C.W. v. Superior Court

Filed 8/28/09 C.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Martin C. Suits, Commissioner.

C.W., in pro. per., for Petitioner.

No appearance for Respondent.

Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) from the juvenile courts orders issued at a contested 18-month review hearing (Welf. & Inst. Code,  366.22)^[1]terminating her reunification services and setting a section 366.26 hearing as to her daughter D. and son M. We conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, we will dismiss the petition as facially inadequate.

STATEMENT OF THE CASE AND FACTS

Petitioner has a history of drug use, which places her children at risk of harm. In April 2003, petitioner was provided voluntary maintenance services, which included drug treatment. However, she continued to use drugs.

These dependency proceedings were initiated in November 2007 when the Fresno County Department of Children and Family Services (department) took then 10-year-old D. and three-year-old M. into protective custody after petitioner was arrested for possession of drug paraphernalia and misdemeanor child endangerment. At the time, the childrens father, M.G.,^[2]was incarcerated. The children were placed together in foster care.

Several days after the children were removed, petitioner tested positive for methamphetamine and marijuana. She admitted relapsing but denied having a drug problem.

The department filed a dependency petition, alleging the children were subject to juvenile court jurisdiction pursuant to section 300, subdivision (b) (failure to protect). At the detention hearing in November 2007, the juvenile court ordered the children detained and ordered petitioner to participate in various services, including random drug testing and a substance abuse evaluation. That same day, the services coordinator met with petitioner and reviewed her services plan and petitioner expressed understanding of what was required of her. However, she did not submit to random drug testing until a month later despite repeated telephone calls to her by the social worker. When petitioner finally tested in early December, she tested positive for methamphetamine. Because of her lack of cooperation and continuing drug use, the department recommended she participate in inpatient drug treatment. Petitioner told the social worker she did not want to participate in the services offered by the department.

In December 2007, at the jurisdictional hearing, the juvenile court adjudged the children dependents of the court and set the matter for disposition. The dispositional hearing was continued multiple times and conducted in May 2008. Meanwhile, M.G. was released from custody and requested visitation and services. Also, during this interim period, petitioner began intensive outpatient substance abuse treatment in January 2008 but was discharged in early March for not attending. She reentered another facility for the same level of treatment in mid-March but was discharged in early April, again for not attending. In mid-May, petitioner entered a residential treatment facility but voluntarily left against staff advice after only a few days.

At the dispositional hearing in May 2008, the juvenile court ordered reunification services for petitioner and M.G. Petitioners services plan required her to complete a parenting class and submit to random drug testing. It also required her to complete substance abuse, mental health and domestic violence assessments and to participate in recommended treatment.

In July 2008, at the six-month review hearing, the juvenile court continued services for petitioner and M.G. until the 12-month review hearing, which it set for December 2008. It was during this six-month period that petitioner demonstrated progress in addressing her drug abuse. In November 2008, she completed an inpatient substance abuse program and 12 weeks of anger management. In December, she completed 14 weeks of parenting classes. In November, she also re-enrolled in drug testing and, in December, she began aftercare. In addition, she was regularly participating in individual therapy. In a letter to her caseworker, the therapist stated petitioner was working on accepting responsibility for her childrens removal as well as recovery as a victim of domestic violence. The therapist also stated petitioner was managing her symptoms of depression and anxiety and appeared ready to move forward in the reunification process. He recommended she continue in individual therapy and domestic violence recovery for four to six more months.

In December 2008, at the 12-month review hearing, the juvenile court found petitioner and M.G. made moderate progress in resolving the problems necessitating the childrens removal. The court also found there was a substantial probability the children could be returned to parental custody by the 18-month review hearing, which was set for April 2009.

In January 2009, petitioner stopped regularly attending aftercare classes. When she did attend, she was reportedly tired and struggled to stay awake. In mid-January, she tested positive for methamphetamine but denied using it even though a second test confirmed it. A week later, petitioner was asked to drug test but stated she had a doctors appointment and left. In February, petitioner tested positive for methamphetamine again but denied using the drug. In March, her attendance improved and she was reportedly participating in individual counseling and group sessions. She tested positive for methamphetamine approximately two weeks apart in early and late March.

In April 2009, petitioner went to the drug testing facility to provide a urine sample for testing. Because petitioner touched her genital area in a suspicious manner on a prior occasion, the supervisor gave her a hands-free collection device to place over the toilet to capture the urine. According to the supervisor, petitioner turned her back as she started to pull her pants down and the supervisor could see in the mirror that petitioner was trying to touch her genital area. When petitioner was told to turn around and sit on the toilet, she became upset and asked why she had to use the collection device. The supervisor explained her reasoning, which petitioner rejected. Instead, petitioner accused the supervisor of wanting to watch her urinate because the supervisor wanted her. Petitioner was unable to provide a sufficient amount of urine for testing. The next day, she tested positive for methamphetamine.

Approximately a week later, petitioner and her caseworker met to discuss her positive drug test results. The caseworker informed petitioner she was going to recommend the court terminate her reunification services at the 18-month review hearing. Petitioner got upset and walked out. She returned but refused to participate in an inpatient drug treatment program stating, Im done. In mid-May 2009, petitioner tested positive for methamphetamine again.

In its report for the 18-month review hearing, the department recommended the court terminate reunification services for petitioner and M.G. and proceed to permanency planning. The department informed the court that although the childrens foster mother would allow the children to live with her as long as necessary, she had not yet committed to legal guardianship or adoption.

In June 2009, the juvenile court conducted a contested 18-month review hearing. Petitioner appeared represented by counsel and testified briefly. She expressed her disagreement with the departments recommendation to terminate services, stating she needed more time. She asked the court to grant her additional time to complete her services. She also testified that she thought her services were terminated at the meeting she attended in April 2009 and that she took a hair follicle test.

The caseworker also testified. She stated she was unaware petitioner took a hair follicle test and did not know the results.

At the conclusion of the hearing, the juvenile court terminated petitioner and M.G.s reunification services and set the section 366.26 hearing for October 2009. This petition ensued.

DISCUSSION

Without asserting juvenile court error, petitioner requests that this court direct the juvenile court to continue reunification services. In so doing, she offers nothing by way of a summary of the facts or legal points and authorities as required by rule 8.452, which governs the content requirements of an extraordinary writ petition in juvenile dependency proceedings. Rather, petitioner appended to her writ petition (JV-825) a variety of documents of which only two speak to the issues the juvenile court had to decide at the 18-month review hearing: the results of her hair follicle test and a letter to the juvenile court dated in July 2009 informing the juvenile court of her plan to participate in her court-ordered services.

Real party in interest argues the writ petition should be dismissed as facially inadequate under rule 8.452 which specifies, inter alia, that the writ petition must include a summary of the significant facts and identify contested legal points with citation to legal authority and argument. (Rule 8.452(b).) At a minimum, the writ petition 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.) While we will liberally construe a writ petition in favor of its adequacy, in this case, we conclude the petition is inadequate on its face. (Rule 8.452(a)(3).)

Even if this court construed the petition as challenging the juvenile courts decision to terminate petitioners reunification services, we would find no reason to reverse or modify the challenged juvenile court orders. (See In re Sade C. (1996) 13 Cal.4th 952, 994; Glen C. v. Superior Court,supra, 78 Cal.App.4th at p. 580.) First, this court cannot consider evidence that was not before the trial court. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 306.) Since the results of petitioners hair follicle test and letter to the juvenile court are not part of the juvenile record filed in this court, we cannot consider them. Further, at this stage of the proceedings, the juvenile court had little choice but to terminate petitioners reunification services in light of petitioners continuing methamphetamine use and the unlikelihood the children could be returned to her custody following continued services. ( 366.22, subds. (a) & (b).)

DISPOSITION

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

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^*Before Wiseman, Acting P.J., Dawson, J., and Hill, J.

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

^[2] M.G. also filed a writ petition, which is pending before this court (F057894).