Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Nos. J1285784, J1285782, J1285781, J1285928, J1285783, Arthur A. Garcia, Judge
Cesar R., in pro. per., for Petitioner.
Maria G., in pro. per., for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel, Sarah A. McElhinney, Toni Lorien, Deputy Counsel, for Real Party in Interest.
PERREN, J.
Maria G. (mother) and Cesar R. (father) petition for extraordinary writ relief from the juvenile court's order terminating reunification services and setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. Mother petitions regarding her five children, Anthony G., Robert H., Jesus G., Cesar R., and Andrea R. Father petitions with respect to his two children, Cesar R. and Andrea R. We deny the petitions because petitioners have failed to comply with the requirements of California Rules of Court, rule 8.452, or otherwise present any material issues on appeal.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On December 23, 2008, the Santa Barbara County Child Welfare Services (CWS) filed section 300 petitions with regard to mother's first four children, Anthony, born in August 1999; Robert, born in May 2003; Jesus, born in January 2005; and Cesar, born in January 2008. Cesar is the son of father. The fathers of the older three children have never appeared in the proceeding. A petition was filed with regard to Andrea R., daughter of mother and father, after her birth in March 2009.
The December 2008 petitions allege that the children have suffered or there is a substantial risk that they will suffer physical harm as a result of parental failure or inability to supervise or protect them, and that the parents failed to provide the children with adequate food, clothing, or medical attention. (§ 300, subd. (b).) The petitions allege that Anthony, Robert, Jesus and Cesar were detained on December 20, 2008, after a sheriff's deputy found Jesus sitting alone on the curb near his residence. Robert and Cesar were in the residence but no adult was home. Jesus and Cesar were wearing inappropriate clothing for the weather, Cesar had bruises on his ankle, forearm and back, and Jesus and Robert were unable to say what they had eaten for breakfast or lunch. The petitions also allege that mother has a criminal history including willful cruelty to a child, forgery, and theft, and that father has a criminal history including willful cruelty to a child, placing a child at risk for serious harm, and theft.
The sheriff's deputy arrived at the residence at approximately 3:30 p.m.
At the February 5, 2009, jurisdiction and disposition hearing, the trial court sustained the allegations of the petitions, declared the four children to be dependents of the court, and ordered family reunification services for mother and father. The children were all placed in the same foster home, and weekly supervised visits were provided to both parents.
Andrea R. was born in March 2009 while mother was serving a 90-day jail sentence for willful cruelty to a child, shoplifting and violation of probation. Also at the time of birth, father was on probation for willful cruelty to Cesar. Andrea was detained and a section 300 petition was filed on March 10. The petition alleges that, due to mother's incarceration, Andrea was left without provision for support or care. (§ 300, subd. (g), see also subd. (j).) The court assumed jurisdiction on April 9, 2009, and ordered reunification services and supervised visitation for both parents.
At the July 30, 2009, six-month review hearing for the four older children, the court extended reunification services for six more months and continued weekly supervised visitation. In October, the court extended reunification services for Andrea and set an interim hearing on her case for January 28, 2010, the same date scheduled for a 12-month review hearing for the other children.
A CWS report for the 12-month review hearing as to the four older children recommended termination of reunification services. The report states that mother had driven the children without a driver's license and had interfered with the foster parents. An addendum includes a handwritten letter from Anthony describing an unsatisfactory life with his mother and father, and a desire to stay with his foster parents. But, the same addendum states that, in a conversation with a social worker, Anthony showed ambivalence by expressing a desire to go back to his mother. Both petitioners contested the CWS recommendation, and CWS agreed to continue reunification services under a new case plan for an additional six months. An 18-month review hearing was set for May 20, 2010. There was no change in visitation.
After a continuance, the 18-month review hearing was conducted on July 21, 2010. In a report, CWS renewed its recommendation for termination of reunification services but, at the time of the hearing, agreed to continue services until a hearing set for October 28, 2010.
At the October 28 hearing, CWS again recommended termination of reunification services and the setting of a section 366.26 hearing. The report states that mother and father had met most of their case plan objectives, but had not corrected the problems that led to the detention of the children. In particular, they had let mother's cousin and mother's sister move into the house even though the cousin was on probation for possession of drugs, forgery and child cruelty, and the sister had recently been paroled from prison. The matter was continued until January 2011.
The trial court conducted a two-day contested hearing on January 19, and 20, 2011, covering all five children. Mother testified that she had learned from her parenting classes and father testified that his work schedule limited his ability to attend visits but that he had tested clean and attended a drug and alcohol program. CWS submitted reports and gave testimony regarding mother's sister and cousin's residence with mother, the children's fear of returning to the parents, and evidence of mother and father's criminal history, missed visitation, and other matters before the court. There was evidence that mother had tested positive for alcohol and that the children do not call her "mother" when in the presence of their foster parents. There was also evidence regarding the failure of the parents to progress beyond supervised visitation. Mother offered testimony that her sister and cousin never lived in mother's residence.
In its findings, the trial court emphasized the length of reunification services which resulted in progress but not correction of the reasons for the removal of the children from the parents. The court also emphasized that the parents "[have] not gotten into the position of having overnight visitation, even extended visitation for that matter, and that's very troubling." The court found the parents had repeatedly suffered from lapses in judgment that put the children at risk and in fear of being neglected if returned to their parents. The court stated that it was "unusual" to hear children consistently express fears about their parents. The trial court also noted that the parents, by seeking family maintenance, were essentially seeking continued CWS supervision and more reunification services.
The trial court concluded that CWS had provided reasonable reunification services and that the parents had complied with most, but not all, of their case plan. The court also found that mother's progress was not sufficient to make the children feel safe to the point that they want to go home and that the children would be unsafe if returned to parental custody. The court found that "there is a substantial risk of detriment to the emotional well-being of the children" and that it would be "horribly detrimental" for Andrea to be sent home and "traumatic to the rest of the children." The court also stated that it was setting the section 366.26 hearing as far into the future as possible and permitting visitation up to the hearing.
DISCUSSION
CWS argues that the writ petitions should be denied because they fail to conform to the requirements of California Rules of Court, rule 8.452. We agree.
A writ petition to review an order setting a section 366.26 hearing must include, among other things, a memorandum which summarizes the significant facts supporting the petition, relates the facts to the grounds alleged as error, and supports each point with argument and citation to authority and the record. (Cal. Rules of Court, rule 8.452(a), (b); Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) 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." (Ibid.)
"Absent exceptional circumstances, the reviewing court must decide the petition on the merits by written opinion." (Cal. Rules of Court, rule 8.452(h)(1).) Petitioners' failure to comply with rule 8.452 constitutes exceptional circumstances justifying the summary denial of their petitions. (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 pp. 577-579.)
Seven petitions were filed in this case, one by mother for each of her five children and two by father for each of his two children. Except for the names of the children and petitioners, all seven petitions are identical and on the Judicial Council printed form. The petitions seek relief from the January 20, 2011, order setting a section 366.26 hearing but fail to identify any error by the trial court. The petitions refer to a sentence from the opening statement by counsel for CWS that the "[p]arents have not demonstrated that they have changed or learned from the services that they have [been] given over the life time of this case." Counsel's argument is not an error by the court or a finding or conclusion of the court. Also, the court never found the parents did not benefit from reunification services.
The petitions also include no summary of the factual basis for the petitions, and made inadequate references to the record. The petitions cite (1) opening argument by counsel for the mother and father, (2) brief testimony by a CWS case aide regarding his observations of mother and father during visits with the children, (3) mother's testimony that she and father were able to care for the children, (4) portions of CWS logs summarizing a few visits, and (5) certificates stating that mother and father completed parenting classes. Such testimony and documents are relevant to the case, but do not reveal or support any specific grounds for relief from the January 20, 2011, order. There is no question that the trial court considered the case to be difficult because it had to balance progress by the parents against continuing and compelling evidence that the children would be at risk if returned to their parents.
It is also clear from the record that mother and father were vigorously represented by counsel and presented evidence which was credited by the trial court, but that there was other evidence that visitation by the parents had never progressed beyond supervised visits due to serious questions concerning the living environment of the home, prior criminal conduct by the parents, and other factors creating serious doubt regarding the well-being of the children if returned to the parents.
Parents are generally entitled to 12 months of reunification services except that parents of a child under three years of age at the time of removal from the home are entitled to only six months of services. (§ 361.5, subd. (a)(1)(B); In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) Here, all five children received more than 18 months of services. Moreover, the trial court shall not return a child to parental custody if the "court finds, by a preponderance of the evidence, that the return of the child to his or her parent ... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a), see also 366. 21, subd. (e).) There is nothing in the petitions or the record to cast doubt on the orders by the trial court and there is no attempt in the petitions to do so. The record shows substantial evidence to support the orders by the trial court.
The petitions for extraordinary writ are dismissed.
We concur: GILBERT, P.J., COFFEE, J.