C.M. v. Super. Ct.
Filed 12/31/09 C.M. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
C.M., Jr. Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest. | F058685 (Super. Ct. No. JD120203-00) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge.
C.M., Jr., in pro. per., for Petitioner.
No appearance for Respondent.
Theresa A. Goldner, County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing[1]as to his daughter A. We conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, we will dismiss the petition as facially inadequate.
STATEMENT OF THE CASE AND FACTS
In February 2009, then three-year-old A. was removed from the custody of her mother, U.,[2]because of U.s drug use and failure to provide A. adequate housing. At the time, petitioner was an inmate in state prison. He was A.s alleged father and would remain so throughout these proceedings. A. was placed in foster care.
The juvenile court ordered A. detained and set a combined hearing in March 2009 to adjudicate jurisdiction and disposition. Petitioner signed a waiver of his right to be present at the hearing.
On the date set in March 2009, the juvenile court conducted an uncontested jurisdictional hearing and adjudged A. a dependent of the court pursuant to section 300, subdivision (b). The court also continued the hearing for a later date in March 2009 to adjudicate disposition. The court issued an order for petitioners appearance at the dispositional hearing.
In late March 2009, the juvenile court conducted an uncontested dispositional hearing on the date set. Petitioner appeared through counsel, having signed a waiver of his right to appear. The juvenile court denied him reunification services because he was A.s alleged father and had not sought to elevate his paternity status. Conversely, the court ordered reunification services for U. and set a six-month review hearing for September 2009.
On September 10, 2009, the juvenile court signed an order for petitioners appearance at the six-month review hearing. The next day, a hearing notice was sent to him by first class mail.
On September 25, 2009, the juvenile court conducted the six-month review hearing. Petitioners attorney informed the court petitioner was not transported and county counsel asked whether he waived his appearance or was released from custody. Neither question was answered. At the conclusion of the hearing, the juvenile court terminated U.s reunification services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Rule 8.452 requires that a dependency writ petition include a memorandum setting forth a summary of the significant facts and points of contention supported by argument and citation to the appellate record and authority. (Rule 8.452(b).) In this case, petitioner does not assert a claim of juvenile court error. Rather, he merely states he was not transported to any of the hearings. While we liberally construe writ petitions in favor of their sufficiency, a bare assertion without a claim of error is insufficient for our review. Real party in interest argues the petition should be dismissed as facially inadequate under rule 8.452. We concur that dismissal is appropriate in this case.
That said, even if this court were to construe the petition as arguing the juvenile court erred in not transporting petitioner to the hearings, we would find no error. Petitioner waived his right to be present at the jurisdictional and dispositional hearings. Further, though there is no evidence he waived his right to be transported to the six-month review hearing, he did not have a right to personally appear.
As A.s alleged father, petitioner did not have a parental interest in A. because his paternity status had not been established. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.) Consequently, he was entitled only to notice of the proceedings and an opportunity to appear and assert a position. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) Petitioner was given notice of the proceedings and an opportunity to appear. However, he chose not to appear at the jurisdictional and dispositional hearings and made no attempt to elevate his paternity status. Therefore, he arguably had no right to appear at the six-month review hearing based on his paternity status alone.
Further, assuming petitioner had a parental interest in A., he did not have a right to appear at the six-month review hearing by statute. Penal Code section 2625, the statute governing an incarcerated parents right to be present during dependency proceedings, provides that such a parents right to be present pertains only to the dispositional and permanency planning hearings. (Pen. Code, 2625, subd. (d).)
Finally, petitioner received meaningful access to the court at the six-month review hearing through his appointed counsel. In dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective. [Citations.] (In re Axsana S. (2000) 78 Cal.App.4th 262, 269.)
Based on the foregoing, we will dismiss the petition as facially inadequate for appellate review.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final as to this court.
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*Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] U. did not file a writ petition.
