Opinion
F063149
12-06-2011
S.L., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
S.L., in pro. per., for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CEJ300062)
OPINION
THE COURT
Before Gomes, Acting P.J., Kane, J., and Detjen, J.
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge.
S.L., in pro. per., for Petitioner.
No appearance for Respondent.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
Petitioner is the presumed father of five-year-old D. and the alleged father of five-year-old A.L. and two-year-old D.L. In August 2011, the juvenile court set a Welfare and Institutions Code section 366.26 hearing to consider a permanent plan of adoption for the children with their maternal aunt. Petitioner, in propria persona, challenges the juvenile court's setting of the section 366.26 hearing by extraordinary writ petition. (Cal. Rules of Court, rule 8.452.) We will deny the petition.
All further statutory references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL SUMMARY
In February 2009, the Fresno County Department of Social Services (department) removed then three-year-old D., two-year-old A.L., and one-month-old D.L. from the custody of their mother after she was arrested for possessing a loaded firearm accessible to the children. At the time, petitioner was in federal prison where he would remain throughout these proceedings.
In March 2009, the juvenile court appointed counsel for petitioner and the mother and ordered the children detained. In May 2009, the juvenile court exercised its dependency jurisdiction over the children and ordered reunification services for their mother. The juvenile court denied petitioner reunification services. (§ 361.5, subds. (a) & (b)(2).) In June 2009, the juvenile court authorized the department to place the children with their maternal aunt.
In November 2009, the juvenile court terminated the mother's reunification services and, in March 2010, appointed the children's maternal aunt and uncle as their legal guardians. The court ordered visitation between petitioner and the children to be once a quarter and supervised by the guardians.
Over the ensuing year and a half, the children remained with their legal guardians where they were reportedly happy and well-adjusted. At each post-permanency review hearing, the juvenile court found legal guardianship to be the appropriate plan for the children. A review hearing for September 2011 was calendared when, in May 2011, the department filed a petition pursuant to section 388 (section 388 petition) advising the juvenile court that the legal guardians wanted to adopt the children. At the same time, visitation with the mother had become erratic and, according to the department, detrimental. Consequently, the department asked the juvenile court to set a section 366.26 hearing to consider adoption as the permanent plan.
The juvenile court set a hearing on the section 388 petition for August 2011. Meanwhile, in June, petitioner wrote a letter to the juvenile court stating that the earliest he could be released from custody was April 2012 and that he planned to take custody of his children. He also stated that he did not want his parental rights terminated. Petitioner wrote another letter in August 2011 advising the court that he had not heard from his court-appointed attorney and that his attorney would not accept his pre-paid telephone calls. He also provided certificates attesting to his completion of an anger management program, nine hours of parenting skills training, and a parenting program. He asked the juvenile court for new counsel and to postpone the section 366.26 hearing until his release in April 2012.
On August 10, 2011, the juvenile court conducted the hearing on the section 388 petition. Counsel for the parties submitted on the department's request for a section 366.26 hearing. The juvenile court granted the section 388 petition, confirmed the review hearing for September 2011, and set the section 366.26 hearing for December 2011. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court prematurely set the section 366.26 hearing. He argues the juvenile court should have waited until he was released from custody, especially given his express desire not to forfeit his parental rights. Petitioner further contends that the guardians were allowed to play "'keep the kids away'" from him and his family. Despite repeated efforts, he claims, he and his family have had no contact with the children. Finally, he contends he had no contact with trial counsel until August 2011 when he received a letter from counsel stating he attempted to arrange a telephone conference with petitioner.
Petitioner asks that the section 366.26 hearing be stayed or vacated, that a hearing to consider his sister as a co-guardian be conducted, and that he be allowed to physically appear at any proceeding where decisions are made about his children. We will deny the petition.
In dependency proceedings, adoption is the permanent plan preferred by statute. (§ 366.26, subd. (c)(1).) "'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child'" by adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Here, the children had been out of parental custody and in the home of loving guardians for most of their young lives. Once the guardians committed to adopting them, there was no longer any need to continue the guardianship. Therefore, the juvenile court did not prematurely set the section 366.26 hearing.
As to visitation, we found no mention in the appellate record of petitioner voicing his difficulty contacting the children. We did, however, find evidence that petitioner did not contact the department, thus rendering it unable to ascertain his needs. If petitioner did not contact the department or his attorney for assistance or raise the issue before the juvenile court and make an adequate record of it for appeal, we are at a loss to review it.
Further, other than complain that his attorney did not communicate with him, petitioner does not explain how the lack of communication harmed his case. Therefore, to the extent he may be arguing trial counsel was ineffective, he has failed to show prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.)
Finally, petitioner's request to appear at the hearings conducted in his case must be addressed to the juvenile court through his attorney. On this record, we find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.