Opinion
F088226
08-30-2024
ASHLEY C., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
Ashley C., in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. No. JD143275-00, Michael G. Bush, Judge.
Ashley C., in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner Ashley C. (mother), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing for October 10, 2024, as to her minor son, N.M. We conclude mother's petition fails to comport with the procedural requirements of rule 8.452 regarding extraordinary writ petitions and dismiss the petition.
All further rule references are to the California Rules of Court.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
On April 18, 2022, the Kern County Department of Human Services (department) filed a juvenile dependency petition on behalf of then eight-year-old N.M. alleging he came within the court's jurisdiction under section 300, subdivision (b) (failure to protect). It was specifically alleged that N.M. was at risk of harm by mother's inability to provide care due to mental illness and methamphetamine abuse. The petition cited a specific incident where mother, accompanied by N.M., attempted to enter the courthouse without being screened by security, refused orders to stop, and appeared to be under the influence. Mother was later observed to be "speaking incoherently, display[ing] bizarre speech patterns, and sp[eaking] about hearing voices." She admitted she had been abusing methamphetamine for one year and had untreated posttraumatic stress disorder. J.M. (father), who was eventually declared N.M.'s presumed father, was incarcerated at the time the petition was filed. N.M. was taken into protective custody and placed with a relative who was also caring for N.M.'s older siblings.
The petition also alleged N.M. came within the court's jurisdiction under section 300, subdivision (g), but the juvenile court later dismissed that allegation with prejudice.
It was further reported that mother made some paranoid statements to the investigating social worker, such as she was being spied on by YouTubers who bugged her phone.
Father is not a party to this proceeding and to our knowledge has not separately sought relief.
Mother had a lengthy history of child welfare referrals dating back to 2002 related to methamphetamine use and domestic violence, including several involving father as the perpetrator. In 2020, mother was convicted of second degree robbery and was currently facing child cruelty charges for the incident at the courthouse. Father had a lengthy criminal history dating back to 2001, including several domestic violence convictions.
The juvenile court detained N.M. from the parents at the detention hearing conducted on April 20, 2022, and found he was described by section 300, subdivision (b) at the jurisdiction hearing conducted on June 13, 2022.
For disposition, the department recommended N.M. be removed from the parents' custody and that father, who was released from custody, be provided family reunification services.
Mother was recommended to be bypassed for reunification services under section 361.5, subdivision (b)(12) in that she had been convicted of a violent felony, namely, her 2020 robbery conviction. Mother had been recommended to participate in a voluntary case plan consisting of parenting/neglect counseling, a mental health assessment and treatment recommendations, and random drug testing. The department reported mother had enrolled in parenting/child neglect classes at the end of June 2022, as part of a criminal case but had only attended one session between then and the end of August 2022. When given the opportunity to drug test, she had either refused or tested positive for marijuana metabolite, and she had not enrolled in any substance abuse counseling. She had failed to participate in the mental health assessment or otherwise address her mental illness. In addition, mother was arrested in July 2022 for felony criminal threats and misdemeanor vandalism in connection with an incident where she vandalized property belonging to her mother and threatened to kill her mother and stepfather with a knife. Mother's visits with N.M. were inconsistent, but there were no concerns noted during the visits when they occurred.
The disposition hearing was conducted on September 1, 2022. The juvenile court adjudged N.M. a dependent pursuant to section 300, subdivision (b) and removed him from the parents' custody. Mother was ordered not to be provided reunification services based on the court's finding N.M. came within section 361.5, subdivision (b)(12). Father was ordered to participate in reunification services, including domestic violence as a perpetrator counseling, parenting/child neglect counseling, and substance abuse counseling. Mother was ordered to have supervised visits every other week.
Between the disposition hearing and the six-month review hearing, mother visited with N.M. inconsistently, and the visits were reported as "adequate." Father did not enroll in any of the services in his case plan but was reported to visit N.M. consistently, and the visits went well.
At the six-month status review hearing conducted on March 1, 2023, the juvenile court continued father's reunification services.
During the six- to 12-month review period, father still had not enrolled in services but continued to visit with N.M. regularly and the visits were generally of good quality. During the review period, there were only two documented visits between mother and N.M. The department had received a referral indicating mother had tested positive for methamphetamine, marijuana, and amphetamine in March 2023. In April 2023, a bench warrant was issued in mother's child cruelty case related to the courthouse incident underlying the dependency proceedings.
N.M. reported he felt safe and enjoyed his placement and wanted to stay there. He stated he enjoyed visiting with both mother and father. He did not appear to display significant behavioral changes before or after visits, but he seemed disappointed if the parents no-showed or canceled visits. N.M.'s care providers were not willing to adopt him but were willing to provide long-term foster care. They wanted the department to continue facilitating visitations, as they wanted N.M. to have access to the parents, but they "did not have the capacity to communicate with them."
At the 12-month status review hearing conducted on June 13, 2023, the juvenile court terminated father's reunification services. The court further found that N.M. was not a proper subject for adoption, and there was no one willing and appropriate to accept legal guardianship. The court found the permanent plan of "another planned permanent living arrangement" with his current care providers, a fit and willing relative, was the appropriate permanent plan and set a section 366.3 review hearing.
During the review period between the 12-month status review hearing and the first section 366.3 review hearing, mother visited with N.M. five times, and the visits were reported to go well. N.M.'s care provider reported N.M. loved visiting with mother and became emotional because he could not live with her. He had become more attached to mother, and when they do not have visits, he requested to call her at random times. N.M. reported to the social worker he enjoyed visiting with mother, and his placement was great, and he felt safe.
At the section 366.3 review hearing conducted on December 12, 2023, the juvenile court found N.M.'s placement was appropriate and necessary, and the parents had made no progress toward alleviating or mitigating the causes necessitating placement. Mother was ordered to continue having supervised visitation with N.M. every other week for two hours, with the department having discretion to increase the length and frequency of the visits. All other prior orders were to remain in full force and effect, and a second section 366.3 review hearing was set.
The department determined during the review period that N.M. was appropriate for adoption/guardianship planning and that a section 366.26 hearing should be set. N.M. reported doing well in his placement and feeling safe. N.M.'s care provider expressed willingness to adopt him, and as such, the department opined placement with a fit and willing relative was no longer the most appropriate plan for him. Father had visited three times and mother regularly visited every other week. The report indicated mother had made "minimal" progress toward alleviating and mitigating the circumstances which led to N.M.'s removal. She had completed a 52-week parenting/child endangerment counseling class and an outpatient substance abuse treatment program in December 2023. Mother had two negative drug tests through her program in November and December 2023. Father was reported to have made no progress.
At the second section 366.3 review hearing conducted on June 12, 2024, mother was personally present, with counsel. Her counsel objected to the recommendation to set a section 366.26 hearing. He argued that setting a section 366.26 hearing was inappropriate given mother's regular and positive visitation and completion of parenting and substance abuse counseling. Counsel noted, "[t]he only thing that is missing is showing a clean drug test right now," and requested that the department put mother back on the call-in system to drug test. Mother's counsel further requested mother's visits be elevated to unsupervised. County counsel objected to placing mother on the call-in system unless it was at her own expense, as the department's position was that mother should not be provided any services. The department also objected to increased or unsupervised visitation. County counsel noted mother was bypassed for services due to her conviction of a violent felony and that part of the original allegations were mental health issues, and mother had not shown proof of any mental health counseling. Minor's counsel submitted on the reports and noted that N.M. was "thriving" in his placement and objected to increased or unsupervised visitation.
In ruling, the juvenile court stated it was not appropriate to order the department to provide any services given that mother was initially bypassed for services. The court noted mother was "welcome to drug test" and present the results to the court by way of a section 388 petition. The court also found it was inappropriate to increase visitation given the status of the case and found that it was not in N.M.'s best interests. The court found N.M.'s permanent plan may no longer be appropriate, set a section 366.26 hearing for October 10, 2024, and ordered the County Adoption Agency to prepare an assessment of N.M.
DISCUSSION
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 made at the setting hearing must file an extraordinary writ petition in this court substantively addressing the specific issues to be challenged and supporting that challenge by an adequate record. The purpose of such petitions is to allow the appellate court to achieve a substantive and meritorious review of the juvenile court's findings and orders issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd. (l)(4).)
We must first address the adequacy of mother's writ petition. Rule 8.452 sets forth the content requirements for an extraordinary writ petition, including that a petition "must be accompanied by a memorandum," which "must provide a summary of the significant facts, limited to matters in the record"; "must state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority"; and "must support any reference to a matter in the record by a citation to the record" and "explain the significance of any cited portion of the record and note any disputed aspects of the record." (Rule 8.452(a), (b)(1)-(3).)
We 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. (See Rule 8.452(a)(1).) 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 is inadequate. She filed a "PETITION FOR EXTRAORDINARY WRIT" (JV-825) form and checked boxes indicating she was requesting this court to direct the juvenile court to order that reunification services be provided to mother and that N.M. be returned to her custody. In her JV-825 form under the section requiring her to state why the court's order was erroneous, mother wrote that she "completed all the requirements from my original case plan" that was ordered by the department. She left the section requiring she state the factual basis for the petition blank. She attached to the petition her December 2023 certificates of completion for parenting and substance abuse counseling. Mother does not make any citation to legal authority or to the record nor does she set forth an articulable claim of error justifying the requested relief.
We note that at the section 366.3 hearing, mother did not request custody of N.M., and the only service she requested was department-provided drug testing. To the extent mother is arguing the court's denial of her request for drug testing was error, her petition has not set forth an adequate claim. At a section 366.3 hearing, "[i]t shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child." (§ 366.3, subd. (f).) Her assertion in her petition that she completed parenting classes and substance abuse counseling does not constitute a reviewable claim that the evidence before the juvenile court at the time of the hearing compelled it to find efforts at reunification was the best alternative for N.M. so as to rebut the presumption, as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 ["where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law"]).
Because mother's petition fails to comport with rule 8.452, we dismiss it.
DISPOSITION
The petition for extraordinary writ is dismissed. The decision is final in this court immediately. (Rules 8.452(i), 8.490(b)(1)(A).)
[*] Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.