Opinion
A132082
01-24-2012
In re N.C., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. D.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J1000157)
D.C. (father) appeals from orders denying his petition under Welfare and Institutions Code section 388 seeking additional reunification services, and terminating his parental rights and referring the child, N.C., for adoption. His sole contention on appeal is that the juvenile court should have placed N.C. with a paternal aunt, a placement he claims would have given him a better chance at reunification and avoiding termination of his parental rights. Because father did not raise the placement issue below, we conclude he has waived the issue, and affirm the challenged orders.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because we do not reach the merits of father's appeal in resolving it, we recite only a limited set of facts relevant to the dispositive procedural issue.
N.C. was born in November 2009. By January 2010, father was incarcerated for domestic violence, while mother, although moving into a battered women's shelter, allowed her substance abuse to interfere with her care of N.C. The Contra Costa County Children and Family Services Bureau (Bureau) filed a dependency petition on January 28, 2010, and on February 24, 2010, with mother having left the shelter, the juvenile court placed three-month-old N.C. into foster care.
In April 2010, the juvenile court ordered family reunification services. But on October 13, 2010, the Bureau's status report stated neither parent was taking advantage of them. The Bureau asked the court to terminate reunification services, terminate parental rights under section 366.26, and fashion a permanent plan for N.C. The report noted "the paternal aunt's home . . . was assessed and approved for placement." However, the Bureau rejected the option because the aunt worked full time and was already a single parent to four other children (including one of N.C.'s siblings). Instead, the report suggested adoption by N.C.'s foster care provider, because of the progress and connection N.C. had made that provider.
On November 19, 2010, agreeing with the Bureau's recommendations, the juvenile court terminated reunification services and scheduled a section 366.26 hearing.
Six months later, on March 25, 2011, the court terminated parental rights and referred N.C. for adoption. It also denied the parents' last-minute section 388 petitions seeking renewed reunification services. Father asserted further services would be better for the N.C. because she had "extended family members who would be available to support father and" facilitate a family relationship. Neither Father nor anyone else ever requested that N.C. be placed with the paternal aunt. Nor did anyone ever take issue with the Bureau's determination that, given the aunt's own personal circumstances, a placement with her was not feasible or advisable.
On May 17, 2011, father filed a notice of appeal from the March 25 orders denying his section 388 petition, terminating his parental rights and establishing a planned permanent living arrangement for N.C. Neither N.C., nor the mother, nor the paternal aunt has appealed.
D ISCUSSION
Father contends the juvenile court should have placed N.C. with his aunt, and should have done so early in the dependency proceedings so he could have had "family-centered contact" with N.C. and a better chance of avoiding termination of his parental rights. In addition to disputing the merits of Father's assertion, the Bureau asserts Father has no standing to challenge the orders, and even if he does, he waived the issue by never raising it in the juvenile court.
Standing
Since standing is a threshold issue, we address it first. (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345 [" 'A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits.' "]; cf. Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 233 [standing is "jurisdictional"].)
Our Supreme Court has recently addressed the issue of parents' standing to challenge placement decisions following termination of parental rights. (In re K.C. (2011) 52 Cal.4th 231 (K.C.).) In K.C., a child's grandparents asked the county's human services agency to place the child with them. The agency found the grandparents' home met its basic requirements, but rejected the placement because of "mother's and father's continuing access to grandparents' home, questions about grandparents' ability to care for a sixth child, and a suicide attempt in grandparents' home by [one of the child's siblings] in 2007." (Id. at pp. 234-235.) Despite this, grandparents petitioned the juvenile court for placement under section 388. After an omnibus hearing, the juvenile court denied grandparents' request, terminated the parents' rights, and selected adoption as the permanent plan for the child. (K.C., at p. 235.) The father appealed, but "did not argue the court erred or abused its discretion in terminating his rights. . . . [¶] . . . Instead, father limited his argument to the question of [the child's] placement . . . ." (Ibid.)
The Supreme Court noted, "[n]ot every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (K.C., supra, 52 Cal.4th at p. 236.) While "the law's first priority when dependency proceedings are commenced is to preserve family relationships, if possible" if "reunification services are terminated . . . 'the parents' interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point "the focus shifts to the needs of the child for permanency and stability . . . ." ' [Citations.]" (Ibid.) Post-termination, a parent "has no remaining, legally cognizable interest in [his child's] affairs, including his placement." (Id. at p. 237.) Thus, "[a] parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights." (Id. at p. 238; cf. In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054, 10611062 [mother did have standing because the resolution of the placement issue had the potential to alter the decision to terminate parental rights].)
In K.C., the father lacked standing because he only opposed the juvenile court's placement decision, not its decision to terminate parental rights. (K.C., supra, 52 Cal.4th at pp. 235, 238.) He therefore had "relinquished the only interest in [his child] that could render him aggrieved by the juvenile court's order declining to place the child with grandparents." (Id. at p. 238.)
Here, father's position on termination of his parental rights is murkier. Father made no substantive argument in opposition to termination in the juvenile court, but his counsel did state "I object on behalf of father but have nothing further to add." On appeal, father's briefs have focused on the placement issue. Although he argues the juvenile court's failure to place N.C. with the paternal aunt "infected" the section 366.26 hearing that terminated his parental rights, he appears to do this to illustrate "prejudice" not necessarily to request reversal of the termination of his rights. Still, at the conclusion of his opening and reply briefs, father requests "the findings and orders terminating his parental rights be reversed." (Italics added.)
Because "[w]e liberally construe the issue of standing and resolve doubts in favor of the right to appeal" (In re Esperanza C., supra, 165 Cal.App.4th at p. 1053), we will, with some reservation, presume standing.
Waiver
We next turn to the issue of waiver. "Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error." (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.)
Thus, issues that should have been raised during a section 366.26 hearing, but which were omitted, are waived. (In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831, 1834 ["Stacy did not seek placement with the grandmother but instead only sought return of Daniel to herself. Stacy thus waived the right to raise such issue on appeal."]; see also In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [failure to object at hearing waived appellate claim based on a statutory exception to adoption, since the juvenile court does not have a sua sponte duty to determine if it applied]; see generally In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642 [collecting several waiver cases in juvenile dependency context].)
Father concedes "the record is devoid of a showing that [he] specifically requested [N.C.'s] placement with paternal aunt." Indeed, it appears no one ever asked the juvenile court to place N.C. with the aunt. Nor did anyone challenge the Bureau's conclusion such a placement was not a viable option. Father's oblique reference in his section 388 petition, which sought additional reunification services, to "extended family members who would be available to support father" does not come close to a request for placement. Accordingly, father has waived his right to appeal the placement of N.C. and to seek reversal of the ground the child should have been placed with the paternal aunt.
DISPOSITION
The juvenile court orders are affirmed.
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Banke, J.
We concur:
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Marchiano, P. J.
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Margulies, J.