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Filed 7/27/16 K.S. v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

K.S., 

 Petitioner, 

v.

THE SUPERIOR COURT OF THE 

COUNTY OF VENTURA,

 Respondent;

VENTURA COUNTY HUMAN 

SERVICES AGENCY,

 Real Party in Interest. 

2d Juv. No. B271265

(Super. Ct. No. J070478)

(Ventura County)

K.S. (mother), appearing in propria persona, seeks review of the order made 

at the 18-month review hearing (Welf. & Inst. Code, § 366.22)1scheduling a permanency 

planning hearing under section 366.26 for her daughter, A.A. She contends the juvenile 

court should have bypassed the section 366.26 hearing and ordered a plan of long-term 

foster care. The court, however, lacked discretion to do so because there was evidence 

that A.A.’s current caregiver is willing to become the child’s legal guardian. (See 

§ 366.22, subd. (a)(3).) We therefore deny mother’s petition for an extraordinary writ. 

 

1 All further statutory references are to the Welfare and Institutions Code. 
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FACTS AND PROCEDURAL BACKGROUND

Mother came to the attention of the Los Angeles Department of Children 

and Family Services in May 2014, when she left two of her young children unattended. 

There also were allegations that mother was not providing adequate food for her five 

children, including six-year-old A.A. After the children were detained, two of them were 

placed with their respective fathers. A.A. and two other siblings, A.S. and R.M., were 

placed with their maternal great-aunt. 

The dependency case subsequently was transferred to Ventura County. 

Mother was provided with extensive family reunification services, with the goal of 

returning A.A., A.S. and R.M. to her care. At the 18-month review hearing, HSA 

recommended that family maintenance services be provided for R.M., and that long-term 

foster care be provided for A.S. and A.A., “with the mother receiving continued 

unsupervised visits, including overnight and weekend visits, and an extended visit with 

the children, . . . At the conclusion of the extended visit, it is the intention of [HSA] that 

a recommendation could be made for the mother to receive Family Maintenance Services 

with [A.S. and A.A.] at that time.” Mother agreed with the recommendation, but A.A.’s 

counsel requested that a section 366.26 hearing be set to determine a permanent plan for 

A.A. other than a return to mother’s care. 

A.A.’s maternal great-aunt, who remains her caregiver, testified at the 

contested hearing. She stated that she would be willing to become A.A.’s legal guardian. 

The juvenile court found that A.A. is not a proper subject for adoption but, based on the 

caregiver’s testimony, scheduled a section 366.26 hearing to assess, among other things, 

whether a legal guardianship should be established in lieu of long-term foster care. 

Mother challenges that decision. 

DISCUSSION

Mother contends that scheduling a section 366.26 hearing was not in A.A.’s 

best interest because she is not adoptable and because there is no person seriously willing 

to assume legal guardianship. The record does not support this contention.
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Where, as here, a child is not returned to his or her parent at the 18-month 

review hearing, section 366.22, subdivision (a) requires that the court “order that a 

hearing be held pursuant to Section 366.26 in order to determine whether adoption, 

guardianship, or long-term foster care is the most appropriate plan for the [child].” 

(§ 366.22, subd. (a).) There is, however, one exception. “[I]f the court finds by clear and 

convincing evidence, based on the evidence already presented to it, . . . that there is a 

compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for 

determining that a hearing held under Section 366.26 is not in the best interest of the 

child because the child is not a proper subject for adoption and has no one willing to 

accept legal guardianship as of the hearing date, [then] the court may, only under these 

circumstances, order that the child remain in foster care . . . .” (§ 366.22, subd. (a)(3), 

italics added; see Victoria S. v. Superior Court (2004) 118 Cal.App.4th 729, 732 

(Victoria S.).) 

The juvenile court found that A.A. is not a proper subject for adoption, but 

could not find, by clear and convincing evidence, that there is no one willing to act as her 

legal guardian. Although A.A.’s caregiver had previously expressed reluctance to 

continue dealing with mother, she testified at the 18-month hearing that she would be 

willing to serve as the child’s legal guardian. Based on this evidence, the court had no 

choice but to set the matter for a section 366.26 hearing. (Victoria S., supra, 

118 Cal.App.4th at p. 733.) “Section 366.22, subdivision (a) gives the court the 

discretion to bypass a [section 366.26] hearing only if it finds by clear and convincing 

evidence, the hearing is not in the child’s best interest because he or she is not adoptable 

and no one is willing to accept legal guardianship [as of the hearing date]. Here, it is not 

clear there is no one willing to assume legal guardianship.” (Ibid.) And because “legal 

guardianship is preferable to long-term foster care as a permanent plan (§ 366.26, 
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subd. (b)), in the absence of clear and convincing evidence such a plan would not come to 

fruition, it was necessary for the court to set a [section 366.26] hearing.”

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 (Ibid.) 

We have reviewed each of mother’s contentions, and conclude she has not 

demonstrated error. 

DISPOSITION

The petition for extraordinary writ is denied. 

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.

 

2 At oral argument, mother represented that since the trial court’s last hearing, 

A.A.’s caregiver has again expressed reluctance to serve as her guardian. We are limited 

to the evidence in the record. This, however, may be a consideration at the section 

366.26 hearing.
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Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

K.S., in pro per, for Petitioner. 

No appearance for Respondent. 

Leroy Smith, County Counsel, and Alison L. Harris, Assistant County 

Counsel, for Real Party in Interest.