Diana M. v. Superior Court

Filed 11/23/05 Diana M. v. Sup. Ct.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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

F048862 (Super. Ct. No. JJV058100A) OPINION

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Hugo J. Loza, Commissioner.

Diana M., in pro. per., for Petitioner.

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 38 (rule)) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to her daughter A. We will dismiss the petition as untimely.

STATEMENT OF THE CASE AND FACTS

Petitioner gave birth to A. in March 2004. At the time, petitioner was an inmate in state prison. A. was initially released to the custody of her father Erik but was taken into protective custody by the Tulare County Health and Human Services Agency (agency) in May 2004 after Erik was arrested for being under the influence of a controlled substance. A. was subsequently detained pursuant to a dependency petition and placed in foster care where she exhibited signs of being a drug-exposed infant.

The juvenile court assumed dependency jurisdiction and ordered reunification services for both parents. Petitioner’s plan for reunification required her to participate in prison-sponsored drug treatment and parenting classes. It also required her to complete a course in infant Cardiopulmonary Resuscitation (CPR) and instruction for drug-exposed infants.

Over the next six months, petitioner complied with her case plan and made significant progress. Erik, on the other hand, stated he no longer wanted to pursue reunification and severed contact with the agency. Consequently, the juvenile court terminated Erik’s reunification services at the six-month review hearing on December 2, 2004, but continued services for petitioner with the additional requirement that she enter residential drug treatment upon her release from prison. The court set the 12-month review hearing for May 19, 2005.

On January 4, 2005, petitioner was released from custody on parole. She was referred for a residential drug treatment program but refused treatment stating the program was too long. She was also referred for but did not complete instruction for drug-exposed infants and an infant CPR course. In February 2005, petitioner stopped visiting A. and, in April 2005, she tested positive for methamphetamine. As a result, the agency recommended the court terminate petitioner’s reunification services at the 12-month review hearing.

On May 19, 2005, the court conducted an uncontested 12-month review hearing as to petitioner. The court terminated petitioner’s reunification services, set a section 366.26 hearing for September 1, 2005, and served petitioner notice of her right to seek review by extraordinary writ. The court continued the 12-month review hearing for Erik and set a hearing to review allegations concerning A.’s foster home.

Over the course of the next several months and through several hearings, the court concluded the 12-month review hearing as to Erik and resolved the foster home concerns. On September 1, 2005, the court reset the section 366.26 hearing for December 8, 2005, and advised petitioner and Erik of their rights to seek review by extraordinary writ. This petition ensued.^[2]

DISCUSSION

In original and supplemental petitions filed on September 20 and October 5, 2005, respectively, petitioner informed this court of her release date then scheduled for October 2005 and asked for an in-custody visit with A. She also asked for relief from the juvenile court’s orders terminating her parental rights and placing A. for adoption. We will dismiss the petition as untimely.

Rules 38 and 38.1 govern the filing of extraordinary writ petitions to review orders setting a section 366.26 hearing. A party seeking writ review must file a notice of intent to file a writ petition and a request for the record within seven days after the date of the order setting the hearing. (Rule 38(e)(4).) Further, this court has held the filing requirements for these writ petitions are mandatory. (Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1404 (Karl S.).)^[3] Absent good cause, the petition must be dismissed as untimely. (Ibid.) Since petitioner failed to file a notice of intent from the setting order issued on May 19, 2005, and to show good cause for her failure to do so, we must dismiss the petition.

Even were we to consider the September 1, 2005, hearing as the setting hearing and this writ timely filed, we would still dismiss the petition as facially inadequate. Rule 38.1 requires that the writ petition allege juvenile court error. (Rule 38.1(a)(1)(D) & (b)(2)-(3).) Petitioner’s failure to do so renders the petition inadequate for our review and presents an alternative basis for dismissal.

Though we dismiss the case, we offer the following. The juvenile court ordered petitioner monthly visitation at the May 19, 2005, hearing with agency discretion to increase visitation if it would benefit A. Therefore, petitioner must arrange visitation through the agency. Further, since termination of parental rights and consideration of adoption as a permanent plan occur at the section 366.26 hearing, which has yet to occur, these issues are not ripe for our review.

DISPOSITION

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

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.u

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Erik did not file an extraordinary writ petition from the court’s setting order.

^[3] When we issued our opinion in Karl S., Rule 39.1B governed the filing requirements for extraordinary writ petitions. Rule 39.1B(f) set forth the seven-day requirement we address in this opinion. Rule 39.1B was subsequently renumbered as Rule 38 without any change in the seven-day requirement for filing the notice of intent.