Kendra K. v. Superior Court CA5 ( 2014 )

Filed 9/12/14 Kendra K. v. Superior Court CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
KENDRA K.,
Petitioner, F069629
v.
(Merced Super. Ct. No. JP000743)
THE SUPERIOR COURT OF MERCED
COUNTY,
OPINION
Respondent;
MERCED COUNTY HUMAN SERVICES
AGENCY,
Real Party in Interest.
THE COURT
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian L.
McCabe, Judge.
Kendra K., in pro. per., for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel,
for Real Party in Interest.
-ooOoo-
* Before Kane, Acting P.J., Detjen, J., and Chittick, J.†
†
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Kendra K. (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452)
from a juvenile court’s order terminating reunification services and setting a Welfare and
Institutions Code section 366.26 hearing for her eight-year-old son, Julian L.1 Mother
questions the necessity for removing Julian from her custody. She also claims she has
completed one of three requirements for reunification and is still participating in services.
On review, we conclude mother’s petition fails to comport with the procedural
requirements of section 366.26, subdivision (l) and California Rules of Court, rule
8.452(a) and (b). In particular, she fails to raise any legal issue that this court can review.
Accordingly, we will dismiss mother’s petition as inadequate.
PROCEDURAL AND FACTUAL HISTORY
The parents’ untreated substance abuse, mental health conditions, domestic
violence, and transient lifestyle choices led the juvenile court in April 2013 to exercise its
dependency jurisdiction over Julian and remove him from parental custody. The court
also ordered reunification services for both parents. Mother’s services included a mental
health assessment and recommended treatment, a parenting course, and a substance abuse
assessment and recommended treatment.
During the first six months of services, mother made minimal progress because
she only began to participate in services as the six-month status review hearing
approached. The court ordered continued reunification services for mother in the fall of
2013. However, once again mother made little progress. At most, she did complete a
parenting course in December 2013.
After more than 12 months of reunification services, respondent Merced County
Human Services Agency (agency) recommended that the court terminate family
reunification services for the parents and set a section 366.26 hearing to select and
implement a permanent plan for Julian.
1 All statutory references are to the Welfare and Institutions Code.
2
At a contested hearing in June 2014, mother opposed the agency’s
recommendation. Nevertheless, she all but admitted in her testimony that she had
accomplished little to reunify with Julian. She also had engaged in domestic violence
with Julian’s father earlier in 2014.
At the hearing’s conclusion, the court continued Julian’s out-of-home placement,
terminated reunification services for the parents, and set a hearing pursuant to section
366.26 to select and implement a permanent plan for Julian.
DISCUSSION
The purpose of writ proceedings, such as this, is to facilitate a prompt review of a
juvenile court’s order setting a section 366.26 hearing to select and implement a
permanent plan for a dependent child. (Cal. Rules of Court, rule 8.450(a).) A court’s
decision is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It
is up to a petitioner to raise specific issues and substantively address them. (§ 366.26,
subd. (l).) A petitioner must also include, inter alia, a memorandum summarizing the
significant facts, limited to matters in the record and with citations to the record. (Cal.
Rules of Court, rule 8.452(a) & (b).) This court will not independently review the record
for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
In her petition for extraordinary writ, mother contends that Julian was falsely
detained because she believes he was never in harm’s way. She also argues that she
completed one of the court-ordered services and is currently continuing in services. She
promises to do whatever it takes to regain custody of Julian. Mother, however, makes no
specific claim of error regarding the court’s June 2014 decision to terminate services and
set the section 366.26 hearing to select and implement a permanent plan for Julian.
Mother has forfeited her argument regarding Julian’s detention. Mother did not
contest Julian’s detention in the superior court nor did she appeal from the juvenile
court’s April 2013 dispositional orders. As a result, she cannot complain now about the
removal of Julian from her custody. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563
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[a challenge to the most recent order entered in a dependency matter may not dispute
prior orders for which the statutory time for filing an appeal has passed].)
In addition, mother overlooks the law that the superior court had to follow at the
June 2014 hearing. A parent’s failure to participate regularly and make substantive
progress in court-ordered treatment is prima facie evidence that return of the child to the
parent’s custody would be detrimental. (§ 366.21, subd. (f).) In addition, the court may
not continue reunification efforts after 12 months of services unless, among other things,
the parent has made significant progress in resolving the problems that led to the child’s
removal. (§ 366.21, subd. (g)(1).)
Mother argues she completed one reunification service, the parenting course.
However, completion of one reunification requirement is not the test for continuing
reunification services. Because it is undisputed that mother neither made substantive
progress in court-ordered treatment nor significant progress in resolving the problems
that led to the child’s removal, there can be no arguable claim that the court erred by
continuing Julian’s removal from mother’s custody and terminating reunification
services.
As to her current efforts, her remedy is not to argue such new evidence here. Our
role is only to review the evidence that was before the superior court at the time of the
June 2014 hearing. Instead, if mother can show her circumstances have so changed since
the June 2014 hearing that it would be in Julian’s best interests that the court change its
order, she may wish to consider petitioning the superior court under section 388 to
modify its order before the section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is dismissed as inadequate. This opinion is
immediately final as to this court.
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