J.A. v. Super. Ct.
Filed 12/2/09 J.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
J.A., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE CO. HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. | F058440 (Super. Ct. No. JJV062808A) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte Wittig, Commissioner.
J.A., in pro. per., for Petitioner.
No appearance for Respondent.
Kathleen Bales-Lange, County Counsel, and Carol E. Helding, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
____________________
*Before Vartabedian, A.P.J., Levy, J., and Cornell, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26[1]hearing as to his daughter M.J. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
In February 2008, then six-year-old M.J. was removed from the custody of her mother O.[2]because of O.s substance abuse. At the time, petitioner was in prison for violating his parole by not completing a domestic violence program. The juvenile court exercised its dependency jurisdiction and ordered reunification services for petitioner and O. While in prison, petitioner actively participated in services and kept in regular contact with the social worker. In August 2008, M.J. was placed with her maternal grandmother.
In September 2008, petitioner was released from prison. As conditions of his parole, he was required to complete a batterers treatment program and not have contact with O. for six months. He appeared at the six-month review hearing that same month and was granted supervised visitation twice a week.
Over the next five months, petitioner and O. participated in their services in hope of restoring their marriage and reunifying with M.J. They were doing so well that the social services agency recommended in its report for the 12-month review hearing that the court return M.J. to O. under family maintenance and continue services for petitioner.
However, in February 2009, petitioner tested positive for methamphetamine and started not showing up to drug test. In addition, O. was observed with a swollen lip and there were suspicions she and petitioner were in contact with each other. Consequently, the agency changed its recommendation to continued family reunification services.
In March 2009, petitioner appeared for the 12-month review hearing. The court continued reunification services for both parents and ordered that petitioner complete a substance abuse evaluation and any recommended treatment. The court set the 18-month review hearing for August 2009. Less than two weeks after the hearing, petitioner was returned to prison when, during a parole visit, O. was found hiding in his shower.
On July 16, 2009, the juvenile court filed a letter from petitioner asking to be transported to the August 2009 hearing. The next day, the court signed an order for him to be transported to the hearing.
In its report for the 18-month review hearing, the agency recommended the court terminate reunification services for both parents for noncompliance.
In August 2009, the juvenile convened the 18-month review hearing on the date set. Petitioner was not transported to the hearing but was represented by counsel who stated petitioner would have appeared but was prevented from doing so because he was on a fire crew and there was a fire. Petitioners attorney did not offer any evidence or contest the agencys recommendation. The court terminated reunification services for both parents, ordered monthly visits for petitioner, and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner raises a variety of issues, none of which have any merit. The most substantive issue concerns his absence at the 18-month review hearing. Petitioner claims he was not there, not for the reason his attorney gave but because he was not picked up by prison officials. He contends he had a right to be there and, therefore, the court erred in terminating his parental rights. We disagree. First, the juvenile court did not terminate petitioners rights at the 18-month review hearing. Rather, it set a permanency planning hearing pursuant to section 366.26 to implement a permanent plan for M.J. Further, Penal Code section 2625, the statute governing an incarcerated parents appearance at dependency proceedings, provides a right to be physically present only at the dispositional and permanency planning hearings. ( 2625, subd. (d).) Therefore, petitioner did not have a statutory right to be present at the 18-month review hearing. Moreover, appellant received meaningful access to the courts 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.)
Petitioner also contends his attorney was ineffective because, when petitioner did not agree with what was being said, his attorney, rather than speaking up, told petitioner go along with it. Specifically, petitioner cites a discussion in the reporters transcript of the March 2008 jurisdictional hearing in which petitioner directly asked the court whether M.J. would be placed with her maternal grandparents. The court explained that the social services agency would evaluate them and make a recommendation. From this exchange, it is apparent petitioner had opportunity to voice any concerns. Furthermore, petitioner fails to show that his counsel was ineffective.
Lastly, petitioner contends a hearsay statement made by M.J.s maternal grandmother and included in the agencys 12-month report caused the court not to place M.J. in his custody. Petitioner does not provide a record citation but alleges the grandmother told the social worker he and O. did not want custody of M.J. Such a statement, if included in the agencys report, became evidence subject to objection. No objection was lodged to the report and the time to challenge it has long since passed. More importantly, it is clear from the record that the court did not return M.J. to petitioners custody because he posed a continuing threat to her safety and well-being. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] O. did not file a writ petition.
