L.C. v. Sup. Ct.
Filed 5/8/07 L.C. v. Sup. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
L.C., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. | F052211 (Super. Ct. No. 97889-3) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge.
L.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 Levy, Acting P.J., Cornell, J., and Kane, J.
Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the order of the juvenile court issued at a post-permanency plan review hearing setting a Welfare and Institutions Code section 366.26 hearing[1]at to her son H.B. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
Dependency proceedings were initiated in November 2000 upon petitioners arrest for domestic violence and child endangerment. Petitioners ten and nine-year-old daughters, A.H. and J.H., and six-year-old son, H.B., were ordered removed from petitioners care by the social services department (department). A.H. and J.H. were placed together in a foster home and H.B. was placed in a separate foster home. Petitioner received reunification services, including outpatient psychiatric treatment, until February 2003 when the court terminated services and ordered the children placed in long-term foster care.
Over the ensuing years, the children fared well in foster care but their relationship with petitioner grew strained because of petitioners increasingly erratic and confrontational behavior. Nevertheless, petitioner attempted several times without success to either regain custody of her children or reinstate reunification services. One such attempt occurred in the summer of 2002 when petitioner filed a section 388 petition (petition) asking the court to modify its prior order and place the children with her under family maintenance. At the time, petitioner was receiving unsupervised visitation.
In response to the petition, the court ordered the department to assess petitioners suitability for family maintenance. During the departments investigation, petitioner tested positive for marijuana and the children revealed that petitioner purchased and smoked marijuana in their presence. As a result of its investigation, the department filed its own petition asking the court to modify petitioners visitation from unsupervised to supervised visitation.
The petitions were argued at a contested hearing conducted on August 21, 2002. The court found petitioner failed to establish a change in circumstances, declined to set an evidentiary hearing and denied her petition. As to the departments petition, the court issued an order in conformance with the parties agreement that the court would order supervised visitation but grant the department discretion to return to unsupervised visitation if petitioner submitted three negative drug tests.
Petitioner appealed from the courts order denying her petition. One of the issues she raised on appeal was whether the court erred in not permitting her to call the children to testify to contest the departments petition. This court issued an opinion in February 2003, in case Number F041324, affirming the courts order.
The children remained as placed and unsupervised visitation resumed but, by the regularly scheduled post-permanency plan review hearing in January 2007, H.B.s foster parents wanted to be named his legal guardians and H.B., then 12 years old, was in agreement. Petitioner appeared at the hearing represented by counsel and generally objected to the change in permanent plan but did not offer any evidence in opposition. At the conclusion of the hearing, the court continued long-term placement for A.H. and J.H. but set a section 366.26 hearing to consider placing H.B. in legal guardianship. This petition ensued.
DISCUSSION
Petitioner claims the juvenile court erred in refusing to allow H.B. to testify but she does not specify the date of the hearing at which the error allegedly occurred. We assume she refers to the August 21, 2002 hearing based on the content of her argument and the fact that she made no attempt to offer testimony at the January 2007 setting hearing. Instead, she submitted the matter without offering any evidence. With respect to the August 2002 hearing, we concluded in our opinion petitioner waived her right to challenge the courts granting of the departments petition because she did not appeal from it and because she agreed to the terms of the modified visitation order. Our opinion is law of the case and precludes petitioner from again claiming that the court erred in not allowing her to call H.B. to testify at the August 2002 hearing. (Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Accordingly, we will deny her writ petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
