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Mario G. v. Superior Court of Merced Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 26, 2012
F063700 (Cal. Ct. App. Jan. 26, 2012)

Opinion

F063700 Super. Ct. No. JP000279

01-26-2012

MARIO G., Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; MERCED COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.

Mario G., in pro. per., for Petitioner. James N. Fincher, County Counsel, and Sheri L. Damon, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

THE COURT

Before Gomes, Acting P.J., Dawson, J. and Detjen, J.

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. John D. Kirihara, Judge.

Mario G., in pro. per., for Petitioner.

No appearance for Respondent.

James N. Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel, for Real Party in Interest.

Mario G. (father), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's order terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his 16-month-old daughter, A. On review, we conclude father's effort to seek writ review is untimely and his petition fails to satisfy the procedural requirements of California Rules of Court, rule 8.452. Accordingly, we dismiss his petition.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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PROCEDURAL AND FACTUAL HISTORY

In September 2010, the juvenile court adjudged A. a juvenile dependent and removed her from parental custody. The child tested positive for methamphetamine at birth, even though her mother was supposedly participating in services to deal with her substance abuse problem. Father was meanwhile incarcerated and unable to arrange for the child's care.

Despite 12 months of services, father was unable to reunify with A. Halfway through the reunification period, father stopped complying with court-ordered services, including visitation, and stopped maintaining contact with Merced County Human Services Agency (agency). He was eventually located in prison. He had chosen to violate his parole and leave the state, resulting in his reincarceration. Because there was no substantial probability of returning A. to father's custody, the agency recommended the court terminate services and set a section 366.26 hearing to select and implement a permanent plan for the child.

At an October 31st hearing, father testified in opposition to the agency's recommendation. He wanted more services and thought he could succeed in reunifying with A. if given more time. Father claimed he would be released from custody in another month, although he admitted he was also facing a probation violation that he would dispute.

The court believed father was honest about his desire to receive more services. However, father's performance to that point suggested his wishes did not always match his ability to comply. Consequently, the juvenile court made the necessary findings to continue A.'s out-of-home placement, terminate reunification services, and set a section 366.26 hearing. The court also personally gave father notice of his right to request this court's review by filing, within seven days' time, a notice of intent to file a writ petition, as required by law.

Father filed his notice of intent ten days later.

DISCUSSION

Father filed his notice of intent three days past the deadline set forth in California Rules of Court, rule 8.450(e)(4)(A). According to this rule, a party who is present when the court sets a section 366.26 hearing must file his or her notice of intent within seven days after the date of the setting order. Thus, father's notice of intent was untimely and, for that reason alone, this writ proceeding is subject to dismissal. (Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1403-1404 [parent's failure to file timely notice of intent requires dismissal of parent's petition and precludes raising issues related to setting order in any subsequent appeal].)

Nevertheless, in his petition for extraordinary writ, father made no claim of juvenile court error. At most, he alleged "[t]he Judge didn't feel like my test[imony] was not [sic] good enough." It is unclear what father means by his statement and he offers neither an explanation nor a citation to the juvenile court record in support of his claim. Father thus has failed to comply with California Rules of Court, rule 8.452, and his petition therefore is dismissed.

In any event, even were we to hear this matter we would affirm. This court reviews the record before the juvenile court in the light most favorable to that court's order. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1297.) We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (Ibid.)

DISPOSITION

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


Summaries of

Mario G. v. Superior Court of Merced Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 26, 2012
F063700 (Cal. Ct. App. Jan. 26, 2012)
Case details for

Mario G. v. Superior Court of Merced Cnty.

Case Details

Full title:MARIO G., Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 26, 2012

Citations

F063700 (Cal. Ct. App. Jan. 26, 2012)