Opinion
D042024.
7-2-2003
GABRIELA M., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Gabriela M. is the mother of four children declared dependents on August 10, 2001, because of her mental illness and methamphetamine use ( § 300, subd. (b)). On March 19, 2003, the court found returning the children to Gabriela would create a substantial risk of detriment to them and Gabriela was provided reasonable reunification services but she did not make substantive progress in overcoming the problems that resulted in the dependency proceeding. The court terminated reunification services and set a permanency hearing for July 10. (§ 366.26.) Gabriela filed a notice of intent to file a writ petition on April 21, 2003, seeking review of the findings and order (Cal. Rules of Court, rule 39.1B(f), all rule references are to the Cal. Rules of Court).
Rule 39.1B(f) provides in part:
"[A] notice of intent to file a writ petition and request for record shall 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 shall be extended 5 days, if the party received notice of the order setting the hearing under section 366.26 of the Welfare and Institutions Code only by mail."
The record shows Gabriela was present and represented by counsel at the hearing when the court set the section 366.26 hearing. The court advised Gabriela that she would need to petition for an extraordinary writ to challenge the findings and orders and directed her to speak with her counsel about preserving her rights. Gabriela was required to file her notice of intent to file a writ petition on or before March 26 but she did not file it until April 21. The failure to file the notice within the time limit established by rule 39.1B(f) requires the dismissal of the petition. (Roxanne H v. Superior Court (1995) 35 Cal.App.4th 1008, 1011-1012.)
DISPOSITION
The order to show cause is discharged and the petition is dismissed.
WE CONCUR: NARES, Acting P. J. and OROURKE, J.