Los Angeles County Department of Children & Family Services v. Sara W.
Los Angeles County Department of Children & Family Services v. Sara W.
Opinion of the Court
Opinion
This appeal is from dependency proceedings under the Welfare and Institutions Code.
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),
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
Furthermore, appellant submitted the matter on the recommendations in the social study prepared by the DCFS. The DCFS report recommended a section 366.26 hearing be set. It further recommended: “The Court find it is in the minor’s best interest to consider termination of parental rights; that [the DCFS] proceed with adoptive planning and that the [section] 366.26 hearing be for the termination of parental rights.” Appellant did not introduce any evidence at the hearing and did not offer any argument. 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. (In re Richard K. (1994) 25 Cal.App.4th 580, 587-590 [30 Cal.Rptr.2d 575] [submitting to local child protective services agency’s recommendation of removal of child, without introducing any evidence or offering any argument, waived issue of sufficiency of evidence to support such an order on appeal]; cf. In re Cody W. (1994) 31 Cal.App.4th 221, 231 [36 Cal.Rptr.2d 848] [mother waived right to challenge reunification plans by stipulating to their terms and by agreeing to the reasonableness of the reunification services provided]; see Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 813 [“a parent who submits on a recommendation waives his or her right to contest the juvenile court’s decision if it coincides with the social worker’s recommendation”].)
Grignon, J., and Armstrong, J., concurred.
All statutory references are to the Welfare and Institutions Code.
Subdivision (k) of former section 366.26 provided: “An order by the court directing that a hearing pursuant to this section be held is not an appealable order, but may be the subject of review by extraordinary writ.” (Stats. 1989, ch. 913, § 17, p. 3169.)
Reference
- Full Case Name
- In re KEVIN S., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and v. SARA W., and
- Cited By
- 1 case
- Status
- Published