L.M. v. Superior Court
Filed 2/9/09 L.M. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
L.M., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest. | F056502 (Super. Ct. Nos. JD117424, JD117426) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge.
L.M., in pro. per., for Petitioner.
No appearance for Respondent.
B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
____________________
*Before Dawson, A.P.J., Hill, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) to vacate the orders of the juvenile court issued in November 2008 at a six-month review hearing, terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her children V.J. and M.V. We conclude her 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 March 2008, then six-year-old V.J. and three-month-old M.V. were removed from petitioners custody[2]after petitioner was arrested for possession and sale of methamphetamine, being a felon in possession of ammunition, and for a felony warrant for possession of methamphetamine for sale. Petitioner would remain in custody throughout the proceedings under review.
The juvenile court exercised dependency jurisdiction over the children and ordered petitioner to participate in counseling for child neglect, substance abuse and parenting and submit to random drug testing. V.J. and M.V. were placed with their maternal grandmother.
Because of her inmate status, petitioner was not able to complete her court-ordered services. The only service available to her was a parenting course, which she expected to complete in November or December 2008. Petitioner understood the social services department would be recommending the court terminate her reunification services at the six-month review hearing. She expressed her desire the children remain with their maternal grandmother under legal guardianship and planned to complete the court-ordered services upon her release from custody. She expected to be released in December 2008.
In November 2008, the juvenile court convened the six-month review hearing. Petitioner waived her appearance and her attorney submitted on the departments recommendation to terminate her reunification services. The court set the section 366.26 hearing as to V.J. and M.V. This petition ensued.
DISCUSSION
A lower courts judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, an appellant must affirmatively demonstrate error by an adequate record. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) With respect to writ petitions challenging the setting of a section 366.26 hearing, rule 8.452 specifies, inter alia, 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.)
Petitioner does not challenge the correctness of the juvenile courts orders at the setting hearing. Rather, she claims, without proof, to have completed three of the four court-ordered programs and plans to file a section 388 petition upon her release from custody. She argues it would be detrimental to the children to be separated from her and asks for continuing services.
Since petitioner fails to set forth a claim of error, her petition fails to comport with rule 8.452 and is inadequate for our review. Even if it were adequate, we could not consider any evidence not before the juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Consequently, even if petitioner offered proof she completed additional services, we could not review it. Further, in order to receive additional reunification services, petitioner would have to persuade the juvenile court its order terminating her services should be modified. Such is the purpose of the section 388 petition of which petitioner is already aware. Because we conclude the petition is inadequate, we will dismiss it.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] M.V. and V.J.s three half-siblings were also removed from petitioners custody. One sibling was returned to the custody of her father in April 2008. The other two were still in reunification with their father when the juvenile court terminated petitioners reunification services in November 2008.
