Opinion
H045619
10-05-2018
In re A.G., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. R.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. DP001589)
R.G. appeals from a judgment terminating her parental rights to her 13-year-old son, A.G., pursuant to Welfare and Institutions Code section 366.26. R.G. contends that the juvenile court failed to fulfill its statutory duty to consider A.G.'s wishes because the court did not explicitly inquire whether A.G. objected to the termination of R.G.'s parental rights. R.G. also asserts that A.G.'s procedural due process rights were violated because the record "suggests" A.G. was not notified of his right to object, which would have deprived him of the opportunity to be heard.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
We conclude that, in these circumstances, R.G. lacks standing to allege an infringement of A.G.'s procedural due process rights. We also find that R.G. waived her claim that the juvenile court did not properly consider A.G.'s wishes and that, in any event, her claim lacks merit. We affirm the judgment.
I. BACKGROUND
A.G. has twice been a dependent of the juvenile court. He was first made a dependent in September 2006 because R.G.'s substance abuse issues prevented her from providing him with adequate supervision. A.G. was placed with his maternal aunt, who provided a home for him until the case was closed in 2007.
A.G. again became a dependent of the juvenile court on February 26, 2014, when the court sustained the section 300 petition filed by the Santa Cruz County Human Services Department (the Department). The juvenile court ultimately ordered removal of A.G. from R.G.'s custody with reunification services and visitation. On October 30, 2017, after a contested hearing, the juvenile court terminated reunification services for R.G. pursuant to section 366.21, subdivisions (f)-(g), and scheduled a permanency planning hearing pursuant to section 366.26. The court also ordered supervised monthly visits between R.G. and A.G.
The Department filed a permanency planning report on January 24, 2018, recommending a permanent plan of adoption for A.G. and termination of R.G.'s parental rights. Among other findings, the report noted that "[w]hen [A.G.] was removed from [R.G.'s] care in August of 2016, the maternal aunt immediately expressed her desire for placement and to become a permanent home for [A.G.]. [A.G.] also advocated for their home to be approved as he identifies [his maternal aunt] as one of the family members who raised him. He has continued to reside there without incident and the relatives are committed to becoming a permanent and stable home for [A.G.]." "A.G. appears to have a healthy connection with everyone in the family."
The report indicated that A.G. had been made aware of his maternal aunt and uncle's commitment to adopt him but that A.G. "ha[d] not made a direct statement regarding his adoption." The report continued: "He appears to be happy in the home and he is eager to have his case dismissed from dependency court. [¶] . . . [¶] [A.G.] looks forward to ending his participation in the therapeutic services and dependency Court." A.G. "was informed of the . . . hearing and declined to attend."
The permanency planning hearing was held on March 9, 2018, when A.G. was 13 years old. A.G. did not attend the hearing but was represented by counsel. At the outset of the hearing, the juvenile court noted that the permanency planning report "indicated that [A.G.] didn't want to attend the hearing," and A.G.'s counsel stated, "That's correct, Your Honor. He does not want to have anything to do with these proceedings." A.G.'s maternal aunt, who attended the hearing, told the court that A.G. was at school.
The Department recommended that the juvenile court find A.G. adoptable and terminate R.G.'s parental rights. The Department submitted its case on the report prepared for the hearing. A.G.'s counsel concurred with the Department's recommendation. R.G. testified that she did not agree with the Department's recommendation to terminate her parental rights and expressed her desire to reconnect with A.G. R.G.'s testimony appears to have been truncated, however, by the court's observations that she seemed to be having trouble following the proceedings and may have been under the influence of narcotics.
At the conclusion of the hearing, the juvenile court stated its tentative ruling was to terminate parental rights and find A.G. adoptable. The court indicated that it had reviewed the permanency planning report, noted that R.G. had tested positive for several illicit substances on February 3, 2018, had failed to submit to drug testing on five occasions that same month, and did not appear to be "clean and sober." After the court gave its tentative ruling, the Department declined to make a closing argument. A.G.'s counsel stated, "[I]n light of the Court's tentative ruling, I also don't have a closing argument," but offered that A.G. "is still struggling in school, but doing quite well at home. He still harbors a lot of resentment toward [R.G.], but he's working through that in counseling."
R.G.'s counsel stated that R.G. visited with A.G. approximately twice per week initially, but once a month more recently. "There were challenges during visitation, but [R.G.] did interact with her son during visits, and he knows that she's his mother. [R.G.] would like to be part of [A.G.'s] life and is asking th[e] court to implement [a] less permanent plan of guardianship, so she can continue having a relationship with her son."
The juvenile court found that proper notice of the hearing had been given to A.G.: A.G. "was notified about attending the hearing, and chose to go to school instead." The court took judicial notice of all prior findings and noted that it had previously terminated reunification services. The court determined there was clear and convincing evidence that A.G. would be adopted and that he is generally adoptable. The court stated that A.G. was placed with his maternal relatives, whom he had previously been placed with in 2006 and 2007, and that they have "really cared for him and nurtured him, made sure he's had connections with his siblings[,] and been willing to be a permanent home for him." The court described A.G.'s relationship with his maternal relatives as "positive [and] stable."
The juvenile court followed the Department's recommendation to terminate A.G.'s father's parental rights. The record indicates that A.G.'s father is deceased.
II. DISCUSSION
R.G. asks this court to reverse the juvenile court's order terminating her parental rights to A.G., asserting that the matter should be remanded for the juvenile court to determine A.G.'s wishes regarding adoption and whether A.G. objects to the termination of R.G.'s parental rights. R.G. contends that the juvenile court failed to uphold its duty to consider A.G.'s wishes because it did not inquire whether A.G. knew he had a right to object to the termination of R.G.'s parental rights or whether A.G. wanted to object. R.G. also argues that A.G.'s procedural due process rights were violated because A.G. may not have been notified of his right to object, and a lack of notice regarding the right to object would have deprived A.G. of the opportunity to be heard. The Department asserts that R.G. lacks standing to raise these claims; the claims have been waived by R.G.'s failure to raise them below; and the claims lack merit. A.G. joins in the Department's brief. We review the juvenile court's findings for substantial evidence. (In re S.B. (2008) 164 Cal.App.4th 289, 297; In re Leo M. (1993) 19 Cal.App.4th 1583, 1594 (Leo M.).) Because our resolution of the parties' claims rests primarily on the provisions of section 366.26, we begin with a brief overview of the statutory scheme.
A. Welfare and Institutions Code Section 366.26
Section 366.26 sets out the process and standards for "a hearing specifically designed to select and implement a permanent plan for the child." (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) When reunification efforts with the parent fail, as they have in this case, "the focus shifts to the needs of the child for permanency and stability." (Id. at p. 309.) "By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) Although the juvenile court has several choices at the section 366.26 hearing (also called the permanency planning hearing) "[t]he Legislature has . . . determined that, where possible, adoption is the first choice." (In re Celine R. (2003) 31 Cal.4th 45, 52-53 (Celine R.).) Thus, pursuant to subdivision (c)(1) of section 366.26, "[w]henever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.' " (Celine R., supra, at p. 53.)
Section 366.26 sets out, in subdivision (c)(1)(B), a number of "exceptions to the general rule that the court must choose adoption where possible." (Celine R., supra, 31 Cal.4th at p. 53, italics omitted.) "The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Ibid.) One such exception arises when "[a] child 12 years of age or older objects to termination of parental rights." (§ 366.26, subd. (c)(1)(B)(ii).) In addition, the court must "consider the wishes of the child and . . . act in the best interests of the child." (§ 366.26, subd. (h)(1).)
B. Standing
The Department contends that R.G. lacks standing to assert her claims. "Generally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter," and "[w]e liberally construe the issue of standing and resolve doubts in favor of the right to appeal." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948 (L.Y.L.).)
Dependency proceedings are subject to Code of Civil Procedure section 902, meaning that only a " 'party aggrieved' " may appeal. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734 (Carissa G.).) An "aggrieved person . . . 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.)
"A parent has standing to raise issues affecting her interest in the parent-child relationship." (In re Desiree M. (2010) 181 Cal.App.4th 329, 333.) A juvenile court's decision pursuant to section 366.26, subdivision (c)(1)(B) that termination of parental rights would be detrimental to the child has "an immediate and substantial consequence to the parent's legally cognizable interest in the relationship with his or her child." (L.Y.L., supra, 101 Cal.App.4th at p. 948.) In other words, "the parent's right to the child is directly impacted by a determination of the applicability of [an] exception" to the termination of parental rights. (Ibid.) For this reason, R.G. has standing to assert that an exception applies "because the parent under general standing requirements is a party directly aggrieved by a decision on the issue." (Ibid.)
The Department concedes that "a parent has standing to raise the issue of the application of any of the 'termination of parental rights exceptions' pursuant to 366.26[, subdivision] (c)(1)," but contends that R.G. "is not arguing that a (c)(1) exception applies. Rather, [R.G.] argues that the juvenile court did not meet its duty pursuant to . . . section 366.26[, subdivision] (h)(1)" to consider the wishes of the child. Nevertheless, the Department recognizes that R.G.'s "argument floats between [A.G.'s] 'right to object' [under subdivision] (c)(1)(B)(ii) . . . and the court's duty to consider [A.G.'s] wishes [under subdivision] (h)(1)." Moreover, the Department does not cite to any case that holds a parent lacks standing to assert that the juvenile court must consider the wishes of the child at all permanency planning proceedings. Furthermore, a number of Courts of Appeal have addressed the merits of a parent's contention that the juvenile court failed to adequately consider the wishes of the child at the section 366.26 hearing. (E.g., In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820 (Amanda D.) [father appealed termination of parental rights on basis that juvenile court failed to obtain minors' testimony regarding their wishes]; Leo M., supra, 19 Cal.App.4th at p. 1593 [mother argued on appeal that juvenile court erred by failing to consider the wishes of her five-year-old child regarding adoption and termination of parental rights].)
We agree with R.G. that she has standing to assert that the juvenile court did not properly consider A.G.'s wishes because it did not explicitly inquire whether A.G. objected to the termination of R.G.'s parental rights. However, we conclude that R.G. does not have standing to assert her second claim—namely, that A.G.'s procedural due process rights were violated due to his alleged lack of notice of his right to object to the termination of R.G.'s parental rights. Through his counsel, A.G. concurred with the Department's recommendation that the juvenile court find him adoptable and terminate R.G.'s parental rights. A.G. has not appealed from the juvenile court's section 336.26 order and, in fact, has joined in the Department's brief in support of the termination of parental rights. Since "[a] parent cannot raise issues on appeal which do not affect his or her own rights" (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541), we conclude that R.G. does not have standing to raise a procedural due process claim on A.G.'s behalf (see In re Frank L. (2000) 81 Cal.App.4th 700, 702-704; Carissa G., supra, 76 Cal.App.4th at pp. 736-737).
Even if R.G. did have standing to assert a violation of A.G.'s procedural due process rights, she has not established an infringement of those rights. " 'In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard.' " (J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 536-537.) Procedural due process includes "the right to a trial on the issues raised by the petition, the right to confront and cross-examine witnesses, and to compel the attendance of witnesses." (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377; see also In re Patricia T. (2001) 91 Cal.App.4th 400, 404). A.G. enjoyed those rights below as he received notice of the hearing and was represented by counsel who concurred with the Department's recommendation. Had A.G. chosen to do so, he could have testified at the hearing and called and cross-examined witnesses. (See § 366.26, subds. (b), (h).) Moreover, the juvenile court complied with the statutory mandate that it determine whether A.G. was notified of his right to attend the hearing and that it inquire why A.G. was not present when it found that A.G. had been given notice of the hearing and elected to go to school instead. (§ 366.26, subd. (h)(2).) --------
C. Waiver
The Department also contends that R.G. waived her claim that the juvenile court failed to properly consider A.G.'s wishes since it did not inquire whether A.G. objected to the termination of parental rights because R.G. failed to raise the issue below. We agree.
R.G. made no argument during the permanency planning proceedings that the juvenile court should explicitly inquire whether A.G. objected to the termination of R.G.'s parental rights, nor did she contend during the hearing that the court's failure to do so would violate the court's duty to consider A.G.'s wishes under section 366.26, subdivision (h)(1). Thus, the issue has been waived. (See Amanda D., supra, 55 Cal.App.4th at pp. 819-820 [father's failure to assert below that juvenile court should have obtained minors' testimony on wishes for permanent plan waived issue on appeal]; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [claim that juvenile court erred by not finding that termination of parental rights would be detrimental to child based on a section 366.26, subd. (c)(1) exception waived by failure to raise it below]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 [father waived contention that juvenile court should have required bonding study before terminating parental rights because father failed to request study below].)
D. Consideration of A.G.'s Wishes
R.G.'s claim also fails on the merits. Section 366.26, subdivision (h) requires the juvenile court to " ' "consider the child's wishes to the extent ascertainable" ' prior to terminating parental rights." (Amanda D., supra, 55 Cal.App.4th at p. 820; see also Leo M., supra, 19 Cal.App.4th at p. 1591.) Evidence of the minor's wishes regarding termination " 'may take the form of direct formal testimony in court; informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings.' " (Leo M., supra, at p. 1591.) Regardless of form, "in a termination action, the minor's feelings regarding the minor's preferences must be explored." (Ibid.) However, neither the text of section 366.26 nor case law interpreting the provision requires direct evidence of the child's wishes. Instead, his or her preferences may be inferred from the evidence submitted at the hearing. (Id. at pp. 1593-1594; Amanda D., supra, at p. 820.)
The record establishes that the juvenile court considered A.G.'s wishes and properly inferred that A.G. did not object to the termination of R.G.'s parental rights. The court determined that A.G. had been notified of the hearing and observed that he had chosen to go to school instead. The permanency planning report submitted by the Department detailed the improvement of A.G's behavior at his maternal aunt and uncle's home; noted that A.G. had advocated for his placement there; and stated that A.G. "appear[ed] to have a healthy connection with" his maternal aunt and uncle. While the report indicated that A.G. "ha[d] not made a direct statement regarding his adoption," it stated that "[h]e appears to be happy in the home and . . . is eager to have his case dismissed from dependency Court." The report described A.G's reluctance to visit with R.G. and the physical manifestations of that reluctance, and characterized A.G.'s relationship with R.G. as "strained" and without the features of a "parent/child relationship."
The juvenile court also heard from A.G.'s counsel, who indicated that A.G. still harbored resentment toward R.G., but was doing "quite well at home." Counsel told the court that A.G. "did not want to have anything to do with these proceedings." The court stated that it had reviewed the report, and described A.G.'s relationship with his maternal aunt and uncle as "positive [and] stable." Based on the information in the report and the statements of A.G.'s counsel, there was a reasonable basis for the court to infer that A.G. desired to proceed with the adoption. (See Amanda D., supra, 55 Cal.App.4th at pp. 820-821; Leo M., supra, 19 Cal.App.4th at p. 1594.)
R.G. argues that we should hold that a juvenile court is obligated to inquire explicitly whether a child over the age of 12 objects to the termination of parental rights, and thus whether the exception to termination under section 366.26, subdivision (c)(1)(B)(ii) applies, in order to ensure that the child's wishes are considered, as mandated by section 366.26, subdivision (h)(1). We decline to take this step. Courts have repeatedly rejected proposals to require "direct expression of a minor's wishes . . . before parental rights can be extinguished." (Leo M., supra, 19 Cal.App.4th at p. 1590; Amanda D., supra, 55 Cal.App.4th at p. 820.) While it is important for the record to contain evidence from which the juvenile court can consider the child's wishes, "[w]e must have regard for the possible and readily conceivable anguish that such confrontational choices could create in a short lifetime already filled with trauma." (Leo M., supra, at p. 1593.) "To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect." (Ibid.)
Although R.G. appears to place some significance on the minor's age—asserting that "[a] juvenile court cannot properly ascertain the wishes of a child over the age of twelve regarding termination of parental rights unless that child is asked specifically about the subject"—we see no less potential for anguish from asking a 12 year old whether he or she objects to the termination of parental rights than from asking the same question of a five or seven year old. The trauma to an older child from such an inquiry may well be greater. (See Leo M., supra, 19 Cal.App.4 at p. 1593 ["[I]n honoring [children's] human dignity we must be mindful that we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide."].)
Moreover, once the court determines a child is likely to be adopted, "[t]he parent has the burden to show termination would be detrimental to the minor under one of th[e] exceptions" listed in section 366.26, subdivision (c)(1)(B). (In re Megan S. (2002) 104 Cal.App.4th 247, 251; see also Cal. Rules of Court, rule 5.725(d)(2); In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) The parent must make this showing by a preponderance of the evidence. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
R.G.'s counsel made no attempt to argue that A.G. objected to the termination of parental rights, and there is no evidence in the record to support such an inference. R.G. raises the fact that, when she was still receiving family reunification services, A.G. asked his social worker not to request an order reducing his visits with R.G., but R.G. fails to mention that there was "a suspicion that [she] was promising gifts and money to [A.G.] in order for him to participate in their visits." Nor does R.G. mention that A.G. was "refusing the visits" and getting "headaches and stomach aches when he [wa]s told he needs to go to the visits." Finally, if A.G. had voiced any concern or reluctance regarding the adoption, A.G.'s counsel would have been obligated to inform the court of A.G.'s wishes. (§ 317, subd. (e)(2) ["If the child is four years of age or older, counsel shall interview the child to determine the child's wishes and assess the child's well-being, and shall advise the court of the child's wishes"].)
R.G.'s arguments run counter to the text of section 366.26, case law interpreting the provision, and the record in this case. We find no error in the decision of the juvenile court that, considering A.G.'s wishes and his best interests, R.G.'s parental rights should be terminated.
III. DISPOSITION
The judgment is affirmed.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.