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S.L. v. Superior Court (Tulare County Health and Human Services Agency)

California Court of Appeals, Fifth District
Apr 21, 2009
No. F056960 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte A. Wittig, Commissioner Super. Ct. No. JJV049145

S.L., in pro. per., for Petitioner.

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Real Party in Interest.


OPINION

THE COURT

Before Cornell, A.P.J., Dawson, J., and Kane, J.

Petitioner (father) in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule)) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to his daughter K. We conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, we will dismiss the petition as facially inadequate.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Petitioner also challenged in his “Notice of Intent to File a Writ Petition” the juvenile court’s findings and orders issued at the setting hearing as to his other two children, S. and J. However, because a notice of intent is appropriate only in cases in which the juvenile court issues an order setting a section 366.26 hearing (Cal. Rules of Court, rule 8.450(a)) and because the juvenile court did not set a section 366.26 hearing as to S. and J., we will only review the juvenile court’s order as to K.

STATEMENT OF THE CASE AND FACTS

In March 2004, the juvenile court adjudged petitioner’s three children, then 13-year-old S., 8-year-old J., and 7-year-old K., dependents of the court because of their mother’s substance abuse and petitioner’s imprisonment and ordered family reunification services. Family reunification efforts failed and, in October 2005, at a section 366.26 hearing, the juvenile court ordered the children placed in long-term foster care with a goal of legal guardianship. Over the ensuing years, the children remained in foster care as ordered by the juvenile court at periodic post-permanency plan review hearings (review hearing). During that time, petitioner remained incarcerated with a projected release date of December 2010.

The mother did not file a writ petition.

In its report for the review hearing scheduled for January 2009, the social services department (department) reported that K.’s foster parents wanted to assume legal guardianship of her. Consequently, the department recommended the juvenile court set a section 366.26 hearing as to K.

In January 2009, at the review hearing, the juvenile court set a section 366.26 hearing as to K. and set review hearings as to S. and J. The court also ordered monthly visitation for petitioner and K. This petition ensued.

DISCUSSION

A lower court’s judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, an “appellant must affirmatively demonstrate error by an adequate record.” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) With respect to writ petitions challenging the setting of a section 366.26 hearing, rule 8.452 specifies, inter alia, that the writ petition must include a summary of the significant facts and identify contested legal points with citation to legal authority and argument. (Rule 8.452(b).) At a minimum, the writ petition must “adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues.” (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.)

Petitioner does not challenge the correctness of the juvenile court’s order issued at the setting hearing. Rather, he checked the box on the pre-printed writ petition form (JV-825) indicating that he wants a visitation order which, according to the record, already exists. Since petitioner fails to set forth a claim of error, his petition fails to comport with rule 8.452 and is therefore inadequate on its face. Consequently, we will dismiss it.

DISPOSITION

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


Summaries of

S.L. v. Superior Court (Tulare County Health and Human Services Agency)

California Court of Appeals, Fifth District
Apr 21, 2009
No. F056960 (Cal. Ct. App. Apr. 21, 2009)
Case details for

S.L. v. Superior Court (Tulare County Health and Human Services Agency)

Case Details

Full title:S.L., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent…

Court:California Court of Appeals, Fifth District

Date published: Apr 21, 2009

Citations

No. F056960 (Cal. Ct. App. Apr. 21, 2009)