Opinion
F075711
01-11-2018
In re J.C., et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. E.G., Defendant and Appellant.
Linda Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14CEJ300149-1, 14CEJ300149-2, 14CEJ300149-3, 14CEJ300149-4, 14CEJ300149-5, 14CEJ300149-6)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Gary Green, Commissioner. Linda Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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E.G. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her six children, now six-year-old Ju. C., five-year-old Jo. C., four-year-old twins A.C. and R.C., three-year-old I.C., and one-year-old G.G. The children's father is Ricardo C. (father). Mother contends the juvenile court prejudicially erred when it denied her attorney's request for a continuance of the section 366.26 hearing, which deprived her of her due process right to a contested hearing on the issues of adoptability and the beneficial parent-child and sibling relationship exceptions to adoption. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We agree that mother's due process rights were violated. Therefore, we reverse the juvenile court's adoptability findings and the termination of parental rights, and remand for the juvenile court to set a new section 366.26 hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
Father separately appealed from the termination orders in case no. F075838.
FACTUAL AND PROCEDURAL BACKGROUND
These dependency proceedings began in February 2016, when the Fresno County Department of Social Services (Department) received a referral that mother and G.G. tested positive for methamphetamine at G.G.'s birth. This was not mother's first drug-exposed baby - Ju. C. and Jo. C. were born exposed to marijuana, and while I.C. tested negative at birth, mother tested positive for methamphetamine at a prenatal visit three months before his birth. A social worker investigating the referral interviewed mother, who denied a history of substance abuse and claimed the first time she used methamphetamine was the day before G.G.'s birth.
The family had a prior dependency case that was dismissed just four months before G.G.'s birth. In that case, dependency jurisdiction was taken over the five older children based on domestic violence between the parents, the family's unsafe and unsanitary home, and father's substance abuse problem. Mother was given reunification services as to the four oldest children, and family maintenance services as to I.C., who remained in her care. Father received reunification services as to all five children. The older children were returned to mother in June 2015, and she was given family maintenance services, while father continued to receive reunification services. The case was dismissed in October 2015, when services were terminated and mother was granted sole physical custody of the five children and joint legal custody with father.
The Department filed a petition in the instant case alleging the children came within the provision of section 300, subdivision (b) based on mother's substance abuse problem, from which father failed to protect the children, and that G.G. came within the provision of section 300, subdivision (j) based on her siblings' prior neglect. The children were all taken into protective custody and ordered detained. While the children initially were separated into three foster homes when detained, they were later separated into two homes, with the four oldest children placed together in their previous foster home, and the two youngest in the home of their paternal aunt and her partner.
A combined jurisdiction and disposition hearing was held in May 2016. The juvenile court found the allegations of an amended petition true after the parents submitted on the reports, took dependency jurisdiction over the children, and removed them from parental custody. The juvenile court ordered reunification services for mother which included: parenting classes; domestic violence, substance abuse and mental health evaluations and recommended treatment; and random drug testing. Father was denied reunification services based on his failure to reunify with the five oldest children in the prior dependency case and his resistance to prior court-ordered drug treatment. Mother was given twice weekly supervised visits, while father was given monthly supervised visits.
Mother, however, did not participate in her reunification services and she failed to maintain regular contact with the Department. Paternal aunt supervised mother's visits with the children, which were to take place at the paternal grandmother's home. Mother, however, demanded the visits occur in her home and paternal aunt felt pressured to agree to supervise the visits there. At a September 2016 visitation meeting, which the foster parents attended but not the parents, it was agreed that future visits would take place at an agency or supervised by the Department. This was because the paternal aunt was not comfortable with visits occurring at the parents' apartment, and concerns were reported about inconsistent visits, mother's intimidating and confrontational attitude, and the children's safety in the apartment. The paternal aunt agreed to continue supervising visits until the agency had room to schedule them. By October 14, 2016, twice a week visits were set up through Comprehensive Youth Services (CYS), but CYS staff could not reach mother. They finally contacted mother on October 21, and her first visit was scheduled for October 26, 2016.
The Department recommended termination of mother's reunification services and that a section 366.26 hearing be set. The six month review hearing, which was set for November 3, 2016, was continued to November 10 at the request of mother's attorney because mother was hospitalized. While mother did not appear at the November 10 hearing, her attorney had spoken with mother, who wanted a contested hearing. Her attorney did not know why mother was not present, but based on the attorney's communication with mother, she felt it was necessary to follow mother's request and set the matter for trial. The juvenile court granted the request and set a settlement conference for December 6, 2016 and trial for December 15, 2016. The juvenile court told mother's attorney to advise mother of the consequences of her failure to appear at either hearing, namely that she would waive the trial.
Mother did not appear at the December 6 settlement conference. Mother's attorney stated she had been in contact with mother, who was aware of the court date and the consequences of her failure to appear. Given that, the juvenile court stated it intended to proceed. Mother's attorney asserted that mother wanted her services to continue, and objected to the termination of her services and the setting of a section 366.26 hearing. As mother would have been the only witness, her attorney had no additional witnesses or evidence to present. Father's attorney also objected to the setting of the section 366.26 hearing, but had no evidence to present. After County counsel and the children's attorney submitted on the report, the juvenile court stated that while this was a settlement conference, mother was informed of the consequences of her failure to appear, namely the setting of a section 366.26 hearing. The juvenile court terminated mother's reunification services, decreased mother's visits to once a month, and set a combined review and section 366.26 hearing for April 4, 2017. The juvenile court denied mother's request for a bonding study, without prejudice to renew the request should "something more" come up, noting it would be difficult to establish a bond since mother had not visited the children since October.
Mother's attorney filed an issue statement before the hearing which stated that mother wanted a contested hearing on the issue of whether her reunification services should continue and listed mother as the only witness. Mother asked for further reunification services, objected to the setting of a section 366.26 hearing, and asked for a bonding study if a section 366.26 hearing were set.
Subsequent references to dates are to dates in the year 2017, unless otherwise stated.
In a report prepared for the section 366.26 hearing, the Department recommended adoption as the children's permanent plan and termination of parental rights. The children remained in their same placements and their foster parents, who the Department identified as prospective adoptive parents, wanted to adopt them.
Mother and father visited the children monthly following the six month review hearing. They brought snacks for the children, and hugged and kissed them. The parents played with the children, interacted with them "fairly well," and were very affectionate and nurturing. Mother responded to the children's needs and both parents comforted the children when they fell while playing. The parents constantly told the children they loved them.
The children were considered "generally adoptable" based on their ages (ranging from five to one), their good physical health, and their lack of any significant behavioral concerns that would prevent their adoption. While the five older children had speech delays, the four oldest children were receiving speech therapy through the school district and I.C. was receiving services through Exceptional Parents Unlimited (EPU). Ju. C. and Jo. C.'s prospective adoptive mother requested an assessment for additional school services to support their academic learning. The children's speech had improved since being placed with their prospective adoptive parents, and they were able to follow directions, dress themselves, and interact with others. The children enjoyed playing with each other and interacting with their prospective adoptive parents, although they sometimes had age-appropriate physical outbursts while playing with each other. While I.C. was a Central Valley Regional Center (CVRC) client, his development was improving through EPU services. Ju. C. and R.C. had been referred to CVRC, but their eligibility had not been determined, while A.C. and Jo. C. were determined not to be eligible for CVRC services.
The children also were considered "specifically adoptable," as they were placed with prospective adoptive parents who wanted to adopt them. The prospective adoptive parents had formed healthy parent/child relationships with the children, and stated on numerous occasions that they loved them and wanted to adopt them. The children appeared comfortable and happy with the prospective adoptive parents, and saw them as their primary caregivers who met their daily needs. The prospective adoptive parents were committed to adoption, and to maintaining and nurturing sibling relationships through frequent visits. The two sets of prospective adoptive parents had a good relationship with each other and were willing to maintain sibling relationships.
Since the case was transferred to the assessment unit following the December 2016 hearing, the paternal grandmother asked to be assessed for placement of the four older children. Paternal grandmother, who had not seen the children since May 2016, had learned the parents did not get the children back and they were still in foster care. While paternal grandmother realized she had not been involved in the children's lives for the past eight months, she loved them and wanted placement so they could be a family. Paternal grandmother applied for placement of the children; her application was submitted to the Resource Family Approval (RFA) unit and was pending as of April 2017.
The Department opined that due to the lack of visitation, there did not appear to be a parent/child relationship and termination of parental rights would not be detrimental to the children. The children were well adjusted to their care providers, and looked to them to meet their daily needs. The children were considered to be "very easygoing"; they loved to play, smile and laugh. The children needed a permanent parent/child relationship which adoption would provide.
Both parents were present at the April 4 section 366.26 hearing. The juvenile court continued the hearing because the parties had not received the Department's report until April 3. The juvenile court set April 20 for updated discovery, April 27 for filing a statement of contested issues and witnesses, and May 4 for the continued selection and implementation hearing and settlement conference. The juvenile court advised the parents that they needed to return on May 4 at 8 a.m., when it would be decided how to proceed. The juvenile court ordered the parents to appear and explained there could be consequences if they failed to do so, because the children's long-term plan could be addressed at that hearing, and if they did not appear, the court could make its decision based on the Department's written report.
Mother's attorney filed an issue statement on April 28, which stated mother was requesting a contested hearing on the issues of the children's adoptability, and the applicability of the beneficial parent-child and sibling relationship exceptions to adoption. Mother argued there was insufficient evidence that the four older children were generally adoptable as they were part of a large sibling group with speech delays and reported behavioral issues, and the information in the Department's report about the foster parents' ability to adopt was limited; it would be detrimental to terminate parental rights due to the children's bond with her; and termination of parental rights would substantially interfere with sibling relationships. Mother and the social worker were listed as potential witnesses. Mother objected to the termination of parental rights and requested a permanent plan of either guardianship or long-term foster care.
On May 3, the Department provided the parties with an addendum report in which it recommended against placing the four older children with paternal grandmother. Paternal grandmother's home had been assessed and there were some safety concerns that needed to be corrected. Two social workers met with paternal grandmother and paternal aunt on April 18. The report recounted what was discussed at the meeting, including whether paternal grandmother knew why the children were removed from their parents, why she had not requested placement earlier, and a review of the services the children were receiving, which included school, mental health and speech therapy. Although paternal grandmother had asked for placement of the four older children, at the meeting she stated she wanted placement of the two older children and another paternal aunt, Rosa, was interested in placement of the twins. The Department, however, could not recommend the children's separation due to their significant sibling relationship.
The social worker reported the Department was concerned for the children's safety and well-being if they were placed with maternal grandmother, and it would be detrimental to the children if they were removed from their current care providers. The social worker observed a visit between paternal grandmother and the children on April 24. While paternal grandmother was appropriate with the children, the visit was "very chaotic." The social worker opined it was in the children's best interest to be adopted and to remain with their prospective adoptive parents. On April 28, the social workers received a handwritten letter from mother, in which she asked that the children be placed with relatives.
The report also discussed the results of the Consortium for Children Permanency Planning Mediation. The children's biological family and prospective adoptive parents agreed that the two sibling sets would have contact at least six times per year, and the visits would include paternal grandmother. The children's respective prospective adoptive parents encouraged and invited the children to celebrate important occasions such as birthdays, school functions, and sport activities; they developed the plan as a way to maintain and support the sibling connection.
The parents were not present at the beginning of the May 4 settlement conference. The juvenile court noted the Department had filed the addendum report the day before, and mother had set the contest. County counsel and the children's attorney both confirmed they were submitting on the reports. Father's attorney stated the addendum report was very late, as it was filed at 3:42 p.m. on May 3, and asserted most of the attorneys only got the report that morning. Because the report was late, the attorney thought the matter should be continued so she could review the report with father. County counsel asserted the report was emailed to the parties on May 3.
Mother's attorney stated she received the emailed report around the time it was filed, but she did not have an opportunity to review it with mother. The attorney had attempted to contact mother on May 3 to discuss the hearing, prior to receiving the addendum, but mother's phone was no longer in service. The attorney then spoke with paternal grandmother, as well as the paternal aunt. The paternal aunt indicated she had spoken with both parents on May 2 and they said they would be at the hearing. Since neither parent had a working telephone, no one knew why they were not there, although it was clear they intended to be there. Based on that information, mother's attorney asked for a continuance so she could review the addendum report with mother and determine whether she wanted to continue with the contest, since the attorney did not know whether mother wanted to do so. The attorney, however, knew mother did not want her parental rights terminated and mother indicated via the letter attached to the addendum report that if parental rights were terminated, she wanted the children with relatives.
The juvenile court responded that with regards to the failure to appear, the parents were ordered to be there at the April 4 hearing. County counsel confirmed the addendum report did not materially change anything. The juvenile court asked why it should not proceed that day if the parents were aware of "where this was headed and they're not here now." Mother's attorney responded that she wanted to give mother a full opportunity to present her position to the court. The attorney was making the request because the relatives indicated the parents were going to be there, but it was difficult to communicate with them as they did not have a telephone. The juvenile court asked what assurance it would have that the parents would be there if the hearing were continued. The attorney could not assure that; instead, she said she essentially was asking for the opportunity to ensure mother had all of her rights afforded to her.
The juvenile court stated that it did not know if it was mother's attorney's responsibility to "go above and beyond," because the parents were there on April 4 and told of the necessity to be at the continued hearing. The juvenile court confirmed that both the Department and the children's attorney were prepared to proceed. Father's attorney stated that father joined in the arguments mother raised in her issue statement. Mother's attorney asked the juvenile court to consider the arguments made in her issue statement with regard to adoptability of the children, as well as their relationship with mother and the detriment to them were they not afforded continued contact with mother and each other. The attorney noted that while the addendum report indicated there was a post-adoptive contract agreement for sibling contact, there was no guarantee the adoptive parents would comply with that agreement.
County counsel did not have updated findings and orders because she did not anticipate going forward that day. The juvenile court confirmed the likely date for adoption was November 4, and proceeded with the findings and orders. The juvenile court acknowledged the addendum report was filed in the late afternoon on May 3, but noted the report was a "fairly brief" five pages, which the court was able to review before going home the day before. With respect to the parents' failure to appear, the court noted they were ordered on April 4 to be at the continued hearing and it had no assurance the parents would be able to attend the hearing if it were continued. Considering the children's interest for permanency and stability, it did not see any reason to further delay the matter.
The juvenile court then proceeded to make the findings and orders. The court stated it had reviewed the social worker's reports and mother's issue statement. The court considered mother's attorney's arguments on the three issues she raised and found they were insufficient to preclude going forward. The court found notice of the hearing had been given as required by law, clear and convincing evidence existed that the children were likely to be adopted, and adoption was the appropriate permanent plan. At that point, the juvenile court noted that mother and father had arrived and told them it was going to proceed. County counsel asked the court if it was going to go back over the orders; the court responded that it was going to continue.
After counsel and clients conferred "sotto voce[,]" the juvenile court stated: "Continuing on, let the record reflect that [mother] and [father] have arrived. I would like to say good morning to both. I will note that I tried calling this case more than an hour ago. At the request of [mother's attorney], I waited until 9:30, and then we have heard argument on this case and gone back and forth. I cannot devote anymore time to this case, so the Court will go forward."
The juvenile court made the remaining findings and orders, including termination of parental rights, and placement of the children for adoption. After advising the parents of their appellate rights, mother's attorney asked for a brief opportunity to state why mother was late, adding that mother "wanted the Court to know and to also indicate that it was her desire to have a contest in this matter." The court said it would give her "30 seconds." Mother's attorney explained: "She said that the buses were running late and they unfortunately had not accommodated for that and so that is why they're late, and as I stated before, they don't have telephones, so they weren't able to communicate that."
DISCUSSION
Mother claims that the juvenile court erred when it denied her trial attorney's request for a continuance of the section 366.26 hearing. Her primary contention is that by denying the continuance, her due process rights were violated because she was deprived of the opportunity to present evidence about the beneficial parent-child and sibling relationship exceptions to adoption contained in section 366.26, subdivision (c)(1)(B)(i) & (v). She also asserts the denial of her continuance request was an abuse of discretion under section 352, subdivision (c).
The Department asserts mother's due process argument is in effect an assertion that the juvenile court erred by failing to provide mother with a contested section 366.26 hearing, as the juvenile court's decision to proceed with making the section 366.26 findings and orders had the procedural effect of foreclosing mother from the opportunity to challenge the Department's evidence and to present her own. While mother disputes this, we agree the due process issue turns on whether the juvenile court erred by effectively denying mother a contested hearing when it proceeded with its orders despite mother's late appearance at the hearing.
Section 366.26, the sole statutory provision governing termination of parental rights, contains the exclusive procedures for conducting the section 366.26 hearing. (§ 366.26, subd. (a); In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119 (Tamika T.).) The court is required to review the report that is required by statute, state that it has read and considered it, receive other evidence that the parties may present, and then make findings and orders. (§ 366.26, subd. (b).) If the court determines, based on clear and convincing evidence, that it is likely the child will be adopted, it shall terminate parental rights and order the child placed for adoption, unless an exception to adoption exists. (§ 366.26, subd. (c)(1).) It is the agency's burden to prove a likelihood of adoption. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731 (Thomas R.).)
Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the statutory requirements. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Parents may request a contested hearing on these issues to present evidence supporting their claim that an exception to the termination of parental rights exists. (In re Grace P. (2017) 8 Cal.App.5th 605, 611 (Grace P.).)
Here, mother contends the juvenile court violated her due process right when it denied her attorney's request for a continuance, as the denial deprived her of the opportunity to have a contested hearing on the application of the beneficial parent-child relationship and sibling relationship exceptions to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) and (v). (See § 366.26, subd. (c)(1)(B)(i) & (v) [The juvenile court shall not terminate parental rights where it "finds a compelling reason for determining that termination would be detrimental to the child [because] [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶] . . . [¶] (v) There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."]
"A parent has a right to due process at a section 366.26 hearing resulting in the termination of parental rights, which includes a meaningful opportunity to be heard, present evidence, and confront witnesses. However, these procedural rights are subject to evidentiary principles. Due process is 'a flexible concept dependent on the circumstances.' " (Grace P., supra, 8 Cal.App.5th at p. 612.)
A parent "has a due process right to conduct examination and test the sufficiency of evidence offered by the social service agency on the issue of adoptability, an issue on which the agency bears the burden of proof." (Thomas R., supra, 145 Cal.App.4th at p. 729.) On issues on which the parent bears the burden of proof, such as the exceptions to termination of parental rights, "[t]he trial court can . . . exercise its power to request an offer of proof to clearly identify the contested issue(s) so it can determine whether a parent's representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses." (Tamika T., supra, 97 Cal.App.4th at p. 1122; In re Earl L. (2004) 121 Cal.App.4th 1050, 1053 (Earl L.).) The parent's offer of proof "must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued." (Tamika T., supra, 97 Cal.App.4th at p. 1124.) We review the denial of a contested hearing for an abuse of discretion. (Grace P., supra, 8 Cal.App.5th at p. 611.)
Here, mother's attorney requested a continuance because she did not have an opportunity to review the late-filed addendum report with mother, she wanted to confirm with mother whether she wanted a contested hearing, and she knew mother intended to attend the hearing, but the reason for her absence could not be verified since mother did not have a phone. The juvenile court denied the request for continuance because the addendum report was not material, the parents were ordered to be there at the prior hearing, and mother's attorney could not assure mother's presence at a continued hearing.
When the parents appeared while the juvenile court was making its findings and orders, rather than allowing mother to explain the reason for her lateness or determining whether she had any relevant evidence, the juvenile court proceeded with its findings and orders. It was only after it concluded that the juvenile court allowed mother's attorney to briefly explain that mother wanted a contest and she was late for the hearing because the buses were running late. The juvenile court's decision to continue with its orders because it could not "devote any[]more time to this case[,]" deprived mother of the opportunity to establish the only issues that would prevent the termination of her parental rights. The juvenile court abused its discretion in failing to afford mother the opportunity to at least make an offer of proof on the issues of the beneficial parent-child and sibling relationship exceptions. Its actions, in effect, constituted a summary denial of a contested hearing without considering the issues or the evidence mother proposed to offer.
The Department asserts that mother was not entitled to a contested hearing on adoptability because in the argument section of her issue statement, she did not state she was challenging the adoptability of the two youngest children or whether the older children were specifically adoptable. The first issue listed in the issue statements, however, was "[w]hether there is clear and convincing evidence the children are likely to be adopted." By raising the issue, mother had a due process right to a contested hearing on adoptability as set out in Thomas R., supra, 145 Cal.App.4th at pp. 733-734.)
In addition, the Department contends mother was not entitled to a contested hearing on the exceptions to termination of parental rights because she did not make an offer of proof. The cases the Department relies on, Earl L. and Tamika T., however, do not hold that an offer of proof is required in order to obtain a contested hearing. Instead, the cases hold simply that a juvenile court has discretion to require a parent who seeks a contested hearing on a beneficial parent-child or sibling relationship exceptions to "make 'an offer of proof to clearly identify the contested issue(s)' prior to determining whether a hearing is warranted.' " (Earl L., supra, 121 Cal.App.4th at p. 1053, citing Tamika T., supra, 97 Cal.App.4th at p. 1122.) Here, the juvenile court did not require mother to make an offer of proof and no offer of proof was given. The court did not consider whether an offer of proof was sufficient to trigger a hearing; instead, it simply denied her the hearing without giving her the opportunity to make such an offer.
We refuse to speculate whether affording mother a contested hearing on adoptability and the exceptions to adoption would have changed the outcome of the hearing. Absent an offer of proof or the evidence mother intended to offer, we cannot assess whether mother was incapable of proving the beneficial parent-child or sibling relationship exceptions to adoption. (See Grace P., supra, 8 Cal.App.5th at p. 615.)
Based on the foregoing analysis, we conclude the juvenile court abused its discretion in denying a contested section 366.26 hearing.
Since we conclude mother was improperly denied a contested section 366.26 hearing, we do not decide the other issue mother raises, namely whether the juvenile court abused its discretion in denying the request for continuance under section 352. --------
Father has also appealed, contending the juvenile court erred in finding the children adoptable. Since we must reverse the order terminating mother's parental rights, we must also reverse the juvenile court's termination of father's parental rights. The Rules of Court forbid, with limited exceptions, the termination of the rights of only one parent in a section 366.26 hearing. (Cal. Rules of Court, rule 5.725(a)(1).) Accordingly, it is generally held that when the section 366.26 termination of parental rights of one parent is reversed, the termination of the other parent's rights should be reversed as well. (In re A.L. (2010) 190 Cal.App.4th 75, 80; see also In re Mary G. (2007) 151 Cal.App.4th 184, 208; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
DISPOSITION
We reverse the juvenile court's adoptability finding and the orders terminating parental rights as to both parents. We remand for the juvenile court to set a contested section 366.26 hearing to consider the issues of the adoptability of the children and the applicability of the exceptions to adoption.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.