Robert R. v. Sup. Ct.
Filed 10/25/06 Robert R. v. Sup. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| ROBERT R., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent, TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party In Interest. |
F051138
(Super. Ct. No. JJV053025C-01 & JJV053025D-01)
O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte A. Wittig, Juvenile Court Referee.
Robert R., in pro. per., for Petitioner.
No appearance for Respondent.
Kathleen Bales-Lange, County Counsel, and Jonna M. Thomas, 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] as to his sons J. and P. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
In July 2005, then six-week old P. was removed from the custody of his mother T. by the Tulare County Health and Human Services Agency (agency) after she was arrested for drug-related charges. At the time, then three-year-old J. was in petitioner’s custody.
The agency filed a dependency petition on behalf of both children pursuant to section 300, subdivision (b), requesting the court detain P. only. On July 19, the juvenile court ordered P. detained and placed him in foster care. Shortly thereafter, petitioner disappeared with J. On September 9, the court compelled petitioner’s presence and ordered J. detained. J. was placed with P. in the same foster home.
In October, the court adjudged both children dependents of the court and ordered reunification services for petitioner and T., including visitation. The court also set the six-month review hearing for March 2006.
At the six-month review hearing on March 3, 2006, the court terminated petitioner’s reunification services for failure to comply and suspended visitation until he submitted a negative drug test. The court also continued services for T. and set the 12-month review hearing for August 2006. In April, petitioner was arrested for murder, robbery, burglary, possession of a controlled substance and carrying a concealed weapon.
In its 12-month status review, the agency recommended the court terminate T.’s reunification services for failure to comply. The agency also reported that J. and P. had developed a strong, loving bond with their foster parents, who wanted to adopt them. Consequently, the agency recommended the court set the matter for a permanent planning hearing.
On August 18, 2006, the juvenile court conducted the 12-month review hearing. Petitioner and T. appeared through their attorneys, who offered neither evidence nor argument to rebut the agency’s recommendations. The juvenile court adopted the agency’s proposed findings and orders, terminating T.’s reunification services and setting a section 366.26 hearing for December 8, 2006. This petition ensued.
DISCUSSION
Petitioner seeks several forms of relief in his petition. He asks for custody of his children, visitation and reunification services. However, his only claim of error was that he was in custody and not notified of the 12-month review hearing.
With respect to custody of his children, the juvenile court removed the children from petitioner’s custody at the dispositional hearing and ordered their continued out-of-home custody at each subsequent review hearing. Since petitioner did not challenge those orders by direct appeal, they are final and binding. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [unappealed postdisposition orders are final and binding].) If petitioner now seeks custody of his children, he would have to raise that issue by proper motion before the juvenile court.
Similarly, petitioner waived any challenge to the court’s orders terminating his reunification services and suspending visitation at the six-month review hearing by not challenging the court’s orders by direct appeal. He is therefore foreclosed from obtaining appellate review of the court’s termination of services and visitation orders.
Further, according to the appellate record, the agency notified petitioner of the 12-month review hearing by certified mail with a return receipt requested and the court found petitioner was properly notified at the hearing. Even if, for the sake of argument, petitioner had not been properly notified of the 12-month review hearing, there could be no prejudice. First, he has no statutory right to be present at the hearing setting the section 366.26 hearing. He only has a statutory right to be present at the dispositional hearing and the section 366.26 hearing. (Pen. Code, § 2625, subd. (b).) Moreover, he had meaningful access to the courts through his appointed counsel. (In re Axsana S. (2000) 78 Cal.App.4th 262, 269.)
Finally, because the 12-month status review hearing was conducted to review T.’s progress, the court’s orders and findings pertained to her only. Further, petitioner fails to demonstrate what evidence he might have presented had he appeared at the hearing that would have resulted in different findings and orders. 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 Harris, Acting P.J., Cornell, J., and Kane, J.
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
