Filed 6/25/21 Thomas G. v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THOMAS G.,
F082704
Petitioner,
(Super. Ct. No. 20JD0007)
v.
THE SUPERIOR COURT OF KINGS OPINION
COUNTY,
Respondent;
KINGS COUNTY HUMAN SERVICES
AGENCY,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jennifer Lee
Giuliani, Judge.
Thomas G., in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
-ooOoo-
* Before Franson, Acting P.J., Peña, J. and Smith, J.
Petitioner Thomas G. (father) is the biological father of now nine-year-old
Sophia G., who was removed from the custody of her mother Jessica H. (mother) in
February 2020. Father was in state prison, serving a 15-year sentence, and was denied
reunification services. Mother was provided services until the 12-month review hearing
in April 2021 when the juvenile court terminated services and set a Welfare and
Institutions Code section 366.26 hearing1 for August 3, 2021.
In November 2020, father filed a petition for writ of habeas corpus alleging the
trial court imposed an unlawful sentence (In re Gray (June 10, 2021, F081972) [nonpub.
order]) which was denied. He also filed an extraordinary writ petition (Cal. Rules of
Court, rules 8.450–8.452)2 in propria persona seeking an order vacating the
section 366.26 hearing in the hope that he will be released from custody and able to
parent Sophia. He contends the sentencing error made him unavailable to participate in
reunification services, unjustly depriving him the opportunity to parent his child and
threatening his parental rights.
We conclude father’s extraordinary writ petition fails to comport with the
procedural requirements of rule 8.452 and dismiss the petition.
PROCEDURAL AND FACTUAL SUMMARY
In February 2020, then seven-year-old Sophia was removed along with her
four-year-old sister, A.H., by the Kings County Human Services Agency (agency) from
mother’s custody because mother and Sophia’s 13-year-old half sister, Alexandria, were
engaging in physical altercations. In addition, mother was using methamphetamine.
Father was incarcerated in Corcoran State Prison, serving a 15-year sentence for first
degree burglary. He was then eligible for parole in March 2026. The agency placed
1 Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2 Rule references are to the California Rules of Court.
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Alexandria with a nonrelated extended family member and Sophia and A.H. with a
relative.
The juvenile court exercised its dependency jurisdiction over the children at a
jurisdictional/dispositional hearing in April 2020 and ordered reunification services for
mother and the fathers of Alexandria and A.H. (the fathers). The court denied father
services, finding services would not benefit Sophia. However, because father was not
transported to the hearing, the court made its finding without prejudice pending a review
of services hearing scheduled in May 2020.
Father appeared telephonically from prison at the May 2020 review of services
hearing and requested reunification services. Although he understood his lengthy prison
sentence precluded reunification, he hoped to overturn his sentence on appeal.3 He
objected to mother receiving reunification services because her live-in boyfriend was
being investigated for child molestation and after visiting mother, Sophia exhibited
sexualized behavior. He also requested visitation, informing the court he talked to
Sophia by telephone. The court denied father reunification services and continued
supervised telephone contact. Father’s attorney asked the court to elevate father to
presumed father status, which the court denied. Father did not appeal from the court’s
dispositional findings and orders.
In October 2020, the juvenile court continued reunification services at the
six-month review hearing and set the 12-month review hearing for April 13, 2021. Father
was unable to appear because he was transferred to another state prison earlier in the
month and had to be quarantined for 14 days to avoid the spread of the COVID-19 virus.
His attorney reiterated his objection to mother reunifying with Sophia and stated his
preference that the children be placed with Ms. S., a paternal grandmother.
3 Father alleged in his writ of habeas corpus the trial court violated Penal Code
section 654 by imposing multiple punishments for an individual course of action and trial
counsel was ineffective for not addressing the excessive sentence.
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The agency recommended the juvenile court terminate reunification services at the
12-month review hearing and set a section 366.26 hearing. Mother was moderately
compliant, and the fathers were noncompliant.
The juvenile court conducted the 12-month review hearing on April 13, 2021.
Father was not present but appeared through his attorney who submitted the matter for
the court’s decision. The court terminated reunification services for mother and the
fathers and set a section 366.26 hearing for August 3, 2021.
DISCUSSION
The purpose of extraordinary writ proceedings is to allow the appellate court to
achieve a substantive and meritorious review of the juvenile court’s orders and findings
issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26,
subd. (l)(4).)
Rule 8.452, which sets forth the content requirements for an extraordinary writ
petition, requires the petitioner to identify the error(s) he or she believes the juvenile
court made and to support each alleged error with argument, citation to legal authority,
and citation to the appellate record. (Rule 8.452(b).) In keeping with rule 8.452(a)(1),
we will liberally construe a writ petition in favor of its adequacy where possible,
recognizing that a parent representing him or herself is not trained in the law.
Nevertheless, the petitioner must at least articulate a claim of error and support it by
citations to the record. Failure to do so renders the petition inadequate in its content and
the reviewing court need not independently review the record for possible error. (In re
Sade C. (1996) 13 Cal.4th 952, 994.)
Father does not argue the juvenile court erred in setting a section 366.26 hearing.
Indeed, the court had no choice but to do so, having terminated reunification efforts.
(§ 366.21, subd. (g)(4).) Nor did he timely challenge the court’s dispositional order
denying him reunification services, which is now final. (In re Isaiah W. (2016) 1 Cal.5th
1, 7.) Rather, he attempts to raise in his writ petition the sentencing error he raised in his
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writ of habeas corpus. Specifically, he asserts he was unlawfully sentenced to 15 years
instead of four years, the proper sentence. He alleges had he been properly sentenced he
would have been released from custody two years ago. Further, because his prison
sentence was unconstitutional, he argues, any additional deprivation he suffers as a result,
including the inability to parent his child, is also unconstitutional. He further begrudges
mother’s opportunity to reunify, given her ongoing methamphetamine use.
Any sentencing error alleged in his writ of habeas corpus, which was denied, is
wholly separate from the dependency proceedings involving Sophia. The state of the
evidence was that father was a biological father with a long prison sentence. A juvenile
court may offer a biological father reunification services if it finds it will benefit the
child. (§ 361.5, subd. (a).) Here, the juvenile court found services would not benefit
Sophia given father’s lengthy prison sentence. After mother failed to reunify a year later,
the court had no choice but to set a section 366.26 hearing to select a permanent plan for
Sophia. Since father does not contend the court erred, we will dismiss the petition
as facially inadequate for appellate review.
DISPOSITION
The petition for extraordinary writ is dismissed as inadequate under rule 8.452.
This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A).
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