Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) No. RIJ100031
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant D.C.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant J.O.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
William D. Caldwell, under appointment by the Court of Appeal, for Minor.
RICHLI, J.
Defendants D.C. (Mother) and J.O. (Father) appeal from a juvenile court’s order terminating parental rights as to S.C. Father contends (1) the court erred when it failed to consider relative placement pursuant to Welfare and Institutions Code section 361.3; and (2) the Riverside County Department of Public Social Services (DPSS) should be prohibited from addressing the relative placement issue pursuant to the doctrine of disentitlement. We reject these contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother joins in Father’s arguments to the extent it inures to her benefit.
I
FACTUAL AND PROCEDURAL BACKGROUND
Then one-year-old S.C. came to the attention of DPSS in June 2008 after an immediate response was received alleging general neglect, domestic violence, and physical abuse. Specifically, it was alleged that while Mother and Father were involved in a physical altercation in front of S.C., Mother had attacked Father and stabbed him in the back. Father was extremely intoxicated at the time. Mother was arrested. It was also alleged that both parents had been seen hitting S.C. in the head when the parents were upset with her or when she cried. S.C. was taken into protective custody.
Mother had a prior history with child protective services involving six of her other children for general neglect and substance abuse. The first case commenced in 2000 and resulted in Mother having her children returned to her care under family maintenance. The second proceeding commenced in 2002 and was terminated in April 2003 under a plan of legal guardianship after Mother failed to participate in services. The third dependency was initiated in June 2006 after Mother tested positive for methamphetamine following the birth of her sixth child. Mother had again failed to participate in services and her parental rights were subsequently terminated and the child was placed for adoption.
Father also had a history with child protective services due to his chronic substance history, which resulted in Father losing his parental rights as to his first child (Mother’s sixth child) with Mother. Father and Mother also have prior criminal histories, including abusing drugs. Father admitted that both he and Mother were unemployed and had a history of domestic violence.
Father had initially identified a maternal great aunt, A.P., as a possible placement for the child. However, he did not have any of her contact information at that time.
On June 24, 2008, a petition was filed on behalf of the child pursuant to section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The child was formally detained on June 25, 2008, and placed in a suitable placement. The juvenile court ordered the parents to provide the names, addresses, and other identifying information about relatives to the social worker. The court also ordered DPSS to assess the maternal grandmother’s residence for placement.
Five days later, on June 30, 2008, DPSS contacted the maternal grandmother to conduct an assessment of her home. The maternal grandmother stated that she was interested in S.C. being placed in her care, but that she was on vacation and would contact DPSS to schedule a home evaluation upon her return in about two weeks. Instead of returning from her vacation, the maternal grandmother contacted DPSS on July 8, 2008, and reported that she would be moving to Texas. She was living with her parents and had custody of one of Mother’s other children. The social worker informed the maternal grandmother that an out-of-state home evaluation and assessment would require a procedure pursuant to the Interstate Compact on the Placement of Children (ICPC). The maternal grandmother indicated that she understood and was in agreement. On July 16, 2008, the juvenile court ordered the ICPC be initiated.
On July 1, 2008, Father informed DPSS that he was still interested in having A.P. considered for S.C.’s placement and provided her contact information. One day later, DPSS contacted A.P., and a home evaluation was set for July 16, 2008. Contact with A.P. at her home on July 16, 2008, revealed that a backyard fence required repair. In addition, A.P. had a criminal history in Orange County that would require a criminal records exemption. The social worker provided A.P. with the necessary paperwork on July 16, 2008, and A.P. stated that she understood it needed to be completed.
The contested jurisdictional/dispositional hearing was held on August 13, 2008. Neither parent was present. S.C. was declared a dependent of the court, and services were denied to the parents. The parents, by and through their respective counsel, did not make any comment regarding the child’s placement. Minor’s counsel however stated that she wanted notice that the ICPC application had been sent to Texas. The juvenile court thus ordered DPSS to notify the adoptions unit within seven days; notify counsel as to when the ICPC notice was complete; and make every effort to expedite the ICPC. The social worker followed up as to the status of the ICPC on September 5, 2008.
By August 22, 2008, A.P. had made the necessary repairs to her backyard fence. Her home evaluation revealed that one adult and three children resided in the three-bedroom home, and that S.C. would be sharing a bedroom with A.P.’s 14-year-old adoptive daughter. However, she still had not completed the criminal exemption documentation. Moreover, she had little or no contact with S.C. and had failed to inquire about S.C.
The 366.26 report filed November 19, 2008, indicated that the ICPC referral had been submitted to Texas to investigate the possible placement of S.C. with her maternal grandmother or another maternal aunt. This maternal aunt had never met S.C. and had no relationship with S.C.
An investigation revealed that the maternal grandmother had custody of Mother’s other five children. However, after the dependency was closed, the maternal grandmother signed a notarized letter allowing four of the five children to live with the paternal grandparents. The youngest child and the maternal grandmother then moved to Texas.
By August 20, 2008, DPSS had located an adoptive home for S.C. The family that had successfully adopted S.C.’s biological sister was interested in adopting S.C. Three other families were also identified as potential adoptive placements. S.C. was placed with her biological sister on September 15, 2008, and was thriving and adjusting well. The sisters had developed a bond.
DPSS recommended that S.C.’s placement remain with the prospective adoptive family and addressed the provisions of section 361.3 in its report. Even though A.P. had her criminal exception eventually approved, she had not provided the necessary documentation until September 4, 2008. The criminal exemption was approved on October 28, 2008, over a month after S.C. had been placed with her prospective adoptive family. Moreover, A.P. had not demonstrated a relationship with S.C. and had not had any contact with the child.
The section 366.26 hearing commenced on December 10, 2008, with the parents and “various relatives” present. These “relatives” later were identified as only being the “the maternal aunt.” At one point in the proceeding, Mother’s counsel indicated to the court that the relative wanted to make a statement. The court ordered DPSS’s counsel to speak with the relative off the record. Once back on the record, DPSS’s attorney reported that the relative was the maternal aunt and that her circumstances and interest in having the child placed with her had already been addressed in the DPSS reports. DPSS’s attorney indicated that she would have the social worker discuss the reports with the maternal aunt. No other party indicated that the juvenile court should hear directly from the maternal aunt. The parents requested a continuance to file a section 388 petition, which was granted, and the matter was continued to December 18, 2008.
On December 18, 2008, the parents were again present for the contested section 366.26 hearing. There is no indication on the record that any other relatives returned to the court for the hearing. After the parents’ section 388 petitions were summarily denied, both parents, by and through their counsels, requested that S.C. be placed with the maternal aunt, A.P. The juvenile court found S.C. to be adoptable and terminated parental rights. The court noted that the reports clearly showed “the current caregivers are willing to adopt [S.C.]; that [S.C.] is in the home of a sibling or sister who was previously placed and adopted by this family. There’s, obviously, a bond between them.” The prospective adoptive parents’ application for adoption was to be given preference over other adoption applications. The court did not explicitly rule on the parents’ request to change the child’s current placement.
II
DISCUSSION
A. Doctrine of Disentitlement
Father argues that the doctrine of disentitlement prevents DPSS from addressing the relative placement issue as DPSS failed to obey the court’s order to initiate the ICPC or evaluate local relatives for placement in a timely manner. Mother joins in and adopts this argument. We conclude that the disentitlement doctrine does not apply.
At the outset, we note that neither parent raised the issue of DPSS’s failure to obey the court’s order as to relative placement or the disentitlement doctrine below. Therefore, they have waived the issue. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.)
Notwithstanding the waiver, the disentitlement doctrine does not apply here to bar DPSS from advocating a permanent plan of adoption. Under the disentitlement doctrine, “[a] party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277; see also In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1227-1229.) In other words, “a court may refuse assistance to a party who fails to comply with a court order....” (In re C.C. (2003) 111 Cal.App.4th 76, 84 (C.C.).)
Here, nothing in the record indicates that DPSS had “an attitude of contempt to legal orders” or that it failed to comply with a court order in a timely manner. (MacPherson v. MacPherson, supra, 13 Cal.2d at p. 277.) The record shows that the maternal grandmother was contacted on June 30, 2008, five days after DPSS had received her contact information at the detention hearing held on June 25, 2008. DPSS was, in fact, ready to proceed with a home assessment; however, the maternal grandmother explained that she was not at home, but was on vacation. Later, the maternal grandmother explained that she was not going to return home; instead, she was going to move to Texas. Based on this information, DPSS discussed the need for an ICPC and requested that the juvenile court authorize an ICPC at the very next hearing, which was set for July 16, 2008. The juvenile court granted DPSS’s request that same day.
At the contested jurisdictional/dispositional hearing on August 13, 2008, minor’s counsel stated that the social worker had completed “all the paperwork to get [the ICPC] started.” Minor’s counsel requested the court issue an order that the social worker give notice to counsel when the application was complete. The juvenile court ordered the same and also ordered that DPSS make every effort to expedite the ICPC. Thereafter, on August 28, 2008, the social worker learned that the application had not been completed because additional documentation was needed. The social worker responded immediately and provided the documentation that same day.
The record also indicates that DPSS assessed the maternal aunt’s home in a timely fashion. Father provided DPSS with A.P.’s contact information on July 1, 2008. The following day, DPSS contacted A.P., and a home evaluation was scheduled for July 16, 2008. The home evaluation on July 16 revealed that a backyard fence required repair, and that A.P. had a criminal history that would require a criminal records exemption. The exemption documents were provided to A.P. that same day. On July 21, 2008, the social worker left a message for A.P. to schedule an appointment to inspect the repairs to the fence. Another message was left for A.P. on August 13, 2008. Not until August 20, 2008, did A.P. return the social worker’s telephone calls indicating that she was ready to schedule an appointment to evaluate the fence. The appointment was scheduled for August 22, 2008. On that day, the fence was found to be sufficient; however, A.P. explained that she had not completed the criminal exemption paperwork, but would work on completing them during the next few days. A.P. did not submit the paperwork to DPSS until September 4, 2008. The exemption was approved on October 28, 2008. S.C. had been with her prospective adoptive family since September 15, 2008.
Based on the foregoing, the record indicates that the social worker complied with the court’s orders concerning the ICPC and the relative placement issue.
Father’s reliance on this court’s opinion in C.C., supra, 111 Cal.App.4th 76, is misplaced. In that case, we found that, when a parent refuses to submit to a psychological evaluation, the juvenile court is placed in the untenable position of being unable to determine whether a parent is incapable of utilizing reunification services. (Id. at p. 85.) We further held that the noncomplying parent could not frustrate “the ability of another party [there the child’s legal right to have her case proceed to the permanency planning stage] to obtain information it needs to protect its own legal rights.” (Ibid.) We concluded a juvenile court has the inherent power under the “disentitlement doctrine” to bar a noncomplying parent from seeking further assistance from the court, including the provision of reunification services. (Ibid.) Here, unlike in C.C., there is no support in Father’s claim that DPSS failed to comply with the court’s order concerning relative placement in a timely manner.
Accordingly, we find that the disentitlement doctrine is inapplicable in the present case.
B. Relative Preference
Father contends that DPSS violated the court’s order by failing to timely initiate an ICPC for the maternal grandmother and failing to give priority to relative placement pursuant to section 361.3. Mother joins in and adopts this argument.
DPSS responds that the parents do not have standing to raise this issue, while Father and minor’s counsel, relying on In re Joseph T. (2008) 163 Cal.App.4th 787 (Joseph T.), claim otherwise.
Whether a person has standing to raise a particular issue on appeal depends upon whether the person’s rights were injuriously affected by the judgment or order appealed from. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 (Cesar V.).) A person does not have standing to urge errors on appeal that only affect the interests of others. (In re Gary P. (1995) 40 Cal.App.4th 875, 877.) Thus, “a parent is precluded from raising issues on appeal which did not affect his or her own rights. [Citations.]” (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806.)
In dependency proceedings, “preferential consideration” is required to be given to a relative’s request for placement of a dependent child with a relative. (§ 361.3, subd. (a).) Thus, it has been said that section 361.3 protects a relative’s “separate interest” in a relationship with the child. (Cesar V., supra, 91 Cal.App.4th at pp. 1034-1035.) In contrast, a parent’s interest in a dependency proceeding is in reunifying with the child. (Id. at p. 1035; In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; § 361.5.) This parental interest in reunification is to be distinguished from a relative’s “separate interest” in preferential placement consideration or in having a relationship with the child. (Cesar V., at pp. 1034-1035.)
In view of this distinction, the court in Cesar V. held that a parent does not have standing to raise relative placement issues on appeal, where the parent’s reunification services have been terminated. (Cesar V., supra, 91 Cal.App.4th at p. 1035.) This is because decisions concerning placement of the child do not affect the parent’s interest in reunification, where the parent is no longer able to reunify with the child. (See id. at pp. 1034-1035.) In contrast, where the parent’s reunification services have not been terminated, placement of the child with a relative arguably affects the parent’s chances of reunifying with the child. Thus, where reunification remains a possibility, the parent has standing to raise relative placement issues on appeal. (Id. at p. 1035, citing In re Daniel D. (1994) 24 Cal.App.4th 1823, 1833-1834 (Daniel D.).)
In holding the father lacked standing, the Cesar V. court identified the father’s interest as one of reunification. (Cesar V., supra, 91 Cal.App.4th at p. 1035.) Noting the father had stipulated to terminating services, the appellate court could not see how the denial of placement with the grandmother affected his reunification interest. The Cesar V. court also observed the trial court’s ruling did not preclude the father at the permanency planning stage from presenting any evidence about the children’s best interests or their relationship with him. (Ibid.) In the process, the appellate court cited a contrasting decision, Daniel D., supra, 24 Cal.App.4th at pages 1833-1834, in which a parent apparently had standing to raise denial of the relative placement preference before services were terminated on the theory such placement arguably would have affected the parent’s chances at reunification. (Cesar V., at p. 1035.)
Even though Father raised relative placement at his first opportunity to do so, at the detention hearing, and the Cesar V. and Daniel D. decisions certainly suggest that a parent’s standing to challenge a relative placement ruling involves an element of timing, a parent may be aggrieved by an order denying relative placement while the case is in reunification when such a placement might enhance a parent’s ability to reunify with his or her child. (Daniel D., supra, 24 Cal.App.4th at pp. 1833-1834.) By contrast, an order rejecting a relative placement beyond the reunification period could have no such impact and, thus, could not aggrieve a parent. Here, Father and minor’s counsel ignore the fact that Father and Mother were denied reunification services. In addition, none of the maternal relatives have appealed.
Contrary to minor’s counsel’s assertion, Joseph T., supra, 163 Cal.App.4th at pages 793-795, does not provide authority for S.C.’s parents “to have standing to address the section 361.3 relative preference in this appeal.” First, in Joseph T., the father was provided with family maintenance services and reunification services. (Id. at pp. 790-791.) Second, the standing issue was not raised in that case. (See Id. at pp. 790-795.)
More importantly, Father’s argument avoids the law that his appellate standing depends on whether a ruling was adverse to his interests or rights. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1196.) Even had relative placement been appropriate at the permanency planning stage, reunification was no longer an issue. In fact, relative placement would not have prevented the court from proceeding to terminate parental rights because S.C. was adoptable. (See § 366.26, subd. (c)(1).) Therefore, the issue of S.C.’s placement at this stage of the proceedings did not affect the parents’ rights or interests.
A section 366.26 hearing is designed to protect children’s compelling rights to have a placement that is stable and permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) If, as here, a dependent child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Here, there was no basis on which to find termination would be detrimental.
Furthermore, the case Father cites, In re Rodger H. (1991) 228 Cal.App.3d 1174 (Rodger H.), is distinguishable from Cesar V., let alone from the circumstances of this case. Rodger H. was an appeal from a denial of relative placement, brought when reunification efforts were ongoing. Thus, the parent in Rodger H. was at least arguably aggrieved under a Daniel D. approach. (Daniel D., supra, 24 Cal.App.4th at pp. 1833-1834.) The parent in Rodger H. had standing and, therefore, making it a nonissue for appellate review.
Based on the foregoing, the parents have no standing to raise relative placement issues on this appeal from orders made at the section 366.26 hearing on December 18, 2008.
In any event, even if we concluded that the parents had standing, and that the juvenile court erred in applying section 361.3, we would still affirm the judgment.
Section 361.3 applies “[i]n any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361....” (§ 361.3, subd. (a).) At that time, “preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a).) The relative preference for placement is again at issue when a new placement is necessary. Section 361.3, subdivision (d), provides, in relevant part: “Subsequent to the hearing conducted pursuant to Section 358 [the dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements.” “The plain language of subdivision (d) states that when a ‘new placement’ is required the procedures ‘described in this section’ must be followed in the same way as when there is an initial placement....” (Joseph T., supra, 163 Cal.App.4th at p. 794.) “[T]he preference afforded by section 361.3 applies to placements made before the juvenile court has terminated reunification services.” (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.)
Any error in the court’s failure to apply the relative preference factors was harmless. Section 361.3, subdivision (d), provides: “In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child.” The record does not demonstrate that the maternal aunt or grandmother had established or maintained a relationship with the child. Furthermore, other factors the court would have considered include the best interests of the child, and the wishes of the parent, the relative, and child. (§ 361.3, subd. (a).) The record reflects that it was in S.C.’s best interests not to uproot her from her stable placement with a family that loved her and was committed to adopting her. The record shows that S.C. was placed in the same adoptive home as her biological sister and that the sisters had formed a bond. If the court had placed S.C. with the maternal aunt or maternal grandmother in Texas, it is likely she would have then been separated from her sister.
“The relative placement preference... is not a relative placement guarantee [citation], and the record contains ample evidence that the preference was overridden in this case.” (Joseph T., supra, 163 Cal.App.4th at p. 798.) Under the circumstances of this case, the failure to apply the relative preference placement factors was harmless error.
III
DISPOSITION
We concur: HOLLENHORST Acting P. J., McKINSTER J.