Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Stanley Genser, Temporary Judge. Los Angeles County Super. Ct. No. CK36840 (Pursuant to Cal. Const., art. VI, § 21.).
Law Offices of Katherine Anderson, Victoria Doherty and Lawren Cottles for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby for Plaintiff and Respondent.
OPINION
CROSKEY, J.
In this juvenile dependency case (Welf. & Inst. Code, § 300 et seq.), Desiree W., the mother of the dependent minor child S.H. (Mother and S., respectively), has filed a petition for extraordinary writ for relief from an order that set a section 366.26 hearing to determine a permanent plan for S. Mother contends the trial court erred when it found that she was provided with reasonable family reunification services and further found that she was not in substantial compliance with her case plan.
All references herein to statutes are to the Welfare and Institutions Code.
Real party in interest, the Los Angeles County Department of Children and Family Services (the Department), has filed a motion to have Mother’s petition for extraordinary writ dismissed on the ground that Mother’s notice of intent to file such petition was not timely filed. Although her notice of intent was filed only one day late, the time requirement for filing such notices is mandatory unless there is a showing of exceptional good cause for not complying with that time requirement. Mother has not made such a showing and therefore we must dismiss her petition.
DISCUSSION
1. Proceedings Prior to the Filing of Mother’s Petition for Extraordinary Writ
The section 300 petition for S. (who was born in August 2005), was filed on March 28, 2006, when the minor was seven months old. The sustained petition alleges (1) Mother has a seven-year history of substance abuse, is a frequent user of amphetamine, methamphetamine and marijuana, and she used illegal drugs on March 21, 2006, and (2) Mother has four other children under the age of ten who are also dependents of the juvenile court because of Mother’s history of substance abuse, and who were living with Mother at that time under a June 13, 2005 home of parent order.
On March 28, 2006, the court found a prima facie case for detaining S. At an adjudication hearing held on May 11, 2006, S. was found to be a person coming within the provisions of section 300.
On July 27, 2006, S. was declared a dependent child of the court. The court made a home of parent order for Mother, with S. to be placed with Mother in her residential substance abuse program.
On December 26, 2006, S. was redetained by the Department when Mother tested positive for cocaine. A section 387 supplemental petition was filed for S. on December 29, 2006. It alleges Mother’s history of drug use and her December 26, 2006 positive toxicology report. At the detention hearing held December 29, 2006 on the supplemental petition, the court found cause for detaining the minor and S. was replaced to shelter care.
Mother pleaded no contest to the supplemental petition on January 25, 2007, and the petition was sustained by the court. Mother’s home of parent order was terminated and custody was place with the Department. By that time, a section 366.26 hearing for S.’s four siblings had been set for March 20, 2007.
A six-month review/section 366.21, subdivision (e) hearing scheduled for March 20, 2007 was continued to April 13, 2007 because Mother and S.’s father requested a contested hearing. At the April 13, 2007 contested hearing, the court took the matter under submission and continued the case to May 7, 2007, for its decision. At the May 7, 2007 hearing, the court found the parents were not in compliance with their case plans, found that Mother has a history of not being able to maintain sobriety when she is not in a residential treatment program, terminated the parents’ reunification services, ordered permanent placement services for S. and the parents, and set the matter for an August 14, 2007 section 366.26 hearing.
2. Time Constraints for Filing Notices of Intent to Petition for Extraordinary Writ
California Rules of Court, rule 5.600 (b) provides that when the trial court sets a section 366.26 hearing it “must advise orally all parties present, and by first-class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record . . . and a Petition for Extraordinary Writ.”
All references herein to rules are to the California Rules of Court.
Rule 5.600 (c) states in relevant part that “[t]o permit determination of the writ petition before the scheduled date for the hearing under section 366.26 on the selection of the permanent plan, a notice of intent to file a writ petition and request for record must be filed with the clerk of the juvenile court within 7 days of the date of the order setting a hearing under section 366.26. The period for filing a notice of intent to file a writ petition and request for record will be extended 5 days if the party received notice of the order setting hearing under section 366.26 only by mail.” Rule 8.450(e)(4) reiterates that the notice of intent must be filed within seven days of the date of the order setting the section 366.26 hearing if the party filing that notice was at such hearing. Rule 8.450 (d) provides that the reviewing court may extend that time period but in order to do so, the reviewing court “must require an exceptional showing of good cause.” (Italics added.)
During the pendency of this case, Mother has been represented by the same trial court attorney that has represented her in the dependency case for her other four children. Mother and her attorney were both present at the abovementioned May 7, 2007 hearing when the trial court set the section 366.26 hearing. At that time, the court spoke directly to Mother and advised her that in order to challenge the order setting the section 366.26 hearing, Mother had seven days to file her notice of intent. The court also told Mother that she had been handed paperwork that contains all the forms she needed to start the process, and that her attorney was available to answer any questions she might have and assist her in completing the necessary paperwork. The court then reiterated that Mother had only seven days to file her notice of intent and it specifically stated that the notice of intent had to be filed by the 14th of May. The court asked Mother if she understood the instructions and Mother answered: “Yes.”
Despite the double oral advisement by the trial court that she had to file her notice of intent within seven days of the May 7 hearing, and despite that the court specifically stated the notice needed to be filed by May 14, Mother’s notice of intent to file a writ petition was filed on May 15, 2007. The Department contends Mother’s failure to timely file her notice of intent requires us to dismiss her petition, even though it was filed only one day late, because Mother has not presented us with an exceptional showing of good cause to extend the filing period. We agree. (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1830-1831.)
The notice of intent is a one-page form asking for a small amount of information—the petitioner’s name, address, telephone number, and status (parent, guardian, county welfare agency, child, or “other”), the date of the order setting the section 366.26 hearing, the date of the section 366.26 hearing, and “all known dates of the hearing that resulted in the order.” Rule 8.450 (c) and (e) require that the petitioner sign the notice and his or her attorney file it. That was done in this case. Since the rules contemplate that the attorney rather than the petitioner will file the notice of intent, the fact that a petitioner’s attorney files it late cannot in and of itself constitute the “exceptional showing of good cause” required to relieve the petitioner of the time limits specified in the rules for filing the notice of intent. That is, blaming the attorney for a late filing cannot by itself constitute an exceptional showing of good cause because that would mean that every late-filed notice of intent that was filed by an attorney would be excused.
Nor does the fact that the filing was only one day late justify ignoring its untimeliness. It is a matter of observing deadlines so that the petition is decided prior to the section 366.26 hearing. (Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1830; rule 5.600 (c).)
DISPOSITION
Mother’s petition for extraordinary writ is dismissed.
We Concur: KLEIN, P. J., ALDRICH, J.