Anthony D. v. Superior Court CA1/1 ( 2020 )

Filed 12/3/20 Anthony D. v. Superior Court CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
ANTHONY D.,
Petitioner,
v.
THE SUPERIOR COURT FOR THE A160990
CITY AND COUNTY OF SAN
FRANCISCO, (San Francisco City & County
Super. Ct. No. JD19-3169)
Respondent;
SAN FRANCISCO HUMAN
SERVICES AGENCY et al.,
Real Parties in Interest.
MEMORANDUM OPINION1
Anthony D. (father) petitions this court for extraordinary writ review of
a juvenile court order setting a selection-and-implementation hearing under
Welfare and Institutions Code2 section 366.26 for his daughter, 18-month-old
M.D. Father claims that insufficient evidence supports the court’s decision to
terminate reunification services and set a hearing under section 366.26. We
We resolve this case by a memorandum opinion in accordance with
1
California Standards of Judicial Administration, section 8.1.
2 All further statutory references are to the Welfare and Institutions
Code.
1
agree with the San Francisco Human Services Agency (Agency), however,
that father’s notice of intent to file a writ petition was untimely. Because
father has not offered any excuse for his failure to comply with the applicable
time limit, we dismiss his petition.
The underlying facts are not relevant to our disposition. Briefly, in
June 2019 the Agency filed a petition seeking dependency court jurisdiction
over then one-month-old M.D. under section 300, subdivisions (b)(1) and (j).
Most of the allegations involved C.A. (mother), who used methamphetamine
during the pregnancy in violation of her parole, had diagnoses of bipolar
disorder and manic depression, and previously failed to reunify with four of
M.D.’s older half-siblings.3 M.D. was not removed from parental custody, and
the case proceeded as a family maintenance case.
A few months later, after father left M.D. in mother’s care in violation
of the family’s safety plan, M.D. was removed and an amended petition was
filed. At the January 2020 jurisdiction/disposition hearing, the juvenile court
sustained allegations involving mother’s substance abuse, mental health
issues, and previous child welfare history, as well as an amended allegation
under section 300, subdivision (b)(1), involving father’s “minimiz[ing]” of
mother’s substance abuse problem. Father was granted six months of
reunification services.
Over the next several months, father visited with M.D. and completed a
parenting program, but he did not undergo a substance abuse assessment or
begin individual therapy as his case plan required. At the six-month review
hearing on September 11, 2020, at which father appeared and testified, the
juvenile court found that reasonable services were provided but both parents
“failed to participate in and make substantial progress in the court-ordered
3 Mother did not file a petition for extraordinary writ review.
2
treatment program.” It also found that there was “not a substantial
probability” of M.D.’s return to parents’ care. The court then terminated
parents’ reunification services and set a section 366.26 hearing for January 6,
2021.
A party who seeks writ review under section 366.26, subdivision (l),
must first file a notice of intent to file a writ petition. (Cal. Rules of Court,
rule 8.450(e).)4 The deadline to file a notice of intent varies depending on the
manner by which the filing party received notice of the order setting the
section 366.26 hearing. (Rule 8.450(e)(4).) This time requirement, which
ensures that writ petitions are resolved before the section 366.26 hearing
occurs, is “mandatory.” (Roxanne H. v. Superior Court (1995) 35 Cal.App.4th
1008, 1012; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 807.) Thus,
although reviewing courts generally should decide writ petitions “on the
merits by written opinion” (rule 8.452(h)(1); § 366.26, subd. (l)(4)(B)), an
untimely notice of intent requires dismissal of the petition unless good cause
is shown for the lack of compliance. (Jonathan M. v. Superior Court (1995)
39 Cal.App.4th 1826, 1830–1831; Roxanne H., at p. 1012; rule 8.450(d) [no
extension of deadline permitted absent “exceptional showing of good cause”].)
Father filed his notice of intent on September 22, 2020, which was 11
days after the juvenile court’s order setting a section 366.26 hearing. But
where, as here, “the party was present at the hearing when the court ordered
a hearing under . . . section 366.26, the notice of intent must be filed within 7
days after the date of the order setting the hearing.” (Rule 8.450(e)(4)(A).)
The notice’s untimeliness was not identified until the Agency filed its
response to father’s petition on November 13. We then asked father to
4 All further rule references are to the California Rules of Court.
3
explain why his failure to comply with rule 8.450(e)(4)(A)’s deadline should be
excused and gave him seven days to submit a response, but he did not do so.
Since father has not shown good cause for the untimely filing of his
notice of intent, we must dismiss his petition. He is therefore barred in any
subsequent appeal from challenging the order setting a hearing under
section 366.26. (§ 366.26, subd. (l)(2); Roxanne H. v. Superior Court, supra,
35 Cal.App.4th at pp. 1012–1013.) Our decision is final in this court
immediately. (Rules 8.452(i), 8.490(b)(2)(A).)
4
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
Anthony D. v. Superior Court A160990
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