From Casetext: Smarter Legal Research

A.G. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 13, 2020
F080199 (Cal. Ct. App. Jan. 13, 2020)

Opinion

F080199

01-13-2020

A.G., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

A.G., in pro. per., for Petitioner. No appearance for Respondent. Daniel D. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17 CEJ300329-4)

OPINION

THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. William Terrence, Judge. A.G., in pro. per., for Petitioner. No appearance for Respondent. Daniel D. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.

Before Detjen, Acting P.J., Franson, J. and Smith, J.

-ooOoo-

A.G. (mother), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from a juvenile court's order issued on October 28, 2019, denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing on February 10, 2020, as to her one-year-old son F.M. The child's father, Frank M., is not a party to this writ proceeding. Mother asks this court to direct the juvenile court to vacate the order designating a specific placement after termination of parental rights; order that reunification services be provided; order additional visitation between mother and child; and return or grant custody of the child. We conclude she has failed to set forth a cognizable legal error and dismiss the petition.

All rule references are to the California Rules of Court.

Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

PROCEDURAL AND FACTUAL HISTORY

F.M. was removed from mother's care at the age of eight months, due to concerns related to mother's substance abuse and past history of neglect of three older siblings. At detention June 18, 2019, the juvenile court found a prima facie showing had been made that the child was a person described by section 300, and a jurisdiction hearing set for July 8, 2019. At jurisdiction, mother requested trial and the matter was set as a contested and combined jurisdiction and disposition hearing to be heard August 5, 2019.

In the report prepared for disposition, the Department of Social Services/Child Welfare Service (department) recommended F.M. remain in out-of-home care and that mother be denied family reunification services pursuant to section 361.5, subdivision (b)(10) and (13).

Section 361.5, subdivision (b)(10), provides that reunification services need not be provided if the court has ordered termination of reunification services for any sibling or half sibling of the child; section 361.5, subdivision (b)(13), provides reunification services need not be provided if the parent has a history of extensive, abusive, or chronic substance abuse.

At the August 5, 2019, combined and contested jurisdiction and disposition hearing, mother withdrew her contest as to jurisdiction and the matter was set for trial on disposition for October 28, 2019, with a settlement conference October 21, 2019. At the settlement conference held October 21, 2019, the matter was re-set for trial for December of 2019, with an additional settlement conference to be heard October 28, 2019. At the October 28, 2019, settlement conference, mother withdrew her contest to the disposition, based on an agreement that the department would recommend visits occur a minimum of twice per month. Mother's counsel entered an objection without presenting any evidence on her behalf. The juvenile court went over waiver of trial rights with mother.

The juvenile court then removed F.M. from mother's custody, ordered no reunification services pursuant to section 361.5, subdivision (b)(10) and (13), ordered mother to have supervised visits twice per month, and set a section 366.26 hearing for February 10, 2020.

DISCUSSION

In her petition, mother contends that she is "not a bad person," but "just made poor choices" and deserves another chance to receive reunification services and additional visits with F.M. For reasons we now explain, we must dismiss her writ petition as facially inadequate for appellate review.

As a general proposition, a juvenile court's rulings are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) A parent seeking review of the juvenile court's orders from the setting hearing must, as mother did here, file an extraordinary writ petition in this court on Judicial Council form JV-825 to initiate writ proceedings. The purpose of such petitions is to allow the appellate court to achieve a substantive and meritorious review of the juvenile court's orders and findings issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd. (l)(4).)

Rule 8.452 sets forth the content requirements for an extraordinary writ petition. It requires the petitioner to identify the error(s) he or she believes the juvenile court made. It also requires the petitioner to support each alleged error with argument, citation to legal authority, and citation to the appellate record. (Rule 8.452(b).) In keeping with rule 8.452(a)(1), we will liberally construe a writ petition in favor of its adequacy where possible, recognizing that a parent representing him or herself is not trained in the law. Nevertheless, the petitioner must at least articulate a claim of error and support it by citations to the record. Failure to do so renders the petition inadequate in its content and the reviewing court need not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Mother's petition does not comply with rule 8.452 for two critical reasons: it does not cite this court to any portion of the appellate record or legal authority to support her contentions. Mother checked the box in the petition requesting that we order the juvenile court to "Vacate the order designating a specific placement after termination of parental rights under section 366.28," but provides absolutely no further explanation on this request. Mother asserts wrongdoing on the part of the department and the juvenile court in failing to order more frequent visits and in failing to provide reunification services, but she provides no factual support or legal analysis. She has left blank the section provided to explain why the order was erroneous. Consequently, her petition is facially inadequate for review.

Further, although we are not required to do so, we have reviewed the record and find no evidence to support mother's claims. Mother waived any complaints as to visitation when she agreed to the frequency as part of a settlement on dispositional issues. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [party may not assert theories on appeal not raised in the trial court].) We also find the juvenile court did not err in its decision to deny mother reunification services.

When the juvenile court removes a child from parental custody at the dispositional hearing, it is required to provide reunification services to the child and the parents. (§ 361.5, subd. (a).) The purpose of providing reunification services is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, subdivision (b) of section 361.5 exempts from reunification services, "'"those parents who are unlikely to benefit"' [citation] from such services or for whom reunification efforts are likely to be 'fruitless.'" (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.).) The 17 different paragraphs set forth in subdivision (b) of section 361.5—which authorize denial of reunification services under various specific circumstances—are sometimes referred to as "'bypass'" provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)

Once the juvenile court determines one of the bypass provisions applies, "'"the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources."'" (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) Thus, if the juvenile court finds a provision of section 361.5, subdivision (b), applies under certain exceptions, the court "shall not order reunification for [the] parent ... unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) "The burden is on the parent to ... show that reunification would serve the best interests of the child." (In re William B., supra, at p. 1227.)

"We review an order denying reunification services under [section 361.5] for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122.) If there is substantial evidence to support the order, the appellate court must uphold the order even if evidence could support a contrary holding. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) Further, when the juvenile court finds multiple statutory grounds for denying reunification services, we need only conclude substantial evidence supports one of them in order to affirm the juvenile court's denial of services order. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In this case, we conclude the court properly denied services under both subdivision (b)(10) and (13) of section 361.5.

The juvenile court need not order reunification services under section 361.5, subdivision (b)(10) if the juvenile court ordered termination of reunification services for any sibling of the child at issue, and the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the siblings. The juvenile court need not order reunification services under section 361.5, subdivision (b)(13) on clear and convincing evidence the parent of the child has a "history of extensive, abusive, and chronic use of drugs or alcohol" and, as relevant here, "has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention ...." (§ 361.5, subd. (b)(13).) The record before the juvenile court was that F.M. was removed from mother's care due to general neglect caused by mother's substance abuse history dating back at least 10 years, that three of F.M.'s siblings were previously removed from mother's care also due to general neglect related to substance abuse issues, that mother received substance abuse treatment but "has been resistant to drug treatment as she has not been able to maintain her sobriety," and that she failed to reunify with F.M.'s three siblings.

We also note mother has two older children currently in a plan of legal guardianship, although no details of their removal from mother's custody are provided.

The juvenile court was not required to make an express finding as to F.M.'s best interest regarding reunification services. Once the juvenile court finds subdivision (b)(10) or (13) of section 361.5 applies, it is prohibited from ordering reunification services. A best interest finding is only required if the court orders reunification services despite the applicability of subdivision (b)(10) or (13): "[t]he court shall not order reunification for a parent ... described in paragraph ... (10) ... (13), ... of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)

We find no error on the part of the juvenile court.

We conclude the petition fails to raise a claim of juvenile court error as required by rule 8.452 and dismiss it as facially inadequate for review.

We note that mother is not precluded from filing a section 388 modification petition and participating in the upcoming 366.26 hearing. --------

DISPOSITION

The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.


Summaries of

A.G. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 13, 2020
F080199 (Cal. Ct. App. Jan. 13, 2020)
Case details for

A.G. v. Superior Court

Case Details

Full title:A.G., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 13, 2020

Citations

F080199 (Cal. Ct. App. Jan. 13, 2020)