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M.T. v. Superior Court of San Francisco County

October 30, 2009

M.T., PETITIONER,
v.
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, RESPONDENT;
SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES ET AL., REAL PARTIES IN INTEREST.



(San Francisco County Super. Ct. No. JD02-3207). Trial Judge: Hon. Ellen Chaitin.

The opinion of the court was delivered by: McGuiness, P.J.

CERTIFIED FOR PUBLICATION

Petitioner M.T. is the presumed father of three children who have been in long-term foster care since 2004. At a post-permanency status review hearing, the juvenile court set the matter for a Welfare and Institutions Code*fn1 section 366.26 hearing to consider modifying the permanent plan for two of the children from long-term foster care to adoption. Petitioner seeks extraordinary writ review of the court‟s order, asserting he was entitled to a hearing to contest the recommendation of the San Francisco Department of Human Services (Department) to refer the matter to a section 366.26 hearing. He claims the court erred in requiring him to make an offer of proof to justify a contested hearing. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2002, the Department filed a petition alleging that two sisters, each of whom has the initials L.T.,*fn2 and their brother, N.T., came within the jurisdiction of the juvenile court under subdivisions (a), (b), and (g) of section 300. At the time, older sister was seven, younger sister was three, and N.T. was five. Petitioner was identified as the alleged father of the children. Among other things, the Department alleged that petitioner and the mother, E.M. (mother), had a history of domestic violence that had placed the children at risk when they lived together. It was alleged that petitioner had left the family two years before and that his whereabouts were then unknown. The Department also alleged that mother regularly hit the children with a belt and placed them at risk of harm by engaging in domestic violence with her then-current boyfriend. Furthermore, it was alleged that mother‟s boyfriend physically and emotionally abused the children, including by placing them in a cold shower for extended periods of time as a form of punishment.

According to the disposition report, mother had obtained a restraining order against petitioner and had not seen him since March 2001, when police took him away. The social worker recommended that the court order reunification serves for mother but wrote that services for petitioner would be inappropriate given the restraining order against him as well as his history of domestic violence against mother.

At the jurisdiction hearing in August 2002, the juvenile court sustained the allegations of the section 300 petition, as amended, and adjudicated the three children dependents of the court. The court found that petitioner‟s whereabouts were unknown and that the Department had made reasonable efforts to locate him. The court left the children in mother‟s care.

On November 13, 2002, the Department filed a section 387 petition seeking to remove the children from mother‟s care. According to the petition, mother‟s mental state had deteriorated and she had failed to provide adequate care for the children, including meeting their medical needs, ensuring their attendance at school, and providing them with appropriate clothing and food. In addition, her boyfriend had been released from prison and had returned to the home, despite his being a suspected child abuser. On November 14, 2002, the court placed the children in foster care.

In a November 2003 status report, the Department recommended terminating mother‟s reunification services and ordering long-term foster care as the permanent plan for the children. The report indicated that petitioner had been located in Oregon and had indicated his willingness to travel to San Francisco to visit the children. Petitioner‟s first appearance in the case occurred at a November 2003 hearing at which the court appointed counsel for petitioner and ordered supervised visits between petitioner and the children.

Petitioner failed to appear at the twelve-month review hearing, which was ultimately conducted in February 2004. At the hearing, the court ordered the Department to continue to provide reunification services to mother. There is no indication that petitioner asked for visits, reunification services, or any particular placement for the children at the time.

In March 2004, petitioner filed a motion for presumed father status and sought monthly visits. In a declaration in support of the motion, he admitted he had not visited the children since late 2001. The court granted the motion for presumed paternity status.

In an April 2004 status report prepared for the 18-month review, the social worker wrote that petitioner had not requested or received reunification services from the Department and had not visited the children. At the time, older sister and N.T. were living together in a foster home in San Francisco, while younger sister was living in Napa at a foster home. The social worker wrote that mother had failed to substantially comply with her reunification plan and that police had to be called after she physically assaulted a visiting room supervisor during one of her visits with the children. The Department recommended terminating further reunification efforts and setting a section 366.26 hearing.

The 18-month review hearing was conducted in May 2004. The court terminated further reunification services for mother and ordered long-term foster care as the children‟s permanent plan.*fn3

Over the course of the next four years, the court conducted regular post-permanency review hearings and continued the children‟s placement in long-term foster care. Petitioner failed to appear at all but one of the post-permanency review hearings held from 2004 through January 2009. Petitioner‟s one appearance at a review hearing conducted between 2004 and January 2009 occurred in March ...


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