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Court of Appeal, Fifth District, California.



Decided: March 02, 2010

Margaret H. Smith, for Petitioner.   No appearance for Respondent.   Theresa A. Goldner, County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party in Interest.



Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's orders denying relative placement and setting a Welfare and Institutions Code section 366.26 1 hearing as to his son J. We will deny the petition.


The sole issue raised in this writ petition is whether the juvenile court abused its discretion in denying J.'s stepmother's request for relative placement.   We conclude appellate review was waived.

Dependency proceedings were initiated in July 2008 when newborn J. was removed from the custody of his mother, K.,2 then incarcerated on drug-related charges.   K. identified petitioner as J.'s alleged father.   According to law enforcement database, petitioner has two convictions for drug offenses in 1991 and 1997 and a 1988 conviction for willful cruelty to a child.

The Kern County Department of Human Services (department) filed an original dependency petition on J.'s behalf alleging K.'s untreated substance abuse placed J. at risk of harm and her incarceration left him without support.

The juvenile court ordered J. detained pursuant to the petition and adjudged him a dependent of the court.   The court also deemed petitioner J.'s biological father based on genetic testing.

Petitioner requested custody of J. and, in December 2008, the caseworker interviewed petitioner and his live-in fiancé, L., at petitioner's home.   L. stated she was arrested approximately three years before but the charges were dismissed.   She said she was out-of-state for a couple of years and turned herself in on a warrant when she returned to California.   The caseworker also evaluated petitioner's home for placement and found it to be clean and free of hazards.

In December 2008, at a contested dispositional hearing, the juvenile court ordered J. removed from K.'s custody and placed him in petitioner's care under a plan of family maintenance.   Under petitioner's plan, he was required to submit to random drug testing.   The court also ordered reunification services for K. and set the six-month review hearing for March 2009 and the review of family maintenance services for June 2009.   In February 2009, petitioner and L. were married.

In March 2009, the juvenile court continued K.'s reunification services to the 12-month review hearing, which it set for September 2009.   Two weeks later, the department took then eight-month-old J. into protective custody because petitioner failed to drug test in February and was observed pouring liquid from a plastic bag into the specimen cup while drug testing in late February and March.

The department filed a supplemental petition (§ 387) and a subsequent petition (§ 342), which the juvenile court sustained.   The court ordered J. removed from petitioner's custody and ordered six months of reunification services for petitioner, consisting of substance abuse counseling and random drug testing.   Petitioner's attorney advised the court that petitioner and L. were going to separate and she would be requesting placement of J. The court vacated the June 2009 family maintenance review hearing and set a 12-month review hearing as to petitioner for October 2009.

In May 2009, L. submitted an application requesting the department to give her preferential consideration as J.'s stepmother and place him in her care.   In processing her request, the department learned she had a 23-year criminal history in California and New Mexico related to substance abuse arrests and convictions using 14 aliases.   She was convicted of multiple non-violent felonies, the latest was a felony conviction in 2005 in New Mexico on forgery charges.   She was released from prison in May 2007 and placed on parole, which was scheduled to terminate in May 2012.

In July 2009, L. requested a criminal exemption, which was denied because she had two or more felonies, and ten years had not elapsed since her last incarceration or supervised probation.   She filed an administrative appeal along with numerous letters attesting to her good character, sobriety and stability.   Additional evidence was presented indicating L. had voluntarily drug tested for the department and her drug tests were negative.   In addition, her parole officer stated L. tested negative for him as well.   The administrative hearing officer upheld the denial of L.'s request for placement.

In September 2009, the juvenile court terminated K.'s reunification services.   She did not appeal the juvenile court's order.

In October 2009, L. sought review of the administrative decision by filing a petition for writ of mandate in the juvenile court.   That same month, on the date set for the six-month review hearing, the juvenile court denied the writ of mandate.   The court also set the six-month review hearing for a contested review hearing in November 2009.   L. did not appeal from the court's order denying her placement.

In its report for the November hearing, the department reported J. was living in a foster home and that petitioner and L. regularly visited.   However, petitioner was not regularly drug testing.   Further, petitioner drug tested positive four times, as recently as October 2009, and missed five drug tests, resulting in presumptive positive results.   In light of his failure to comply, the department recommended the court terminate petitioner's reunification services and set a hearing to implement a permanent plan.

In November 2009, petitioner's attorney made an offer of proof that petitioner would testify he was in the process of getting into an inpatient program to address his drug problems and wanted continued services.   The offer of proof was accepted.   The juvenile court terminated petitioner's reunification services and scheduled a section 366.26 hearing.   This petition ensued.


“In dependency proceedings, the court's dispositional and following orders are directly appealable, with the exception of an order scheduling a selection and implementation hearing under section 366.26.  [Citations.]  Generally, under the so-called waiver rule, a parent may not attack the validity of a prior appealable order for which the statutory time for filing an appeal has passed.  [Citation.]  Such a limitation is necessary to promote finality and expedition of decisions concerning children and their interests in securing stable homes.  [Citation.]”  (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259.)

Assuming petitioner has standing to challenge the juvenile court's denial of L.'s request for relative placement;  the issue was waived when neither he nor she filed a notice of appeal from the October 2009 hearing when the order was issued.   The order denying relative placement has long since become final.   Therefore, petitioner has waived the opportunity to complain that the juvenile court abused its discretion in denying L. relative placement.   Consequently, we will deny the petition.


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



FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. K. did not file a writ petition..  FN2. K. did not file a writ petition.