Opinion
E066213
10-26-2016
In re L.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.G., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J263280) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother appeals an order terminating her parental rights to her daughter, L.G. (born in December 2015) under Welfare and Institutions Code section 366.26. Mother contends San Bernardino County Children and Family Services (CFS) and the juvenile court did not properly apply the relative placement preference to mother's cousin, F.H. We conclude mother does not have standing to raise the objection and she forfeited it by not filing a timely writ petition after the disposition hearing or raising the objection at the section 366.26 hearing. Nevertheless, we address the merits of mother's appeal, and conclude there was no error. We therefore affirm the judgment.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
II
FACTUAL AND PROCEDURAL BACKGROUND
At the time of L.G.'s birth, mother and father (parents) were living together. In addition to L.G., mother had four children, then ages one, two, five, and seven. Father was an alleged father of mother's third child and presumed father of mother's fourth child and L.G. CFS removed the three older children from parental custody in 2013, and the one-year-old in July 2015, due to parents' substance abuse, domestic violence between parents, parents' criminal history, and sexual abuse of the seven-year-old son by father. Mother received services for the older three children, and the court bypassed services for the fourth child. Mother failed to reunify with any of the four older children. In 2015, the three older children were placed with paternal relatives in guardianships, and the fourth child was placed in a concurrent planning home, with termination of parental rights in July 2015.
The day after L.G.'s birth, CFS received a referral of general neglect of L.G., who tested positive for amphetamines at birth. Mother also tested positive. Mother admitted to using methamphetamines during her pregnancy, including a few days before L.G.'s birth. CFS detained L.G. at the hospital. Upon L.G.'s hospital discharge in December 2015, CFS placed her in protective custody with nonrelative foster parents, the P's.
Detention Hearing
At the detention hearing in December 2015, the court ordered L.G. detained in foster care with the P's. Mother told the court at the hearing that she was leaving father so she could get the children back. Mother's attorney indicated he had provided CFS with contact information for a maternal second cousin, F.H., and spouse, J.H.
Jurisdiction and Disposition Hearings
The jurisdiction report filed in December 2015 stated that a relative was interested in placement of L.G., but CFS recommended that the court find the current placement appropriate and necessary, and order L.G. maintained in foster care with the P's. CFS recommended parents receive no reunification services and the court set a section 366.26 hearing. Both parents had failed to reunite with their other children and mother continued to abuse drugs. CFS reported that there was the possibility L.G. would be placed in an adoptive home with one of her siblings. Also, a relative had requested consideration for placement of L.G. L.G.'s current foster family requested consideration for adoption as well.
At the jurisdiction hearing in January 2016, father's attorney told the court father would like two of L.G.'s relatives assessed for placement. They included father's brother (paternal uncle), who had custody of one of father's children, and father's sister (paternal aunt). The court found that father was L.G.'s presumed father.
CFS acknowledged it needed to assess L.G.'s relatives but informed the court it would not have the Relative Assessment Unit evaluations (RAUs) completed by the time of the contested jurisdiction hearing on January 26, 2016, and until approval of the relatives' homes, CFS could not place L.G. with the relatives. The court ordered L.G. remain in her current foster home with the P's and set the matter for a contested jurisdiction hearing. The court also authorized CFS to assess all appropriate relatives for placement.
At the contested jurisdiction and disposition hearing on January 26, 2016, mother testified her cousin, F.H. and F.H.'s husband, J.H., were willing to take L.G. but were unable to attend the hearing because they were at work. CFS social worker, Lamonica Rowles, testified father's brother (paternal uncle) had custody of one of the children in a legal guardianship, she believed. On January 6, 2015, she called paternal uncle and left a message asking if he was interested in placement of L.G. and requesting him to call back. He did not return her call. Rowles also called father's sister (paternal aunt) on January 6, 2015, to ask if she was interested in placement, and left the same message.
Rowles further testified CFS submitted information for a RAU evaluation of mother's cousin, F.H. Rowles gathered information from F.H. for the assessment. When Rowles requested the status on the RAU, she was told there were "some hits" for the people living at the residence. The social worker conducting the assessment was going to discuss this issue with the people living at the residence. CFS had to wait to see if F.H.'s home was approved under an exemption before determining placement. L.G.'s attorney requested that L.G. remain in her current concurrent planning home and parental rights be terminated. CFS's attorney agreed.
The court sustained the juvenile dependency petition under section 300, subdivision (b) (failure to protect) and (j) (abuse of sibling), ordered L.G. removed from parental custody, and ordered bypassing reunification services under section 361.5, subdivisions (b)(10), (11), and (13). The court further found L.G.'s placement with the P's appropriate and designated the home a concurrent planning home, ordered continued placement of L.G. with the P's, set the section 366.26 hearing, and advised parents of their rights to file a writ petition contesting the court's order.
Mother filed a notice of intent to file a writ petition contesting the January 26, 2016 order, but failed to file a timely writ petition. As a consequence, this court dismissed mother's writ proceedings.
Section 366.26 Hearing
In May 2016, the court granted L.G.'s foster parents' de facto parent petition, requesting appointment as L.G.'s de facto parents.
CFS acknowledged in its section 366.26 report filed in May 2016, that before the jurisdiction/disposition hearing, mother had requested assessment of her cousin, F.H., for placement. CFS reported that, to date, F.H. had not received RAU approval for placement. L.G. had lived with the P's since her discharge from the hospital, shortly after her birth, in December 2015. CFS believed it was in L.G.'s best interests to remain with the P's. L.G. was an adorable, healthy, happy, five-month-old infant, who had bonded with the P's. The CFS assessment of the P's supported adoption by the P's. CFS therefore recommended termination of parental rights, with implementation of a permanent plan for L.G. of adoption by the P's.
At the section 366.26 hearing on May 25, 2016, parents objected to CFS's recommendations, including terminating parental rights and adoption but did not present any affirmative evidence or argument. L.G.'s counsel and CFS submitted on CFS's recommendations. The court found clear and convincing evidence L.G. was adoptable and terminated parental rights.
III
STANDING
Mother appeals the order terminating parental rights on the ground the juvenile court and CFS failed to apply the relative placement preference. Mother is not asserting a substantive challenge to termination of her parental rights. Mother contends F.H.'s home was not properly assessed under section 361.3 before terminating parental rights.
"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. [Citations.]" (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)
In K.C., supra, 52 Cal.4th 231, the California Supreme Court held the father did not have standing to object to his child's placement because he was not an aggrieved party. The child in K. C. was removed from the parents and placed with a prospective adoptive family. (Id. at p. 234.) The juvenile court bypassed reunification services for the parents and set a section 366.26 hearing. The child's grandparents filed a section 388 petition, seeking placement of the child in their home. At a combined hearing, the juvenile court denied the grandparents' section 388 petition, selected adoption as the permanent plan, and terminated the parents' rights. (Id. at p. 235.) Both the father and the grandparents appealed. The grandparents' appeal was dismissed as untimely, and the father's appeal was dismissed based on a lack of standing. The Supreme Court affirmed. (Ibid.) The K.C. court held the father had no standing to appeal the denial of the grandparents' section 388 petition because the father did not contest termination of his parental rights and thus "relinquished the only interest in K.C. that could render him aggrieved by the juvenile court's order declining to place the child with grandparents." (Id. at p. 238.)
When determining whether a parent is aggrieved by the juvenile court's order, we must precisely identify the parent's interest in the matter. (K.C., supra, 52 Cal.4th at p. 236.) "All parents, unless and until their parental rights are terminated, have an interest in their children's 'companionship, care, custody and management . . . .' [Citation.] This interest is a 'compelling one, ranked among the most basic of civil rights.' [Citation.] While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their best interests [citations], the law's first priority when dependency proceedings are commenced is to preserve family relationships, if possible. [Citation.] To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. [Citations.] In contrast, after reunification services are terminated or bypassed (as in this case), '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.] For this reason, the decision to terminate or bypass reunification services ordinarily constitutes a sufficient basis for terminating parental rights. (§ 366.26, subd. (c)(1).)" (Id. at pp. 236-237.)
There are, however, several statutory exceptions to this general rule concerning termination of parental rights. The statutory exceptions to adoption "permit the juvenile court not to terminate parental rights when compelling reasons show termination would be detrimental to the child." (K.C., supra, 52 Cal.4th at p. 237; § 366.26, subd. (c)(1).) In K.C., the court stated that, by not asserting any exceptions and acquiescing in the termination of parental rights, the father relinquished the only interest in his child that could render him aggrieved by the juvenile court's order declining to place the child with the grandparents. (Id. at p. 238.)
In In re Jayden M. (2014) 228 Cal.App.4th 1452, the court similarly held the parents did not have standing to appeal under section 361.3, which gives preferential consideration to a relative request for placement. The Jayden M. court concluded the parents had no standing to appeal relative placement preference issues once their reunification services were terminated. Only the relative requesting to be considered for relative placement could contest denial of the child's placement with the relative. (Jayden M., at p. 1460, citing Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035, 1460 (Cesar V.).)
Likewise, in Cesar V., the court held the grandmother, but not the father, had standing to raise the relative placement preference issue. The court explained: "Especially in light of his stipulation to terminate reunification services, we cannot see how the denial of placement with [the grandmother] affects his interest in reunification with the children. It does not preclude [the father] from presenting any evidence about the children's best interests or their relationship with him. (See In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; cf. In re Daniel D.[(1994) 24 Cal.App.4th 1823,] 1833-1834 [although challenge was untimely, mother apparently had standing to raise denial of relative placement preference before termination of reunification services where such placement arguably would have affected the mother's chances at reunification].) 'An appellant cannot urge errors which affect only another party who does not appeal.' [Citation.]" (Cesar V., supra, 91 Cal.App.4th at p. 1035, fn. omitted.) Here, at the section 366.26 hearing, mother objected to a permanent plan of adoption but did not argue any statutory exceptions to adoption applied or offer any affirmative evidence that relative placement of L.G. with F.H. would result in avoidance of termination of parental rights.
Mother's reliance on In re H.G. (2006) 146 Cal.App.4th 1 (H.G.) for the proposition she has standing is misplaced. In In re H.G., the juvenile court reversed the order removing the child from her grandparents under section 387 and the judgment terminating parental rights. The H.G. court held the juvenile court had failed to comply with the relative placement preference under section 361.3. The H.G. court reasoned in part that the parents had standing because "a placement decision under section 387 has the potential to alter the court's determination of the child's best interests and the appropriate permanency plan for that child, and thus may affect a parent's interest in his or her legal status with respect to the child." (H.G., at p. 10.)
Our high court in K.C., supra, 52 Cal.4th 231, 237-238, noted that, because the juvenile court in H.G., supra, 146 Cal.App.4th 1, had failed properly to consider the request for placement with relatives, "the order terminating parental rights was at least premature and possibly erroneous: The placement of a dependent child with relatives can, under certain circumstances, make the termination of parental rights unnecessary. . . . As the Court of Appeal explained, 'a placement decision under section 387 has the potential to alter the court's determination of the child's best interests and the appropriate permanency plan for that child, and thus may affect a parent's interest in his or her legal status with respect to the child.'" (K.C., at pp. 237-238.) Our high court in K.C. concluded based on this rationale that ". . . 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.)
H.G. is distinguishable because the instant case does not concern denial of relative placement with relatives through removal of the child from them under section 387, without considering whether the child's placement was no longer appropriate in view of the criteria in section 361.3. (H.G., supra, 146 Cal.App.4th at p. 4.) Also, the record demonstrates L.G. is adoptable and mother has not asserted any exceptions to adoption under section 366.26, subdivision (C)(1). Furthermore, there is no evidence mother would avoid termination of parental rights even if F.H. was given relative placement preference. Mother has not sufficiently demonstrated that her rights and interest in reunification are injuriously affected by the lower court decision in an immediate and substantial way, as opposed to being affected nominally or remotely. (H.G., at p. 10, K.C., at pp. 236-237.) Mother therefore does not have standing to challenge as an aggrieved party L.G.'s placement under section 361.3. Nevertheless we will address mother's objections on the merits.
IV
FORFEITURE OF RELATIVE PLACEMENT PREFERENCE ISSUE
Mother forfeited her objection founded on the relative placement preference because she did not properly raise it in the lower court.
"'Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a "waiver," the correct legal term for the loss of a right based on failure to timely assert it is "forfeiture," because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the "'intentional relinquishment or abandonment of a known right.'"' [Citations.]" (People v. Christopher (2006) 137 Cal.App.4th 418, 424, fn. 6.) --------
"Dependency appeals are governed by section 395, which provides in relevant part: 'A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment.'" (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149 (Meranda P.).) Section 395 makes the dispositional order the appealable "judgment." Therefore, all subsequent orders are directly appealable, except for orders setting a section 366.26 hearing, challenged by a timely writ petition, which was summarily denied or not decided on the merits. (Id. at p. 1150, § 366.26, subd. (l).) "A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." (Meranda P., at p. 1150.)
Here, mother could have challenged by writ petition the disposition order placing L.G. with the P's based on noncompliance with the relative placement preference (Cal. Rules of Court, rule 8.452(a)). But mother failed to do so. She therefore forfeited her objection. She also failed to raise the relative placement preference objection at the section 366.26 hearing. Because mother neither filed a timely writ petition challenging the dispositional order nor objected at the section 366.26 hearing based on the relative placement preference, mother forfeited her objection raised for the first time on appeal to the section 366.26 order. (Meranda P., supra, 56 Cal.App.4th at pp. 1149-1158; In re Casey D. (1999) 70 Cal.App.4th 38, 54.) An appellate court in a dependency proceeding normally may not consider an objection raised for the first time on appeal (Casey D., at p. 54) and, even if the objection was raised in the lower court before the dispositional order, this court may not consider the issue because this court "may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order." (Meranda P., at p. 1151.)
V
THE RELATIVE PLACEMENT PREFERENCE IS INAPPLICABLE
Even though mother lacks standing and forfeited her untimely objection to CFS and the juvenile court not properly applying the relative placement preference (§ 361.3), we will nevertheless address the issue on the merits.
"In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, 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).) Section 361.3, subdivision (a), lists the criteria to be considered when determining whether placement with a relative is appropriate.
The relative placement preference may apply even after reunification services are terminated. (Cesar V., supra, 91 Cal.App.4th at p. 1032.) Additions to section 361.3 in 1993 and 1997 (subds. (d) and (a)(7)(H), respectively) "indicate the Legislature did not intend to limit the purpose of the relative placement preference to reunification efforts." (Cesar V., at p. 1032.) Even after termination of reunification services, the court may consider preferential placement with a relative. (Cesar V., supra, 91 Cal.App.4th at p. 1032; see § 361.3, subds. (d) and (a)(7)(H).)
Subdivision (d) of section 361.3 states that, whenever a new placement of the child must be made after the disposition hearing, "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." (§ 361.3, subd. (d).)
Subdivision (a)(7)(H) of section 361.3 states: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative, . . . In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: . . . [¶] . . . [¶] (7) The ability of the relative to do the following: . . . [¶] . . . [¶] (H) Provide legal permanence for the child if reunification fails."
Section 361.3 assures that, when a child is taken from his or her parents' care and requires placement outside the home, an interested relative's application for placement will be considered before a stranger's request. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) However, the relative placement preference established by section 361.3 does not constitute "a relative placement guarantee." (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Nor does section 361.3 "create an evidentiary presumption that relative placement is in a child's best interests." (In re Lauren R. (2007) 148 Cal.App.4th 841, 855; see In re Stephanie M. (1994) 7 Cal.4th 295, 321 [construing former section 361.3].)
From the time of the disposition order in the instant case, until section 366.26 hearing, there was no need for a new placement. L.G. remained in a stable placement, living with her prospective adoptive family, with whom she had lived since within a few days of her birth. At the section 366.26 hearing, CFS recommended termination of parental rights, with adoption by L.G.'s prospective adoptive family as the preferred permanent plan.
Furthermore, shortly after CFS removed L.G. from parents in December 2015, CFS considered F.H. for placement and initiated an RAU assessment. At the detention hearing, mother's attorney indicated he had provided CFS with contact information for F.H. and F.H.'s spouse, J.H. At the contested jurisdiction and disposition hearing on January 26, 2016, the CFS social worker, Rowles, testified that CFS had submitted information for an RAU evaluation of F.H. and J.H. Rowles gathered information from F.H. for the assessment. When Rowles requested the status on the RAU, she was told there were "some hits" for the people living at F.H. and J.H.'s residence. The social worker conducting the assessment said she was going to discuss this issue with the people living at the residence. Rowles informed the court that CFS could not determine whether to place L.G. with F.H. until CFS completed its assessment of F.H.'s home and the home was approved under an exemption. CFS reported in its section 366.26 report filed in May 2016, that F.H. had not yet received RAU approval for placement. No mention was made during the section 366.26 hearing of the relative placement preference or any exceptions to adoption.
The record shows that CFS made a concerted effort to consider F.H. for placement but L.G. could not initially be placed with L.G. because of "hits" and, later, because the assessment was not complete and exemptions were not established. The court therefore appropriately left L.G. in her current placement. There was no error in doing so.
Furthermore, F.H. does not qualify for relative placement preference under section 361.3. Section 361.3, subdivision (c)(2), defines a "relative" as "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of these persons even if the marriage was terminated by death or dissolution." Although F.H. was mother's cousin and therefore related to L.G. within the fifth degree of kinship, she nevertheless did not qualify for relative placement preference at the time of the disposition hearing or thereafter because section 361.3, subdivision (c)(2), states: "However, only the following relatives shall be given peferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle, or sibling." Cousins, such as F.H., do not qualify for relative placement preference under section 361.3, subdivision (c)(2).
Mother's reliance on H.G., supra, 146 Cal.App.4th 1, In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.), and In re R.T. (2015) 232 Cal.App.4th 1284 (R.T.), is misplaced. H.G. is distinguishable because H.G. involved the denial of placement with grandparents through removal of the child from them under section 387, without conducting a disposition hearing. Here, there was no removal of L.G. from a relative under section 387 and, unlike the grandparents in H.G., F.H. did not qualify for relative placement preference under section 361.3, subdivision (c)(2), because she was not a "grandparent, aunt, uncle, or sibling." (§ 361.3, subd. (c)(2).)
R.T., supra, 232 Cal.App.4th 1284 is similarly inapposite because in R.T. the father argued his child's two aunts were entitled to relative placement preference. The aunts qualified for preference under section 361.3, subdivision (c)(2). Also, the social worker in R.T. conceded she never actually considered the aunts for placement, and one of the aunts filed a section 388 petition seeking placement. Furthermore, the parents in R.T. executed designated relinquishments of their parental rights to one of the aunts and her husband. The R.T. court concluded the relative placement preference applied postdisposition because one of the aunts invoked the preference by filing a section 388 petition for modification of placement before the dispositional hearing. (R.T., at p. 1300.)
Isabella G., supra, 246 Cal.App.4th 708 is also not on point. In Isabella G., the child's grandparents requested placement of the child with them. Unlike in the instant case, the grandparents qualified under section 361.3, subdivision (c)(2), for relative placement preference but their request for placement was ignored until after the court terminated reunification services and set a section 366.26 hearing. In addition, the grandparents were closely bonded to their granddaughter and had cared for her most of her life. After the grandparents retained an attorney and filed a section 388 petition seeking placement, the social services agency completed a relative home assessment and found the grandparents' home suitable for placement. Nevertheless, the juvenile court denied the grandparents' section 388 petition and rejected the relative placement preference because reunification services had been terminated. The Isabella G. court held that, "when a relative requests placement of the child prior to the disposition hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Isabella G., at p. 712.)
Here, CFS did not ignore mother's request for consideration of placement of L.G. with F.H. before or after the disposition hearing; mother's interest in reunification was minimal because her reunification services were bypassed; there was no section 388 petition requesting consideration of F.H. for placement; and F.H. did not qualify for relative placement preference because she was mother's cousin, not a "grandparent, aunt, uncle, or sibling." (§ 361.3, subd. (c)(2).) Although CFS had not completed the investigation and assessment of F.H. by the time of the section 366.26 hearing, parents did not raise the relative placement preference at the section 366.26 hearing. This may have been because, under the facts in the instant case, there was no postdisposition removal or reason for removal of L.G. from her current placement, as normally required for postdisposition application of the relative placement preference under section 361.3, subdivision (d).
We conclude F.H. did not qualify for relative placement preference under section 361.3, subdivision (c)(2), because she was mother's cousin, not a grandparent, aunt, uncle, or sibling; and the relative placement preference did not apply after the disposition hearing because there was no need for a new placement of L.G. L.G. remained with her original foster parents throughout the juvenile dependency proceedings, and the record demonstrated that it was in her best interests to remain with them.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.