In re A.G.

Filed 1/6/10 In re A.G. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Petitioner M.G. is the father of A.G. (born in 1997), N.G. (born in 1999) and C.G. (born in 2004). He seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) challenging the juvenile courts order on a petition for modification (Welf. & Inst. Code,  388)[1] filed by the Humboldt County Department of Health & Human Services (the Department) setting the matter for a section 366.26 hearing. The petition for extraordinary writ is denied.

II.

FACTS AND PROCEDURAL HISTORY

The children came to the attention of the Department because their mother was arrested and their father, petitioner, was already incarcerated. In January 2006, a juvenile dependency petition was filed on the childrens behalf, alleging that the children came within the provisions of section 300, subdivision (b) [failure to adequately supervise or protect the children] and subdivision (g) [children left without any provision for care and support]. The children were adjudged dependents of the juvenile court in February 2006.

At the time of the six-month review hearing, both parents were incarcerated and were not due to be released from prison prior to the time the reunification period would end. The children were placed together in a foster home, where they were doing well and bonding with the foster parents. Reunification services were terminated.

Consequently, the court conducted a section 366.26 hearing in March 2007 to establish a permanent placement for the children. The court did not terminate petitioners parental rights at that hearing because the court wished to keep all three children together, and adoption of such a large sibling group was considered unlikely. The childrens permanent placement was identified as long-term foster care. Post permanency planning review hearings were held on a regular basis.

Over the next several years, the children remained in the same foster home, where they were happy and well-adjusted. The foster parents decided they wished to adopt the children. Based on these changed circumstances, on September 9, 2009, the Department filed a section 388 petition requesting the court to set a section 366.26 hearing with adoption as being the new permanent plan for the children. The Departments petition stated why the proposed modification of the courts order was in the childrens best interests: These children have been in placement with this foster family for three years. There are strong bonds between the foster parents and the children. Adoption by these foster parents will permit this sibling group to stay together, to maintain their long-term relationships with the foster parents, and to have a permanent family.

On October 26, 2009, a contested hearing was held on the Departments section 388 petition. Petitioner was present, but he presented no evidence or argument. The juvenile court granted the section 388 petition and set a section 366.26 hearing for purposes of considering termination of parental rights.The section 366.26 hearing is set for February 22, 2010. Petitioner timely filed a writ petition pursuant to rule 8.452.

III.

DISCUSSION

Petitioner argues that the court erred in setting the matter for a section 366.26 hearing because there was not clear and convincing evidence to support such a finding. Petitioner does not cite this court to the appellate record or legal authority to support his claim of juvenile court error. Rather, the petition seems to be filed for the singular purpose of stopping the adoption.

Rule 8.452 specifies 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.) While we will liberally construe a writ petition in favor of its adequacy, in this case, we conclude the petition is inadequate on its face. (Rule 8.452(a)(2).)

In any event, no error appears on this record. When a section 388 petition is considered after termination of reunification services, the focus has shifted from the parents interest in care, custody and companionship of their children to the childrens need for permanence and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) At this point, adoption is clearly the preferred permanent plan. ( 366.26, subd. (b)(1).) [I]f the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Consequently, if the juvenile court determines that a child is adoptable, it must set a section 366.26 hearing unless it finds by clear and convincing evidence that conducting a section 366.26 hearing is not in the childs best interest. ( 366.3, subd. (g).) Whether adoption is the best permanent plan is a decision the court makes at the section 366.26 hearing. (See  366.26, subd. (c)(1)(B).)

In this case, the juvenile court previously terminated petitioners reunification services based on a finding that returning the children to parental custody would create a substantial risk of detriment to the childrens physical or emotional well-being. There is no indication that petitioners situation has changed to make this finding currently inapplicable. Moreover, it is undisputed that the children are happily placed in an adoptive home. Consequently, the juvenile court had no choice but to set a section 366.26 hearing. Therefore, the court did not err.

IV.

DISPOSITION

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

_________________________

RUVOLO, P. J.

We concur:

_________________________

SEPULVEDA, J.

_________________________

RIVERA, J.

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[1] All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court. Section 388 allows a party to the juvenile court proceedings to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.