Filed 9/20/17 A.S. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Erin K. Alexander, Judge. Petition dismissed.

Friedland & Associates and Kathy Luttrell Garcia for Petitioner.

No appearance for Respondent.

Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

The juvenile court terminated petitioner, A.S., Sr.’s (Father), reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26.[1] In this petition, Father’s attorney contends there is insufficient evidence that real party in interest, San Bernardino County Children and Family Services (CFS), offered Father reasonable services. We dismiss the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2016, a deputy sheriff and social worker served a detention warrant for A.S., Jr. (A.S.) (born July 2016) and J.S. (born February 2015) (Minors), taking them into protective custody. A social worker met with S.S. (Mother)[2] on August 15, 2016, after it was reported that she and A.S. had both tested positive for methamphetamine at A.S.’s birth. Mother’s other child, J.B. (born December 2012), also tested positive for methamphetamine at birth. Mother said she had been struggling with drug abuse since her oldest son, J.B.,[3] was born. She used methamphetamine with J.B.’s father; she was “heavily into drugs” at the time. Mother had gone into drug treatment previously, but left after a week.

Mother reported that she married Father in November 2013. She remained sober while pregnant with J.S., but relapsed while pregnant with A.S. Mother and Father used methamphetamine together, injecting it and sharing needles. Father also used heroin. Mother lived with the maternal grandmother on and off. Mother had a criminal history for possession of methamphetamine.

Father admitted to using heroin and methamphetamine regularly, but was “‘trying to get [his] life together since getting out of jail one month ago.’” Father’s criminal history included four incidents of possession of controlled substances, one instance of possession of methamphetamine for sale, two incidents of possession of drug paraphernalia, as well as additional crimes. Father had been convicted of a home invasion robbery for which he had spent nearly six years in prison.

On August 3, 2016, the court ordered Minors detained. In the jurisdictional and dispositional report filed on August 19, 2016, the social worker recommended Minors be removed from the parents and that the parents be offered reunification services. Mother was homeless; she could not reside in domestic violence or homeless shelters due to her drug use. Mother agreed to drug test on August 15, 2016, but failed to show. Father denied the need to undergo detoxification, but sniffed heavily throughout his conversation with the social worker, which she noted was a side effect of heroin withdrawal. Father admitted being out on bail for his most recent arrest for being a felon in possession of ammunition and possession of a controlled substance.

Mother acknowledged domestic violence incidents with J.B.’s father; he had twice been arrested and once convicted for corporeal injury to a spouse. On August 14, 2016, Mother left a voice mail indicating she had just been beaten up by Father. The maternal grandmother reported Mother told her that Father had burned her with a cigarette and hit her in the face. Mother later confirmed the fight, but said it was mutual; she wished to remain with Father; she reported they never fought in front of Minors. Mother denied any previous physical altercations with Father. On August 16, 2016, Mother tested positive for amphetamines and methamphetamines.

On August 24, 2016, the court ordered Father to test that day. Father failed to show for the test, failed to show for a random drug test scheduled for September 7, 2016, and failed to respond to numerous attempts to schedule him for individual counseling and parenting classes. Father failed to show for a hearing scheduled for September 20, 2016, because he was incarcerated.

In an October 21, 2016, information for the court, the social worker reported that Father had not enrolled in a substance abuse program. Father attended a parenting and individual counseling session, but did not show to a subsequent appointment. Father failed to show for five random drug tests.

Father appeared at the jurisdiction hearing on October 24, 2016. The court found true the allegations in the juvenile dependency petition and declared Minors wards of the court. The court scheduled a contested disposition hearing for December 7, 2016.

In a December 1, 2016, information for the court, the social worker noted that Father had still not participated in a substance abuse program and had failed to show for any drug testing. At the hearing on December 7, 2016, Father’s attorney noted that she had learned Father was in custody; she requested a continuance, which the court granted, so that Father could be transported to the hearing.

On January 24, 2017, the court held the disposition hearing. Father submitted on the evidence. The court ordered reunification services for Father.

In the status review report filed on July 14, 2017, the social worker recommended the court terminate Father’s reunification services. Father had been released from jail on July 4, 2017. He visited once with Minors; the visit did not go well; Father appeared to be under the influence. Father was living in his mother’s garage. He had not enrolled or participated in services and had failed to contact the social worker.

Father failed to appear at the section 366.21, subdivision (e) hearing on July 24, 2017. Father’s counsel requested the court to continue the matter for Father’s appearance. The court asked if counsel knew why Father was not present. Father’s counsel responded that she did not. The court stated: “I will note he was present at the last court date. He was ordered to be here today. He was advised that if he failed to appear, the hearing could go forward without him based only on information included in the report, and I have no additional information.” Father’s counsel observed that according to the report, Father had been released from custody on July 4, 2017; she had yet to hear from him. The court denied the requested continuance. The court terminated Father’s reunification services and set the section 366.26 hearing. On the same day, Father’s counsel signed and filed a notice of intent to file a writ petition.

II. DISCUSSION

Father contends insufficient evidence supports the court’s determination that CFS provided him reasonable services. CFS maintains the petition must be dismissed because it was not authorized by Father. We agree with CFS.

“The notice must be authorized by the party intending to file the petition and must be signed by that party or by the attorney of record for that party.” (Cal. Rules of Court, rule 8.450(e)(3).) Counsel for a petitioner may file the notice of intent to file a petition for extraordinary writ where the parent is incarcerated and, therefore, not present at the hearing setting the section 366.26 hearing. (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1830.) Nevertheless, the client must have authorized counsel to have done so. In such a situation, counsel must attach a declaration asserting that the client authorized its filing. (Id. at p. 1830, fn. 4; accord, Guillermo G. v. Superior Court (1995) 33 Cal.App.4th 1168, 1172 [“A client’s consent is required for an appeal from an order setting a selection and implementation hearing.”]; accord, Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 788 [“[W]here the record indicates the notice of intent was signed by the petitioner’s attorney because the petitioner has disappeared [citation], the burden of proof to show consent was given must shift to the petitioner.”].) Where there is no showing that a parent authorized the filing of a notice of intent to file a petition for extraordinary writ, the petition must be dismissed. (Jonathan M. v. Superior Court, supra, at pp. 1828-1830; Guillermo G. v. Superior Court, supra, at p. 1174; Suzanne J. v. Superior Court, supra, at pp. 788-789.)

Here, defendant had apparently been released from jail on July 4, 2017, and had visited Minors once. Nonetheless, he failed to contact either the social worker or his attorney. Father failed to show for the hearing, at which the court terminated his reunification services. On the very same day Father’s counsel reported that she had not heard from Father, she filed the notice of intent to file a writ petition. Thus, the record reflects that Father had effectively “disappeared” and the burden of proof to show that Father consented to the filing of the notice of intent to file a writ petition shifted to Father. Father fails here to satisfy that burden. Neither Father nor Father’s counsel produces any evidence, such as a declaration, that Father approved of the filing of the notice of intent to file a writ petition. Therefore, the petition must be dismissed.

III. DISPOSITION

The petition is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.