Opinion
F074769
02-21-2017
P.M., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
P.M., in pro. per., for Petitioner. No appearance for Respondent. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV068921C)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert Anthony Fultz, Judge. P.M., in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
Before Levy, Acting P.J., Kane, J. and Poochigian, J.
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P.M. (father), in propria persona, seeks extraordinary writ relief from the juvenile court's order issued at an 18-month review hearing (Welf. & Inst. Code, § 366.22) setting a section 366.26 hearing as to his now four-year-old son, Josiah M. Father contends the juvenile court erred in denying him reunification services, the Tulare County Health and Human Services Agency failed to properly assess his relatives for placement, and his trial attorney was ineffective. He asks this court to issue a writ directing the juvenile court to vacate the section 366.26 hearing and order reunification services for him. We deny the petition.
All further statutory references are to the Welfare and Institutions Code.
Father also asks this court to continue reunification services for Josiah's mother, Veronica. Even assuming father has standing to raise an issue on Veronica's behalf, he failed to develop it in his writ petition and thus abandoned it.
PROCEDURAL AND FACTUAL SUMMARY
In May 2015, then three-year-old Josiah and his sisters, 16-year-old April and 14-year-old I.M., were removed from the custody of their mother, Veronica, by the Tulare County Health and Human Services Agency (agency) after Veronica was arrested for engaging in a physical fight with April, resulting in injury. Veronica was intoxicated at the time of the fight and admitted having a problem with alcohol. Father, a violent felon, was incarcerated in state prison. The agency placed the children in foster care and filed a petition under section 300 seeking their removal.
Father indicated that his writ petition also pertained to I.M. and April by identifying them in the pertinent section of the JV-825 form ("Petition for Extraordinary Writ"). However, the juvenile court ordered I.M. and April into long-term foster care without setting a section 366.26 hearing as to them. Consequently, they are not subjects of this writ petition.
The juvenile court ordered the children detained, declared father the children's presumed father and appointed him counsel. The court ordered reasonable visitation for father consistent with the rules and regulations of the facility.
In June 2015, father appeared in custody with his attorney at the hearing on jurisdiction and disposition. Father's attorney informed the court that father had not received the agency's reports but stated he had given father a copy of the petition and the agency would mail copies of the reports to him. Father and Veronica waived their trial rights on jurisdiction and the juvenile court adjudged the children its dependents. (§ 300, subds. (a) & (b)(1).) Before issuing its dispositional rulings, the court asked father if he understood that the agency recommended against providing him reunification services primarily because of his custodial status. Father expressed understanding but informed the court that he anticipated being released in early 2017. The court ordered reunification services for Veronica and denied services for father under section 361.5, subdivisions (b)(12) and (e)(1). The court ordered the agency to arrange institutional visits for father with his daughters and telephonic visits with Josiah and to assess father for services upon his release. The court also issued an order for father's transport to the six-month review hearing which it set for December 2015.
Section 361.5, subdivisions (b)(12) and (e)(1), respectively authorize the juvenile court to deny a parent reunification services if the parent has been convicted of a violent felony and the parent is incarcerated and reunification services would be detrimental to the child.
In December 2015, at the six-month review hearing, father's counsel advised the court that father declined to be transported. Counsel raised a concern that father was not having telephonic visits with Josiah. The court ordered the agency to investigate and issued its ruling continuing reunification services for Veronica.
In June 2016, father's attorney raised the issue of visitation again at the 12-month review hearing, pointing out that father was still not receiving visits with his daughters. The social worker explained that the girls wanted to visit father but thought they were going home with mother so did not complete the paperwork required to visit him in prison. The court ordered the social worker to work with the girls to complete the paperwork and arrange visits with father. The court continued Veronica's reunification services to the 18-month review hearing scheduled for November 2016.
In its report for the 18-month review hearing, the agency recommended the juvenile court terminate Veronica's services, order the girls into long-term foster care with a goal of emancipation and set a section 366.26 hearing as to Josiah. The agency reported that the visitation supervisor inquired about visitation and was told that visitation only took place on weekends and visitation had not taken place because of scheduling conflicts. The agency recommended that the children have reasonable supervised visits with father once the proper clearances were obtained and there was staff available to arrange it.
In November 2016, at the 18-month review hearing, the juvenile court terminated Veronica's reunification services, set a section 366.26 hearing as to Josiah and a review hearing as to the girls. Veronica did not file a writ petition.
DISCUSSION
Father contends trial counsel was ineffective on multiple grounds. He also contends the juvenile court erred in denying him reunification services and the agency failed to assess his relatives for placement of Josiah.
" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) California Rules of Court, rules 8.450-8.452 set forth guidelines pertaining to extraordinary writ petitions. The purpose of these writ petitions is to allow the appellate court to achieve a substantive and meritorious review of the juvenile court's orders and findings issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd. (l)(4).)
All further references to rule(s) are to the California Rules of Court.
Rule 8.452 sets forth the content requirements for an extraordinary writ petition. It requires the petitioner to present legal arguments with citation to the appellate record. (Rule 8.452(b).) In keeping with the dictate of rule 8.452(a)(1), we liberally construe writ petitions in favor of their adequacy, recognizing that a parent representing him or herself is not trained in the law. Nevertheless, the petitioner must at least articulate a claim of error and support it by citations to the record. Failure to do so renders the petition inadequate in its content and we will not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
We begin with father's contention the juvenile court erred in denying him reunification services and conclude this issue is not cognizable on his writ petition. The juvenile court denied father reunification services at the dispositional hearing in June 2015. The court's dispositional orders were appealable. Thus, in order to challenge the juvenile court's denial of services order, father was required to file a notice of appeal within 60 days of the dispositional order. (In re A.O. (2015) 242 Cal.App.4th 145, 148.) However, he did not do so. Consequently, the court's order denying him reunification services is final and not subject to appellate review. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.)
The juvenile court's dispositional orders were appealable because the court did not set a section 366.26 hearing at that time. Had the court done so, a petition for extraordinary writ would have been the proper vehicle for challenging the court's denial of services order. --------
As to father's contention the agency did not properly evaluate his relatives for placement, we conclude his presentation of the issue is inadequate for review. Father identifies specific relatives he claims requested placement of Josiah and asserts the agency denied their requests. However, he does not develop the argument by citing to the pertinent parts of the appellate record. Consequently, we are unable to conduct a meaningful review and, as we stated above, we will not independently review the record for possible error.
Finally, we conclude father's ineffective assistance of counsel claim fails. "The test for ineffective counsel is twofold: (1) counsel's representation falls below an objective standard of reasonableness and (2) the deficiency subjects defendant to demonstrable prejudice. [Citations.] A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citations.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel in this case, father would have to show that, but for trial counsel's inadequate presentation of his case, the juvenile court would have provided him reunification services.
Father contends trial counsel was ineffective for failing to respond to his telephone calls and mail, arrange for his transportation to the hearings and provide him copies of the court documents related to his case. He also contends his court-appointed attorney retired and left him without representation. As to this last matter, he attached personal correspondence from his court-appointed attorney, another dependency attorney and the clerk of the juvenile court none of which is contained in the appellate record.
We observe that our review is confined to the evidence that was before the juvenile court. Consequently, we cannot review the correspondence attached to father's writ petition. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Further, the record reflects father was not legally abandoned but was represented by counsel at each hearing. Finally, father fails to point to any evidence that, but for his attorney's handling of his case, the juvenile court's rulings as to him would have been favorable.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.