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Kristine v. Superior Court of Tulare County

Court of Appeals of California, Fifth Appellate District.
Nov 25, 2003
No. F043944 (Cal. Ct. App. Nov. 25, 2003)

Opinion

F043944.

11-25-2003

KRISTINE S., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent, TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

Kristine S., in pro. per., for Petitioner. No response for Respondent. Kathleen Bales-Lange, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Real Party in Interest.


OPINION

THE COURT

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 39.1B) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We will dismiss the petition.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

STATEMENT OF THE CASE AND FACTS

Petitioner is the mother of H., the subject of this writ petition. In October 2002, newborn H. was detained at the hospital by the Tulare County Health and Human Services Agency (agency) after H. and petitioner tested positive for cocaine. The agency filed a dependency petition alleging petitioners drug use placed H. at risk of harm. (§ 300, subd. (b).) The juvenile court sustained the allegation and, at the dispositional hearing conducted on February 5, 2003, ordered a plan of reunification that required petitioner to complete a parenting program and residential drug treatment, submit to random drug testing and attend weekly support group meetings. The court further ordered weekly-supervised visitation and set the six-month review hearing for July 30, 2003. The agency placed H. with his maternal grandmother.

Over the next six months, petitioner made some initial efforts to comply with her case plan. However, she was arrested in March 2003 for being under the influence of a controlled substance. She would remain in prison for the duration of the proceedings under review.

In its six-month status review, the agency recommended the juvenile court terminate reunification services because petitioner failed to comply with her case plan. Petitioner set the matter for a contested hearing which was conducted on September 3, 2003. Petitioner appeared through counsel and submitted on the recommendations of the agency without introducing any evidence or offering argument.

The juvenile court terminated reunification services and set the matter for a section 366.26 hearing to be conducted on December 30, 2003. This petition ensued.

DISCUSSION

In a typed statement, petitioner informs this court that she is scheduled to be released from prison in December 2004 and, upon her release, promises to do whatever it takes to reunite with her son. She also discusses her attempts to comply with her case plan while incarcerated. She is sober and is attending support group meetings. She is on a waiting list for a parenting class. She states that she loves her son and requests the opportunity to prove herself a good mother.

Having reviewed the appellate record, we conclude the case must be dismissed on either of two grounds. The first basis for dismissal arises from petitioners submission on the agencys recommendation. As we previously stated, "by submitting on the [agencys recommendation] without introducing any evidence or offering any argument, the parent waived [the right] to contest the juvenile courts disposition since it coincided with the social workers recommendation" (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) The doctrine of waiver would also pertain to the courts order issued at the six-month review hearing terminating reunification services since it coincided with the agencys recommendation and petitioner submitted on that recommendation without offering evidence or argument. Therefore, she waived her right to challenge the courts six-month review findings and orders by writ petition.

Alternatively, a basis for dismissal lies in petitioners failure to comply with the procedural requirements of California Rules of Court, rule 39.1B (rule) for completing the extraordinary writ petition. At a minimum, the rule requires the petitioner to assert a claim of juvenile court error. (Rule 39.1B (b).) In this case, petitioner does not assert any error on the part of the juvenile court. Rather, her petition concerns her desire to reunite with her son and her efforts to accomplish that objective. Accordingly, in addition to finding waiver, we conclude the petition is facially inadequate and will order it dismissed.

Finally, to the extent petitioner seeks to modify the juvenile courts order terminating reunification services based on new evidence of compliance, her remedy lies with the juvenile court by way of a section 388 petition.

Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.

DISPOSITION

The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.


Summaries of

Kristine v. Superior Court of Tulare County

Court of Appeals of California, Fifth Appellate District.
Nov 25, 2003
No. F043944 (Cal. Ct. App. Nov. 25, 2003)
Case details for

Kristine v. Superior Court of Tulare County

Case Details

Full title:KRISTINE S., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 25, 2003

Citations

No. F043944 (Cal. Ct. App. Nov. 25, 2003)