rule 1456(f).) The parents have the right to challenge both the jurisdictional and dispositional findings and orders on appeal. (§ 395.) [*]□ Thereafter the juvenile court must review the case at least once every six months. (§ 366.) At these review hearings there is a statutory presumption that the child will be returned to parental custody unless the court finds by a preponderance of the evidence that ‘the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.’ The department of social services, not the parent, bears the burden of establishing that detriment. (§§ 366.21,