Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. Nos. J-1174625. J-1174626, J-1174627, J-1174628, J. 1174810, Arthur A. Garcia, Judge
Joe M., in Pro Per, Appellant.
Stephen Shane Stark, County Counsel, County of Santa Barbara and Toni Lorien, Deputy, for Respondent.
YEGAN, J.
Joe M., appearing in propria persona, seeks an extraordinary writ to vacate the order of the juvenile court setting a hearing pursuant to Welfare and Institutions Code section 366.26. We summarily deny the petition because petitioner has completely failed to comply with the procedural requirements of rule 8.452 of the California Rules of Court.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
All further references to rules are to the California Rules of Court.
Factual and Procedural Background
Petitioner is the presumed father of five minor children: Tamra M., Joe M. Jr., J.M., Trinity M., and Violet M. (hereafter minors). On March 6, 2006, the juvenile court declared minors to be dependent children of the court. It removed the children from their mother's custody and ordered that they be placed in the care and custody of Child Protective Services for placement in the home of a suitable relative. Family reunification services were ordered to be provided to mother and petitioner.
On September 7, 2006, the juvenile court ordered that minors be returned to the custody of mother and that family reunification services be terminated as to petitioner.
On February 5, 2007, the juvenile court found true allegations of a section 387 supplemental juvenile dependency petition. The petition alleged that mother had abandoned minors. The court ordered that the physical custody of minors be removed from mother, that reunification services be terminated as to mother, and that minors remain in the care and custody of Child Welfare Services for placement in the home of a suitable relative. The matter was set for a hearing pursuant to section 366.26.
Discussion
Pursuant to rule 8.452(a)(1)(D), the petition must include "[a] summary of the grounds of the petition." Rule 8.452(b) provides that the petition must be accompanied by a memorandum providing "a summary of the significant facts" with supporting citations to the record. "The memorandum must state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority." (Rule 8.452(b)(2).) The memorandum "must, at a minimum, 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.)
"The petition must be liberally construed." (Rule 8.452(a)(2).) But a liberal construction of the petition cannot cure a complete failure to comply with rule 8.452. Petitioner's original petition, filed on March 12, 2007, states that the juvenile court's order was erroneous on the following grounds: "Conflict of interest my mother-in-law work for the court system she know everybody there a lot of my rights been violated!" Attached to the petition is a memorandum in which petitioner claims that his mother-in-law is "running the courts" and knows "them like the palm on her hand." The memorandum does not contain a summary of the significant facts with supporting citations to the record. Nor does it "offer argument and authorities that will assist the court in resolving the contested issues." (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 583.)
On March 21, 2007, petitioner filed a second petition. This petition suffers from the same deficiencies as the original petition. In a memorandum attached to this petition, petitioner wrote: "I dont have a chance over here my mother law is good friends with all judges in S.M. [Santa Maria]. I dont have a chance!"
We have also read and considered petitioner's written arguments filed in this court on May 7, 2007. Nothing therein cures the deficiencies which are fatal to this matter.
Petitioner complains that he told his counsel to "fill out" the petition, but "she refused." Counsel, however, is not obligated to prepare a rule 8.452 petition if there are no potentially meritorious issues: "[W]hen an attorney evaluates a case and determines there is no potentially meritorious issue to be raised, a petition for extraordinary writ simply should not be filed. [Citation.]" (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 584; see also Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 956.)
"Absent exceptional circumstances, the reviewing court must decide the petition on the merits by written opinion." (Rule 8.452(i)(1).) Petitioner's complete failure to comply with rule 8.452 constitutes exceptional circumstances justifying the summary denial of his petition: "Because of the intolerable burden that would otherwise be foisted on the Courts of Appeal, we deem the failure to tender and substantively to address a specific material issue or issues or to furnish an adequate record to be 'exceptional circumstances' . . . which excuse the court from reviewing and determining a petition on the merits." (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1512; see also Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 584 [court announced that, in the future, it intended to summarily deny petitions that fail to comply with the requirements of rule 8.452]; Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 157-158 [where petition fails to meet the "threshhold requirements" of rule 8.452, it should be summarily denied]; Cresse S. v. Superior Court, supra, 50 Cal.App.4th 947, 955-956 [facially inadequate rule 8.452 petition should be dismissed].)
Disposition
The petition for extraordinary writ is summarily denied. Given the need to proceed promptly with the section 366.26 hearing, set for May 21, 2007, our decision is final as to this court immediately. (Rule 8.264(b)(3)).
We concur:
GILBERT, P.J., PERREN, J.