Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for extraordinary writ. Marilyn Mordetzky, Referee. Petition denied. Los Angeles County Super. Ct. No. CK48076
Christian M., in pro. per., for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Real Party in Interest.
MALLANO, P. J.
In his petition for an extraordinary writ, Christian M. (Father) challenges a January 25, 2010 order setting a permanent planning hearing for April 26, 2010, as to his son. We deny the petition because substantial evidence supports the juvenile court’s findings that there was no substantial probability that Christian C. would be returned to Father in six months.
BACKGROUND
Christian C. is six years old. Since the inception of the parents’ voluntary services plan in November 2007, the child has resided with his maternal grandparents (maternal grandfather and step-grandmother).
In November 2007, the family came to the attention of the Department of Children and Family Services (DCFS) due to referrals stating Mother was abusing heroin and could not provide proper supervision for Christian. In addition, Mother and Father fought often in front of the child. When questioned by DCFS, Mother admitted she was using drugs.
In December 2007, Mother and Father agreed to a voluntary services plan, whereby Christian was placed in the home of his maternal grandparents and Mother and Father agreed to enroll in a drug treatment program. Father enrolled as planned but was dropped from the program for excessive absences.
Four months later, on April 15, 2008, Father was arrested for robbery with a gun. He pleaded guilty and was sentenced to a three-year prison term. Mother missed drug tests and was using heroin. On May 23, 2008, it appeared that Mother was on a waiting list for a detox program. Father was at North Kern Prison.
On May 27, 2008, DCFS filed a Welfare and Institutions Code section 300 petition and alleged under subdivision (b) that Mother and Father were unable to provide for the child because of their drug problems. Christian was detained in the home of the maternal grandparents. Due to his incarceration, Father was not present at the detention hearing.
All further statutory references are to the Welfare and Institutions Code.
On July 8, 2008, DCFS reported that Father was not available to be interviewed for the Jurisdiction/Disposition report because he was new at state prison and would not have telephone privileges for two months.
At the Jurisdiction/Disposition hearing, Mother waived her right to a trial, and the juvenile court went forward as to her, sustaining the section 300 petition for her substance abuse which rendered her unable to properly supervise the child. The juvenile court granted Mother reunification services. At the hearing, Father was represented by counsel, but his counsel had not yet contacted him. As to his portion of the case, the juvenile court continued the matter to give Father the opportunity to be present.
On August 12, 2008, DCFS reported that the social worker had received a letter from Father stating he did not want to be present at the hearing on that date. In the letter, Father stated that he believed Christian was “in the best possible place.” Father also admitted that his prison sentence was too lengthy to allow him to care for the child. He said he loved his son and asked that the case be continued until he was out of prison in November 2010.
On August 12, 2008, the juvenile court determined that Father was Christian’s presumed father. Father’s counsel waived his trial rights and the juvenile court went forward as to Father, sustaining the section 300 petition as to him. The juvenile court did not offer Father reunification services under section 361.5, subdivision (e)(1), due to his incarceration and also because he was not the custodial parent and was not seeking custody of Christian.
The maternal grandparents had agreed to care permanently for Christian and preferred a plan of legal guardianship, as they hoped one day Mother would be able to regain custody.
On January 25, 2010, the juvenile court terminated Mother’s reunification services, noted that Father had not received services, and set a section 366.26 hearing for April 26, 2010. Father was represented by counsel at the hearing.
Father’s notice of intent to file a writ petition was filed with the superior court; the notice of intent was signed by Father and dated February 8, 2010. Father filed the petition in propria persona on March 9, 2010. Father’s petition alleged that the April 26, 2010 hearing should be continued until he is released from prison in November 2010. On March 9, 2010, the clerk of this court informed the parties that the matter will be decided on the merits. DCFS filed an answer to the petition for an extraordinary writ.
DISCUSSION
Noncompliance with California Rules of Court
Rule 8.452 of the California Rules of Court requires that a writ petition to review an order setting a section 366.26 hearing include certain specified information. In particular, “[t]he petition must be accompanied by a memorandum” that provides a summary of the significant facts and supports each point with argument and citation to authority and the record. (Cal. Rules of Court, rule 8.452(a)(3) & (b); see also rule 8.456(a)(3) & (b).) A petition that fails to comply with these rules is subject to dismissal. We “dismiss as inadequate any rule 39.1B [now rule 8.452] petition that does not (1) summarize the particular factual bases supporting the petition, (2) refer to specific portions of the record, (3) relate the facts to the grounds alleged as error, (4) note disputed aspects of the record, and (5) have attached to it a particularized memorandum of points and authorities. [Citation.]” (Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000, 1005, italics omitted; see also Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955–956.)
Father failed to comply with these rules. His petition does not include a memorandum of points and authorities, and he offers only the request to continue the section 366.26 hearing as “support” for his petition. There are no grounds for the petition. There is no factual basis for the petition.
Although we could dismiss the petition for its clear failure to comply with the appellate court rules, we decline to do so in light of the importance of the right at stake and the critical stage of these proceedings.
Abuse of Discretion
Although the petition is unclear, Father appears to contend that the juvenile court’s decision to set the matter for a section 366.26 hearing on April 26, 2010, rather than wait until he is released from prison, is not legally correct and is an abuse of its discretion. Father’s argument is without merit.
If a juvenile court is granted discretion to decide an issue, its decision will not be disturbed on appeal absent a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A court abuses its discretion when it makes a determination that is “‘“arbitrary, capricious, or patently absurd.”’” (In re Mark V. (1986) 177 Cal.App.3d 754, 759, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
Here, there is no question the juvenile court’s order setting the section 366.26 hearing was not an abuse of discretion and Father failed to meet his burden to prove a section 366.26 hearing should not have been set.
At the hearing on January 25, 2010, Mother submitted on DCFS’s recommendation that the matter be set for a section 366.26 hearing. Father’s only request in his writ petition is that the case be put off until November 2010 when he will be out of prison. But the Legislature has recognized “that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate. [Citations.] To avoid unnecessary delays in the process the Legislature has directed the juvenile court to ‘give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.’” (In re Marilyn H. (1993) 5 Cal.4th 295, 308, citing § 352, subd. (a).)
And Father had more than the usual amount of time to voice his concerns, if any. Mother received two months more than the 18 months of reunification services available to her, from the inception of the dependency case on May 27, 2008, until January 25, 2010. At any time during the case, Father could have requested services or provided evidence he had a plan for Christian. He did not do so.
Meanwhile, Father was represented by counsel throughout the case. If Father had information for the juvenile court relevant to Christian’s case or had an alternative plan for Christian, his attorney had every opportunity to present it. Yet Father made it clear he did not want to attend court for the disposition hearing on August 12, 2008.
Also, at the hearing on January 25, 2010, Father’s counsel neither requested a continuance nor objected to the court setting the section 366.26 hearing. As such, Father cannot now argue the matter should be continued.
Given the facts of this case, it would not have been an abuse of the juvenile court’s discretion to deny a request for a continuance. Continuances are authorized by section 352, subdivision (a). A juvenile court has discretion to continue a dependency hearing for good cause shown and only for the time shown to be necessary, but continuances are discouraged in dependency cases. (Ibid.; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810–811.)
There was no good cause for a continuance, and the juvenile court did not abuse its discretion by going forward and setting a section 366.26 hearing. Mother received all of the services due her and specifically waived her right to contest DCFS’s recommendation. Father remained incarcerated. The juvenile court committed no error.
Father apparently does not want to lose his rights to Christian. But Father’s rights cannot come first at this point. “A parent’s rights to the care and companionship of [his] child are, of course, compelling. But the child’s rights to a stable and loving family are equally compelling, and in any decision regarding the child’s custody, the two must be balanced. The balance between the parent’s and the child’s rights shifts after the child has been removed from the parent’s home for a substantial time, owing to abuse or neglect by the parent, and the parent has failed to correct the problems which led to the removal.” (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609.)
The juvenile court’s order was not an abuse of discretion, and Father made no showing a section 366.26 hearing should not be set. Section 366.22 provides that the juvenile court must set a section 366.26 hearing if a child cannot be returned to the parent’s care. (§ 366.22, subd. (a).) Therefore, the juvenile court’s order was based on the statutes and prevailing case law.
Lack of Legal Advice
Father apparently also contends he did not have “access to an attorney or legal advice” and did “not understand most of the forms.” Yet, as stated, Father has had legal representation in the juvenile court since his first appearance. There is no reason to believe anything else could have been done on his behalf.
In that regard, Father did not show he received ineffective assistance of counsel. Under section 317.5, a party represented by counsel in a dependency proceeding is entitled to “competent counsel” and may therefore raise a claim that counsel was ineffective. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667.) But a parent who claims that section 317.5 was violated must show “counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law.” (Kristin H., at pp. 1667–1668.) Father had the burden to show his counsel was ineffective, and he did not do so. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Yet, even assuming arguendo Father’s counsel failed him in some way, Father cannot prevail on his claim unless he can show that in the absence of counsel’s failings a more favorable result was reasonably possible. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052].) Father did not do so. The record and the law in this case supported the orders of the juvenile court.
DISPOSITION
The petition for an extraordinary writ is denied.
We concur: ROTHSCHILD, J. CHANEY, J.