T.M., Petitioner, v. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner, biological father of the minor child, E.T.,¹ seeks extraordinary writ relief (Cal. Rules of Court, rule 8.452) from respondent court's order setting a Welfare and Institutions Code section 366.26 ² hearing (setting hearing).   When petitioner filed this writ petition, he had an appeal pending (F062249) from orders predating the setting hearing at which respondent court denied him reunification services as well as his request to be elevated to presumed father status.   Petitioner raises these same issues on his writ petition and asks to join in the opening brief in case number F062249.

During the pendency of this writ petition, this court issued a nonpublished opinion, Stanislaus County Community Services Agency v. T.M. (July 14, 2011, F062249) (T.M.), affirming the challenged orders.   Our decision expressed in that opinion is the law of the case.   Accordingly, we will dismiss the writ petition.

STATEMENT OF THE CASE AND FACTS

A brief summary of the case suffices under the circumstances.   In August 2010, newborn E.T. was detained from her mother, K.T. At the time, petitioner was incarcerated out of state.   He and K.T. were not married and he did not sign a declaration of paternity as to E.T. Consequently, he was considered E.T.'s alleged father.

The juvenile court ordered E.T. detained and ordered petitioner to undergo paternity testing.   However, the court did not have the paternity test results when, in October 2010 at the dispositional hearing, it denied petitioner reunification services because as the alleged father he was not entitled to them (§ 361.5, subd. (a)) and ordered six months of services for K.T.

In December 2010, the juvenile court deemed petitioner E.T.'s biological father based on the paternity test results.   Petitioner subsequently filed a section 388 petition asking the court to declare him E.T.'s presumed father and to order reunification services for him.   In February 2011, the court denied petitioner's section 388 petition.   As explained above, petitioner appealed from the court's denial order, but did not prevail.

In May 2011, the juvenile court conducted the six-month review hearing, terminated K.T.'s reunification services, and set a section 366.26 hearing.   Petitioner appeared at the hearing and objected to the court's denial of his section 388 petition.   This petition ensued.³

DISCUSSION

The law of the case doctrine provides that when, in deciding an appeal or writ, an appellate court “states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal․”  (Tally v. Ganahl (1907) 151 Cal. 418, 421.)   For the law of the case to apply, generally there must be an opportunity for oral argument and a written opinion.  (Kowis v. Howard (1992) 3 Cal.4th 888, 894, 899.)

The issues petitioner raises on this writ petition were decided in T.M., a written opinion.   Prior to that, petitioner (the appellant), was offered the opportunity to participate in oral argument, but waived it.   Thus, our opinion in T.M. is the law of the case.   On that basis, we dismiss the writ petition.

DISPOSITION

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

FOOTNOTES

FOOTNOTE.  

FN1. In order to protect the privacy of the minor, we refer to individuals, including the minor, who have unique names by their initials.  (Cal. Rules of Court, rule 8.401(a)(2).).  FN1. In order to protect the privacy of the minor, we refer to individuals, including the minor, who have unique names by their initials.  (Cal. Rules of Court, rule 8.401(a)(2).)

FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN3. K.T. did not file a writ petition..  FN3. K.T. did not file a writ petition.