Opinion
NOT TO BE PUBLISHED
PETITION FOR EXTRAORDINARY WRIT No. CK63838, Robert Stevenson, Referee.
Claire Boudov for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, Frank J. Da Vanzo, Principal Deputy County Counsel, for Real Party in Interest.
Children’s Law Center of Los Angeles and Helen Lee, for the Minor.
MANELLA, J.
Petitioner Stacy F., the mother of Isaiah F., seeks writ review of the juvenile court’s order terminating reunification services and setting a permanent plan hearing under Welfare and Institutions Code section 366.26. We dismiss the petition because of the untimeliness of the rule 8.452 notice of intent.
Unless otherwise indicated, statutory references herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Isaiah, born in 2002, has been living in the home of his father, James K., and paternal grandparents since he was a few months old. DCFS became involved with the family in April 2006 after receiving reports of general neglect and emotional abuse. In June 2006, James was arrested for murder, and DCFS filed a petition pursuant to section 300 based on his substance abuse and mental and emotional problems. At the time, petitioner’s whereabouts were unknown and the section 300 petition alleged that she had failed to provide Isaiah with the basic necessities of life.
James is not a party to this writ petition.
By July, petitioner had been located in a small town north of Redding, living with her fiancé and infant daughter. She admitted having had no contact with Isaiah for more than two years, but expressed a desire to be reunited with him. After hearing from DCFS, petitioner initiated telephone contact with Isaiah at the grandparents’ home, calling once or twice a month until December 2006. Isaiah did not appear to know who she was.
In August, the court ordered DCFS to provide reunification services to petitioner. Under the court’s order, petitioner was to submit to five random drug tests and attend parenting and individual counseling. If any of the drug tests were missed or positive, she was also to enroll in a drug program. Petitioner was permitted monitored visitation.
In a telephone conversation that took place in early September, the caseworker informed petitioner that DCFS would provide transportation for visits with Isaiah. Petitioner told the caseworker that she was familiar with a counseling program in her area and would call back with information. However, petitioner did not call again. The caseworker made several attempts to call petitioner and sent a letter on January 25, 2007.
Petitioner and the caseworker spoke on January 30, 2007. As of that date, petitioner had made no progress in complying with the reunification plan, which she blamed on lack of transportation . Petitioner and the caseworker also discussed transportation for visitation. The caseworker told her DCFS would reimburse her for the cost of mileage. The caseworker also learned that petitioner had stopped calling Isaiah in December and had been in the Southern California area on Christmas Day but had made no attempt to see her son. In the report prepared for the six-month review hearing, DCFS recommended termination of reunification services. The attorney for Isaiah joined in the request.
The six-month review hearing was held March 28, 2007. The court ordered petitioner’s reunification services terminated and set a section 366.26 hearing for July 25. The clerk mailed notice to petitioner on March 28. Included with the notice was a blank “Notice of Intent to File Writ Petition” form. Five days later, April 2, petitioner’s counsel sent a second copy of the notice and form via Express Mail.
On April 6 and 13, petitioner telephoned counsel and informed her she had not received either of the mailings. On April 19, counsel sent another packet. In addition, on April 20, counsel filed a notice of intent to file writ petition on behalf of petitioner, signing it in her stead. Counsel attached a declaration reiterating her conversations with petitioner in which petitioner had denied receipt of the notice and form. Counsel asked the court to find “good cause for allowing [petitioner’s] Notice of Intent to File a Writ to be signed by her attorney.” Petitioner later signed a separate notice of intent and sent it to counsel.
DISCUSSION
Petitioner contends DCFS failed in its duty to provide adequate reunification services in that the caseworker did not offer referrals to counseling or drug testing programs or funds for transportation. Before we address any substantive issues, we must determine whether the petition should be dismissed for failure to comply with applicable deadlines.
Review of an order terminating reunification services and setting a section 366.26 hearing is governed by section 366.26, subdivision (l), which requires the party seeking review to file a petition for extraordinary writ. Subdivision (l) also provides that “after issuance of an order directing a hearing pursuant to this section, ” the court “shall advise all parties of the requirement of filing a petition for extraordinary writ review . . . in order to preserve any right to appeal in these issues.” (§ 366.26, subd. (l)(3)(A).) If the party is present, notice can be given orally; if the party is not present, notice is to be sent by first-class mail. (Ibid.) Petitioner was not present at the hearing, necessitating notice by mail.
Rule 8.450 of the Rules of Court provides that a party seeking writ review under section 366.26, subdivision (l) must first file a notice of intent to file a writ petition. (Rule 8.450(e).) Where the party was not present and was notified by mail at an address in California, the notice of intent must be filed within 12 days after the clerk mailed notice of the order. (Rule 8.450(e)(4)(B).) Where the order was issued by a referee not acting as a temporary judge, as was the case here, the party has an additional 10 days to file. (Rule 8.450(e)(4)(E).) In addition, unless the party seeking review is a minor, “[t]he notice must be signed by the party intending to file the petition, ” although the rule goes on to state that the reviewing court may waive this requirement “for good cause on the basis of a declaration by the attorney of record explaining why the party could not sign the notice.” (Rule 8.450(e)(3).) Here, the notice of intent was filed April 20, 2007, one day past the deadline (23 days after March 28), and was signed by counsel, rather than petitioner.
As explained in Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, section 366.26, subdivision (l) and the Rules of Court combine to create “a hybrid” or “amalgam” of writ and appellate procedures. (Id. at p. 806.) Like an appeal, review of a petition under these provisions should generally be “on [the] merits.” (Id. at p. 807.) The “‘notice of intent’” requirement is similar to a notice of appeal. (Ibid.) Additionally, the rules establish a timetable, “something which does not exist in other [writ] proceedings.” (Ibid.) The purpose of the timetable is to ensure “timely resolution of these matters before the juvenile court conducts its section 366.26 hearing, ” required to be scheduled 120 days after issuance of the setting order. (Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 807; see, e.g., § 366.22, subd. (a).)
Although the rules urge reviewing courts to decide section 366.26, subdivision (l) petitions “on the merits by written opinion” (Rule 8.452(i)(1)), failure to file the notice of intent or the petition itself in a timely manner has been deemed an “exceptional circumstance[]” justifying dismissal of the petition without addressing the substantive issues. (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1829-1831; accord Roxanne H. v. Superior Court (1995) 35 Cal.App.4th 1008, 1011-1012; Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1403-1404.) The reason courts must stand firm on the deadlines imposed for section 366.26, subdivision (l) writs is evident: late notice results in delayed preparation of the record and delayed filing of the petition and the response, leaving the reviewing court with virtually no time to consider the substantive issues raised. (See Rule 8.450, subd. (g); Jonathan M. v. Superior Court, supra, at p. 1831; Karl S. v. Superior Court, supra, at p. 1403.) Accordingly, we agree with the court in Jonathan M.: “A bright-line rule of notice of intent timeliness is the only practical way to administer [section 366.26, subdivision (l)] writs.” (39 Cal.App.4th at p. 1830.)
In the present case, for example, a week separates the date of oral argument on the petition and the section 366.26 hearing.
We also agree with the sentiments expressed in Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 788: “It is not too much to ask [parents who want to maintain a parental relationship with their children] to make the effort necessary to show genuine interest in their children by conferring with their attorney and making themselves available to sign the necessary documents . . . . [A]n attorney representing one of these parents does not have a duty to chase them down and prompt them into taking the elementary steps necessary to keep their claim of parental rights alive.”
Although neither section 366.26 nor the Rules of Court provide a procedure for obtaining relief from a late filing, one court has permitted late review on a showing of good cause explaining the delay (In re Cathina W. (1998) 68 Cal.App.4th 716, 722); others have recognized that the existence of good cause may provide a basis for late review (Karl S. v. Superior Court, supra, 34 Cal.App.4th at p. 1404; Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1831).
Petitioner contends that good cause for her tardiness exists here. We cannot agree. The facts behind petitioner’s contention -- that petitioner received neither the notice and form sent to her by the court on March 28 nor the copies sent by her counsel a few days later -- were attested to by counsel, not petitioner herself. As counsel had no personal knowledge of these matters, her declaration does not constitute evidence of the truth of petitioner’s allegations. Moreover, even if substantiated, failure to receive the “Notice of Intent” form does not constitute good cause to file late. The rules permit counsel to sign and file the form on the petitioner’s behalf as long as the petitioner gives approval. (Rule 8.450(e)(3); see Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1830.) Counsel was in contact with petitioner at least twice within the deadline and could have timely filed the form on her behalf had petitioner granted approval. Finding no basis for good cause, we are obliged to dismiss the petition.
DISPOSITION
The petition is dismissed.
We concur: EPSTEIN, P. J. WILLHITE, J.