Isidro P. v. Superior Court

Filed 8/31/06 Isidro P. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 review. Charlotte A. Wittig, Juvenile Court Referee.

Isidro P., in pro. per., for Petitioner.

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel, and Konstantine Demiris, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

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

STATEMENT OF THE CASE AND FACTS

This case concerns A., who, in April 2005 at the age of one, was removed along with her half-siblings from the custody of her mother L. by the Tulare County Health and Human Services Agency (agency). The agency filed an original dependency petition on the children’s behalf and identified petitioner as A.’s alleged father. At the time, petitioner was in county jail on multiple charges, including assault with a deadly weapon, domestic violence and being under the influence of a controlled substance.

At the detention hearing, the court granted petitioner’s request for a judgment of paternity and deemed him to be A.’s alleged/biological father. In June 2005, the court conducted a contested jurisdictional hearing at which it adjudged the children dependents of the court and ordered them returned to L.’s custody under a plan of family maintenance. Petitioner, previously sentenced to a five-year-prison term, was denied reunification services. He attempted to have his paternity rescinded and asked for a paternity test, which the court denied, advising him he would have to file a motion.

In August 2005, the agency removed the children from L.’s custody on a supplemental petition (§ 387) and placed them in foster care. At the dispositional hearing on the supplemental petition, the court granted L. reunification services.

In December 2005, the court conducted the six-month review of dependency and continued services to the 12-month review. Petitioner again asked the court to rescind his paternity. The court granted petitioner’s request to withdraw its judgment of paternity filed in April 2005 and ordered a paternity test. Apparently, the paternity test was never conducted. On June 6, 2006, at a contested 12-month review hearing, the court terminated L.’s reunification services and set a section 366.26 hearing.

DISCUSSION

Petitioner claims the court erred in failing to enforce its order for paternity testing. He asks for a stay in these proceedings until that occurs.

The purpose of the extraordinary writ proceeding in dependency cases is to allow expeditious review of juvenile court error arising from the hearing at which the court set the section 366.26 permanency planning hearing. (See Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Petitioner does not identify juvenile court error arising from the setting hearing. Therefore, his petition is inadequate for our review. Further, his remedy with respect to enforcing the juvenile court’s order for paternity testing must be raised in the juvenile court. We find no error.

DISPOSITION

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

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

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

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