In re D.R. CA5

Court: California Court of Appeal
Date filed: 2022-11-28
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Filed 11/28/22 In re D.R. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


    In re D.R., a Person Coming Under the Juvenile
    Court Law.

    TULARE COUNTY HEALTH AND HUMAN                                                           F084556
    SERVICES AGENCY,
                                                                              (Super. Ct. No. JJV073911A)
           Plaintiff and Respondent,

                    v.                                                                    OPINION
    DAVID S.,

           Defendant and Appellant.



                                                   THE COURT *
         APPEAL from an order of the Superior Court of Tulare County. John P. Bianco,
Judge.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         No appearance for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P. J., Detjen, J. and Franson, J.
       Appellant David S. (father) appealed from the juvenile court’s June 6, 2022
order continuing a hearing on his request under Welfare and Institutions Code
section 3881 to modify its prior order denying him reunification services as to his now
three-year-old son, D.R. After reviewing the juvenile court record, father’s
court-appointed counsel informed this court he could find no arguable issues to raise on
father’s behalf. This court granted father leave to personally file a letter setting forth a
good cause showing that an arguable issue of reversible error exists. (In re Phoenix H.
(2009) 47 Cal.4th 835, 844.)
       Father filed a letter but failed to set forth a good cause showing that any arguable
issue of reversible error arose from the June 6, 2022 hearing. (In re Phoenix H., supra,
47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
                    PROCEDURAL AND FACTUAL SUMMARY
       In July 2021, a first amended dependency petition was filed in Riverside County
alleging newborn M.R. and two-year-old D.R. came within the juvenile court’s
jurisdiction under section 300, subdivision (b) (failure to protect) because father and their
mother Alejandra (mother) suffered from mental illness and engaged in domestic
violence, which placed the children at risk of harm. The petition specifically alleged as
to father that he had violent outbursts, paranoid and threatening behavior, isolated
himself, mother and the children, and threatened and choked mother in front of the
children. The petition identified Alexis N. as M.R.’s father and alleged that his
whereabouts were unknown. (§ 300, subd. (g).)
       The Riverside County Juvenile Court ordered the children detained and on
December 10, 2021, removed them from parental custody, ordered reunification services
for mother and transferred the case to Tulare County. The Riverside County Juvenile
Court denied father reunification services under section 361.5, subdivision (b)(2) (mental

1      Statutory references are to the Welfare and Institutions Code.


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disability) and Alexis services under section 361.5, subdivision (a) because he was an
alleged father. The children were placed with a maternal aunt in Tulare County.
       In December 2021, the Tulare County Juvenile Court accepted the case in transfer
and set a six-month review hearing for June 6, 2022.
       In May 2022, father filed a modification petition under section 388, asking the
juvenile court to provide him reunification services and evaluate him for placement. He
claimed to have a strong bond with D.R. and his visits with him went well. The juvenile
court set a hearing on father’s section 388 petition on June 6, 2022, to coincide with the
six-month review hearing (combined hearing).
       In its report for the combined hearing, the Tulare County Health and Human
Services Agency (agency) recommended the juvenile court offer father reunification
services. He completed a psychological evaluation ordered by Riverside County and
there were no concerns noted. In addition, he was visiting D.R. and visits were
appropriate. The agency recommended he complete a parenting class and domestic
violence assessment.
       On June 6, 2022, county counsel asked the juvenile court to continue the
combined hearing so he could discuss father’s request for reunification services with the
social worker. Father’s attorney did not object to a continuance and the juvenile court
continued the hearing to June 29, 2022.
       On June 29, 2022, the juvenile court continued reunification services for mother
and set a 12-month review hearing for August 10, 2022. The court continued the hearing
on father’s section 388 petition to July 20, 2022.
                                      DISCUSSION
       An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to raise claims of reversible
error or other defect and present argument and authority on each point made. If the



                                             3.
appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th
952, 994.)
       Father asserts that D.R. was wrongfully removed from him because Riverside
County did not thoroughly investigate and the juvenile court and social services agency
considered him unfit because of a mental illness he does not have. He believes he is
being treated unfairly and denied due process or the right to speak on the record. He
would like D.R. returned to his custody.
       As a preliminary matter, we note the evidence concerning the circumstances under
which the children were removed is scant, as are the details of father’s mental health
status. Nevertheless, the Riverside County Juvenile Court found sufficient evidence to
remove D.R. from father’s custody in part because of father’s mental health issues. The
court also denied him reunification services under section 361.5, subdivision (b)(2),
which required expert medical opinion that he suffered from a mental disability that
rendered him incapable of utilizing reunification services. Those findings and orders
were issued at the dispositional hearing on December 10, 2021, and directly appealable at
that time. Father did not appeal and is now precluded from doing so. (Steve J. v.
Superior Court (1995) 35 Cal.App.4th 798, 812.)
       As for due process, father was represented by counsel who appeared for him at
each hearing. Further, contrary to his claim he was denied the ability to speak on the
record, father directly addressed the juvenile court at the interim review hearing on
April 11, 2022, regarding his concern the social worker was lying to him and the agency
was “overruling another order that was taken care of in family court.”
       Finally, with regard to the juvenile court’s order continuing the hearing on father’s
section 388 petition, the court has discretion to continue any hearing upon a showing of
good cause. (§ 352; In re D.N. (2020) 56 Cal.App.5th 741, 756.) Where a juvenile
court’s decision is discretionary, we apply the abuse of discretion standard of review.
(In re D.R. (2010) 185 Cal.App.4th 852, 864.) Here, the juvenile court continued the

                                             4.
hearing on June 6, 2022, to allow county counsel to confer with the social worker on her
recommendation to provide father reunification services. Father fails to show that the
court’s decision to continue the hearing for county counsel to query the social worker was
an abuse of discretion.
          Based on the foregoing, we conclude father failed to set forth a good cause
showing that an arguable issue of reversible error arose from the juvenile court’s
order continuing the hearing on his section 388 petition. Consequently, we dismiss the
appeal.
                                        DISPOSITION
          This appeal is dismissed.




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