Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant, M.S. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant, J.E. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant, T.S. Pamela J. Walls, County Counsel, and Anna M. Marchand, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant, M.S.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant, J.E.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant, T.S.
Pamela J. Walls, County Counsel, and Anna M. Marchand, Deputy County Counsel, for Plaintiff and Respondent.
This is the third time this case has been before this court. M.S. (Mother), J.E. (Father) and T.S. (Grandmother) now appeal after the denial of Grandmother's and G.R.'s (Aunt) Welfare and Institutions Code section 388 petitions which raised the claim that Grandmother and Aunt were entitled to relative preference for placement of the minors, T.E. and I.E. (collectively Children), under section 361.3. They make the following claims on appeal: (1) Mother, Father and Grandmother claim the juvenile court erred by denying Grandmother's section 388 petition; and (2) Mother and Father contend the trial court erred by suspending visitation.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find that Mother and Father have no standing to raise their claims on appeal, and in the alternative, their claims are moot, because since the briefing was completed in this case, their parental rights have been terminated. We affirm the juvenile court's order denying Grandmother's section 388 petition.
PROCEDURAL AND FACTUAL BACKGROUND
As explained in more detail post, Mother and Father have no standing to raise their claims on appeal and their claims are moot. As such, we will provide a brief recitation of the facts related to the Children being detained and the eventual termination of parental rights, but will focus on the facts pertaining to Grandmother's section 388 petition.
We have taken judicial notice of the two previous cases in this court: case Numbers E055491 and E057738. We will draw a majority of the facts from the opinion filed in case Number E057738 (J.E. v. Superior Court of the County of Riverside (June 28, 2013, E057738) [nonpub. opinion]) and the transcripts from case Number E057738.
A. Detention and Jurisdiction/Disposition
On June 6, 2011, the Riverside County Department of Public Social Services (the Department) received a referral regarding general neglect by Father and Mother of six-year-old T.E and four-year-old I.E. It was reported by someone at T.E.'s school that she suffered from extreme behavioral problems. Father was reported to be schizophrenic and had been admitted to the UCLA Neuropsychiatric Hospital on a mental health hold. A second referral reported that on June 2, Father had threatened Mother and Grandmother. Father and I.E. were found in a park. Father had difficulty standing still, and his fingers were moving rapidly. I.E. was hot and thirsty.
The Children were placed with their aunt, M.K., on June 13, 2011. On August 23, 2011, a temporary restraining order was issued against Father to stay away from Mother, Grandmother and the Children because he assaulted Mother and threatened Grandmother. Grandmother filed the restraining order. The amended section 300 petition, that had allegations under subdivision (b), was found true and Mother and Father were granted reunification services.
At the jurisdiction/disposition hearing, the juvenile court refused to appoint a guardian ad litem (GAL) for Father. Father appealed that decision and we upheld the juvenile court's order in an opinion filed on December 19, 2012. (In re T.E. (December 19, 2012, E055491) [nonpub. opinion].)
B. Review Hearings
At the time of the six-month status review hearing, the Children remained in M.K.'s custody. Mother and Father were living with Grandmother. Mother had tried to take the Children from M.K. during a visit. Father had violated the temporary restraining order by showing up at a church that M.K. and the Children attended.
At the hearing, the juvenile court ordered six additional months of reunification services. Restraining orders were filed against both parents for the Children. Mother and Father continued to harass M.K. and the Children showing up at church and the store where they shopped.
According to the 12-month status review report, Mother had moved to Washington, D.C. to pursue a federal court action in the instant dependency proceedings. Father and Mother had not completed any of their services. They had no supervised visits with the Children.
M.K. and Aunt had discussed that they would take co-guardianship of the Children. However, as of the time of the review hearing, they had determined they did not want to pursue a legal guardianship of the Children due to harassment by Mother. Adoption was being sought. At the 12-month review hearing held on October 18, 2012, reunification services were terminated. Visitation for Mother and Father was reduced to one time per month. A section 366.26 hearing was set.
Mother and Father filed petitions for extraordinary writ in this court arguing that the dependency proceedings had been removed to federal court and Father argued he had not been given reasonable reunification services. We stayed the section 366.26 hearing. On June 28, 2013, we rejected both claims and lifted the stay on the section 366.26 hearing.
On January 8, 2013, Grandmother applied for de facto parent status for the Children. Grandmother claimed she took the Children to the park and did homework with them. On January 9, 2013, the juvenile court granted the request without notifying the Department.
On February 15, 2013, the juvenile court advised the Department it had granted Grandmother de facto parent status but decided it wanted to hear argument on the matter. Grandmother insisted she lived with M.K. and helped care for the Children at least through August 2012. She also cared for them when they stayed with Aunt in the summer. Grandmother was in the home with the Children from 2004 until 2011. At the conclusion of the hearing, the juvenile court vacated its prior order appointing Grandmother de facto parent status. It found that she was not a de facto parent.
A section 366.26 hearing was set for June 19, 2013, and it was recommended by the Department that both parents' rights be terminated and that the permanent plan was adoption.
C. Grandmother's Section 388 Petition and Section 366.26 Reports
On January 28, 2013, Grandmother and Aunt filed section 388 petitions on behalf of both Children, which will be discussed in more detail, post.
The Department filed its section 366.26 report on January 29, 2013. It recommended termination of the parental rights of Mother and Father and that the permanent plan include adoption.
Father and Mother were living together and Grandmother was helping them financially. The Children were developing normally. The Children had told both of their therapists that they did not want to visit their parents and did not want to live with Grandmother.
Although the Children had been with M.K. a majority of the dependency proceedings, she could not provide them with a permanent home. The Department reported that there had been a plan to have M.K. take guardianship of T.E. and Aunt was to take guardianship of I.E. and they would work together. However, Aunt backed out of the plan saying that '"everything was happening at once.'" M.K. advised a social worker that the bond between Mother and Grandmother interfered with the plan of guardianship. M.K. also reported that Grandmother was suffering from dementia and that she and Aunt tried to take conservatorship over her. Aunt later refused to take conservatorship because of Mother.
Grandmother's doctor reported that she was 82 years old and that she did not have full-blown dementia.
Aunt had been advised that the plan was adoption. She was upset and indicated she and Grandmother would take legal guardianship. However, the social worker reported that he had a telephone conversation with Aunt on November 8, 2012, and Aunt reported that she and Grandmother had decided not to go forward with this plan as it was not in the best interests of the Children. Then on December 17, 2012, Aunt and Grandmother contacted the social worker insisting they wanted to pursue co-guardianship. Grandmother denied ever stating they did not want guardianship. Aunt claimed she had been mistaken about Grandmother's wishes. A relative assessment was started.
The prospective adoptive family wanted to continue with visits with the Children despite the possibility of the relative guardianship being approved. The Children had weekly, overnight and weekend visits with the prospective adoptive family, and by December 2012, wanted to live with them. They did not want to live with Aunt and Grandmother and wanted to be adopted. The prospective adoptive parents were concerned about visits between the Children and Grandmother and Aunt because they had brought presents to the Children that were from Mother.
Mother and Father had not visited with the Children since October 26, 2011. Mother had tried to visit on December 3, 2012, with Grandmother and Aunt, but the Children did not want to attend the visit. A preliminary adoption report was prepared. The Children were placed in the prospective adoptive home on December 26, 2012.
An addendum report was filed on February 8, 2013. An email was included, dated September 20, 2012, from Aunt to M.K. She expressed she had been in a fight with Grandmother about giving money to Mother. Aunt stated she could not take care of I.E.
D. Ruling on Section 388 Petition and Termination of Parental Rights
On April 9, 2013, the juvenile court denied Grandmother's and Aunt's section 388 petitions, as will be discussed in more detail, post. On May 24, 2013, Grandmother and Aunt filed notices of appeal but only Grandmother filed an appeal. On April 29, 2013, Mother and Father filed notices of appeal from the ruling on the section 388 petitions. On January 6, 2014, we took judicial notice of the minute order from the juvenile court hearing of September 18, 2013, wherein Mother's and Father's parental rights were terminated and the Children were freed for adoption. Mother and Father have not filed appeals from the section 366.26 hearing.
We first address whether Mother and Father have standing to appeal the denial of Grandmother's section 388 petition and the denial of visitation now that their parental rights have been terminated.
"Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.]" (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)
In K.C., at the section 366.26 hearing, the grandparents filed a section 388 petition asking to modify the existing placement and have the minor placed in their home. The father joined in the placement. The section 388 petition was denied and the father's parental rights were terminated. (K.C., supra, at p. 235.) On appeal, the father only contested the denial of the section 388 petition and did not contest the termination of his parental rights. The grandparents did not file an appeal. Prior to addressing the merits, the California Supreme Court addressed whether father had standing to appeal the denial of the section 388 petition. (Id. at pp. 235-236.)
The California Supreme Court found that the father had no standing to appeal. It found, "Indeed, as noted, father does not contend the order terminating his parental rights was improper in any respect. That he has no remaining, legally cognizable interest in K.C.'s affairs, including his placement, logically follows." (K.C., supra, at p. 237.) It concluded, "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.)
Even if they had standing to appeal the section 388 petition, their claims are moot. In In re Jessica K. (2000) 79 Cal.App.4th 1313, the court found that the mother's appeal from an order denying a section 388 petition was moot because the court subsequently terminated parental rights and she failed to appeal from that order, and therefore, "no effective relief" was possible. (Id. at p. 1315.) It found, "[T]he failure to file a timely notice of appeal from the termination of parental rights order deprives us of appellate jurisdiction to modify that order. Accordingly, the parental rights termination order may not be vacated. No effective relief may be afforded mother even were we to find her appeal of the denial of the section 388 petition meritorious. Thus, the appeal is moot." (Id. at pp. 1316-1317.)
Here, Mother and Father have not filed appeals from the termination of their parental rights. As such, they acquiesced in that decision and have rendered any remedy moot. (In re Jessica K., supra, 79 Cal.App.4th at pp. 1316-1317.) Moreover, they have provided no argument here how the placement with Aunt and Mother would have impacted the juvenile court's decision to terminate their parental rights. Hence, Mother and Father have no standing to challenge the juvenile court's refusal to consider placing the Children with Grandmother as they are not an aggrieved party. (K.C., supra, at p. 238.) As such, they have no standing to appeal the denial of Grandmother's section 388 petition and such appeal is moot as they failed to appeal the termination of their parental rights.
In addition, any complaint that the juvenile court denied visitation prior to the termination of their parental rights is now moot on appeal. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1483 ["[S]ince this appeal was filed, the court has terminated the Parents' rights with regard to Diana and freed her for adoption. [Fn. omitted.] The claim regarding visitation is now moot. [Citation.]"].)
Grandmother still has standing to appeal the denial of her section 388 petition under section 395 as an aggrieved party. (K.C., supra, at pp. 235-236, 239; see also In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703.)
SECTION 388 PETITION
The only issue that remains to be resolved is if the juvenile court properly denied Grandmother's section 388 petition.
A. Additional Factual Background
Grandmother's section 388 petition sought to change the court order made on October 18, 2012, modifying the case plan to include adoption as the permanent plan. Grandmother claimed that the Department erroneously informed the juvenile court that there were no relatives who could assume guardianship of the Children. Grandmother asked that she and Aunt be granted co-guardianship.
Grandmother submitted a declaration that she was both the grandparent and the de facto parent (she filed the section 388 petition prior to her de facto parent status being revoked). Grandmother had bottle fed both Children and they were very bonded to her. Grandmother was willing to accept guardianship with Aunt. Grandmother had no contact with M.K. Grandmother had never refused to assume guardianship of the Children. Grandmother had had some health problems which had since been resolved. Grandmother promised that there would be no contact between the Children and Mother except in a therapeutic setting.
The Department filed a response to the section 388 petitions on February 18, 2013. It was recommended that the petitions be denied. The Department denied that Grandmother had been the caregiver during the dependency proceedings; M.K. had custody throughout the proceedings. The Children had been placed in foster care for a two-month period, and Grandmother and Aunt had not offered to take custody of the Children.
Grandmother had lived with M.K. and the Children for a short period of time. While she was living with them, she tried to facilitate telephone calls between the Children and Mother in violation of the Department's orders. The Children were not bonded to Grandmother and did not want to visit her. Grandmother had not submitted proper fingerprints in order for the Department to complete a relative assessment. Grandmother's therapist reported she was '"fiercely defensive'" about Mother.
Moreover, the Department argued that Grandmother continued her relationship with Mother and Father despite Father threatening her with a knife and a baseball bat. Aunt had tried to get Grandmother back from Washington, D.C., where she was living with Mother and Father, but she refused and stayed with Mother. The Department was concerned that Grandmother could not keep the Children safe from Mother. Grandmother's doctors had reported that she suffered from delirium caused by stress.
Aunt continued to provide financial support to Father and Mother. The Children loved their prospective adoptive home and had made many friends. Their therapists confirmed they were doing well in the prospective adoptive home.
The hearing on the section 388 petitions filed by both Grandmother and Aunt began on February 15, 2013. Aunt testified that she owned a townhome in Laguna Beach that could easily accommodate the Children. She had not taken custody of the Children earlier because her previous home and car were too small. Aunt initially stated she did not want to adopt them because she did not want to take the place of Mother and Father, but later agreed she would adopt them if necessary. Aunt had taken care of them most of the summer of 2012. Aunt had never seen Father be violent. Aunt would abide by the court order not to allow contact between Mother and Father and the Children. Aunt did not believe that Grandmother suffered from dementia. Aunt claimed that the social worker convinced her not to take the Children in November 2012. Aunt admitted that if allowed, she would want the Children to build a relationship with Mother and Father. Aunt and Mother saw each other once a week and they talked on the telephone.
Aunt admitted at one point during the dependency proceeding that she thought it was better for the Children to be adopted because she was taking care of Grandmother and it was too much for her. However, as of October 2012, she wanted to take guardianship of the Children. Aunt believed that Mother and Father were "safe" people. If they arrived at her home and were not acting appropriately, she would call the police.
The social worker assigned to the case, Peter Bricarello, testified. M.K. advised him on September 21, 2012, that Aunt no longer wanted co-guardianship and he confirmed with Aunt directly that she did not want guardianship. In November 2012, Aunt advised Bricarello that she and Grandmother wanted to focus on Mother getting back custody of the Children. Aunt and Grandmother wanted guardianship as of December 15, 2012, and a relative assessment was started, but the Children were moved to an adoptive home on December 26, 2012. By the time Grandmother and Aunt wanted guardianship, the Children had already had extensive contact with the prospective adoptive family. The Children both stated at that time they did not want to go with Grandmother and Aunt and did not want to visit them. The Children did have a visit with Grandmother and Aunt, but even after the visit, which went well, they expressed they did not want to live with them.
Bricarello did not think that Aunt and Grandmother could protect the Children from Mother and Father. He came to this conclusion in part because there had been prior reports to adult protective services that Grandmother had been the victim of violence at the hands of both Mother and Father. Despite these reports, she stayed with Mother and Father. One of the times that a report was made, Grandmother had a black eye, but said she hit herself on a door. Bricarello did not have information that the home of Grandmother and Aunt had been approved. Grandmother was recently found not to have dementia. Based on emails between Mother and Aunt, it was Bricarello's opinion that Aunt was willing to do whatever Mother wanted her to do. Grandmother and Aunt had refused to release information from Grandmother's neuropsychological exam. Grandmother's therapist advised Bricarello that Grandmother was defensive of Mother and would do anything for her. He was concerned about Aunt and her continuing to change her mind about taking the Children.
There had been no contact between Father and the Department for over one year so his mental state was unknown. Bricarello was aware that Father recently had a positive psychological evaluation.
Grandmother testified. She admitted she was defensive of Mother because Mother had gotten a "bad shake" and all of Mother's problems were caused by M.K. Grandmother thought that she could protect the Children from Mother and Father.
Grandmother no longer had a relationship with M.K. She thought it was "disgusting" that M.K. tried to have the Children adopted outside the family. Grandmother denied that Father ever threatened her with a knife or baseball bat and she did not write the temporary restraining order that was issued against him at the beginning of the dependency proceedings. Grandmother was forced by M.K. to call the police on Father, and M.K. made her get the restraining order. Grandmother was willing to adopt the Children. She was healthy.
Grandmother had taken care of the Children since they were four or five days old. Grandmother wanted the Children to go back to Mother and Father but was willing to be their guardian. Aunt's home was a safe and stable environment. She would try not to allow unauthorized contact between the Children and Mother and Father. Grandmother stayed in Washington, D.C. with Mother because she wanted to help her get back the Children. She was disgusted that M.K. tried to get conservatorship over her while she was in Washington, D.C. Grandmother was not afraid of Mother.
Grandmother thought Mother was an excellent mom. She felt it was her fault that Mother did not have custody of the Children. Grandmother claimed that only one time Father had thrown down a dish in her presence because they had argued over him eating T.E.'s food. Grandmother minimized the incidents where adult protective services were called.
Mother had power of attorney over Grandmother. Grandmother stated that until Mother got "healthy" again she could not take care of the Children. If Mother arrived at the home, Grandmother would ask her to leave, and if she did not leave, she would call the police. In the prior week, Grandmother received notice that the house had been approved for placement on March 4, 2013.
Aunt and Mother testified, in addition to P.S., who was a sibling to M.K. Grandmother informed P.S. in 2011 that Father attacked her and she was filing a restraining order against him. Grandmother called her several times complaining about Father and that she was afraid. Aunt had discussed taking I.E. Aunt had trouble when I.E. stayed with her over the summer as a trial, and ended up bringing both Children to stay with P.S.
P.S. was concerned about Grandmother's age and her ability to care for the Children. She was also concerned about Aunt who had several times said she could not take care of the Children. Grandmother had stayed with P.S. for a period of time when she was concerned about Father. Grandmother called P.S. for money on occasion advising her that Mother had used all her money. Grandmother felt bad for Mother. P.S. did not believe that Mother would stop harassing Grandmother and Aunt if they took custody of the Children. Aunt did not have a strong enough personality and was easily manipulated so she could not stand up to Mother. P.S. claimed that Mother had taken "millions" of dollars of Grandmother's assets.
M.K. also testified. M.K. had placement from October 4, 2011 through December 27, 2012. M.K. had written the restraining order for Grandmother based on the information she orally gave her. Mother repeatedly called M.K. while she had custody of the Children screaming at her and threatening her. M.K. recounted that Mother had tried to take the Children during a visit. M.K. had health problems and knew she could probably not take care of the Children. M.K. asked Aunt to take the Children in September 2012 but she refused.
M.K. gave money to Aunt to get a larger place to accommodate the Children. M.K. did not believe that Grandmother could take care of the Children due to her health and she believed that she would give them back to Mother. Aunt also would give the Children back to Mother. Aunt had facilitated communication with Mother and the Children while they were living with M.K. M.K. believed that Aunt pursued guardianship with Grandmother because Mother pressured them.
The juvenile court heard argument by all the parties. The juvenile court noted that the section 300 petition was sustained on three grounds: Father's mental health, domestic violence and Mother's depression and anxiety. Reunification services were terminated because they did not complete services. The juvenile court found that the Department had done its job by initially placing the Children with the relative caretaker M.K. However, the family problems destroyed this placement.
The juvenile court understood that Aunt and Grandmother had "waffled" on taking guardianship and came to the process late. The juvenile court, however, did not take that into account in its decision. The juvenile court noted the question was whether the Children could be safely placed with any of the relatives, particularly Grandmother and Aunt.
The juvenile court noted that many of the section 361.3 factors strongly supported placing the Children with Grandmother and Aunt. The juvenile court found Grandmother and Aunt to be of the "highest moral character" and were "pillars of society." There was no question the home was adequate. The juvenile court gave some weight to the fact that the Children did not want to reside with Grandmother and Aunt. The fact that Aunt had previously had the Children and gave them back did not "bode well for what would happen in the long term." Further, it would be difficult for Grandmother to care for the Children due to her age.
The juvenile court stated its decision was primarily based on whether Grandmother and Aunt could protect the Children and the juvenile court did not think they could. First, the juvenile court was concerned about Aunt's testimony that she had no concerns about the behavior of both Mother and Father. Aunt was oblivious to the trauma it would cause the Children if Mother was brought back into their lives. The juvenile court was not sure that Aunt could follow the court orders keeping Mother and Father away from the Children. She would let them back with Mother once the proceedings concluded. The juvenile court believed that Aunt had the parents' best interests in mind. It noted, "I need caregivers here who do not have the parents' best interest at heart. I need parents thinking of these kids first and foremost."
The juvenile court found as to Grandmother, "I must have witnessed as either a judge or an attorney thousands of witnesses testifying in open court, thousands. Without exception, I do think [Grandmother] was the least credible witness I have ever observed." This included calling herself "foolish" for calling protective services or the police. She minimized everything that happened to her. She was "falling on her sword" because she felt an obligation to fight for Mother. Grandmother signed the restraining order describing Mother and Father as having troubled emotional states and that they were a danger to her and the Children, but now was minimizing these actions.
Further, Mother had power of attorney over Grandmother. It defied logic that Grandmother could protect the Children from Mother. The juvenile court concluded, "there's no way that [Grandmother] is going to be able to say no to her daughter." The section 388 petitions were denied.
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "'[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required. [Citation.]" (Ibid.) "[T]he change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)
"In any case in which a child is removed from the physical custody of his or her parents . . . 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).) "'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) The relatives entitled to preferential consideration for placement include an adult who is a grandparent or aunt. (§ 361.3, subd. (c)(2).) The preferential consideration continues at least throughout the reunification period. (In re Joseph T. (2008) 163 Cal.App.4th 787, 795.)
Section 361.3 was modified in 2012 but the modifications are not relevant to the issues in this appeal. (Stats. 2012, ch. 845 (Sen. No. 1064), § 7.)
The relative preference for placement is again at issue when a new placement is necessary. Section 361.3, subdivision (d), provides, in relevant part: "Subsequent to the hearing conducted pursuant to Section 358 [the dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements."
In determining whether relative placement is appropriate, the juvenile court and the Department are to consider, among other factors, as follows: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] . . . [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful . . . ." (§ 361.3, subd. (a).) In addition, the court should consider whether the relative can do as follows: "(A) Provide a safe, secure, and stable environment for the child. [¶] . . . (D) Protect the child from his or her parents." (§ 361.3, subd. (7).)
However, "[a]fter the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"The relative placement preference . . . is not a relative placement guarantee. . . ." (In re Joseph T., supra, 163 Cal.App.4th at p. 798, original italics.)
The Children were initially detained due to Father's violent and bizarre behavior. Mother failed to protect the Children from Father and spent the entire reunification period fighting with the Department and filing legal documents instead of participating in reunification services. Rather than take custody of the Children, Grandmother chose to live with Mother and Father and help them get the Children back. As a result, the Children were placed with M.K. for almost the entire dependency proceeding. Aunt at one point was going to work with M.K. to take co-guardianship of the Children, but then backed out. In addition, Aunt had not been able to handle the Children when they stayed with her. Aunt, who was to share guardianship with Grandmother, had not shown she was capable of caring for the Children.
While M.K. had custody of the Children, Mother made threatening telephone calls and both she and Father tried to make unauthorized visits with the Children. In addition, Mother tried to take the Children from M.K. during a visit. It was clear that Mother and Father would not obey court orders and they believed that the Department was against them. The juvenile court could reasonably consider that Mother and Father would continue to try to see the Children despite the orders that they were not to see the Children.
Additionally, Grandmother had been subjected to violence at the hands of Father, but continued to support him and Mother. As noted by the juvenile court, despite the reports to adult protective services, and the restraining order she obtained against Father, she continued to minimize the actions of Father and Mother. However, both P.S. and M.K. affirmed that Grandmother had been hurt by Father while living with him and that she wanted to get the restraining order against him. If Grandmother was incapable of protecting herself, the juvenile court could certainly question whether she could protect the Children.
Moreover, the testimony of both Aunt and Grandmother, observed by the juvenile court, provided no assurance to the juvenile court that Grandmother could protect the Children. Aunt thought Mother and Father were safe people. Grandmother blamed M.K. for all of Mother's problems. Grandmother thought Mother was an excellent mom. Although Grandmother claimed she would protect the Children from Mother, the juvenile court clearly rejected this testimony finding her to be the least credible witness it had ever seen. We cannot question the juvenile court's determinations of witness credibility on appeal.
Finally, the Children were bonded to the prospective adoptive parents. They did not want to live with Grandmother and Aunt and wanted to be adopted. As noted, after the termination of reunification services, the juvenile court looks to the best interests of the children. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Here, the safety and stability that the Children gained by being placed in the adoptive home were in their best interests.
Grandmother focuses on the juvenile court's statement that she and Aunt were of the highest moral character. However, the juvenile court also noted that Grandmother was greatly influenced by Mother and could not protect the Children. Grandmother also focuses on the mistaken belief that she was the de facto parent. However, as set forth ante, a close reading of the record reveals that the juvenile court changed its order.
Here, Grandmother was clearly influenced by Mother and could not show that she could protect the Children from Mother and Father, which was clearly in their best interests. The juvenile court did not abuse its discretion in denying Grandmother's section 388 petition.
The appeals filed by Mother and Father are dismissed as they lack standing to raise their claims and their appeals are moot as no effective relief is available to them. In all other respects, the juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: McKINSTER
Acting P. J.