M.L., Petitioner, v. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY (2010)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) from respondent court's orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to her adoptive children, E. and M. 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

Petitioner is the adoptive mother and maternal grandmother of E. and M. and their three siblings, J.L., H.L. and M.L. Jesus is their maternal uncle and adoptive father.   In August 2008, the juvenile court exercised its dependency jurisdiction and removed then 16-year-old J.L., 15-year-old H.L., 10-year-old M.L., 9-year-old E. and 4-year-old M. from petitioner and Jesus' custody after sustaining allegations Jesus physically abused J.L., E. and M. and petitioner knew or should have known and failed to protect them.   The court ordered reunification services for the adoptive parents and set the six-month review hearing for February 2009.   The children were placed in different foster homes.

In February 2009, the juvenile court continued reunification services to the 12-month review hearing, which it set for July 2009.   The hearing was continued and conducted as a contested hearing in August 2009.   By this time, J.L. was married and no longer a subject of the proceedings.   In addition, the remaining four children told the court in chambers they did not want to return to petitioner's custody.   At the conclusion of the hearing, the juvenile court terminated both parents' reunification services and set a section 366.26 hearing for December 2009 to implement a permanent plan of legal guardianship.

In December 2009, the juvenile court convened but continued the section 366.26 hearing to March 2010 because of a defect in notice.   Petitioner filed a timely notice of intent from the March 2010 setting hearing.   This petition ensued.

DISCUSSION

Petitioner seeks relief from the section 366.26 hearing and requests either the return of the children to her custody or continued reunification services.   However, petitioner does not specify what error the juvenile court made in rendering its decision at the setting hearing.   Rather, petitioner merely stated, “I want to contest termination of my parental rights.”

A lower court's 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 court's findings and orders made at the setting hearing.   Consequently, her petition fails to comport with rule 8.452 and warrants dismissal.   Further, termination of parental rights is at issue at the section 366.26 hearing, which has yet to occur.   Consequently, petitioner's challenge to termination of her parental rights is premature and not ripe for review.

DISPOSITION

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

FOOTNOTES

FOOTNOTE.  

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.