C.H. v. Superior Court CA5

Filed 8/9/21 C.H. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
C.H.,
F082791
Petitioner,
(Super. Ct. No. JD141225-00)
v.
THE SUPERIOR COURT OF KERN COUNTY, OPINION
Respondent;
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Susan M. Gill,
Judge.
C.H., in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
-ooOoo-
* Before Franson, Acting P.J., Smith, J. and Snauffer, J.
Petitioner C.H. (father)1, seek an extraordinary writ after the juvenile court’s order
setting a Welfare and Institutions Code section 366.262 hearing as to his now one-year-
old child, C.C.
We conclude the petition fails to comport with the procedural requirements of
California Rules of Court, rule 8.4523 regarding extraordinary writ petitions and dismiss
the petition.
PROCEDURAL AND FACTUAL SUMMARY4
C.C. was removed due to mother’s combative and erratic behavior at the time of
C.C.’s birth in March 2020. Mother had been displaying symptoms of auditory and
visual hallucinations, as well as paranoia and aggressive behavior toward others since
March of 2019. In one such episode, mother threatened to cut father’s throat. C.C. and
mother both tested positive for amphetamine at the time of C.C.’s birth. Mother used
methamphetamine during the entire course of the pregnancy, and she had lost custody of
C.C.’s three older siblings in 2019, due to her substance abuse.
At the detention hearing on July 29, 2020, C.C. was ordered detained, and mother
was granted twice weekly supervised visits. C.C. was placed with a maternal aunt and
uncle. At the jurisdiction/disposition hearing September 4, 2020, father was elevated to
biological status and was also ordered twice weekly supervised visits. The petition was
1 A.C. (mother) and father both signed the writ in this case number, but mother’s
notice of intent was filed under case No. F082789. Her case was dismissed on June 16,
2021, for lack of filing writ petition. Then mother signed father’s writ petition, which
was filed June 18, 2021.
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
3 All further rule references are to the California Rules of Court.
4 The procedural and factual summary are taken from the report prepared by the
Kern County Department of Human Services (department) at the six-month review
hearing held May 10, 2021.
2.
found true, and the matter continued to comply with the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.).
At the continued dispositional hearing October 21, 2020, the juvenile court found
the ICWA did not apply. Mother was ordered to complete counseling for
parenting/neglect, substance abuse, and complete a mental health assessment and comply
with recommendations. Father was ordered to complete counseling for parenting/neglect
and substance abuse. Both mother and father were ordered to submit to random drug and
alcohol testing.
The report prepared by the department for the six-month review hearing
recommended that services be terminated for mother and father. Neither mother nor
father had enrolled in their case plan components or followed through with drug testing,
although both had been contacted by the department on numerous occasions. Neither
mother nor father provided verification of enrollment in parenting and neglect classes.
Both claimed to be enrolled in substance abuse counseling but did not provide
verification. Mother self-reported that she had completed a mental health assessment but
provided no verification. Both failed to appear for numerous drug/alcohol tests.
While both mother and father were ordered twice weekly visits with C.C., they
missed visits on October 21, 2020, and November 4, 18, and 25, 2020. No visits were
scheduled after November 25, 2020. When they did visit, mother and father reportedly
often left the visits early.
At the contested six-month review hearing held May 10, 2021, the juvenile court
found that neither mother nor father made acceptable efforts or availed themselves of
services to facilitate a return of C.C. to their care and return of the child to their care
would be detrimental. The juvenile court found that the department provided reasonable
services and terminated services for both mother and father. A hearing pursuant to
section 366.26 was set for September 7, 2021.
3.
DISCUSSION
On father’s writ petition he has checked the box that states he is seeking
extraordinary relief from the order “designating a specific placement after a placement
order under Welfare and Institutions Code section 366.28.” Section 366.28 requires the
filing of a writ petition in order to appeal the decisions involving placement or removal
orders following the termination of parental rights. However, no placement order under
section 366.28 was made in this case, as mother and father’s parental rights have not been
terminated. We therefore treat this petition as an extraordinary writ from the orders and
findings issued at the setting of the section 366.26 hearing.
The purpose of extraordinary writ proceedings is to allow the appellate court to
achieve a substantive and meritorious review of the juvenile court’s orders and findings
issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd.
(l)(4).)
Rule 8.452, which sets forth the content requirements for an extraordinary writ
petition, requires the petitioner to identify the error(s) he or she believes the juvenile
court made and to support each alleged error with argument, citation to legal authority,
and citation to the appellate record. (Rule 8.452(b).) In keeping with rule 8.452(a)(1),
we will liberally construe a writ petition in favor of its adequacy where possible,
recognizing that a parent representing him or herself is not trained in the law.
Nevertheless, the petitioner must at least articulate a claim of error and support it by
citations to the record. Failure to do so renders the petition inadequate in its content and
the reviewing court need not independently review the record for possible error. (In re
Sade C. (1996) 13 Cal.4th 952, 994.)
The petition requests an “immediate” hearing date, as mother has written on the
petition, “We feel that children are unsafe” and father has written, “I … feel my kids are
4.
being brainwashed to forget me.”5 In support of this argument, attached to the petition
are copies of various pages of what appear to be department reports, with written notes in
the margins, questioning and highlighting certain findings. For instance, one department
narrative describes placement of C.C. into protective custody after she tests positive for
methamphetamine at birth and mother was combative with hospital staff. Notes added
onto the narrative by father or mother state, “no toxicology report at the time of birth”
and questions “who?” mother was combative with. Notes are written on 26 pages of
various reports.
Most of what is highlighted appears to question jurisdiction and disposition of
C.C. which, at the setting of the section 366.26, is no longer appealable. Jurisdictional
findings and disposition orders may be reviewed by means of a petition for writ review
only if the order setting the section 366.26 hearing is made contemporaneously with the
jurisdiction and disposition orders, i.e., in a case where no reunification services are
ordered for either parent. (Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662,
671.) Such was not the case here. Moreover, we do not independently review the
appellate record for possible errors. (In re Sade C., supra, 13 Cal.4th at p. 994.)
We will dismiss the petition as facially inadequate for appellate review.
DISPOSITION
The petition for extraordinary writ is dismissed as inadequate under rule 8.452.
This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A).
5 While the current dependency involves only one child, C.C., it appears from the
record that C.C. was placed with the same aunt and uncle who have legal guardianship of
mother and father’s other children.
5.