Filed 10/21/22 K.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

K.S.,

Petitioner,

v.

THE SUPERIOR COURT OF TULARE 

COUNTY,

Respondent;

TULARE COUNTY HEALTH AND HUMAN 

SERVICES,

Real Party in Interest.

F084752

(Super. Ct. No. JJV073438C)

OPINION

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. John P. Bianco, 

Judge.

K.S., in pro. per., for Petitioner.

No appearance for Respondent.

No response for Real Party in Interest.

-ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Snauffer, J.
2.

K.S. (mother), in propria persona, seeks an extraordinary writ (Cal. Rules of 

Court, rules 8.450–8.452)1from the juvenile court’s July 27, 2022, dispositional orders, 

denying her reunification services under Welfare and Institutions Code section 361.5, 

subdivision (b)(10)2(reunification services terminated for a sibling) as to her now 

six-month-old daughter, J.R., and setting a section 366.26 hearing for November 21, 

2022. Mother seeks an order vacating the section 366.26 hearing and returning J.R. to 

her custody. However, she fails to assert the juvenile court erred. Consequently, we 

conclude her writ petition fails to comply with the content requirements of rule 8.450 and 

dismiss the petition as facially inadequate for review.

PROCEDURAL AND FACTUAL SUMMARY

These dependency proceedings were initiated on April 18, 2022, when the Tulare 

County Health and Human Services Agency (agency) received a referral regarding 

newborn J.R. There was concern J.R. was at risk of harm in mother’s care because 

mother had an open family reunification case involving her then seven-year-old son, S.P.,

and five-year-old son, D.P. (the siblings), stemming from mother’s physical abuse of the 

siblings, substance abuse, domestic violence with Steven R.,3J.R.’s father and the 

siblings’ paternal great uncle, and failure to provide adequate food, clothing, shelter and 

medical care.

1 Rule references are to California Rules of Court.

2 Statutory references are to the Welfare and Institutions Code unless otherwise 

indicated.

3 Steven R. also filed an extraordinary writ in our case No. F084704.
3.

The Siblings’ Case

4

The siblings came to the attention of the agency in March 2021 when then 

six-year-old S.P. missed school. After mother agreed for him to attend school via video 

conference, he was observed to have a black left eye, swollen shut and purple in color. 

Another incident was captured on video where the siblings were attempting to stab each 

other with adult size scissors and mother was heard arguing with her boyfriend.

An agency social worker and law enforcement responded to the family home. The 

siblings were dirty as if they had not been bathed. The home was also dirty. Mother was 

under the influence of methamphetamine and arrested, leaving the siblings without a care 

provider. The siblings’ father, Steven P., was incarcerated in Wisconsin. The social 

worker took the siblings into protective custody and placed them in foster care.

The foster mother reported the siblings had a lot of marks and bruising on their 

backs, buttocks and legs. She sent the social worker pictures of D.P. with scratches on 

his hand and face near his eye. She was unable to take any more pictures because he 

would not allow it. S.P. had a huge bruise/scrape-like mark covering at least half of his 

buttock, a bruise/scrape-like mark on his arm, a dark red and faded black colored bruise 

about an inch in size on his upper wrist, and what looked like a cigarette burn on his back 

with exposed flesh with some scars from what looked like older wounds. Mother denied 

physically abusing the siblings and claimed they received the marks from falling down.

The siblings stated they were afraid of “ ‘uncle,’ ” referring to father. They 

frequently told the foster mother that “ ‘Uncle [was] going to whoop them.’ ” D.P. stated 

his mother and uncle “whooped” him. They disclosed mother kicked and slapped them 

and S.P. stated mother used a belt.

4 The juvenile court record in the siblings’ case was filed in writ proceedings in our 

case No. F084368. On our own motion, we take judicial notice of the juvenile court 

record in case No. F084368. (Evid. Code, § 459.)
4.

Mother said father was an authority figure but that she would never allow him to 

hit her children. If the siblings did not listen to him, he put them in timeout. Father lived 

with mother until April 26, 2021, when she forced him to leave her home. She was a 

victim of domestic violence on April 24, 26 and 29, 2021. She would not say whether 

she planned to maintain a relationship with him.

Father admitted to “ ‘whooping’ ” the siblings when they misbehaved. He 

described “ ‘whoopings’ ” as hitting them “ ‘a couple times on the butt.’ ” He denied 

leaving any marks or bruises. He said mother gave him permission to discipline the 

siblings.

The agency filed a dependency petition alleging under section 300, subdivision (a) 

(serious physical harm) that mother physically abused the siblings and under 

subdivision (b) (failure to protect) that she failed to provide them adequate housing and 

food, endangered them by abusing substances, and exposed them to domestic violence 

with father.5 As to the subdivision (a) count, the department described the siblings as 

having “numerous current and fading marks and bruises on their backs, buttocks and legs. 

[D.P.] had scratches on his hand [and] face near his eye. [S.P.] had a large bruise/scrape 

on his buttocks, on his arm, upper wrist, and knee.”

Pictures of the family home and of the siblings’ injuries were provided to the 

juvenile court.

The juvenile court found the allegations true, ordered the siblings removed from 

mother’s custody and ordered her to complete a parenting program, mental health and 

substance abuse assessments and any recommended treatment, a domestic violence 

victim’s services program and participate in random drug testing.

5 The juvenile court also sustained allegations under section 300, subdivision (b) 

that Steven P.’s use of methamphetamine and heroin rendered him incapable of providing 

regular care for the siblings and under subdivision (j) (no provision for support) that he 

could not arrange for their care because he was incarcerated.
5.

By the 12-month review hearing in May 2022, mother had completed her service 

plan requirements and given birth to J.R. However, she engaged in domestic violence 

with father. On April 22, 2022, police responded to a call of spousal abuse at the parents’ 

residence. Mother had bruising on her neck and claimed father choked her. He was 

angry because she wanted to go home and feed then four-day-old J.R. after finishing their 

breakfast at a restaurant. Father was not ready to go home and objected to the manner in 

which she spoke to him. He hit her, punched her in the back of the head and began 

choking her. He threatened to kill her if she took J.R. away from him. He also grabbed a 

hammer during the altercation, raised it above his head and threatened to hit her with it. 

Father claimed mother tried to grab him while he was holding J.R. in his arms. He did 

not want to continue their relationship and she was using J.R. to be with him. He had to 

restrain her and put his hands on her chest to hold her down. She kept going at him and 

he was attempting to stop her. Father was arrested.

Meanwhile, the siblings continued to make statements about physical abuse and 

other things they witnessed in the family home. After visitation, the siblings were 

dysregulated and displayed problematic behaviors.

At a contested 12-month review hearing on May 11, 2022, S.P.’s therapist testified 

S.P. disclosed being hit by mother and father. He was afraid of them. The therapist 

diagnosed S.P. with posttraumatic stress disorder and testified the physical abuse affected 

S.P.’s emotional regulation and impulse control. S.P. had also tried to harm himself. 

D.P.’s therapist invoked the patient-therapist privilege when asked if D.P. disclosed being 

physically abused.

The juvenile court terminated reunification services and set a section 366.26 

hearing for August 31, 2022.6

6 Mother filed a notice of intent to file a writ petition, which was assigned our case 

No. F084368. However, she did not file a writ petition and the case was dismissed.
6.

J.R.’s Removal 

On April 25, 2022, a social worker made a home visit, noting it was clean and 

appropriate and mother had supplies for J.R. Mother did not leave J.R. with father 

unsupervised and said she thought he would be different with her since J.R. was his child. 

She denied the siblings were physically abused but acknowledged that she needed to take 

accountability.

The following day, the social worker took J.R. into protective custody. The 

agency filed a dependency petition on J.R.’s behalf, alleging one count under section 300, 

subdivision (a) (serious physical abuse) (count a-1) that father’s physical abuse of the 

siblings placed J.R. at a substantial risk of also suffering serious physical harm. 

Specifically, the petition alleged that on or near March 31, 2021, the siblings were 

physically injured while in father’s care. They “had numerous current and fading marks 

and bruises on their backs, buttocks, and legs. [D.P.] had scratches on his hand and face 

near his eye. [S.P.] had a large bruise/scrape on his buttocks, on his arm, upper wrist, and 

knee.” The petition additionally alleged two counts under section 300, subdivision (b)(1) 

(failure to protect) (count b-1 as to mother and count b-2 as to father) that the parents 

exposed J.R. to domestic violence in that on or about April 25, 2022, father choked 

mother causing a popped blood vessel in her eye and was arrested, and one count under 

section 300, subdivision (j) (abuse of sibling) as to mother (count j-1) in that the juvenile 

court found on June 9, 2021, that mother physically abused, and failed to protect S.P. and 

D.P. from physical abuse and her substance abuse, thus placing J.R at a similar risk of 

abuse. The petition further alleged that mother’s visitation with the siblings was 

suspended on April 13, 2022. J.R. was placed in a foster home.

The Detention Hearing

In its detention report, the agency detailed the specifics of the physical abuse the 

siblings suffered while in father’s care and their fear of him. On April 14, 2021, S.P. 

disclosed during an interview that his “ ‘uncle’ ” was going to hurt him and mother. He 
7.

said, “ ‘Uncle hit mommy and mommy crying.’ ” He saw “ ‘mommy hit uncle in teeth 

and punched him and his teeth fell out.’ ” He did not disclose who caused the injuries. 

However, during the course of the case it was discovered the siblings called father, 

mother’s boyfriend, “ ‘uncle.’ ”

The siblings were also extremely afraid of mother. They had significant outbursts 

after visits and continued to make statements of physical abuse and other things they 

witnessed in the family home. They also made statements about killing their mother and 

falsifying their abuse in order to avoid contact with her. Mother denied father physically 

abused the siblings.

On April 28, 2022, the juvenile court appointed counsel for the parents and 

received the detention report into evidence without objection. The court ordered J.R. 

detained and ordered the agency to provide mother a mental health assessment, alcohol 

and drug testing and supervised visits and father substance abuse, mental health and 

domestic violence assessments, alcohol and drug testing, parenting and supervised visits. 

A jurisdiction/disposition hearing (combined hearing) was set for June 6, 2022.

The Jurisdictional Hearing

On May 11, 2022, the juvenile court terminated mother’s reunification services as 

to the siblings. On May 25, 2022, mother obtained a five-year restraining order against 

father.

In its report for the combined hearing filed on June 3, 2022, as evidence 

supporting jurisdiction, the agency reiterated the details previously provided in the 

detention report regarding the physical injuries sustained by the siblings and their 

disclosures that father inflicted them. The agency also updated the court on the parents’ 

progress in their court-ordered services. Mother was participating in mental health 

counseling and a child abuse intervention program. She tested positive for opiates on 

April 29, 2022, and submitted to a hair follicle test, which revealed levels of cocaine and 

hydrocodone. However, because the levels were below the cutoff, the testing facility 
8.

could not determine whether she used the drugs and when. From a testing and legal

standpoint, the facility considered them negative results. Father was scheduled for a 

mental health assessment and completed an intake for the child abuse intervention 

program. He completed a substance abuse assessment and it was determined he did not 

require treatment. However, the following day he tested positive for opiates. He enrolled 

in family intervention alcohol and other drugs aftercare and agreed to attend the aftercare 

group sessions monthly and meet with a specialist for an individual session once a month. 

He was participating in domestic violence services and completed six of the 18 required 

sessions. He enrolled in a parenting class but was dropped due to excessive no shows.

The agency recommended the juvenile court sustain the allegations and deny 

father reunification services under section 361.5, subdivision (b)(6) based on the severe 

physical abuse he inflicted on the siblings. It recommended the court deny mother 

reunification services under section 361.5, subdivision (b)(10) because her reunification 

services were terminated in the siblings’ case and she failed to subsequently make 

reasonable efforts to eliminate the domestic violence that necessitated their removal.

The combined hearing, originally set for June 6, 2022, was conducted as a 

contested jurisdictional hearing on July 6, 2022. Father submitted on count b-2 alleging 

he placed J.R. at a substantial risk of suffering serious physical harm by engaging in 

domestic violence with mother on April 25, 2022. The juvenile court found father made 

a knowing and intelligent waiver as to count b-2. Father’s attorney argued there was 

insufficient evidence to support count a-1 because in the brief summary provided in the 

agency’s report, “[S.P.] did not disclose who caused the injuries.” In addition, S.P. was 

describing domestic violence between mother and father, not physical abuse.

Mother’s attorney argued there was insufficient evidence to support the 

subdivision a-1 count as to father and submitted on count b-1. Mother did not contest 

that father injured her on April 25, 2022, but her attorney argued she called the police and 
9.

obtained a restraining order. As to the physical abuse of the siblings, mother’s attorney 

argued she was unaware father was abusing them.

During his argument, county counsel asked the juvenile court to take judicial 

notice of the file in the siblings’ case. Father’s attorney objected, arguing that father was 

not a party in the siblings’ case and not allowed to contest the allegations. Instead of 

taking judicial notice of the siblings’ case file, the court resolved the issue by stating it 

would consider the information in the social worker’s report as to allegations father 

engaged in domestic violence with mother and physically abused the siblings, noting that 

father was living with mother when the agency first became involved. As to mother, the 

court stated it would consider the complete case file, including the reports and prior 

allegations.

The juvenile court sustained the allegations and set a contested dispositional 

hearing for July 27, 2022.

The Dispositional Hearing

The agency filed an addendum report on July 22, 2022, advising the juvenile court 

the parents were participating in their court-ordered services but reiterated its 

recommendation the court deny them reunification services.

Counsel presented their positions at the contested dispositional hearing by 

argument only. The court admitted into evidence an email mother sent to the social 

workers detailing the skills she had learned over the prior year that she claimed made her 

a better parent. She recently obtained a restraining order and developed a safety plan. 

County counsel argued mother had not taken responsibility for the domestic violence 

between her and father and the siblings’ physical abuse. Mother’s attorney pointed out 

that mother was no longer associated with father. She contacted the police and sought a 

restraining order. She was also participating in her services. Minor’s counsel advised the 

court he was concerned about mother’s relationship with father but stated her mental 

health therapist reported she attended her therapy sessions and was making progress. Her 
10.

drug tests were negative and she completed 16 of the child abuse intervention sessions 

and made good progress since May 2022. Counsel argued providing her reunification 

services would serve J.R.’s best interest.

As to father, county counsel argued father’s conduct toward the siblings fell within 

the provisions of section 361.5, subdivision (b)(6) and father had not taken any 

accountability for it. Given the severity of the abuse the siblings suffered and the 

emotional damage it caused them, counsel argued for denial of services. Minor’s counsel 

agreed with county counsel. Father’s attorney argued the agency failed to meet its 

burden under section 361.5, subdivision (b)(6) because the siblings did not identify who 

harmed them and father denied the allegations. He asked the court to provide father 

reunification services.

The juvenile court clarified that it could consider the siblings’ case file in 

determining the severity of the physical abuse they sustained and in determining whether 

it would benefit J.R. for father to receive reunification services. The court ordered J.R. 

removed from parental custody, denied the parents reunification services as 

recommended and set a section 366.26 hearing.

DISCUSSION

“ ‘A judgment or order of the lower court is presumed correct. All intendments 

and presumptions are indulged to support it on matters as to which the record is silent, 

and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 

557, 564.)

When the juvenile court sets a hearing under section 366.26, it must first make 

certain findings and orders. A parent wishing to challenge the court’s findings and orders 

must do so by filing an extraordinary writ petition. The purpose of the extraordinary writ 

petition 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).) However, a parent filing an 
11.

extraordinary writ petition must explain how the juvenile court was wrong in ruling as it 

did; in other words, how the court erred.

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.)

Here, mother merely completed the portions of the preprinted Judicial Council 

form “Petition for Extraordinary Writ” (JV-825) identifying J.R. as the subject of the 

petition and the date on which the challenged order was made and indicated by checking 

the appropriate boxes that she wants this court to vacate the section 366.26 hearing and 

return J.R. to her custody. She did not, however, provide a summary of the facts or 

explain how the juvenile court erred in ruling as it did. Consequently, we conclude 

mother’s petition fails to comport with the procedural requirements of rule 8.452 and 

warrants dismissal. 

Moreover, we do not independently review the appellate record for possible errors. 

(In re Sade C., supra, 13 Cal.4th at pp. 994, 996.) Even if we did, we would find no error 

on this record. The juvenile court denied mother reunification services under

section 361.5, subdivision (b)(10), which allows the juvenile court to deny a parent 

reunification services when the court previously terminated reunification services for a 

sibling or half sibling, and the parent failed to subsequently make reasonable efforts to 

address the problems leading to removal of the sibling or half sibling.
12.

Once it has been determined one of the bypass provisions applies, “ ‘ “the general 

rule favoring reunification is replaced by a legislative assumption that offering services 

would be an unwise use of governmental resources. [Citation.]” ’ ” (In re William B.

(2008) 163 Cal.App.4th 1220, 1227.) Thus, if the juvenile court finds a provision of 

section 361.5, subdivision (b), applies, the court “shall not order reunification for [the] 

parent ... unless the court finds, by clear and convincing evidence, that reunification is in 

the best interest of the child.” (§ 361.5, subd. (c)(2).) “The burden is on the parent to ... 

show that reunification would serve the best interests of the child.” (In re William B., at 

p. 1227.)

The juvenile court removed the siblings from mother’s custody in part because she 

engaged in domestic violence with father. The court terminated her reunification 

services, which included domestic violence counseling, after a year. Although mother 

completed domestic violence counseling during that year, she continued to engage with 

father in violent altercations. Consequently, she had not resolved the problem 

necessitating the siblings’ removal and the court was justified in denying her 

reunification services for J.R. under section 361.5, subdivision (b)(10). Further, mother 

failed to show that offering her reunification services inured to J.R.’s best interest. 

Therefore, were we to review this petition on its merits, we would deny it. However, 

because it is facially inadequate for review, we dismiss it. 

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).