Opinion
A154044
07-23-2018
G.R., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. JD02753301, JD02753401, JD02753501, JD02753601)
G.R. (father), the parent of four children, born in 2007, 2008, 2010 and 2013, petitions for extraordinary writ review of April 3, 2018 juvenile court orders setting a permanency planning hearing under Welfare and Institutions Code section 336.26. By an order of June 11, 2018, we temporarily stayed the section 366.26 hearing, pending a ruling on the petition.
All further unspecified statutory references are to the Welfare & Institutions Code.
Although mother filed a notice of intent to file a writ petition, she has not done so.
Father contends there is insufficient evidence to support the juvenile court's earlier dispositional orders, issued on February 22, 2017, in which the court found father was not entitled to reunification services because his whereabouts were unknown. Father did not appeal the earlier dispositional orders, which are now final. Father argues that this court nonetheless has the authority to grant extraordinary relief to avoid a grave injustice due to the unusual circumstances of this case. Real party in interest Alameda County Social Services Agency (the agency) opposes the petition. We conclude that the rulings that father challenges are now final and not properly before us, that there is no basis to grant extraordinary writ relief at this time, and that any relief to which father may be entitled must be obtained, as the juvenile court indicated, by a petition under section 388.
FACTUAL AND PROCEDURAL BACKGROUND
Combined Jurisdictional and Dispositional Hearing
In November 2016, father's four children were living with mother in the Bay Area. The agency detained the children after receipt of a police referral following an incident concerning the oldest child. The agency filed a combined section 300 petition, later amended, alleging that each child was at substantial risk of harm due to mother's failure to protect and provide support for them (subdivisions (b)(1), (g)) and father's failure to protect them because his whereabouts were unknown (subdivision (g)).
Before the combined jurisdictional and dispositional hearing, the agency submitted several reports, recommending that the court find the allegations in the amended petition to be true, declare the children dependents of the court, and authorize placement of the children in foster care. The social worker reported that mother said she had married father "circa 2008," father had been deported to Mexico "circa 2012-2013," and mother had no contact information for father. A search request had been submitted in response to which the social worker learned that father had been arrested on July 5, 2011, released to Immigration and Customs Enforcement on July 7, 2011, and after a hearing deported to Mexico on July 21, 2011. Additionally, on October 5, 2012, the Los Angeles Superior Court declared father the parent of the three oldest children, granted mother full legal and physical custody of those children, and granted father monitored visits because he failed to complete AA meetings with a sponsor and a 52-week domestic violence program. The proof of service of the order noted that father's "whereabouts [were] unknown in Mexico." On December 28, 2016, the social worker contacted the Mexican Consulate for information regarding father's location. Thereafter, in February 2017, the social worker reported that "[a] formal search" for father had been "conducted," and that he had not been located. Because the agency was unable to locate father, the agency recommended that the court bypass reunification services for him under section 361.5(b)(1). Following a hearing on January 3, 2017, the court declared father to be the presumed father of the three oldest children.
Section 361.5, subdivision (b), provides, in pertinent part, that "[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, . . . [¶] (1) That the whereabouts of the parent . . . are unknown. A finding pursuant to this paragraph shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate the parent . . . . The posting or publications of notices is not required in that search."
On February 21 and 22, 2017, at the combined contested jurisdictional and dispositional hearing, the juvenile court adopted the agency's recommendations. The court found true the allegations in the amended petition (§ 300, subds. (b), (g)), declared the children dependents of the court, authorized out-of-home placements, and granted mother reunification services. The court found that although father was the presumed father of the three oldest children, there was "clear and convincing evidence that [reunification] services should be denied" him under section 365.1, subdivision (b)(1), because his whereabouts were unknown and adequate proof had been submitted that a reasonably diligent search has been made to locate him. The matter was continued for a six-month status review hearing.
On February 24, 2017, the agency filed a "Declaration of Search Efforts," describing its efforts to locate father by searching the records of various California governmental agencies, and by sending letters to father at addresses in Compton, Lynwood, and Long Beach, California.
Six-Month Status Review Hearing
Before the six-month status review hearing, the agency submitted a report in which it recommended that the children remain in out-of-home placements and mother's reunification services continued. The social worker indicated father's whereabouts were still unknown but a new search request was going to be made. At the six-month status review hearing, held on August 15, 2017, the juvenile court adopted the agency's recommendations, continued the children in their out-of-home placements, and continued reunification services for mother. The matter was continued for a 12-month status review hearing.
12-Month Status Review Hearing
Before the 12-month status review hearing, the agency filed a report recommending that the court terminate mother's reunification services and set a section 366.26 hearing to determine the children's permanent placements. The social worker reported that mother had recently informed the agency that father had returned to the United States but mother did not know his address or telephone number. Mother also stated that father told her he did not want to be involved in the court process.
On January 3, 2018, the matter appeared on calendar at mother's request to schedule a hearing to contest the agency's recommendations in its 12-month status review report. Mother's counsel informed the court that on January 2, 2018, father had called him to inquire about the case and said he wanted to participate. The attorney told father to contact the social worker to make arrangements as "he is back and he's in the picture and he does want to participate."
The agency filed an addendum report dated February 5, 2018. The report informed the court that father had "recently" contacted the social worker and stated that he wanted to care for the children and that he had not known the children were in foster care. The agency had arranged for father to be present at a sibling visit. The visit went well, with the children very excited to see their father, who brought toys for them.
On February 6, 2018, the court commenced the hearing on the contested 12-month status review. Father appeared and informed the court he was the children's father and requested the appointment of counsel. The court appointed counsel for him. The court ordered paternity testing for the youngest child, and the test subsequently confirmed that father is the biological parent of that child. The court agreed the social worker could arrange visits between father and the children. The matter was continued to April 2, 2018.
On April 2 and 3, 2018, the juvenile court resumed the 12-month status review hearing. On April 2, father did not appear but he was represented by counsel, and on April 3, father and his counsel appeared. The agency submitted on its reports, recommending that the court terminate mother's reunification services, continue the children in their out-of-home placements, and set a section 366.26 hearing. The court heard mother's testimony, received documentary evidence, and heard arguments in support of and opposition to mother's objection to the agency's recommendation to terminate her reunification services. Father's counsel argued that the court should not set a section 366.26. hearing with respect to father's parental rights, and should grant him reunification services. Counsel argued that since father had "surfaced earlier this year" he had been visiting the children and his goal was to have the children returned to his care. The attorney reported that father had told him that he had been continuously in the United States since 2013, that mother knew his whereabouts from 2013 onward, and that father wanted the children returned to him if mother could not have the children returned to her. The agency's counsel argued that father's request for reunification services was untimely, and that father's request for reunification services should be pursued by way of a section 388 petition. The children's counsel argued that if the court terminated mother's reunification services the court should then set a section 366.26 hearing. However, the attorney had no objection if the court scheduled a hearing on father's forthcoming section 388 petition to be heard before the section 366.26 hearing.
On April 3, 2018, the court entered orders following the agency's recommendations. Mother's reunification services were terminated, the children were continued in their out-of-home placements, and a section 366.26 hearing was scheduled for July 26, 2018. The court set June 11, 2018, as the date for a hearing on father's forthcoming section 388 petition.
DISCUSSION
In seeking to set aside the April 3, 2018 orders setting a section 366.26 hearing, father argues that the court erred in entering the February 22, 2017 dispositional orders, in that the court bypassed reunification services for him under section 361.5, subdivision (b)(1) rather than ordering reunification services for him under section 361.5, subdivision (e)(1)). ~(Petition at 9-10)~ However, father's argument is not properly before us. The court's earlier dispositional orders from which no appeals were taken are now final. (§ 395, subd. (a); Cal. Rules of Court, rule 8.406(a),(c).) Consequently, we are without jurisdiction to address father's argument. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156 [" 'An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed' "]; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396 ["Because the mother did not appeal from or otherwise seek review of the order denying her services in a timely fashion, it is now a final judgment. This court is accordingly without jurisdiction to consider her current challenge by means of her writ petition"].)
Section 361.5, subdivision (e), provides in pertinent part: "If the parent . . . has been deported to his or her country of origin, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child."
There is no reason for this court to consider the merits of father's contentions in support of his writ petition. As noted, he was given the opportunity to present the changed circumstances arising from his reappearance in a petition to the juvenile court under section 388 to be heard before the section 366.26 hearing. Petitions under section 388 provide "an adequate opportunity to show current evidence of changed circumstances," and give the juvenile court the opportunity to consider the proffered evidence "without unnecessarily disrupting the focus and efforts of the court" to establish permanent placements for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Moreover, we judicially notice the fact that father did file a section 388 petition that the juvenile court has subsequently considered. Although the disposition of that petition may have been adverse to father, the merits of that ruling are not now before us.
We disagree with father's contention that the situation here is analogous to that in Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051. In that case, the appellate court granted extraordinary writ relief following the denial of mother's section 388 petition seeking relief from earlier orders terminating her reunification services and setting a permanency planning hearing for her child. (Id. at pp. 1066, 1068-1069.) The petition here, in contrast, does not challenge the ruling on a section 388 petition, but questions the court's order effectively deferring consideration of the merits of father's contentions to presentation of a section 388 petition. --------
DISPOSITION
The petition for an extraordinary writ is denied on the merits. (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452(b).) The temporary stay, issued by this court on June 11, 2018, is dissolved. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.