T. v. Superior

Filed 2/10/06 Adam T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Nancy Williamsen, Commissioner.

Adam T., 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 38 (rule)) to vacate the orders 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

In December 2004, the Stanislaus County Community Services Agency (agency) removed petitioner's two daughters, then four-year-old R. and three-year-old A., from the custody of their mother Joylyn because Joylyn's drug use prevented her from taking care of the children. At the time, petitioner was an inmate at Folsom State Prison serving a five-year sentence. He was scheduled to be released from custody in May 2006.

The agency filed a dependency petition on the children's behalf alleging Joylyn's drug use placed them at risk of harm pursuant to section 300, subdivision (b) (subdivision (b)). The petition also alleged, pursuant to section 300, subdivision (g) (subdivision (g)), that petitioner was unable to care for them due to his incarceration. The juvenile court ordered the children detained and placed them with petitioner's sister R.T.

On February 1, 2005, the juvenile court conducted a contested jurisdictional/dispositional hearing. Petitioner argued the petition could not sustain the subdivision (g) allegation as to him because he had relatives who were able and willing to assume custody of the children. The court agreed and amended the petition by striking the subdivision (g) allegation. However, the court also included an allegation under subdivision (b) as to petitioner that he was incarcerated and unable to protect the children from the conduct of Joylyn. Petitioner then argued that there was insufficient evidence to remove the children from his custody because he was a nonoffending parent who could arrange for their care. The juvenile court disagreed and ordered the children removed from both parents pursuant to section 361, subdivision (c). The court ordered a plan of reunification for Joylyn but not for petitioner. Instead, the court found it would not be in the children's best interests to offer petitioner services, noting that his release from prison was beyond the period of time allowed for reunification under the law. (§ 361.5, subd. (e)(1).)

Petitioner filed a timely notice of appeal, challenging the juvenile court's orders removing the children from his custody pursuant to section 361.2 and denying him reunification services. We affirmed the dispositional orders (F047631).^[2]

Joylyn received 12 months of reunification services but failed to reunify with the children. The children meanwhile were doing well in the care of R.T. who wanted to adopt them. Consequently, at the contested 12-month review hearing on December 6, 2005, the juvenile court terminated Joylyn's services and set a section 366.26 hearing.

DISCUSSION

Petitioner argues the court should have allowed him to present a plan for his daughters' care pursuant to section 361, subdivision (c)(1). If allowed to do so, he would have arranged for R.T. to assume guardianship over the children. He also argues that he had no knowledge that Joylyn was using drugs and neglecting his daughters. Had he known, he would have contacted the authorities. We conclude petitioner is barred from raising any of these issues for reasons we now explain.

Petitioner's contention that he was unaware of the children's situation is a challenge to the juvenile court's jurisdictional finding pursuant to subdivision (b) that petitioner failed to protect the children from Joylyn's conduct. Jurisdictional findings must be directly appealed from the dispositional order or they are waived. (In re Megan B. (1991) 235 Cal.App.3d 942, 950.) In this case, while petitioner did appeal the court's dispositional order, he did not challenge the court's jurisdictional finding as to him. (See F047631, fn. 3.) Consequently, he is barred from raising this issue now.

Similarly, petitioner's claim that the juvenile court did not allow him to present an acceptable alternative to the removal plan for his daughters pursuant to section 361, subdivision (c)(1), in this case guardianship with R.T., has been waived by his failure to raise it on appeal from the dispositional order. Section 361, subdivision (c)(1) protects the unwarranted removal of a child from parental custody by requiring the juvenile court to find by clear and convincing evidence that return of the child to parental custody would place the child at a substantial risk of danger and there are no reasonable means to protect the child other than removal. (§ 361, subd. (c)(1).) The statute identifies means which the Legislature considered reasonable alternatives to removal. One of those options, to which petitioner refers, is to allow a nonoffending parent or guardian to retain custody as long as that parent or guardian presents an acceptable plan demonstrating that he or she will be able to protect the child from future harm. (Ibid.)

In this case, the juvenile court's dispositional orders, including the finding there was no reasonable means to protect R. and A. without removing them from petitioner's custody, are now final and binding. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Moreover, our decision on appeal affirming the juvenile court's removal order amounts to law of the case. (Davies v. Krasna (1975) 14 Cal.3d 502, 507; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 807-809.) Therefore, petitioner's contention he should have been able to present an alternative to removal is not reviewable.

Finally, to the extent, petitioner seeks placement of his daughters with R.T. under a permanent plan of guardianship, nothing precludes him from presenting that option to the juvenile court at the section 366.26 hearing. However, because the issue of permanency planning has yet to be decided, it is not ripe for our review.

DISPOSITION

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

Publication courtesy of San Diego Bankruptcy Lawyer ( www.mcmillanlaw.us ) And San Diego Lawyers Directory ( www.fearnotlaw.com )

^*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.

^[2] On our own motion, we take judicial notice of our file and our unpublished opinion in the prior appeal. (Evid. Code, § 452, subd. (d).)