Arthur A. v. Superior Court

Filed 12/6/07 Arthur 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Charlotte A. Wittig, Commissioner.

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

No appearance for Respondent.

No appearance for Real Party in Interest.

-ooOoo-

____________________

*Before Vartabedian, A.P.J., Wiseman, J., Cornell, J.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rules 8.450 and 8.452) to vacate the dispositional orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his three children. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In June 2007, petitioners three preschool age sons were removed from the custody of their mother Adrian^[2]because she was homeless and under the influence of drugs. At the time, petitioner was in prison and not scheduled to be released until September 2009.

The Tulare County Health and Human Services Agency (agency) filed a dependency petition on the childrens behalf, alleging under section 300, subdivision (b) (hereinafter subdivision (b)), Adrians drug use and homelessness placed the children at risk of harm. The petition also alleged under subdivision (b) that, in August 2006, petitioner brandished a firearm and threatened to kill himself in front of the children.

The petition further alleged under subdivision (g) of section 300 that petitioner was incarcerated and unable to provide the children support.

The juvenile court ordered the children detained pursuant to the petition and the agency placed them in foster care. At a contested dispositional hearing in September 2007, the court found Adrian was resistant to drug treatment and denied her reunification services. ( 361.5, subd. (b)(13).) The court further found it would be detrimental to the children to provide services to petitioner given his incarceration. Consequently, the court also denied petitioner reunification services ( 361.5, subd. (e)(1)) and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Petitioner argues he was not responsible for Adrians drug use and homelessness and would like the chance to reunify with his sons when he is released from custody. While petitioner may not be responsible for Adrians conduct, he is responsible for his criminal conduct and the affect it has on his children. Had he been free of custody, he may have been able to take them into his care. However, because of his lengthy prison sentence, he is unavailable; a fact which he admits.

As to whether reunification is an option upon his release, petitioner would have to petition the juvenile court. ( 388, subd. (a).)^[3] In the meantime, his children are entitled to a permanent placement, which the section 366.26 hearing is designed to address. We find no error on this record and affirm the juvenile courts dispositional findings and orders.

DISPOSITION

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

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

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

^[2] Adrian is not seeking extraordinary writ review.

^[3] Section 388, subdivision (a) 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.