In re Thalia S.
Filed 10/17/06 In re Thalia S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION SIX
| In re THALIA S., et al, Persons Coming Under the Juvenile Court Law. | 2d Juv. No. B192530 (Super. Ct. No. 1138935) (Santa Barbara County) |
| VALENTINA P., Petitioner, v. SANTA BARBARA COUNTY SUPERIOR COURT,, Respondent, SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Real Party in Interest. |
On June 28, 2006, the juvenile court set September 27, 2006 as the date for a hearing pursuant to Welfare & Institutions Code section 366.26 to terminate the parental rights of petitioner Valentina P. to her biological children, six-year old Thalia S. and three-year old Isaac R. [1] Valentina P. filed her notice of intent to file writ petition on July 24, 2006. Her petition for extraordinary writ, filed August 18, 2006, is not accompanied by a memorandum of points and authorities. Petitioner states only that she is incarcerated and participating in substance abuse treatment. When she is released, she plans to enter a residential program that will permit her to live with her children. She requests a stay of the section 366.26 hearing while she completes her prison term and the 15-month treatment program. We decline to stay the hearing and deny the writ.
Facts
Petitioner was arrested in her home for drug-related offenses. There was no suitable adult present to care for her two children, then three-year old Thalia and 10-month old Isaac, so they were detained and declared dependent children. Petitioner failed to comply with her case plan. She was incarcerated for much of the reunification period and did not maintain regular contact with the children. On her release from custody in late September 2004, petitioner entered a residential treatment facility. She left the facility only 20 days later and did not maintain contact with the children. Reunification services were terminated, without opposition, in November 2004.
In January 2005, petitioner was arrested for sale of narcotics and later sentenced to four years in state prison. While in prison, she has participated in substance abuse treatment. She has not, however, maintained regular contact with the children. Her writ petition states that, on her release, petitioner intends to enroll in the Female Offenders Treatment and Employment Program (FOTEP), where she would like to reunify with her children.
Meanwhile, the children have remained in foster care. Although they were initially placed together in the home of a maternal cousin, Isaac had to be removed because of behavioral issues. Those problems were addressed in various forms of therapy, his behavior is now much improved and he is placed in a prospective adoptive home. Thalia is also thriving in her cousin's home. The cousin has indicated a desire to adopt her.
Discussion
"A party seeking writ review under rules 38 -- 38.1 must file a notice of intent to file a writ petition and a request for the record. . . . . (5) If the party was notified of the order setting the hearing only by mail, the notice of intent must be filed within 12 days after the date that the clerk mailed the notification." (Cal. Rules of Court, rule 38(e)(1), (e)(5).) On July 3, 2006, the clerk mailed to petitioner a copy of the order setting the section 366.26 hearing, along with blank forms of the Notice of Intent to File Writ and the Petition for Extraordinary Writ. Petitioner filed the notice 21 days later on July 24, 2006. The notice was untimely. Although we may extend the filing period on "an exceptional showing of good cause[,]" no such showing was made. (Cal. Rules of Court, rule 38(d).) Petitioner has provided no explanation for the late filing. Because there has been no showing of good cause, we are required to deny the writ as untimely.
Rule 38.1 also requires that the writ petition to be accompanied by a memorandum of points and authorities. This petition is not and we also deny it for that reason.
Even without these procedural shortcomings, we would deny the writ. Petitioner bears the burden to prove by a preponderance of the evidence that it would be in the best interests of the children to extend reunification services. However, petitioner waived that argument because, at the November 17, 2004 hearing, she did not object to the termination of reunification services. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798.) Nor has petitioner demonstrated that termination of her parental rights would be detrimental to the children. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c) requires the court to terminate parental rights if it finds that the child is likely to be adopted, unless one of the statutory exceptions applies. (§ 366.26, subd. (c)(1); In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) There is no evidence supporting any of the exceptions.
The petition for extraordinary writ and the request for a stay are denied.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
Thomas R. Adams, Judge
Superior Court County of Santa Barbara
______________________________
Valentina P., Appellant.
No Appearance for Respondent.
Stephen Shane Stark, County Counsel, County of Santa Barbara and Toni Lorien, Deputy, for Real Party in Interest.
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[1] All statutory references are to the Welfare & Institutions Code unless otherwise stated.
