In re R.H.

• Decision Date: 26 January 2009
• Docket Number: No. F055047.,F055047.
• Court: California Court of Appeals Court of Appeals
• Parties: In re R.H., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.H., Defendant and Appellant.

170 Cal.App.4th 678

88 Cal. Rptr. 3d 650

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

FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.H., Defendant and Appellant.

No. F055047.

Court of Appeals of California, Fifth District.

January 26, 2009.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, Acting P. J.

R.H. is the father of a 14-year-old child who was adjudged a juvenile dependent (Welf. & Inst. Code, § 360, subd. (d)) in 2000 and has been in out-of-home placement care ever since. Over the years, R.H. in propria persona has filed numerous notices of appeal and writ petitions in this court relating to his son's dependency. Of the decisions which are final, R.H. has not prevailed in a single appeal or writ proceeding. More specifically, in the preceding seven years and essentially since the child was placed in long-term foster care (Welf. & Inst. Code, § 366.26, subd. (b)), R.H. in propria persona has commenced at least 13 appeals or writ proceedings that have been finally determined adversely to him (Code Civ. Proc., § 391, subd. (b)(1)).¹

The untold hours this court has expended in response to R.H.'s voluminous as well as meritless appeals and writs, not to mention the costs of record preparation and court-appointed appellant counsel, has led us to conclude R.H. is a vexatious litigant within the meaning of section 391, subdivision (b)(1) and should be subject to a prefiling order (§ 391.7).

PROCEDURAL AND FACTUAL HISTORY

Dependency Court Proceedings

The juvenile court exercised its dependency jurisdiction over R.H.'s son in 1999 after finding true an allegation that the child's mother failed to provide him with adequate food, clothing or shelter on account of her drug abuse. At the time, R.H. was incarcerated.

Shortly after R.H. was released from custody, Fresno County Department of Children and Family Services (department) alleged and the juvenile court found true that the child was at serious risk of physical harm because R.H. was unable to supervise, protect or provide adequate care or a safe home environment due to his extensive criminal history. The juvenile court also found the child was at risk of suffering serious emotional damage as a result of exposure to incidents of domestic violence between his parents.

At a disposition hearing in early 2000, the juvenile court removed the child from parental custody and placed him in foster care. Despite 12 months of court-ordered reunification services, R.H. was unable to reunify with the child. The juvenile court consequently terminated services in early 2001 and eventually adopted a permanent plan of long-term foster care for the child. Meanwhile, in May 2001, the juvenile court terminated visits between R.H. and the child based on undisputed evidence that the child experienced problems after the visits and R.H. refused to follow visitation rules and court orders. The juvenile court has never reinstated visitation between R.H. and the child.

Since it first selected long-term foster care as the child's permanent plan, the juvenile court has conducted six-month status reviews of the child's dependency. (Welf. & Inst. Code, § 366.3, subd. (d) (status review hearing).) At these status review hearings, the juvenile court has found, based on uncontroverted evidence, that: there was a continuing necessity for the child's out-of-home placement; and neither parent had made progress toward alleviating and mitigating the causes of the child's removal. (Welf. & Inst. Code, § 366.3, subd. (e)(1), (7).)

Appeal and Writ Proceedings

R.H. in propria persona filed the pending appeal from a February 2008 order granting a continuance of a status review hearing. In the seven years preceding the filing of this appeal, R.H. in propria persona has filed 13 final and unsuccessful appeals and writ petitions, as summarized below.

1. R.H. in propria persona appealed the juvenile court's May 2001 order terminating visitation between appellant and the child. This court affirmed, finding no abuse of discretion. (In re R.H. (June 18, 2002, F038474) [nonpub. opn.].)

2. R.H. in propria persona filed an appeal from a July 2001 order granting a 30-day continuance of the child's permanency planning hearing (Welf. & Inst. Code, § 366.26). Court-appointed appellate counsel could not find an arguable issue to brief and thus did not file an opening brief. (In re Sade C. (1996) 13 Cal.4th 952 [55 Cal.Rptr.2d 771, 920 P.2d 716].) Although we granted R.H. 30 days' time to personally file a letter brief to raise a claim of error, he did not respond to our order.² This court in turn dismissed the appeal. (In re R.H., supra, F038552 (dissmissal order).)

3. R.H. in propria persona appealed from a May 2002 status review hearing. R.H. claimed his due process rights were violated and his trial counsel had been ineffective at the hearing. This court affirmed, finding appellant was afforded his due process right to be heard at the May 2002 hearing and any statutory violation was harmless because R.H. could not show prejudice. Likewise, we concluded R.H.'s ineffective assistance of counsel claim was meritless. (In re R.H. (Jan. 31, 2003, F041152) [nonpub. opn.].)

4. Within a matter of days in early 2005, R.H. in propria persona filed two notices of appeal and a petition for writ of mandate arising out of the child's dependency. On the face of all three, R.H. sought to relitigate orders dating back years in the child's dependency as well as to challenge a January 2005 order denying his motion to disqualify a new attorney whom the court recently substituted in to represent R.H. This court summarily denied the petition for writ of mandate. (R.H. v. Superior Court, F047336 (denial order).)

5. With regard to the two notices of appeal R.H. in propria persona filed in early 2005, this court consolidated them and limited the scope of R.H.'s appeal to orders issued within 60 days of the two notices of appeal. (Cal. Rules of Court, former rule 37(d)(1), now rule 8.400(d)(1).) Thereafter, R.H. challenged the January 2005 denial of his motion to discharge his new attorney for an alleged conflict of interest. This court affirmed. (In re R.H. (Nov. 2, 2005, F047401) [nonpub. opn.].)

6. Meanwhile in August 2005 and during the pendency of his appeal in In re R.H., supra, F047401, R.H. in propria persona filed three additional notices of appeal and two notices of intent to file a writ. Once again, on the face of these notices of appeal and notices of intent, R.H. sought to relitigate orders dating back years in the child's dependency. This court deemed the various documents to constitute an appeal from juvenile court orders entered after hearings conducted on four dates in August 2005. Over the course of those hearing dates, the juvenile court granted a request by the mother's attorney to be relieved on conflict of interest grounds; twice granted R.H.'s requests for continuance of the court's status review hearing of the child's dependency; denied R.H.'s effort to launch a section 170.6 challenge; and denied R.H.'s latest Marsden motion to discharge his court-appointed counsel.³

On appeal, R.H. claimed the juvenile court erred in not relieving his trial counsel. He so argued by incorporating the arguments he made in his prior appeal, In re R.H., supra, F047401. We affirmed having determined our unpublished opinion in F047401, which by then was final, adequately addressed R.H.'s arguments. (In re R.H. (Mar. 2, 2006, F048646) [nonpub. opn.].)

7. and 8. Regarding the two notices of intent R.H. in propria persona filed in August 2005, we concluded there was no basis for any writ proceeding under California Rules of Court, rule 39.1B and dismissed each. (R.H. v. Superior Court, F048713, F048720 (dismissal orders).)

9. R.H. in propria persona appealed from the continued status review hearing which the juvenile court conducted in October 2005. Notably, R.H. did not attend the hearing and court-appointed appellate counsel once more filed a Sade C. letter. When R.H. did not respond to our order extending him leave to personally file a letter brief, this court dismissed that appeal. (In re R.H., F049396 (dismissal order).)

10. R.H. in propria persona appealed from the child's next status review hearing conducted in February 2006. Court-appointed appellate counsel filed a Sade C. letter. Once again, R.H. did not respond to our order granting him leave. This in turn led to the dismissal of that appeal as well. (In re R.H., F050216, (dismissal order).)

11. R.H. in propria persona appealed from the next status review hearing conducted in August 2006. Court-appointed appellate counsel filed yet another Sade C. letter. This time, R.H. did file a letter brief. However, he did not raise any claim of arguable error by the trial court. Thus, we dismissed his appeal by opinion. (In re R.H. (Jan. 16, 2007, F051388) [nonpub. opn.].)

12. R.H. in propria persona appealed from the next status review hearing held in February 2007. He argued the juvenile court should have ordered supervised visits between him and the child as well as that the department did not provide him with a copy of its report in a timely fashion. We affirmed. Notably, the appellate record did not contain any petition to modify (Welf. & Inst. Code, § 388) the court's six-year-old no-visit order, let alone any evidence of changed circumstances and that the child's best interests would be advanced by modifying that order. (In re R.H. (Sept. 10, 2007, F052505) [nonpub. opn.].)

13. R.H. in propria persona appealed from the next status review hearing held in August 2007. Again, court-appointed appellate counsel filed a Sade C. letter. After time expired for R.H. to personally file a letter brief, he requested a continuance without...