Opinion
No. H044315
04-21-2017
J.W., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara Super. Ct. No. 1-14-JD-023012)
J.W., the father of A.W., has filed a petition in propria persona, seeking extraordinary relief from a juvenile court order terminating family reunification services and setting the matter for a Welfare and Institutions Code section 366.26 permanency planning hearing. Petitioner contends that the order was erroneous because he is incarcerated. He also seeks a stay of the order until he can make contact with the attorney who represented him in the proceedings below. As father has shown no grounds for writ relief under California Rules of Court, rule 8.452, the petition will be denied.
All further statutory references are to the Welfare and Institutions Code.
All further references to rules are to the California Rules of Court.
Background
By amended petition the Santa Clara County Department of Family and Children's Services (DFCS) alleged that A.W., then seven years old, came within the provisions of Welfare and Institutions Code section 300, subdivisions (b), (c), and (g). Both A.W.'s mother and her father, petitioner J.W., had an extensive history of criminal behavior and gang activity, and there had been numerous referrals to DFCS, for A.W. as well as her siblings, both before and after A.W.'s birth. At the time of the petition, her mother was incarcerated for a probation violation, and petitioner had been in prison since 2013.
After an uncontested hearing the juvenile court found the allegations of the petition true. A.W. was placed with her maternal great-aunt along with her half-brother. Reunification services, including weekly supervised visitation, were offered to A.W.'s mother, but not to petitioner; the court instead allowed "cards and letters through [the] social worker." At some point during the first six months of dependency, however, DFCS decided to allow petitioner one visit per quarter. At the 12-month hearing, the social worker was given discretion to allow monthly one-hour telephone calls between petitioner and A.W. and to allow a second visit per quarter.
On July 27, 2016, in preparation for the 18-month permanency review hearing (§ 366.22), the social worker recommended an additional six months of reunification services for A.W.'s mother and further one-hour supervised visits with petitioner at least once per quarter, in accordance with prison guidelines. However, by December 2016, both the social worker and A.W.'s child advocate urged the court to terminate the mother's reunification services, maintain A.W. and her brother as dependents in the care of their maternal aunt, and free A.W. for adoption. A.W., by then nine years old, enjoyed her visits with petitioner and wished for them to be more frequent. However, both children were bonded with their maternal aunt and uncle and the likelihood of adoption for them was "very high."
In an addendum report, the social worker revised her recommendation to four months of additional services.
In an addendum report filed on January 11, 2017, having discussed the long-term plan with the children's caretakers, the social worker revised the previous recommendation to guardianship. The court agreed. At the January 11, 2017 hearing it terminated the family reunification services and set the matter for a permanency planning hearing under section 366.26, to be held May 10, 2017.
Discussion
Because this petition seeks relief from the order setting a hearing under section 366.26, our review is circumscribed by California Rules of Court, rules 8.450-8.452. (Rule 8.450(a).) DFCS points out that petitioner's January 26, 2017 notice of intent to file the petition was untimely, as it was not filed within 12 days following the clerk's January 12 mailing of the order setting the hearing. (Rule 8.450(e)(4)(B).) We note, however, that the superior court clerk filed petitioner's notice of intent, instead of marking it "Received January 26, 2017 but not filed," returning it to petitioner with an explanation of the deficiency, and sending a copy of the notice and clerk's notice to the attorney of record. Because the clerk failed to comply with these provisions, petitioner was not advised that his notice of intent was untimely and that he should contact his attorney, nor was the attorney of record notified either. We will therefore overlook this defect.
In the case of a late notice of intent, Rule 8.450(f)(2) requires the superior court clerk to do the following: "(A) Mark the notice of intent 'Received [date] but not filed;' [¶] (B) Return the marked notice of intent to the party with a notice stating that: [¶] (i) The notice of intent was not filed . . . because it is late; and [¶] (ii) The party should contact his or her attorney as soon as possible to discuss this notice, because the time available to take appropriate steps to protect the party's interests may be short; and [¶] (C) Send a copy of the marked notice of intent and clerk's notice to the party's counsel of record, if applicable."
The petition itself, however, is fatally deficient, both procedurally and on the merits. First, petitioner lists the wrong date of the order. More importantly, it does not appear to have been served on those mandated to receive service, including the attorneys of record and A.W.'s child advocate, as required by rule 8.452(c)(1). In addition, the writ petition lacks the accompanying memorandum required by rule 8.452(a)(2).) The memorandum must contain a summary of the significant facts contained in the record and argument supported by citation to legal authority and the record. (Rule 8.452(b).)
Even construing the petition liberally, as we are required to do (rule 8.452(a)(1)), we cannot find a legal basis for relief from the January 11, 2017 order. When asked in the petition why the order was erroneous, petitioner states only, "Father is incarcerated." His summary of the factual basis for the petition consists of the following statement: "Not scheduled to be released until 2023." Finally, when asked to specify the acts he wishes the juvenile court to order, he checked two boxes: an order for continuation of reunification services and visitation with the child. The first is inapposite, as reunification services were never ordered for petitioner. What is left, then, is only a request to continue visitation with A.W., without any suggestion of a reason why the referral for permanency planning with a goal of guardianship is not in A.W.'s best interests and does not promote her need for permanency and stability. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309 [once reunification services are terminated, "the focus shifts to the needs of the child for permanency and stability"; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583 [applying Marilyn H. reasoning to writ review of order setting a section 366.26 hearing].) Having failed to articulate a claim of error supported by authority and citations to the record, petitioner is not entitled to relief.
Petitioner also requests a stay of the May 10 proceedings to enable him to "get ahold of" Allen Korenstein, the attorney who represented him below. Such a stay requires "an exceptional showing of good cause." (Rule 8.452(f).) That showing has not been made. If petitioner will in fact be represented by Mr. Korenstein, there is sufficient time to contact him before the hearing.
We have been given no reason to assume that Mr. Korenstein will continue representing petitioner in his challenge to permanency planning for A.W.
Disposition
The petition and request for a temporary stay are denied. This decision is immediately final as to this court. (Rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.