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William S. v. Superior Court of Tulare Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 18, 2012
F063672 (Cal. Ct. App. Jan. 18, 2012)

Opinion

F063672 Super. Ct. No. JJV052511C-00

01-18-2012

WILLIAM S., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

William S., in pro. per., for Petitioner. No appearance for Respondent. Kathleen Bales-Lange, County Counsel, and Abel C. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Kane, Acting P.J., Poochigian, J. and Detjen, J.

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte A. Wittig, Commissioner.

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

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel, and Abel C. Martinez, Deputy County Counsel, for Real Party in Interest.

William S., in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing as to the minor child, M. We deny the petition.

All rule references are to the California Rules of Court.

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

We will refer to M. by her first initial because of the uniqueness of her name. (Cal. Rules of Court, rule 8.401(a)(2).)

FACTUAL AND PROCEDURAL SUMMARY

In April 2011, newborn M. was removed from the custody of her mother, Denise, after mother and child tested positive for amphetamines. Denise identified William as M.'s father. At the time, William was incarcerated, awaiting sentencing.

In mid-April 2011, the juvenile court ordered M. detained pursuant to a dependency petition filed by the Tulare County Health and Human Services Agency (agency). William appeared at the hearing in custody and was appointed counsel. The juvenile court deemed him M.'s alleged father and ordered paternity testing. The juvenile court set the jurisdictional hearing for May 2011 and ordered that William be transported for the hearing. The court also ordered the agency to expedite the paternity testing.

In May 2011, the juvenile court conducted a combined jurisdictional/dispositional hearing. William appeared in custody. The juvenile court exercised its dependency jurisdiction and ordered reunification services for Denise but not for William because, as an alleged father, he was not entitled to them. (§ 361.5, subd. (a).) The court set the six-month review hearing for October 2011.

Over the course of the ensuing months, Denise was not compliant with her court-ordered services and M. was doing well in her foster care placement. In addition, William missed an appointment for paternity testing in July 2011. In its report for the six-month review hearing, the agency recommended the juvenile court terminate Denise's reunification services and proceed to permanency planning.

In October 2011, the juvenile court convened the uncontested six-month review hearing. William was in custody but had not been transported for the hearing. Apparently, William either had not participated in paternity testing or the results were not available as it was not mentioned at the hearing. The juvenile court adopted the recommendations of the agency and ordered that William be transported to the section 366.26 permanency planning hearing, which it set for February 2012. This petition ensued.

Denise did not file a writ petition.

DISCUSSION

William contends the juvenile court erred in setting the section 366.26 hearing (setting hearing), apparently because he was not present in court when the order was made. He asks this court to issue a stay of the setting so that he can contact an attorney. We decline to do so.

An incarcerated parent has a right to be present only at the dispositional and setting hearings. (Pen. Code, § 2625, subd. (d).) Therefore, William did not have a right to be present at the six-month review/setting hearing. Moreover, William was represented by his court-appointed attorney, which is "sufficient and equally effective." (In re Axsana S. (2000) 78 Cal.App.4th 262, 269.) Therefore, to the extent William contends the juvenile court erred in setting the section 366.26 hearing without his personal appearance, we find no error.

Penal Code, section 2625, subdivision (d) provides in relevant part: "No proceeding may be held under ... Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court pursuant to ... Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence ...."
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Further, we do not stay the setting hearing unless there is an exceptional showing of good cause and we do not find good cause to do so in this case. (Rule 8.452(f).) William is represented by an attorney, albeit a court-appointed one, and the juvenile court ordered that he be transported to the section 366.26 hearing in February 2012. Should William want to retain private counsel, he may do so, but that does not create the exceptional good cause required to stay the proceedings.

DISPOSITION

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


Summaries of

William S. v. Superior Court of Tulare Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 18, 2012
F063672 (Cal. Ct. App. Jan. 18, 2012)
Case details for

William S. v. Superior Court of Tulare Cnty.

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 18, 2012

Citations

F063672 (Cal. Ct. App. Jan. 18, 2012)