Opinion
E066704
02-07-2017
In re M.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.J., et al, Defendant and Appellant.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant M.J. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant J.B. Jean-Rene Basle, County Counsel, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J263898) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed in part; reversed in part with directions. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant M.J. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant J.B. Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
Defendants and appellants M.J. (mother) and J.B. (father; collectively, parents) appeal from the juvenile court's order terminating their parental rights under Welfare and Institutions Code section 366.26 to M.B. (a female born Jan. 2016). Parents contend that the court's orders must be reversed because plaintiff and respondent San Bernardino County Department of Children and Family Services (CFS) failed to comply with the notice requirement of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Parents also contend that the court violated relative preferences by approving a permanent plan before a paternal aunt's evaluation was completed. We agree with parents that CFS failed to comply with ICWA, and remand the matter with directions to the juvenile court to ensure CFS's compliance with ICWA's notice requirement. We affirm the orders of the juvenile court in all other respects.
All statutory references are to the Welfare and Institutions Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL HISTORY
A. PRIOR DEPENDENCY
In August 2014 CFS removed M.B.'s siblings, M.J., J.B. and L.B. (the siblings) from parents' custody after mother tested positive for illegal substances upon L.B.'s birth. CFS initiated dependencies for the siblings by filing section 300 petitions addressing mother's mental health issues, parental substance abuse and domestic violence, and failure to protect and support the siblings. In November 2014, the court sustained the petitions, placed the siblings in foster care, and ordered family reunification (FR) services for parents. In May 2015 at the six-month review hearing, the court terminated those services. In January 2016 at a section 366.26 hearing, the court terminated parental rights concerning the siblings.
Parents appealed. In case No. E065322, we made the following disposition: "The juvenile court's finding that ICWA is not applicable is vacated. The case is remanded to the juvenile court with directions to ensure the Department has complied with the notice requirements of ICWA. If, after new notices, any of the Cherokee or Blackfeet tribes claim the children are eligible for membership and seek to intervene, the juvenile court shall proceed in conformity with all the provisions of ICWA. If, on the other hand, none of the tribes make such claims following new notices, or the court concludes the Department's efforts at compliance were adequate, the inapplicability finding and the order terminating parents' parental rights and adopting a permanent plan as to the children shall be reinstated."
B. DETENTION/JURISDICTION AND DISPOSITION OF M.B.
On January 27, 2016, M.B. came to the attention of CFS when it received a referral alleging mother's general neglect of M.B. Mother tested positive for marijuana. CFS determined that parents were low function, often homeless, engaged in substance abuse and domestic violence, and had mental health issues. On January 29, 2016, after deeming M.B. at risk in parental custody, CFS detained M.B. with the siblings in their prospective adoptive home with Mr. and Mrs. D. (or, the D. Family), and initiated dependency proceedings.
On February 2, 2016, at the detention hearing for M.B., the court found a prima facie case under section 300, detained M.B. with the D. Family, and set a jurisdiction/disposition (J/D) hearing.
The J/D report recommended that the court sustain the section 300 petition, remove M.B. from parents, and apply family reunification (FR) bypass due to parents' resistance to reform since termination of services and parental rights in the siblings' dependency. Mother apparently abused marijuana, cocaine, methamphetamine, and possibly alcohol, as the siblings had symptoms indicative of fetal alcohol syndrome. Father also apparently abused such substances, and physically abused mother. Father's criminal history reflected his violent propensities, which included sex crimes—one against a child. Father was convicted of felony drug charges and spent time in jail and on probation. Parents did not want to discuss M.B.'s possible adoption and instead wanted M.B. placed with family, not with the siblings.
On February 23, 2016, at the initial J/D hearing, the court set a trial for March 17, 2016, as parents objected to CFS recommendations.
On March 17, 2016, at the J/D trial, parents and the social workers testified. The court considered such evidence and the contents of CFS reports reflecting parents' CPS history. After argument, the juvenile court sustained M.B.'s petition with slight amendments, found father was the presumed father of M.B., applied FR bypass, set a section 366.26 hearing for July 15, 2016, to consider adoption of M.B.; parents were provided with their writ rights.
C. WRIT PROCEEDINGS
On March 18, 2016, a notice of intent to file writ petition was filed on behalf of father objecting to the setting of a section 366.26 hearing. Mother did not initiate a writ proceeding. In April 2016 father's counsel filed a non-issue letter brief. We therefore dismissed father's writ in case No. E065597.
D. RELATIVE ASSESSMENT
On January 29, 2016, CFS detained M.B. with the D. Family, the adoptive parents for the siblings, and initiated a dependency for M.B. on February 1, 2016.
The February 2, 2016, detention report indicated that M.B. was detained with the D. Family and the siblings, and there were no relatives to consider for placement. On February 2 at the detention hearing, M.B.'s counsel asked for the court to authorize CFS to place M.B. in a concurrent planning home, without objection from other counsel. The court detained M.B. with the D. Family. Father's attorney asked that CFS assess a paternal aunt, A.B., for placement. He stated that "she is flying in [and] will be here at the J/D." The attorney noted that A.B. lived out of state. Counsel for CFS advised that jurisdiction was necessary for initiation of an Interstate Compact on the Placement of Children (ICPC) assessment. The court asked CFS to assess relatives and asked father to provide information about relatives to CFS.
The J/D report filed February 19, 2016, indicated the social worker discussed concurrent planning with parents; they did not want to discuss adoption. Parents wanted M.B. placed with family and not the siblings. The Relative Assessment Unit (RAU) was assessing a maternal aunt for placement, but it was not possible for the assessment to be completed or approved since parents lived with the maternal aunt. A.B. resided out of state and wanted to be assessed. Moreover, mother was married to another man, not father, so it appeared father was an alleged father. However, he signed a declaration of paternity and was on M.B.'s birth certificate. CFS recommended that the court find M.B.'s placement appropriate and necessary and order M.B. placed with the D. Family.
On February 23, 2016, at the initial J/D hearing, the court maintained M.B. in placement with the D. Family and set trial for March 17, 2016. A.B. did not appear at the hearing, although father's attorney indicated at the detention hearing that she would attend.
A.B. did not attend the J/D trial on March 17, 2016. The relative assessment/placement issue was not addressed in testimony. Father's attorney, however, asked the court to order an ICPC assessment of A.B., who resided in North Carolina, and stated the social worker spoke with A.B.; A.B. indicated a willingness to care for M.B. if the court ordered it. The court sustained M.B.'s petition, found father to be the presumed father, applied FR bypass, and set a section 366.26 hearing for July 15, 2016.
After finding father to be the presumed father, the court asked the social worker about the assessment of the paternal relative for placement; the following discussion ensued:
"The Social Worker: In regards to [A.B.], during the last case with the three children, ICPC was completed. She did pass. She got flying colors and then rejected placement of the three children based on the fact that she did not want to do foster care classes which were required in her state.
"I have spoken to her on three different occasions. . . I have told her I would run the ICPC again. However . . . the child is currently placed with her full siblings and . . . there was a possibility of a concurrent planning home since that is what she is living in, and the aunt was not adverse to that. [¶] [S]he said she wants to do what is best for the child.
"The Court: There was also a maternal relative I understood . . . .
"The Social Worker: That's correct. I did do an RAU on that maternal aunt. It has been put through. However, the parents were actually living in her home until last week, so that would have put a stop on her being available. [¶] And it should be noted . . . they were living with her while [mother] was pregnant and using. . . . [¶] . . . [¶] . . . So there is a concern.
"The Court: I am going to ask that both those assessments go forward and we have an informational packet in 30 days. . . . [¶] The court understands being placed with the siblings. I don't take that lightly. But I do think we need to have all the information and then allow everyone to weigh in on what they think the best interest may be.
"The Social Worker: Sure."
The court's orders reflected its request for assessment of relatives. The court permitted the attorneys to set a special hearing without a section 388 petition if a relative was approved, adding, "I'm not indicating which direction I would go." The court found placement with the D. Family appropriate and necessary, ordered placement with the D. Family, bypassed FR services, and set the section 366.26 hearing for July 15, 2016.
As it related to the J/D judgment, in April 2016, we dismissed father's non-issue writ, the only writ filed in this case.
In a packet dated April 18, 2016, the social worker stated that the maternal aunt declined being assessed as a placement on February 2, 2016, as parents resided with the aunt. The aunt's name was resubmitted on March 18, 2016, after parents informed the court that they no longer resided with the aunt. An RAU social worker was assigned to assess the aunt and her home. Also, A.B. confirmed her interest in having M.B. placed with her. On March 22, 2016, A.B. provided CFS information required to permit ICPC processing, which CFS staff initiated that very date, March 22, 2016.
E. SECTION 366.26 REPORT
The section 366.26 report filed June 30, 2016, recommended termination of parental rights. On January 29, 2016, M.B. was placed with the D. Family, the adoptive home for the siblings. M.B. did not have contact with her four other half siblings, who were in the care of their father, A.J.
M.B. was born in January 2016 and was placed with the D. Family just days after her birth. She was approximately seven months old when the court held the section 366.26 hearing. Mr. D. described his relationship with M.B. as "perfect," and stated, "[s]he's my little angel. She brings such joy around the house." Mr. and Mrs. D. loved M.B. The D. Family had a great bond with her and she "completed" the D. Family. Mr. D. stated that M.B. "has a special place in my heart" and has "been a blessing to our family." CFS personnel observed the family and noted M.B. appeared secure and well adjusted. She sought out Mr. and Mrs. D. for comfort and affection. It was obvious that M.B.'s needs would be met at the D. Family home.
Mr. and Mrs. D. had been together for more than six years. They married in 2010. They had a nine-year-old son they adopted, and were also adopting the siblings. Mr. and Mrs. D. were in their mid- to late-30s. Mr. D. had been employed as a police officer for more than 11 years. Mrs. D. was a superior court judicial assistant. She took four months of family leave to ease the transition of the siblings, and did the same with M.B.
Mr. and Mrs. D. had a natural love of people and God, a great family structure, and good balance. They had not attended therapy or counseling, and had not been arrested for or convicted of a crime. There were no indications they abused alcohol or illegal drugs.
Mr. and Mrs. D. resided in a four-bedroom home. They enjoyed spending time with their children and extended family, playing at the house, taking walks to the park, and hosting barbeques. Their children loved to read and frequently asked Mr. and Mrs. D. to read to them. Mr. and Mrs. D. had an approved caretaker and family who regularly assisted with their children.
Mr. and Mrs. D. described M.B. as a perfect and "smart little baby!" They believed that they were very suited to care for M.B. and fully understood their rights and responsibilities accompanying adoption. The social worker opined that Mr. and Mrs. D. were dedicated to raising M.B. to adulthood, and recommended that the court free M.B. from her birth parents to permit the D Family to adopt her.
On July 15, 2016, at the section 366.26 hearing, the court set a pretrial settlement conference for August 10, and trial for August 24, 2016.
F. SECTION 388 PETITIONS
On August 10, 2016, section 388 petitions were filed for each parent requesting court ordered FR services. Parents sought to reunify with M.B. Parents had attended services and reportedly made progress. At the settlement conference on August 10, after permitting argument, the court denied the petitions.
G. SECTION 366.26 TRIAL
At the section 366.26 trial on August 24, 2016, attorneys for each parent objected to termination of their parental rights. Father's attorney also asked the court to consider placement with A.B., who resided in North Carolina. Mother's attorney made the same request. However, M.B.'s attorney and counsel for CFS asked the court to follow CFS recommendations. The court found M.B. was adoptable, terminated parental rights, set a postpermanency planning review hearing for February 24, 2017, and provided an appellate advisal.
The court then asked CFS for an update on relative assessments. Social worker Anderson conveyed the RAU denied consideration of the maternal aunt because she failed to contact CFS. Regarding A.B., the ICPC was sent to North Carolina in mid-April, but CFS had not heard from the North Carolina social worker. The court ordered CFS to provide an update concerning progress of the ICPC and set a special hearing for October 24, 2016, to address the issue, opining that A.B. should be assessed before M.B. was adopted. The court relieved all counsel except for M.B.'s counsel.
H. NOTICE OF APPEAL
On August 24, 2016, each parent filed a notice of appeal.
DISCUSSION
A. MOTHER'S AND FATHER'S OPENING BRIEFS
CFS contends that "most of the opening briefs should be struck or disregarded for failure to abide by briefing rules." (All caps. and boldface omitted.) CFS goes on to state that "[t]he Opening Briefs fail to present an accurate view of the record and legal principles, and to confine briefing to the record. The Briefs interject content from the sibling appeal [E065322], and present a distorted view of that record as well."
Notwithstanding CFS's arguments regarding parents' separate opening briefs, we are fully aware of the facts in this case and the siblings' appeal and do not find it necessary to strike the opening briefs.
B. ICWA NOTICING
Parents contend that the ICWA notice was inadequate because it failed to notify the tribes regarding mother's potential Indian heritage.
1. ADDITIONAL FACTS
On February 1, 2016, CFS initiated a dependency for M.B. The ICWA-010 Indian Child Inquiry Attachment to the section 300 petition indicated that M.B. "may have Indian ancestry." The detention report stated M.B. may have Cherokee heritage and ICWA may apply.
On February 2, 2016, at M.B.'s detention hearing, the court asked parents if they had any Indian heritage. Mother stated, "No, I don't." Father stated, "Yes, ma'am," and stated that his heritage stemmed from his grandmother. Father stated that his grandmother resided in Maryland, but she passed away. Mother's ICWA-020 Parental Notification of Indian Status submitted at the detention hearing indicated by checkmark, "I have no Indian ancestry as far as I know." However, father's form indicated "I may have Indian ancestry" and placed "Chere" to identify the name of the tribe on the form.
A J/D report filed February 19, 2016, stated that on February 2 mother denied Indian ancestry while father indicated possible Cherokee Indian ancestry on the paternal side of his family; a completed ICWA-030 form was submitted to the ICWA Unit.
The completed ICWA-030 form, entitled Notice of Child Custody Proceeding for Indian Child, indicated that on February 3, 2016, the ICWA clerk mailed that form via certified mail to the federally-recognized Blackfeet Tribe and three federally-recognized Cherokee Tribes, the Bureau of Indian Affairs (BIA), and Secretary of the Interior, for the J/D hearing set for February 23, 2016. The certified mail notice was also mailed to parents' common address of record. On February 18, 2016, CFS filed a report allowing the court to inspect the ICWA-030 noticing document and related documents.
The ICWA-030 was substantially complete. It identified parents by their first and last names. The form included mother's maiden name, respective dates of birth, current and former addresses. It also stated that the Cherokee and Blackfeet heritage stemmed from father's relatives. For mother, no tribe was stated, but the BIA was stated, suggesting her possible Indian heritage.
The form provided information regarding the child's great-grandparents. A maternal great-grandmother, B.H., held a former address in Montclair, California, and a current address in Ontario, California; no street address was provided and her birthdate was reported as "04/20/??" Similar information was provided for a maternal great-grandfather, E.L. Two parental great-grandmothers were named, one with initials M.B., with a former New York address provided; "deceased" was written as her current address. She was reportedly born in Alabama, had Blackfeet heritage, and died in New York in the "1990s." The other, C.B., was the woman father apparently identified at the detention hearing. C.B. was "deceased" in Maryland. Her dates of birth and death were not stated, and her former address and birthplace were noted as Maryland. She had Cherokee heritage, consistent with father writing "Chere" on his ICWA-020 form. Two paternal great-grandfathers were stated on the ICWA-020 form, one with Cherokee heritage, the other with Blackfeet heritage. The former died in Maryland in the 1960s, and the latter died in New York in the 1980s.
The ICWA-030 and correspondence from tribes and proof of receipt of the notices were attached to an ICWA Declaration of Due Diligence filed for the court's inspection on February 18, 2016. The ICWA-030 stated "No information available" for details CFS did not possess. The ICWA clerk indicated in a sworn declaration that she provided all of the information CFS had about parents' relatives. The identified tribes and government agencies received the notice, as demonstrated by returned certified mail receipts attached to the declaration. The certified mail receipts indicated that the ICWA-030 notice was effectuated on dates on and between February 8 and 11, 2016. Attached correspondence from the Blackfeet Tribe and Cherokee Nation indicated that M.B. was not considered an "Indian child" with those tribes.
On March 15, 2016, CFS filed a second ICWA Declaration of Due Diligence. Attached correspondence from the Eastern Band of Cherokee Indians and United Keetoowah Band of Cherokee Indians indicated that M.B. was not an "Indian child" with those tribes.
On March 17, 2016, at the J/D trial, the juvenile court adopted the finding in the J/D report, which stated that noticing requirements under ICWA were initiated. The court found ICWA may apply, apparently not realizing that all of the identified tribes were already noticed in mid-February 2016, and each confirmed via correspondence that M.B. was not an Indian child with the identified tribes.
On April 20, 2016, CFS filed an ICWA report advising that 65 days had passed since the IBA, Secretary of Interior, and identified tribes were noticed of M.B.'s proceedings. The report confirmed that all agencies, tribes and parents received the ICWA-030 notice; the tribes confirmed that M.B. was not enrolled and the tribes would not intervene in the proceedings. The ICWA clerk attached a USPS.com tracking form to the report confirming delivery of the notice that occurred on February 5, 2016, at parents' address in Palms, California. Parents received separate noticing packets. The ICWA report was also served on the attorneys in this case, through placement in their mail bins on April 19, 2016, as stated on the proof of service. On April 20, 2016, the juvenile court signed a proposed finding/order CFS presented with the ICWA report stating that ICWA did not apply; no further notice was required.
The section 366.26 report filed June 30, 2016, stated that the court found ICWA noticing was complete and ICWA did not apply on April 20, 2016.
2. ANALYSIS
In this case, the February 2, 2016, detention report stated that M.B. may have Cherokee heritage. At the detention hearing on February 2, mother told the court that she had no Indian ancestry; father said he did and that his heritage stemmed from his grandmother. Moreover, mother's ICWA-020 indicated by checkmark, "I have no Indian ancestry as far as I know," and father's ICWA-020 indicated by checkmark, "I may have Indian ancestry" and he placed "Chere" to identify the tribe. Parents signed their ICWA-020 forms under penalty of perjury, attesting to the correctness of the content of those forms. Accordingly, the ICWA clerk mailed the ICWA-030 noticing packet to the federally-recognized Blackfeet Tribe and three federally-recognized Cherokee Tribes, the BIA, and Secretary of the Interior for the J/D hearing set for February 23, 2016. The clerk also sent separate packets to each parent to their common address of record. On February 18, 2016, CFS filed a report allowing the court to inspect the ICWA-030 noticing packet, which included proofs of receipt of the notices.
"Congress enacted ICWA to further the federal policy '"that, where possible, an Indian child should remain in the Indian community . . . ."'" (In re W.B. (2012) 55 Cal.4th 30, 48.) "When applicable, ICWA imposes three types of requirements: notice, procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to know that an '"Indian child"' is involved in a '"child custody proceeding,"' . . . the social services agency must send notice to the child's parent, Indian custodian, and tribe by registered mail, with return receipt requested. . . . [¶] Next, after notice has been given, the child's tribe has 'a right to intervene at any point in the proceeding.' . . . [¶] Finally, an enforcement provision offers recourse if an Indian child has been removed from parental custody in violation of ICWA." (Id. at pp. 48-49.) "Thorough compliance with ICWA is required." (In re J.M. (2012) 206 Cal.App.4th 375, 381.)
Of concern here is the notice requirement. If an agency "knows or has reason to know that an Indian child is involved" in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (§ 224.2, subd. (a), italics added.) "[F]ederal and state law require that the notice sent to the potentially concerned tribes include 'available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.' [Citations.] To fulfill its responsibility, the Agency has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian 'is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . .' [Citation.] That information 'shall include' '[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.' [Citation.] Because of their critical importance, ICWA's notice requirements are strictly construed." (In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
On appeal, parents claim that CFS failed to comply with ICWA because the notice failed to notice all the tribes on the maternal side. In this case, mother repeatedly and reliably denied having Indian ancestry. However, in the siblings' appeal, case No. E065322, which was initiated on August 18, 2014, for one of the children, and on September 2, 2014, for the other two children, it came to CFS's attention that mother may have Indian ancestry, even though she initially denied any Indian ancestry. In that appeal, mother contended "that both sets of ICWA notices failed to identify mother's tribal affiliation with the Cherokee and Blackfeet tribes." We noted that "no ICWA notices were sent to any Indian tribes regarding mother's alleged Indian ancestry," and found, "the trial court's findings that proper notice was given under the ICWA, and/or whether ICWA applies are not supported by substantial evidence." Therefore, we remanded the case to the juvenile court for proper compliance with ICWA.
There is no dispute that CFS knew about mother's possible Indian ancestry in the siblings' case. Since both cases involved the same mother, CFS undoubtedly should have known about mother's possible Indian heritage in this case. As provided above, "[i]f the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved" in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (§ 224.2, subd. (a), italics added.) This ICWA mandate applies in this case. A limited reversal and remand to clarify and cure any ICWA noticing defects is warranted.
C. PLACEMENT OF M.B.
Neither parent asserted a substantive challenge to their parental rights. They both contend that CFS and the juvenile court erred in failing to complete a relative placement of A.B. prior to terminating their parental rights.
1. STANDING
"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." (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. (K.C., 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." (K.C., 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. (K.C., 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, [the] 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.'" (Cesar V., supra, 91 Cal.App.4th at p. 1035, fn. omitted.) Here, at the section 366.26 hearing, parents objected to a permanent plan of adoption but did not argue that any statutory exceptions to adoption applied nor did they offer any affirmative evidence that relative placement of M.B. with A.B. would result in avoidance of termination of parental rights.
Parents' reliance on In re H.G. (2006) 146 Cal.App.4th 1 (H.G.) for the proposition they have 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 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 that M.B. is adoptable, and neither parent has asserted any exceptions to adoption under section 366.26, subdivision (C)(1). Furthermore, there is no evidence either mother or father would avoid termination of parental rights even if A.B. were given relative placement preference. Neither mother nor father has sufficiently demonstrated that either of their rights and interest in reunification are injuriously affected by the lower court's 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.) Neither parent therefore has standing to challenge, as an aggrieved party, M.B.'s placement. Nevertheless we will address the arguments of parents on the merits.
2. FORFEITURE OF RELATIVE PLACEMENT PREFERENCE ISSUE
Parents forfeited their objection founded on the relative placement preference because they failed to properly raise it in the lower court.
"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. (Meranda P., at p. 1150; § 366.26, subd. (l).) "A consequence of section 395 is that an unappealed disposition or postdispositional order is final and binding and may not be attacked on an appeal from a later appealable order." (Meranda P., at p. 1150.)
Here, parents could have challenged by writ petition the disposition order placing M.B. with the D Family based on noncompliance with the relative placement preference (Cal. Rules of Court, rule 8.452(a)). But parents failed to do so. They therefore forfeited their objection. Moreover, although parents renewed their request that A.B. be considered for placement, they failed to raise the relative placement preference objection at the section 366.26 hearing. Because parents neither filed a timely writ petition challenging the dispositional order nor objected at the section 366.26 hearing based on the relative placement preference, they forfeited their 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.)
3. THE RELATIVE PLACEMENT PREFERENCE IS INAPPLICABLE
Even though parents lack standing, and forfeited their 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. (Ibid.; 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)(i) 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 the section 366.26 hearing, there was no need for a new placement. M.B. remained in a stable placement, living with her prospective adoptive family, with whom she had lived since a few days after her birth. At the section 366.26 hearing, CFS recommended termination of parental rights, with adoption by M.B.'s prospective adoptive family as the preferred permanent plan.
Moreover, states will initiate an ICPC process after the sending court has jurisdiction over the subject child. In this case, the juvenile court established jurisdiction over M.B. on March 17, 2016, and ordered CFS to assess relatives for placement, including A.B., who lived in North Carolina. On March 22, 2016, CFS obtained A.B.'s information and initiated ICPC processing for her. CFS expediently initiated the ICPC paperwork. By August 24, 2016, when the court terminated parental rights, CFS had not heard from North Carolina.
Here, the only viable relative for M.B.'s caregiving resided in North Carolina. Minor's counsel endorsed placement with the D Family. CFS opined adoption by the D Family would serve M.B.'s best interests because M.B. was placed with the D Family at birth and quickly bonded with Mr. and Mrs. D.; they were adopting the siblings; and were committed to adopting M.B.—Mr. and Mrs. D. are the only parents M.B. has ever known.
Statutes much be harmonized internally, and with each other. (Ortiz v. Lyon Mgmt. Grp., Inc. (2007) 157 Cal.App.4th 604, 613.) The importance of placing siblings together, if possible, is reflected in dependency law. (§§ 361.3, subd. (a)(4); 366, subd. (a)(1)(D); 361.5, subd. (a)(1)(C); 366.26, subd. (c)(1)(B)(v); 16002.) That objective is also reflected in ICPC Regulation 7, item (5), (b) and (c), which fosters placement of siblings together, particularly with a caregiver who has a preexisting bond with the child. Here, A.B. has no bond with M.B.; she did not visit M.B. once during the eight months M.B. was placed with the D Family. The ability of a caregiver to maintain siblings in the same home is a factor to consider, weighing in favor of placement with a caregiver who can do so. (§ 361.3, subd. (a)(4).) ICPC regulation and statute tend to favor the D Family as a placement, not A.B. Also, in February 2016, parents did not want to discuss the prospect of M.B.'s adoption, and wanted M.B. placed with family, not with the siblings. The opening briefs promote that objective, but a guardianship, even with a relative, would not serve M.B.'s best interests; it is a less desirable plan than adoption. (§ 366.26, subd. (b)(1), (2).)
The opening briefs recognize that the relative seeking placement is entitled to be the first placement to be considered and investigated, not to a "presumption" of placement. (§ 361.3, subd. (c)(1); In re Andrea G. (1990) 221 Cal.App.3d 547, 556.) A.B. planned to appear in court, but failed to make an appearance. A.B. stated that she wanted to do what was best for M.B. CFS must consider whether A.B. truly wants M.B. placed with her, or is motivated to agree to the placement due to family pressure, or is feeling guilty about the prospect of turning M.B. away. A.B. stated she would take care of M.B., if the court ordered it. In the siblings' case, A.B. submitted to ICPC processing, passed with "flying colors," but refused to attend foster care classes required in her state prior to placement. Her past actions speak volumes. Adoption by the D Family would be preferred, if the aunt did not want to adopt M.B. (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112; In re Stephanie M., supra, 7 Cal.4th at pp. 318-320; In re Robert L. (1993) 21 Cal.App.4th 1057, 1069.) There is nothing in the record showing that A.B. wanted to adopt M.B. For adoptable children such as M.B., "adoption should be ordered unless exceptional circumstances exist," such as one of the exceptions to adoption. (In re Casey D., supra, 70 Cal.App.4th at p. 51; § 366.26, subd. (c)(1)(B)(i)-(vi).)
The decisive question concerning placement is a child's best interests. Once the section 366.26 hearing is set, the child's need for permanence and stability is the court's required focus. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Here, the court exercised proper discretion in maintaining M.B. with Mr. and Mrs. D. and the siblings. M.B.'s placement was unresolved, but the court properly terminated parental rights at the section 366.26 hearing, as there was no good cause to continue the hearing. (Ibid.; § 352, subd. (a).)
Parents' reliance on H.G., supra, 146 Cal.App.4th 1, In re Isabella G. (2016) 246 Cal.App.4th 708, and In re R.T. (2015) 232 Cal.App.4th 1284, are inapposite. H.G., involved a denial of relative placement through a removal from the grandparents. That did not occur in this case. (H.G., at pp. 6-7.)
In re Isabella G. is not applicable. In Isabella G., the child's grandparents requested placement of the child with them. Their request for placement was ignored until after the court terminated reunification services and set a section 366.26 hearing. (In re Isabella G., supra, 246 Cal.App.4th at pp. 711-712.) In addition, the grandparents were closely bonded to their granddaughter and had cared for her most of her life. (Id. at p. 716.) 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. (Id. at p. 712.) Nevertheless, the juvenile court denied the grandparents' section 388 petition and rejected the relative placement preference because reunification services had been terminated. (Ibid.) The Isabella G. court held that, "when a relative requests placement of the child prior to the dispositional 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." (Ibid.) Unlike Isabella G., in this case parents did not receive FR services, and CFS assessed relatives willing to undergo the assessment process. A maternal aunt was disqualified because she failed to follow through with the process. A.B. was being assessed through the ICPC process. The court set a hearing for October 24, 2016, to address the status of the ICPC. Moreover, unlike the grandparents in In re Isabella G,, A.B. never appeared once in the juvenile court proceedings or actively sought placement of M.B.; M.B. never met A.B. and was not bonded to her. The facts in this case, therefore, are markedly different from the facts in Isabella G.
In re R.T., is also not on point. In that case, the agency detained a newborn child in foster care with a teenage sibling. (In re R.T., supra, 232 Cal.App.4th at pp. 1291-1295.) The father objected and sought placement of the child with two paternal aunts. (Id. at p. 1293.) The paternal aunts were preferred relatives under the relative assessment statute. The agency initiated home evaluations on the paternal aunts but refused to move the child. The social worker later admitted that the agency never really considered the paternal aunts for placements. (Ibid.) After the dispositional hearing, a paternal aunt and uncle filed a section 388 petition seeking placement. The court took 10 months to rule on the petition and denied it. In the interim, the parents attempted to do designated relinquishments to the aunt and uncle, but the agency refused to accept the relinquishments. (R.T., at pp. 1293-1295.) The court terminated parental rights. (Id. at p. 1295.) In a consolidated appeal by the parents and the aunt and uncle, the appellate court held that the agency abused its discretion in refusing the relinquishments without a reasoned assessment, and remanded the case for the agency to submit new reports and recommendations, taking into account the child's best interests. (Id. at pp. 1305-1309.) The appellate court, however, acknowledged that the passage of time may have strengthened the child's bond with his current caretakers, which would play a role in evaluating the child's best interests upon remand. (Id. at p. 1308.) The facts in this case are readily distinguishable. In this case, parents did not designate relinquishments to A.B. Moreover, unlike the aunts in In re R.T., who actively sought placement of the child, A.B. never appeared in court or filed any documents seeking placement of M.B.
H.G. is inapposite because H.G. involved the denial of placement with the grandparents through removal of the child from them under section 387, without conducting a disposition hearing. (H.G., supra, 146 Cal.App.4th at pp. 6-7.) Here, there was no removal of M.B. from a relative under section 387.
Unlike the cases cited above, in In re Zachary G. (2000) 77 Cal.App.4th 799, is helpful to this case. In Zachary G., the appellate court affirmed a permanent plan of adoption even though the grandparents/caregivers indicated their willingness to adopt the child if parental rights were terminated, but they wanted the mother to reunify with the child. There, the appellate court held that, for an adoptable child, the court shall terminate parental rights unless an exception to adoption exists, or compelling evidence indicates that the child would suffer detriment with termination of parental rights. (Id. at pp. 808-812.) In this case, parents present no evidence that any exception to adoption exists or that M.B. would suffer detriment with the termination of parental rights. To the contrary, the evidence presented below showed that M.B. had a strong parent/child bond with Mr. and Mrs. D. and the siblings, who lived with Mr. and Mrs. D.
In sum, CFS did not ignore parents' request for consideration of placement of M.B. with A.B. before or after the disposition hearing; parents' interest in reunification was minimal because their reunification services were bypassed; and there was no section 388 petition requesting consideration of A.B. for placement. Although CFS had not completed the investigation and assessment of A.B. by the time of the section 366.26 hearing, parents did not raise the relative placement preference at that hearing.
We conclude that the relative placement preference does not apply after the disposition hearing because there was no need for a new placement of M.B. M.B. remained with her original foster parents, with the siblings, throughout the juvenile dependency proceedings; the record demonstrates that it was in M.B.'s best interests to remain with them.
DISPOSITION
The juvenile court's finding that ICWA is not applicable is vacated. The case is remanded to the juvenile court with directions to ensure that CFS has complied with the notice requirements of ICWA. If, after new notices, any of the Cherokee or Blackfeet tribes claim M.B. is eligible for membership and seek to intervene, the juvenile court shall proceed in conformity with all the provisions of ICWA. If, on the other hand, none of the tribes make such claims following new notices, or the court concludes CFS's efforts at compliance were adequate, the inapplicability finding and the order terminating parents' parental rights and adopting a permanent plan as to M.B. shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.