Daniel H. v. Sup. Ct.

Filed 10/11/06 Daniel H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Kenneth C. Twisselman II, Judge.

Law Offices of Rory E. McKnight and Rory E. McKnight, for Petitioner.

No appearance for Respondent.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party In Interest.

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Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to his son E. We will dismiss the petition.

STATEMENT OF THE CASE AND FACTS

In August 2005, the Kern County Department of Human Services (department) took newborn E. into protective custody after he tested positive for methamphetamine. At the time, petitioner, E.’s alleged father, was awaiting transfer to state prison to begin a two-year sentence for petty theft with a prior conviction.

The juvenile court adjudged E. a dependent of the court and ordered paternity testing, which established petitioner’s biological paternity. At disposition, the court ordered reunification services for E.’s mother but denied them to petitioner, finding services would not benefit E. (§ 361.5, subd. (a).) E. was placed in foster care.

In March 2006, the juvenile court returned E. to his mother’s care under a plan of family maintenance, which required her to submit to random drug testing. The court set the 12-month review hearing for September.

Meanwhile, in June, the department removed E. from his mother on a supplemental petition (§ 387) and placed him back in his former foster home after his mother failed to drug test. In July, petitioner was released from custody and successfully moved for visitation. He would visit E. three times over the ensuing weeks.

Petitioner also filed a section 388 petition seeking custody of E. under a plan of family maintenance or reunification services. In support of his motion, he alleged completion of extensive substance abuse treatment and no drug use since 2000.

On August 14, 2006, the court conducted a combined hearing on the section 388 and supplemental petitions. Petitioner testified that his last drug-related conviction occurred in 2000 and, that while imprisoned for that offense, he completed a 10-month treatment program. Upon his release in 2001, he voluntarily entered an outpatient drug treatment program, which he successfully completed. He also testified, contrary to his assertion in his 388 petition, that he last used drugs in 2001 or 2002. However, during his most recent incarceration, he voluntarily participated in drug treatment and, after his release, he enrolled in but had yet to attend substance abuse counseling. Petitioner also testified that he had adequate housing for E.

At the conclusion of the hearing, the court denied petitioner’s section 388 petition, sustained the section 387 petition, ordered that E. be removed from his mother’s custody and that she not receive further reunification services and set a section 366.26 hearing for December 12, 2006. This petition ensued.

DISCUSSION

Petitioner asserts the juvenile court erred in denying his section 388 petition seeking modification of its prior order denying him services. Real party in interest argues the writ petition should be dismissed because it does not comply with the requirements of California Rules of Court, rule 38.1 (rule) in that it contains no legal argument nor citation to the appellate record supporting a conclusion the juvenile court erred. Alternatively, real party argues the juvenile court did not abuse its discretion and that the court’s findings and orders were proper. We agree with real party. The writ procedure outlined in section 366.26, subdivision (l) and implemented in rules 38 and 38.1 enables a party to obtain expeditious review of the findings and orders of the juvenile court in setting a section 366.26 hearing. (See Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Rule 38.1 specifies, inter alia, that the writ petition must include points and authorities. (Rule 38.1(a)(3).) As set forth in rule 38.1(b): “(1) The points and authorities must provide a summary of the significant facts, limited to matters in the record. (2) The points and authorities must state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority. (3) The points and authorities must support any reference to a matter in the record by a citation to the record. The points and authorities should explain the significance of any cited portion of the record and note any disputed aspects of the record.” At a minimum, the points and authorities must “adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues.” (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) Here, petitioner failed to include any points and authorities. He merely states in the last paragraph of his factual summary, “The court denied the 388 petition, relying heavily [upon] the legislative intent to make sure that very young children are placed in stable placement as soon as possible.” Such limited information presents no reason to reverse the challenged juvenile court order. (See In re Sade C. (1996) 13 Cal.4th 952, 994; Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 580.)

Further, it is a general principle of appellate practice that a judgment or order of a lower court is presumed correct and that error by the lower court must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Since petitioner presents no legal argument challenging the validity of the juvenile court’s order, we must find his writ petition facially inadequate. However, even if we were to review the correctness of the juvenile court’s order denying petitioner’s section 388 petition, we would find no error. Section 388 allows a parent to petition the court to modify any order previously made where circumstances have changed and a modification based on that change would serve the best interest of the child. (§ 388, subds. (a) & (c).) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

In this case, there is no evidence an order placing E. in petitioner’s custody or offering him reunification services would be in E.’s best interest. Petitioner was incarcerated when E. was born and, at the time of the section 388 hearing, had only visited him three times. Conversely, E. was flourishing with foster parents who wanted to provide him a stable, loving home. Under the facts of this case, were we to reach the merits, we would not find an abuse of discretion.

DISPOSITION

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

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^*Before Harris, Acting P.J., Cornell, J., and Dawson, J.

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