Opinion
F074767
02-24-2017
J.T., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Rodney R. Rusca for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and, Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CEJ300307-1)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary Green, Commissioner. Rodney R. Rusca for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and, Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
Before Kane, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
At an uncontested 18-month review hearing (Welf. & Inst. Code, § 366.22) in November 2016, the juvenile court terminated reunification services for Carl M., the father of now 14-year-old Amber H., and set a section 366.26 hearing. In August 2016, the juvenile court terminated reunification services for Amber's mother, J.T., and suspended visitation. J.T. (mother) seeks an extraordinary writ directing the juvenile court to reinstate her reunification services and visitation. She also requests a temporary stay of the section 366.26 hearing, which is currently set for March 20, 2017, pending our review of her writ petition. (Cal. Rules of Court, rule 8.452.) We conclude mother failed to challenge any of the juvenile court's rulings from the setting hearing, dismiss her writ petition and deny her request for a stay.
Statutory references are to the Welfare and Institutions Code.
Rule references are to the California Rules of Court.
PROCEDURAL AND FACTUAL SUMMARY
These dependency proceedings were initiated in May 2015, after then 12-year-old Amber physically attacked her stepmother and threatened to kill her. At the time, Amber had been living with her father, Carl, and his wife for approximately two years. Prior to that, she lived with mother, her two sisters, A.H. and Autumn, and mother's husband, Rueben. However, mother was an alcoholic and, in January 2013, Carl successfully petitioned for sole custody of Amber.
Amber had difficulty with the change in custody and wanted to return to mother. She fought and argued with her stepmother and threatened to harm her, Carl and herself. In March 2013, Amber was evaluated by a psychiatrist after stating she wanted to stab and kill Carl, her stepmother and herself. The psychiatrist diagnosed her with mental illness and prescribed medication. She was later diagnosed with bi-polar disorder, after she took a knife to school and was involuntarily hospitalized.
The Fresno County Department of Social Services (department) removed Amber from Carl's custody in May 2015, following the assault and placed her in foster care. The juvenile court ordered Amber detained and ordered the department to assess mother and Carl for placement. The court also ordered the department to offer the parents services, including therapeutic supervised visits.
Mother was living in Kings County and receiving services to reunify with A.H. and Autumn who had been removed from her custody in November 2014 because she failed to protect them from Rueben who sexually molested and raped A.H. She had not seen Amber since December 2014 but communicated with her by telephone and social media. In June 2015, mother and Amber began therapeutic visitation supervised by Dr. Blanca Mejia.
The department recommended against placing Amber in mother's custody because she violated the juvenile court's visitation order by communicating with Amber via Facebook and made unrealistic promises to Amber. The department was concerned about mother's seeming inability to follow court orders and understand the importance of the safety plans put in place.
In September 2015, the juvenile court exercised its dependency jurisdiction over Amber and ordered mother and Carl to participate in a plan of reunification. Mother's services plan required her to participate in parenting, substance abuse, mental health and domestic violence services and weekly, supervised therapeutic visits. The court set the six-month review hearing for March 2016.
In its report for the six-month review hearing, the department reported that mother completed her court-ordered services through Kings County, maintained her sobriety and successfully reunified with A.H. and Autumn. However, the department characterized her prognosis as "guarded" because she refused to acknowledge her role in the department's involvement with her family and did not believe she acted inappropriately. In addition, Amber was proud of the progress she made in therapy and was trying to set boundaries with mother. However, she felt that mother did not respect her progress and was upset that she was happy in her foster home. She believed mother tried to "brain-wash" her against Carl and lied to her. Amber did not trust herself around mother and did not believe she had the strength to confront mother about her lies. Amber's therapist, Maria Romero, believed it would be detrimental to return Amber to mother's custody and could cause Amber to regress and resume her self-harming behavior.
In March 2016, Amber, mother and Carl met with social workers, the foster parents and the visitation supervisor to discuss visitation. Amber read a letter in which she stated she was struggling with anger toward her parents and asked that visits stop while she continued to work on herself in therapy. She shared that she was upset at the negative things mother said about her foster parents. Mother and Carl agreed to a six-week suspension in visitation and further agreed they would participate in collateral sessions with Maria Romero during that period. Several days later, mother sent the social worker an e-mail stating she was concerned that the foster parent was interfering with the reunification process. She also texted Carl asking him to be a "team" and work together to get Amber back and prevent the foster parents from keeping her. Carl did not respond and showed the text message to the social worker.
On April 18, 2016, at the six-month review hearing, the juvenile court continued reunification services for both parents and set the 12-month review hearing for July 2016. That same month, Amber stated she never wanted to see her parents again and tried to negotiate a guardianship. At a meeting to discuss visitation, she insisted she did not want to visit her parents at that time but they were adamant about resuming visits and were unwilling to wait until the department could arrange after school visits. On April 29, 2016, Amber met her parents for a visit and informed them it was going to be their last. She explained she was not willing to miss school. On May 20 and May 27, Amber refused to leave class for visits. On June 3, 2016, Amber attended a visit for 10 minutes during which she expressed frustration and anger toward mother. She told mother she wanted to discontinue visitation, as she believed mother was trying to jeopardize her placement and create obstacles to her success in school. After Amber left the room, mother blamed Amber's feelings toward her on Amber's mental illness and said to Dr. Mejia, "Amber needs help."
In its report for the 12-month review hearing, the department recommended the juvenile court continue reunification services for both parents, even though it was concerned about mother's refusal to acknowledge Amber's feelings about their relationship. The department recommended the court order mother to complete a mental health assessment based on Dr. Mejia's impression that mother's unusual response at the last visit indicated she may have a personality disorder.
Minor's counsel opposed the department's recommendation to continue reunification services for mother, arguing mother was not empathetic to Amber's needs and unlikely to successfully reunify with her. In a statement of contested issues, counsel cited an e-mail from mother and her attorney stating that Amber had written a letter alleging her foster parent abused her. However, no letter was ever produced and Amber denied making the allegation. In addition, mother caused Amber distress during visits with her siblings and Amber's therapist declined to provide family therapy, stating it would be detrimental.
In August 2016, the juvenile court conducted a contested 12-month review hearing. The court allowed mother's attorney to call three of the witnesses he planned to call. The court heard testimony from A.H., mother, Amber's brother and Carl. Amber read a statement into the record stating she was happy with her foster family and her life and did not want to continue with reunification efforts. The court found the department provided Carl and mother reasonable reunification services but that mother's progress was minimal. The court terminated her services and suspended visitation. The court continued services for Carl until the 18-month review hearing which the court set for November 2016.
Mother filed a notice of appeal from the juvenile court's order terminating her services, which we assigned case No. F074189.
In October 2016, mother filed a modification petition under section 388 in the juvenile court, asking the court to order supervised visits and communication by telephone and letters. The juvenile court denied mother's section 388 petition, finding she failed to make a prima facie showing that her circumstances had changed. At the same hearing, the court granted the department's request to continue Amber on psychotropic medication which mother had opposed.
Mother appealed from the juvenile court's order denying her section 388 petition, which we assigned case No. F074623. We consolidated the two appeals at the request of appellate counsel and directed all documents be filed in case No. F074189. The appeals are currently pending.
We grant real party in interest's request filed on February 10, 2017, and take judicial notice of the filings in mother's consolidated appeals. --------
In November 2016, the juvenile court terminated Carl's reunification services and set a section 366.26 hearing. Carl did not file a writ petition.
DISCUSSION
The purpose of the extraordinary writ is to allow the appellate court to achieve a substantive and meritorious review of the juvenile court orders and findings issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd. (l)(4).)
Rule 8.452 governs the content requirements for a petition for extraordinary writ. The petition is a three-page preprinted form JV-825 ("Petition for Extraordinary Writ") which requires the petitioner to identify the grounds of error and the date on which the error was made. The rule requires that the petition be accompanied by a memorandum and that the memorandum meet certain criteria. (Rule 8.452(a)(3).) Specifically, the memorandum must "provide a summary of the significant facts, limited to matters in the record," "state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority," and "support any reference to a matter in the record by a citation to the record." In addition, the memorandum "should explain the significance of any cited portion of the record and note any disputed aspects of the record." (Rule 8.452(b)(1)-(3).)
Mother's petition, prepared by her trial counsel, claims error on the grounds the juvenile court "found reasonable services when the [department] did not enforce visitation." The petition identifies November 21, 2016, as the date on which the court made the finding. Attached to the petition is a 16-page, typewritten document, apparently serving as the statement of the case and memorandum of points and authorities.
We conclude the use of the extraordinary writ petition was inappropriate in this case for several reasons. First, the juvenile court did not make any findings, including a reasonable services finding, as to mother at the setting hearing in November 2016. Nor did the court issue any orders pertaining to her, including visitation. Consequently, she does not have any issues to raise on an extraordinary writ petition. Further, counsel raises other alleged errors in his points and authorities, all relating to issues that either preceded the 12-month review hearing or were before the court around the time of the 12-month review hearing. For example, counsel raises issues concerning detention, placement, Amber's psychotropic medication, mother's request for psychiatric testing and the court's limitation of witnesses at the 12-month review hearing. None of these issues is cognizable however because they are appealable, not the subject of a writ petition, and the time to appeal them has passed. Consequently, we dismiss mother's writ petition for failure to raise a cognizable error.
Further, we deny mother's request for a stay in the proceedings. Rule 8.452(f) grants the reviewing court discretion to stay the section 366.26 hearing pending determination of the writ, but states that this court "must require an exceptional showing of good cause" to justify the stay. We conclude mother has failed to make the requisite showing of good cause. Mother seeks a stay of the hearing because it might result in the termination of her parental rights, which she contends is premature. She points to the "significant progress" she made in completing her court-ordered services and the psychiatrist's failure to medicate Amber properly. She believes Amber should be stable before a section 366.26 hearing can be set. These are inadequate grounds for a stay.
DISPOSITION
The petition for extraordinary writ is dismissed. The request for a temporary stay of the section 366.26 hearing is denied without prejudice to requesting a stay of the hearing by filing a traditional writ of mandate. This opinion is final forthwith as to this court.