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Michael C. v. Superior Court (Alameda County Social Services Agency)

California Court of Appeals, First District, Third Division
Nov 18, 2010
No. A128961 (Cal. Ct. App. Nov. 18, 2010)

Opinion


MICHAEL C., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Party in Interest. A128961 California Court of Appeal, First District, Third Division November 18, 2010

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. HJ09013448

Jenkins, J.

Petitioner Michael C. (father) petitions this court for an extraordinary writ pursuant to Welfare and Institutions Code section 366.26, subdivision (l) and California Rules of Court, rules 8.452 and 8.456, seeking review of a juvenile court order setting this dependency matter for hearing to implement a permanent plan for his daughter, M.P. (minor). For reasons to follow, we must dismiss father’s petition on timeliness grounds.

Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code, and all references to rules are to the California Rules of Court.

FACTUAL AND PROCEDURAL BACKGROUND

On September 10, 2009, minor, born January 2007, was taken into protective custody based on allegations that, among other things, her mother, Sara P., was abusing drugs and alcohol, had become violent in her presence, and had driven her in a vehicle while intoxicated and unlicensed. On November 3, 2009, an amended petition was filed pursuant to section 300, subdivisions (b) and (g), based upon these allegations, as well as allegations that father, an “alleged father, ” was incarcerated in Oregon and had an unknown ability to provide care for minor.

Shortly after being taken into protective custody, minor was placed in the foster home of R.S. A detention hearing was then held September 15, 2009, after which minor’s placement with R.S. was continued, mother received weekly visitation rights, and father was found to be minor’s alleged father.

On September 30, 2009, father appeared for the first time by appointed counsel and, on October 16, 2009, filed with the court a notice of address identifying his mailing address as “2 Rivers [Two Rivers Correctional Institute], [CID] #16880170, 82911 Beach Access Rd., Umatilla, [Oregon] 97882.”

Following an October 29, 2009 hearing, at which father appeared by counsel, the juvenile court sustained the section 300 petition and, among other things, granted reunification services to mother, but not to father unless or until he could establish parentage.

On January 26, 2010, father appeared by counsel at a hearing, and indicated to the court that his parents “might possibly be willing to take [minor].” The agency responded that it would not evaluate father’s parents for placement unless father gained presumed father status. The agency also agreed to pay for a paternity test. On March 15, 2010, father consented to and requested a DNA test to determine parentage.

In anticipation of the six-month review hearing, the agency filed reports on April 6 and May 20, 2010, recommending that minor’s placement remain with R.S. The agency noted that mother had complied minimally with her case plan, and had agreed to the termination of her reunification services, thereby freeing minor for adoption. Mother acknowledged minor was happy with and loved by R.S., who had indicated a desire to adopt her.

Minor was assessed as adoptable by the juvenile court on March 31, 2010.

With respect to father, the agency reported that he remained incarcerated in Oregon and had taken a paternity test, the results of which were positive. Father’s mother had earlier reported to the agency that father would like the paternal grandparents to be considered for placement if his paternity could be established. After his paternity was in fact established, father wrote a letter to the agency, disagreeing with the agency’s recommendation that minor remain in R.S.’s home, and requesting that his parents be considered for placement. Father also opposed terminating services and freeing minor for adoption, although he agreed R.S. had done a wonderful job caring for her.

On April 13, 2010, the agency contacted the paternal grandparents to advise them that father’s paternity had been established. The paternal grandmother requested that they be considered for placement and that an ICPC evaluation be completed. Although she had never met the minor, paternal grandmother expressed the possibility of visiting her in the summer.

On May 20, 2010, the juvenile court held the six-month review hearing. Father’s counsel requested that the court refrain from setting a section 366.26 hearing until all ICPC evaluations were completed and relative placements were considered. Mother objected to this request, and the agency noted that, under section 366.21, subdivision (e), the decision at a six-month review hearing to terminate services and schedule a permanency planning hearing is unrelated to the issue of placement or ICPC evaluations.

Following the May 20, 2010 hearing, the juvenile court made the order challenged herein, setting a section 366.26 hearing for September 9, 2010. In doing so, the juvenile court found that “revisiting placement with the grandmother at this time is inappropriate” and, therefore, that the court “is not going to revisit this issue.” The juvenile court also found true the section 300(b) and section 300(g) allegations (as amended October 29, 2009), found true that father was minor’s biological father and that minor was not an Indian child, terminated mother’s reunification services, and ordered minor permanently placed in the home of R.S. Finally, the juvenile court advised the parties of their right to challenge the order setting the section 366.26 hearing and thereafter provided them with the necessary forms (the Notice of Intent to File Writ Petition, JV820, and Petition for Extraordinary Writ, JV825).

On June 22, 2010, father filed a notice of intent to file a writ petition and request for record to review the order setting a section 366.26 hearing. Father’s signature on this notice was dated June 1, 2010. The attached proof of service was signed by father’s counsel, and indicated that the notice was served on the agency by mail on June 22, 2010. The appellate court docket noted father’s notice was untimely, and thus should have been “received” rather than filed.

On August 26, 2010, father’s counsel filed an application for an order extending time to file his writ petition. This court granted the application, yet ordered father to explain in his petition why his notice of intent to file the petition was untimely.

On September 27, 2010, this court issued an order to show cause why this petition for extraordinary writ should not be granted. This court also ordered any response to the petition to be filed on or before October 12, 2010, and advised that any such response would be deemed the return to the order to show cause. Thereafter, on October 12, 2010, the agency filed a timely response in accordance with our order.

DISCUSSION

Before reaching the merits of his challenge, the agency asks that we dismiss father’s petition on the ground that he failed to file a notice of intent to file the petition within the time period mandated by law. We thus turn first to the relevant law to determine whether the agency’s request for dismissal should be granted.

Under the statutory scheme for juvenile dependency matters, a petition for extraordinary relief is generally the only means available to an aggrieved party seeking to challenge a juvenile court order under section 366.26 setting the matter for a permanency planning hearing. In particular, section 366.26, subdivision (l), provides:

“(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:

A. A petition for extraordinary writ review was filed in a timely manner.

B. The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.

C. The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. [¶]... [¶]

(2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.” (§ 366.26, subd. (l) [emphasis added].)

The California Rules of Court serve to implement the strict procedural requirements for seeking extraordinary writ relief under section 366.26, subdivision (l). (Rules 8.450-8.452, 8.490.) Relevant here, rule 8.450 states that any party seeking such relief must first file in superior court a notice of intent to file a writ petition and a request for the record. (Rule 8.450, subd. (e)(1).) Further, rule 8.450 requires this notice of intent to be filed according to the following timelines: “(A) If the party was present at the hearing when the court ordered a hearing under Welfare and Institutions Code section 366.26, the notice of intent must be filed within 7 days after the date of the order setting the hearing.” (Rule 8.450, subd. (e)(4)(A).) Alternatively, “[i]f the party was notified of the order setting the hearing by mail, and the notice was mailed to an address outside California but within the United States, the notice of intent must be filed within 17 days after the date the clerk mailed the notification.” (Rule 8.450, subd. (e)(4)(C).) Finally, rule 8.450 allows a reviewing court to extend these strict timelines, but only upon “an exceptional showing of good cause.” (Rule 8.450, subd. (d).)

Thus, as section 366.26, subdivision (l) and rule 8.450 make clear, the timely filing of both the notice of intent to file a writ petition and the writ petition itself are “condition precedent[s]” for achieving review on the merits of an order setting a section 366.26 hearing. (Roxanne H. v. Superior Court (1995) 35 Cal.App.4th 1008, 1011.)

In this case, the agency contends father violated rule 8.450 by failing to file his notice of intent to file a writ petition “within 7 days after the date of the order setting the hearing.” (See Rule 8.450, subd. (e)(4)(A).) Alternatively, the agency contends that, even assuming father was notified of the juvenile court’s order setting the 366.36 hearing by mail in Oregon rather than in person at the hearing, he failed to file his notice of intent “within 17 days after the date the clerk mailed the notification.” (See Rule 8.450, subd. (e)(4)(C).) Accordingly, the agency reasons, under either scenario, father’s notice of intent was untimely. We agree.

As the agency points out, father was represented by appointed counsel at the May 20, 2010 hearing, at which the juvenile court set the section 366.26 hearing for September 9, 2010. This order setting the section 366.26 hearing was made in open court, as was the juvenile court’s subsequent advisement to the parties of their right to challenge it by writ under section 366.26, subdivision (l). With respect to the requisite notice, the juvenile court added this clear instruction: “Except as otherwise provided by law, the notice of intent to seek a writ must be filed with the clerk of the court within seven days of today’s date.”

Before court was adjourned on May 20, 2010, father’s counsel asked the juvenile court for “all transcripts, ” explaining: “We will be filing a writ.”

The next day, on May 21, 2010, written notice of father’s right to seek writ relief of the order setting the section 366.26 hearing, as well as copies of the Notice of Intent to File Writ Petition (JV820) and the Petition for Extraordinary Writ (JV825), were mailed to him at his prison address in Oregon. This notice of intent form provided to father stated in bold type on the first page: “If you want an appeals court to review the juvenile court’s decision, you must first tell the juvenile court by filing a Notice of Intent.... In most cases, you have only 7 days from the court’s decision to file a Notice of Intent.” (Emphasis added.)

While it is unclear on what date father actually received by mail these notices and forms, the record reflects that he signed a notice of intent to file a writ petition and request for record on June 1, 2010. Nonetheless, it was not until June 22, 2010 – 33 days after the May 20, 2010 order setting the section 366.26 hearing – that father’s counsel actually filed this notice on his behalf and served a copy of it on the agency, in clear violation of rule 8.450’s seven-day deadline. (Rule 8.450, subd. (e)(4)(A).)

The appellate court docket noted father’s notice was untimely and should have been “received” rather than filed.

Indeed, even affording father the benefit of rule 8.450’s extended 17-day deadline, which applies only to out-of-state parties not present at the hearing setting the section 366.26 hearing, his notice was still tardy by well over two weeks. (Rule 8.450, subd. (e)(4)(C).)

Given the presence of father’s appointed counsel at the May 20, 2010 hearing, there does not appear to be a basis for applying the extended deadline under rule 8.450, subdivision (e)(4)(C).

Thus, given father’s noncompliance with rule 8.450, subdivisions (e)(4)(A) and (C), we must determine whether he has nonetheless provided a basis for this court to extend the rule’s strict timelines based upon “an exceptional showing of good cause.” (Rule 8.450, subd. (d).)

Other reviewing courts confronting an aggrieved party’s lack of timeliness in seeking writ relief under section 366.26, subdivision (l), have recognized an exception to the strict timelines under rule 8.450 in cases where the party’s tardiness was due to circumstances beyond his or her control. For example, in Roxanne H. v. Superior Court, we expressed concern that “the consequence of strictly enforcing all of the time frames prescribed by rule 39.1B [the predecessor to current rule 8.450] by threat of dismissal would place the petitioner in the untenable position of suffering the consequence for untimely filings over which he or she has no control.” (Roxanne H. v. Superior Court, supra, 35 Cal.App.4th at p. 1012.) Further, in Jonathan M. v. Superior Court, our colleagues in Division Five of this District added: “[A] writ petitioner could hardly be subject to the sanction of dismissal, or any other sanction, for the failure of a county clerk to timely prepare the record, the failure of the real party in interest to timely file an opposition to the petition, or the failure of the reviewing court to timely hold oral argument. It would be problematic indeed if all time frames of rule 39.1B are considered mandatory.” (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1829.)

However, recognizing the need to construe any exception to this rule narrowly, Jonathan M. v. Superior Court noted: “The Legislature has made it very clear that these appellate proceedings are to be expedited; indeed, we as reviewing courts cannot even stay the section 366.26 hearing absent extraordinary circumstances.” (Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1830. See also Roxanne H. v. Superior Court, supra, 35 Cal.App.4th at p. 1012 [“a loose interpretation of ‘good cause’ would convert the 10-day period for filing a timely petition provided by rule 39.1B(k) [predecessor to current rule 8.450] into an open-ended one--a result clearly not intended by the rule’s framers, who were concerned with expediting the review procedure in these cases”]; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 807 [strictly interpreting the 10-day filing deadline for writ petitions].)

Applying these principles here, we find no grounds to excuse father’s untimely filing of the notice of intent to file a writ petition. Wholly absent from this record, as described above, is any showing that father’s untimeliness was due to anyone or anything beyond his control, such as the prison mail system, a prison official or a court officer. (Cf. In re Cathina W. (1998) 68 Cal.App.4th 716, 722 [concluding that petitioner was entitled to relief from dismissal where “the juvenile court, through no fault of the mother, failed to discharge its duty to give her timely, correct notice, as required by the California Rules of Court”].) Rather, father appears to rely on the mere fact of his incarceration as grounds to excuse his delay. However, there is no general provision of law excusing incarcerated parties, represented by counsel, from compliance with otherwise mandatory rules of courts.

To explain father’s tardiness, the petition, prepared by counsel, states as follows: “Petitioner is incarcerated in an Oregon State Prison. I have no knowledge of when the mail arrived at the prison or how long the mail takes to get from the mail room to the inmate. I have been informed by the Petitioner that when he received the notice he signed and dated 6/1/10 and sent it back as soon as possible. Though I sent a self-addressed stamped envelope with the notice, but [sic] when I received the notice it was in a prison envelope. The notice was filed the next court day after receipt. 6/22/10.”

Under the so-called prison-delivery rule, which applies to self-represented inmates, “[i]f the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.” (Cal. Rules of Court, rule 8.25, subd. (b)(5).) However, here, father’s counsel, not father, filed the notice on his behalf, rendering this rule inapplicable. (Ibid.; See also Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 121 [“This is the essence of the prison-delivery rule—providing self-represented prisoners with an opportunity to file a notice of appeal equal to that afforded nonprisoners and prisoners represented by counsel”].)

Moreover, as pointed out by Jonathan M. v. Superior Court, a case which, like this one, involved an incarcerated petitioner, the notice of intent to file a writ petition is a simple one-page judicial form, asking for only the petitioner’s name, address, telephone number, relationship to the minor, and the date of the hearing at which the section 366.26 hearing was set. “It can be filled out in minutes by even the least intellectually gifted. Counsel may assist.” (Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1830.)

Further assisting a petitioner seeking to challenge an order setting a section 366.26 hearing, under rule 8.450, the petitioner’s trial counsel rather than the petitioner himself is held “responsible for filing any notice of intent and writ petition under rules 8.450-8.452.” (Rule 8.450, subd. (c).) Here, father’s counsel was at the May 20, 2010 hearing and remained in contact with him during these proceedings. Even if father’s counsel did not anticipate preparing the actual writ petition, counsel nonetheless was responsible for assisting him in preparing and filing the notice of intent. (See Rule 8.450, subd. (c) [encouraging trial counsel to “seek assistance from or consult with attorneys experienced in writ procedure”].) Nonetheless, while father’s counsel did in fact file and serve the notice on his behalf, she did not do so in a timely fashion. Under these circumstances, we believe father’s showing of good cause was inadequate to permit us to excuse his delay in filing the notice of intent.

Rule 8.450 simply requires the notice of intent to be authorized by the party intending to file the petition and signed by either the party or by his or her attorney of record. (Rule 8.450, subd. (e)(3).)

Accordingly, in the absence of the requisite extraordinary showing of good cause for father’s violation of the deadlines provided for under rule 8.450, we regretfully must dismiss his petition without reaching the merits.

DISPOSITION

The petition is dismissed.

We concur: Pollak, Acting P.J., Siggins, J.


Summaries of

Michael C. v. Superior Court (Alameda County Social Services Agency)

California Court of Appeals, First District, Third Division
Nov 18, 2010
No. A128961 (Cal. Ct. App. Nov. 18, 2010)
Case details for

Michael C. v. Superior Court (Alameda County Social Services Agency)

Case Details

Full title:MICHAEL C., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY…

Court:California Court of Appeals, First District, Third Division

Date published: Nov 18, 2010

Citations

No. A128961 (Cal. Ct. App. Nov. 18, 2010)