Alberto V. v. Superior Court

Filed 10/13/06 Alberto V. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Kenneth C. Twisselman II, Judge.

Alberto V., pro. per., for Petitioner

No appearance for Respondent.

B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rules 38-38.1) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing^[1] as to his daughter R. We will dismiss the petition.

STATEMENT OF THE CASE AND FACTS

In April 2005, newborn R. was taken into protective custody by the Kern County Department of Human Services (department) because of her mother Pauline’s unresolved methamphetamine use, which resulted in the removal of R.’s siblings and ultimately the severance of Pauline’s parental rights. At the time of R.’s removal, petitioner, then identified as R.’s alleged father, was in prison serving a four-year sentence for active participation in a gang and being an accessory to a felony.

The juvenile court ordered R. detained pursuant to a dependency petition filed by the department. Petitioner did not personally appear at the detention hearing but was appointed counsel. In May, at a combined jurisdictional/dispositional hearing, the court adjudged R. a dependent of the court and entered a judgment of paternity declaring petitioner to be R.’s presumed father. At the same hearing, the court ordered six months of reunification services for Pauline but denied petitioner services, finding that he was R.’s biological father and that services would not benefit R.^[2]

By the six-month review hearing in December, Pauline had made substantial progress in her reunification plan. Consequently, the court returned R. to her custody under a plan of family maintenance, which required her to continue drug testing. However, family maintenance proved to be ineffectual. Pauline failed to drug test as required and, in April 2006, the department took R. into protective custody, filed a supplemental petition under section 387 and placed her with a maternal relative.

The juvenile court found the allegations in the section 387 petition true and, on August 1, 2006, conducted the dispositional hearing on the petition. Neither petitioner nor Pauline appeared at the hearing. Pauline’s whereabouts were unknown and petitioner waived his right to appear. The court ordered R. removed from Pauline’s custody, denied Pauline any further services and set the section 366.26 hearing for November 29, 2006. This petition ensued.

DISCUSSION

Petitioner does not assert legal error. He merely asks for custody of R. Consequently, real party in interest argues his petition should be dismissed for failure to comport with California Rules of Court, rule 38.1 (rule), which sets forth the minimum content requirements for an extraordinary writ petition. We agree with real party. The writ procedure outlined in section 366.26, subdivision (l) and implemented in rules 38 and 38.1 enables a party to obtain expeditious review of the findings and orders of the juvenile court in setting a section 366.26 hearing. (See Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Rule 38.1 specifies, inter alia, that the writ petition must include a summary of the facts and points and authorities. (Rule 38.1, (a)(1)(D) & (a)(3).) At a minimum, the points and authorities must “adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues.” (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) Here, petitioner failed to technically comply with the rule by not setting forth a factual summary of the case or challenging the validity of the court’s order through points and authorities. Such technical noncompliance is not fatal, however, since this court will, to the extent possible, liberally construe the petition in favor of its sufficiency in an effort to reach the merits. (Rule 38.1(a)(2).) However, in this case, the petition is too facially inadequate to perform a meaningful review. Accordingly, we presume the juvenile court’s orders are correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) and will dismiss the petition as facially inadequate.

DISPOSITION

The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.

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^* Before Harris, Acting P.J., Cornell, J., and Dawson, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] As real party in interest points out, this finding is directly contrary to the court’s finding that petitioner is R.’s presumed father. Further, as R.’s presumed father, petitioner was entitled to reunification services absent exceptional circumstances. (§ 361.5, subds. (a) & (b).) However, because the appellate record does not contain a reporter’s transcript for this hearing, we cannot determine whether there was another basis for denying petitioner reunification services. In addition, petitioner did not challenge the court’s denial of services by direct appeal.