Kasper A. v. Superior Court

Filed 2/23/07 Kasper A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nancy B. Williamsen, Commissioner.

Kasper A., in pro. per., for Petitioner.

No appearance for Respondent.

Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his daughter E. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and his wife Ramona^[2]have three children, two sons and a daughter E., the subject of this writ petition. In August 2005, petitioner was arrested after then eight-year-old E. disclosed that petitioner sexually molested her by digital penetration. Ramona agreed to prevent contact between petitioner and E. However, petitioner was released on bail the day after his arrest and the family moved into a hotel room together. In October 2005, petitioner was arrested at the hotel for drug possession and all three children were taken into protective custody by the Stanislaus County Community Services Agency (agency).

The agency filed a dependency petition on the childrens behalf alleging petitioner sexually molested E., Ramona failed to protect her and both parents abused drugs. Pursuant to the petition, the juvenile court ordered the children detained. After a number of continuances, the court conducted the jurisdiction and dispositional hearings in January 2006. Petitioner and Ramona waived their trial rights and elected to submit the petition on the basis of the agencys report. The court found the allegations in the petition true, exercised dependency jurisdiction pursuant to section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse) and ordered reunification services for petitioner and Ramona. Petitioners reunification plan required him to participate in counseling for sexual abuse, domestic violence and substance abuse and submit to random drug testing.

In September 2006, the court convened a continued six-month review hearing at which the agency reported that both parents continued to use drugs and that their compliance with their other court-ordered services was minimal at best. The court ordered services to continue and set the 12-month review hearing for December 7, 2006.

Over the ensuing six months, petitioner and Ramona remained noncompliant with their reunification plans. Petitioner was terminated from his domestic violence program in November 2006 for poor attendance, was referred multiple times for substance abuse treatment but failed to enroll and failed to drug test. In addition, because petitioner refused to address his drug problem, he was precluded from initiating sexual abuse and family counseling. In light of petitioner and Ramonas poor progress, the agency recommended the court terminate their reunification services at the 12-month review hearing and proceed with permanent plans of adoption for E. and long-term foster care for her brothers.

The 12-month review hearing was continued and conducted on December 8, 2006. Neither parent personally appeared. Their attorneys entered general objections to the agencys recommendation to terminate services but otherwise submitted the matter. The court ordered services terminated and set a section 366.26 hearing to set permanent plans for the children. This petition ensued.

DISCUSSION

Petitioner claims the allegations contained in the original petition that he sexually abused E. and abused drugs were unfounded. Real party in interest argues the allegations, now jurisdictional findings, are not reviewable on appeal. We agree.

In January 2006, petitioner waived his right to contest the factual basis for the petition and submitted the matter for the courts determination with respect to jurisdiction. Consequently, the court found the allegations true and adjudged E. a child described by section 300, subdivisions (b) and (d).

In dependency proceedings, all orders subsequent to the dispositional order are directly appealable. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Since the jurisdictional order is only a finding, an appeal must be taken from the dispositional order, which is a judgment. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) Further, unappealed postdispositional orders are final and binding. (In re Meranda P., supra, 56 Cal.App.4th at p. 1150.) Since petitioner did not appeal from the courts dispositional findings and orders, he waived his right to now challenge the factual basis upon which the jurisdictional findings were made.

Nevertheless, petitioner may still, upon grounds of changed circumstances or new evidence, petition the juvenile court pursuant to section 388 for a hearing to change, modify or set aside any prior order of the court. Petitioner would also have the burden of showing that a modification based on that change would be in E.s best interest. (InreCasey D. (1999) 70 Cal.App.4th 38, 47.)

DISPOSITION

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

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

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

^[2] Ramona did not file a writ petition from these proceedings.