J.P. v. Superior Court
Filed 4/13/06 J.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
J. P., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent, FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party In Interest. |
F049658
(Super. Ct. No. 05CEJ300135-1)
O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
J. P., in pro. per., for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party In Interest.
-ooOoo-
Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing.[1] We will deny the petition.
STATEMENT OF THE CASE AND FACTS
This case arises from a contested dispositional hearing in January 2006 at which the juvenile court assumed dependency jurisdiction over petitioner's then five-month-old daughter C. and his girlfriend C. U.'s[2] two sons, five-year-old E. and four-year-old Z., after sustaining allegations that petitioner and C. U. severely physically abused Z. The abuse was discovered in August 2005 when Z. was found lying on the floor of the family residence struggling to breathe. He was rushed to the emergency room where he was diagnosed with a right subdural hematoma, multiple bruises, abrasions and patterned marks (belt marks) on his body and severe bilateral thickness injuries on his buttocks consistent with repeated beatings. Petitioner and C. U. attributed Z.'s injuries to a fall he sustained near a swimming pool a month prior. The emergency room doctor found their explanation for Z.'s injuries implausible and contacted the Fresno County Department of Children and Family Services (department) who took the children into protective custody and filed a dependency petition on their behalf.
Once in protective custody, E. and Z. provided more details about the abuse. E. stated that, on the day Z. was rushed to the hospital, he saw his mother punch Z. hard in the stomach because Z. was running down the hallway. Both E. and Z. stated that petitioner whipped Z. with a belt.
In August 2005, the court conducted the detention hearing. Petitioner and C. U. denied the allegations and the court ordered the children detained. The court also ordered the department to provide services and to arrange weekly visitation between the parents and C. and supervised visits with Z. and E. with the consent of minors' counsel. Following a contested jurisdictional hearing in October 2005, the court adjudged the children dependents of the court and set the matter for disposition.
In its dispositional report, the department recommended the court deny petitioner and C. U. reunification services pursuant to section 361.5, subdivision (b)(6) and deny petitioner and C. U. visitation with E. and Z. The department attached to its report a letter from E. and Z.'s therapist who stated it would be detrimental to them to have parental visitation. The therapist stated that E. and Z. were not expressing a desire to visit and were fearful of that possibility.
The department also reported that all three children were doing well in their foster home and recommended the court pursue a plan of adoption for them. Petitioner and C. U. contested the department's recommendations and the matter was set for a contested hearing.
The contested dispositional hearing was conducted over several days in January 2006. Both petitioner and C. U. testified and denied injuring Z. or using any form of physical punishment on the children. They also testified they visited regularly with C. and that visits went well. They completed a parenting program and were participating in batterer's treatment and drug testing. C. U. also testified that she was participating in individual therapy. Their attorneys argued the court should find reunification would be in the children's best interest in light of petitioner and C. U.'s participation in services and positive visitation with C.
Following argument, the court denied petitioner and C. U. reunification services as recommended and set the matter for a section 366.26 hearing. The court also denied petitioner and C. U. visitation with E. and Z. and denied them increased visitation with C.
DISCUSSION
Petitioner does not raise any claim of error with respect to the court's order denying him reunification services or setting the section 366.26 hearing. Rather, his writ petition consists of a two-page list of various injustices he claims he suffered. He alleges racial profiling and discrimination, improper removal of his children without his foreknowledge, improper questioning of E. by the police officer, counsel's failure to investigate his neighbors' statements to the police, departmental failure to assess relatives for placement and to allow his friends to speak at an August 2005 departmental meeting and departmental misrepresentation of C. U.'s child welfare history. To the extent his claims present legal issues, petitioner waived his right to our review by not raising them before the juvenile court.
Further, to the extent any of petitioner's issues raise a claim of ineffective assistance of counsel, petitioner fails to demonstrate he had a reasonable probability of a more favorable outcome had counsel represented him differently. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) He cites counsel's failure to investigate the neighbors who told police that they overheard petitioner trying to coach E. and C. U. asking E. what he told the police. Considering the heinousness of the abuse demonstrated in this case and the evidence pointing to petitioner and C. U. as the abusers, we cannot imagine how petitioner's case would have been furthered by discrediting the neighbors. On the contrary, the evidence so overwhelmingly supports a denial of services that any other outcome is highly improbable.
Finally, petitioner challenges the juvenile court's order denying C. U. visitation with E. and Z. and the department's attempt at the dispositional hearing to reduce his and C. U.'s visitation with C. With respect to C. U.'s visitation with her sons, petitioner lacks standing to challenge the juvenile court's order. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Therefore, we will not address it. Neither will we address petitioner's claim the department attempted to reduce his visits with C. The juvenile court left petitioner's visitation order with C. intact at the dispositional hearing. Therefore, there is no issue for our review. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
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*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] C. U. also filed an extraordinary writ petition in this court's case No. F049656.