1

Filed 12/3/20 Anthony D. v. Superior Court CA1/ 1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ANTHONY D., Petitioner,

v. THE SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent;

SAN FRANCISCO HUMAN SERVICES AGENCY et al.,

Real Parties in Interest. A160990

(San Francisco City & County Super. Ct. No. JD19

- 3169)

MEMORANDUM OPINION 1
Anthony D. (father) petitions this court for extraordinary writ review of

a juvenile court order setting a selection

- and

- implementation hearing under

Welfare and Institutions Code 2 section 366.26 for his daughter, 18

- month

- old

M.D. Father claims that insufficient evidence support s the cour t’s decision to

terminate reunification services and set a hearing under section 366.26. We

1 We res olve this case by a memorandum opinion in accordance with California Standards of Judicial Administration, section 8.1.

2 All further statutory references are to the Welfare and Institutions Code.2

agree with the San Francisco Human Services Agency (Agency)

, however,

that father ’s notice of intent to file a writ petition was untimely

. Because

father has not offered any excuse for his failure to comply with the applicable
time limit, we dismiss his petition.
The underlying facts are not relevant to our disposition. Briefly, in
June 2019 the Agency filed a petition seeking dependency court jurisdiction

over then one

- month

- old M.D. und er section 300, subdivisions (b) (1) and (j).
Most of the allegations involved C.A. (mother), who used methamphetamine
during the pregnancy in violation of her parole, had diagnoses of bipolar
disorder and manic depression, and previously failed to reunify with four of

M.D.’s older half

- siblings

. 3 M.D. was not removed from parental custody, and
the case proceeded as a family maintenance case.

A few months later

, after father left M.D. in mother’s care in violation
of the family’s safety plan, M.D. was re moved and an amended petition was

filed. At the January 2020 jurisdiction/disposition hearing , the juvenile court
sustained allegations involving mother’s substance abuse, mental health
issues, and previous child welfare history, as well as an amended allegation

under section 300, subdivision (b) (1)

, involving father’s “minimiz[ing]” of
mother’s substance abuse problem

. Father was granted six months of

reunification services.

Over the next several months, father visited with M.D. and complete d a
parenting program , but he did not undergo a substance abuse assessment or
begin individual therapy as his case plan required. At the six

- month review
hearing on September 11
, 2020, at which father appeared and testified, the
juvenile court found that reasonable services wer e provided but both parents “failed to participate in and make substantial progress in the court

- ordered

3 Mother did not file a petition for extraordinary writ rev iew

.3

treatment program

. ” It also found that there was “not a substantial
probability” of M.D. ’s return to parents’ care. The court then terminated
parents’ reunification services and set a section 366.26 hearing for January 6,

2021

. A party who seeks writ review under section 366.26, subdivision ( l ),
must first file a notice of intent to file a writ petition. ( Cal. Rules of Court,

rule 8.450(e).) 4 Th e deadline to file a notice of intent varies depending on the
manner by which the filing party received notice of the order setting the
section 366.26 hearing. ( R ule 8.450(e)(4).) Th is time requirement , which

ensures that writ petitions are resolved before the section 366.26 hearing

occurs , is “mandatory.” ( Roxanne H. v. Superior Court ( 1995) 35 Cal.App.4th
1008, 1012 ; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 807.) Thus,

a lthough reviewing courts generally should decide writ petitions “on the
merits by written opinion” ( rule 8.452(h)(1) ; § 366.26, subd. ( l )( 4)(B)), an untimely notice of intent requires dismissal of the petition unless good cause

is shown for the lack of compliance. ( Jonathan M. v. Superior Court (1995)
39 Cal.App.4th 1826, 1830

– 1831 ; Roxanne H. , at p. 1012 ; rule 8.450(d) [no

extension of deadline pe rmitted absent “exceptional showing of good cause”]. )
Father filed his notice of intent on September 22, 2020

, which was 11 days after the juvenile court ’s order setting a section 366.26 hearing. But
where, as here, “the party was present at the hea ring when the court ordered
a hearing under

. . . section 366.26, the notice of intent must be filed within 7
days after the date of the order setting the hearing

. ” ( R ule 8.450(e)(4)( A)

. )

The notice’s untimeliness was not identified until the Agency filed its
response to father’s petition on November 13. We then asked father to

4 All further rule references are to the California Rules of Court.4

explain why his failure to comply with rule 8.450(e)(4)(A)’s deadline should be

excused and gave him seven days to submit a response , but he did not do so

. S ince father has not shown good cause for the untimely filing of his
notice of intent, we must dismiss his petition . He is therefore barred in any
subsequent appeal from challenging the order setting a hearing under

section 366.26. (§ 366.26, subd. ( l )(2); Rox anne H. v. Superior Court

, supra , 35 Cal.App.4th at pp. 1012

– 1013.) Our decision is final in this court
immediately. (Rules 8.452(i), 8.490(b)(2)(A).)5 _________________________ Humes, P.J.

WE CONCUR:

_________________________ Banke, J.

_________________________ Sanchez, J.

Anthony D. v. Superior Court A160990