Lydia C. v. Superior Court
Filed 4/17/07 Lydia C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
LYDIA C., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. | F052111 (Super. Ct. No. 96962-4) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge.
Lydia C., 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-
____________________
*Before Vartabedian, A.P.J., Cornell, J., and Gomes, J.
Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her daughters M.S. and A.S. We conclude the law of the case doctrine precludes appellate review and will deny the petition.
STATEMENT OF THE CASE AND FACTS
Petitioner has a long history of drug abuse and child neglect, resulting in multiple criminal convictions and the permanent placement of M.S. and A.S.s older siblings in legal guardianship. These dependency proceedings were initiated in October 2005, when petitioner and her boyfriend Alex, M.S. and A.S.s father, were arrested after police found drugs and drug paraphernalia in their home. M.S. and A.S., then four and three years old respectively, were taken into protective custody and ordered detained by the juvenile court.
The juvenile court assumed dependency jurisdiction over M.S. and A.S. and, at a contested dispositional hearing, ordered reunification services for Alex but denied them to petitioner pursuant to section 361.5, subdivision (b)(10) and (b)(13)[2](subdivisions (b)(10) and (b)(13)) because of her failure to reunify with her older children, her chronic drug use, and her resistance to treatment. This court affirmed the juvenile courts order denying petitioner reunification services (F050054).[3]
Over the next year, Alex was provided reunification services but failed to comply. In addition, M.S. and A.S. were placed with a maternal aunt in May 2006.
In January 2007, at a contested 12-month review hearing, the court terminated Alexs reunification services and set a section 366.26 hearing for May 2007. Alex did not challenge the courts setting order by writ petition.
DISCUSSION
Petitioner seeks to revisit the courts decision to deny her reunification services. She states: I feel I should have a chance to reunify with my children .
Once an appellate court decides a cause by written opinion after the matter was fully briefed and the parties were given an opportunity for oral argument, the law of the case doctrine precludes relitigation of the same issue. (Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Such was the case here. Petitioner challenged the juvenile courts order denying her reunification services by direct appeal and this court upheld it. Consequently, she may not challenge it again.
Finally, to the extent petitioner believes new evidence or changed circumstances warrant a review of the juvenile courts order denying her reunification services, she may file a section 388 petition in the juvenile court.[4] However, she must also show that a modification of the courts order would be in the best interest of her children. (In reCasey 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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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Section 361.5 allows the juvenile court to deny a parent reunification services when it finds by clear and convincing evidence the parent is described by any one of 15 subparagraphs contained in subdivision (b). Subdivision (b)(10) describes a parent who failed to reunify with the childs sibling and subsequently failed to make a reasonable effort to treat the problem necessitating the siblings removal. Subdivision (b)(13) describes a parent who has a history of extensive, abusive and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the courts attention, or has failed or refused to comply with a program of drug or alcohol treatment on at least two prior occasions, even though the programs identified were available and accessible.
[3] We will take judicial notice of our opinion in Case no. F050054.
[4] Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.
