Opinion
F079874
11-25-2019
SHAWN M., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Shawn M., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 08CEJ300187-1, 08CEJ300187-2, 08CEJ300187-3)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M. Arax, Judge. Shawn M., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Real Party in Interest.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Petitioner Shawn M. (father), in propria persona, seeks extraordinary writ relief from the juvenile court's dispositional orders issued on August 19, 2019, denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing on December 3, 2019, as to his daughters M.M., A.M. and H.M., now 11-, nine- and seven-years old, respectively (the children). The children's mother, D.H. (mother), is not a party. Father seeks an extraordinary writ directing the juvenile court to grant him custody of the children. We conclude he failed to set forth a cognizable legal error and dismiss the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
On February 9, 2019, law enforcement responded to a report of domestic violence between father and mother at his home. He and mother were not married, and father had sole custody of the children. According to father, mother returned to his residence at approximately 12:00 p.m. after being gone all night with his vehicle. She argued with and physically hit him in his bedroom. He denied hitting her. The children were in the living room and were able to see their parents in the bedroom arguing. One of the children reported seeing father place a rope around his neck. The children also reported seeing their parents use methamphetamine. Father admitted he felt like killing himself while he was arguing with mother but said he would not act on it. Mother left the premises before law enforcement arrived.
All subsequent dates refer to the year 2019.
The Fresno County Department of Social Services (department) took the children into protective custody and placed them together in foster care. It also filed a dependency petition on their behalf, alleging the parents' methamphetamine use and domestic violence and father's mental instability placed the children at risk of serious physical harm and emotional damage. The petition also alleged mother was ordered to participate in family reunification services in 2008 in a prior dependency case involving M.M. and which required her to participate in substance abuse treatment. However, she failed to comply and in 2010, the case was dismissed, and father was granted sole legal and physical custody of M.M.
On February 12, 2019, father contacted the department and asked a social worker where he could pick up the children. He said the officer interrogated his children and the matter had been brought before Internal Affairs and the "Sargent is involved." He said the children were not in danger and did not see him attempt suicide. He claimed the department had no right to take his children, stating, " 'As soon as I rule in court this was a kidnapping and not a placement, I will be picking up my children.' "
The juvenile court ordered the children detained pursuant to the petition and set the matter for a combined hearing on jurisdiction and disposition in March. The court also ordered the department to offer father substance abuse, mental health, domestic violence and parenting services pending its disposition of the case. The court did not offer mother services.
The department recommended the juvenile court exercise its dependency jurisdiction and deny the parents reunification services under section 361.5, subdivision (b)(13), citing their "history of extensive, abusive and chronic use of drugs" and resistance to court-ordered substance abuse treatment. It also recommended the court deny mother services under subdivision (b)(10) because she failed to reunify with M.M. and to make reasonable efforts to treat her drug problem.
On March 19, the date set for the combined hearing, father asked to represent himself. After father knowingly and intelligently waived his right to counsel, the court continued the hearing and set a settlement conference hearing on May 23 and a contested combined hearing on May 30.
On April 18, the department filed a modification petition (§ 388, subd. (a)(1)) asking the juvenile court to suspend father's visitation until he could participate in therapeutic supervised visitation. Father required redirection during visits, which made it difficult to effectively supervise them. As an example, during his visit the day before, he slid to the floor from his walker to play with the children. He was wearing jeans with a belt and the waist of his pants were at the top of his knees, exposing his boxer shorts. He refused to pull up his pants, claiming he had a right to wear them that way, and he threatened to call the police. The social worker terminated the visit and a security guard escorted him from the building. The children were upset and crying because they thought he was being arrested. Following a hearing on April 25, the court ordered therapeutic supervised visitation for father and the children with directions that if such visitation could not be set up by May 10 that the department would arrange makeup visits.
On May 23, father appeared representing himself at the settlement conference hearing. Based on comments he made to the juvenile court, the court determined he was not capable of representing himself and, over his objection, appointed counsel for him and continued the hearing to May 28 to allow his counsel to be present.
On May 28, father appeared with his attorney and the juvenile court appointed a guardian ad litem (GAL) for him. The court set a settlement conference hearing for June 25.
On June 25, father appeared with his attorney and GAL and immediately objected to the proceedings. He stated, "All of you are going to go to prison for criminal acts. And the Federal Bureau of Investigation has the video for the whole case in this courtroom. And you have broken the law. And you owe me some money that you agreed to in open court. Thank you." After warning father he would be removed if he continued to be disruptive, the court asked the bailiff to escort him out of the courtroom. Father's attorney told the court that father refused to discuss the case with her. She objected to the department's recommendations and reserved the right to join in mother's request for a contested hearing. The court set the contested hearing for August 19.
At the settlement conference hearing on August 6, the juvenile court provided the parties information about voice mails father left for the court over the previous two months. His attorney informed the court that father did not intend to come to court anymore. She reviewed the record extensively with the GAL and they were unable to identify any legal issues. She therefore objected to the department's allegations and recommendations but did not intend to call any witnesses. The court set a contested hearing for August 19.
The parents and M.M. appeared with counsel and father's GAL at the contested hearing on August 19. Father's attorney stated father wanted to represent himself and refused to speak to them. Father stated, "Sir, they're not representing me." He told the court the children were never in danger and the officer who detained them lied, which the "cop cam video" would prove. After conferring with father's attorney and GAL, the court denied father's request to represent himself.
Father accused the juvenile court of practicing law from the bench and violating his civil and common law rights. He said he would remain in the courtroom as an observer but not as a party to an illegal action perpetrated by the court. He said he did not "contract with this court. My time is worth money. If you want me to stay, it is a dollar a second."
The juvenile court stated, "I don't think I can afford it. I would like you to stay, but if you are going to charge or be unwilling to simply observe, then I'm going to have to ask you to leave." After father left, the court verified with his attorney and GAL that he was not a litigating party and there was no challenge to jurisdiction and disposition. Father's attorney stated that was the first time she and the GAL had heard about the video camera. In any event, she did not find any evidence on the record to challenge the department's allegations. His attorney and GAL remained for mother's contested hearing.
Mother presented her case through her testimony, the stipulated testimony of M.M. that she loved her mother and wanted to reunify with her, and the testimony of the social worker and the maternal uncle.
The juvenile court sustained the allegations in the petition, ordered the children removed from parental custody, denied the parents reunification services as recommended and set a section 366.26 hearing for December 3.
DISCUSSION
Father contends he is a good father, but an injustice perpetrated by law enforcement, the department and the judges has occurred in this case. Specifically, he alleges law enforcement placed an illegal hold on the children, the department made false allegations against him to keep his children in foster care and the judges committed criminal acts and violated his civil rights. For reasons we now explain, we must dismiss his writ petition as facially inadequate for appellate review.
As a general proposition, a juvenile court's rulings are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) A parent seeking review of the juvenile court's orders from the setting hearing must, as father did here, file an extraordinary writ petition in this court on Judicial Council form JV-825 to initiate writ proceedings. The purpose of such 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).)
California Rules of Court, rule 8.452 sets forth the content requirements for an extraordinary writ petition. It requires the petitioner to identify the error(s) he or she believes the juvenile court made. It also requires the petitioner to support each alleged error with argument, citation to legal authority, and citation to the appellate record. (Rule 8.452(b).) In keeping with rule 8.452(a)(1), we will liberally construe a writ petition in favor of its adequacy where possible, 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 the reviewing court need not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
All rule references are to the California Rules of Court. --------
Father's petition does not comply with rule 8.452 for two critical reasons; it does not cite this court to any portion of the appellate record or legal authority to support his contentions. Rather, father merely asserts wrongdoing on the part of law enforcement, the department and the judges without factual support or legal analysis. Consequently, his petition is facially inadequate for review.
Further, although we are not required to do so, we have reviewed the record and find no evidence to support father's claims. Substantial evidence supported the juvenile court's exercise of dependency jurisdiction over the children, particularly in light of father's mental instability. Further, father was represented by counsel at all stages of the proceedings and the court added the additional protection of appointing a GAL to assist him in making decisions. Father, however, refused their assistance. Consequently, without father's cooperation, there was only so much that the court, counsel and the GAL could do to assist him. There is no evidence, however, of criminal acts or civil rights violations by the court or wrongful conduct on the part of law enforcement or the department.
We conclude the petition fails to raise a claim of juvenile court error as required by rule 8.452 and dismiss it as facially inadequate for review.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.