Los Angeles County Department of Children & Family Services v. Sara W.

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.

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 (Z)(l) 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. (I)(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 (Z)( 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].)

We turn to the merits of the appeal. Appellant was present and represented by counsel when the superior court terminated reunification efforts and set the matter for a section 366.26 hearing. She raised no objection. The present argument—that it was error to set the section 366.26 hearing in light of the finding reasonable reunification efforts had not been made—was not raised in the superior court. 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. (In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [46 Cal.Rptr.2d 107] [failure to raise sibling visitation issue in superior court]; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811 [41 Cal.Rptr.2d 731] [DCFS failure to dispute father’s right to reunification services in trial court]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [30 Cal.Rptr.2d 245] [by only seeking placement with herself in superior court, mother waived right on appeal to contend