NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendants and appellants L.L. (mother) and R.J. (father) appeal the termination of parental rights to their three children at a Welfare and Institutions Code
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention—September 2015.
On August 28, 2015, the family came to the attention of CFS when it responded to a referral from St. Bernardine Medical Center, where mother had brought her son, D.S.
On September 14, 2015, CFS filed dependency petitions on behalf of all three children. The petitions alleged serious physical harm, failure to protect, and severe physical abuse. (§ 300, subds. (a), (b), & (e).) As to D.S., it was further alleged that the whereabouts of his father were unknown. (§ 300, subd. (g).) As to K.J., it was further alleged that her siblings had been abused or neglected. (§ 300, subd. (j).) At the detention hearing on September 15, 2015, mother asked that her relative, L.A., or any appropriate relative, be assessed for placement. The juvenile court found a prima facie case for detention, removed the children from the parents' care, and ordered weekly supervised visitation.
On October 5, 2015, CFS filed an amended petition detailing the injuries the children suffered.
B. Jurisdiction and Disposition—March 30, 2016.
The jurisdiction/disposition report filed on October 1, 2015, recommended that the allegations be found true as amended, the children be removed and placed in out-of-home care, and that no family reunification services be provided to either parent. It was further reported that D.S., Sr., is the alleged father of D.S. Mother failed to drug test on September 15 and 28, 2015. The children's injuries were listed. Mother denied that she and father harmed the children in any way; however, she admitted that D.S.'s father hit her, stole from her, and kicked her in the stomach when she was pregnant. She admitted using marijuana when she was 15 years old, but denied any current substance abuse. Mother opined that the children may have been injured by standing on each other, or falling off a bed that was too high. She also offered that the maternal grandparents could have caused the injuries when they cared for the children. Father also suspected the grandparents of harming the children. Mother explained that her parents used methamphetamine and would be under the influence while caring for the children. She estimated there was a 90 percent chance the children's injuries were caused by the maternal grandparents.
At the time of the jurisdiction/disposition report, the Relative Approval Unit (RAU) was assessing two relatives, C.B. and CH., waiting on the results of Live Scan and home assessments. The social worker stated that it was apparent the parents loved their children very much; however, there was concern about the unexplained injuries to the two older children, their diagnoses of malnutrition, and their speech delays. On October 1, 2015, Detective Vasalis of the San Bernardino Police Department told the social worker that mother was the main suspect in the abuse.
On January 8, 2016, CFS filed an addendum report, in which it continued to recommend that the allegations be sustained, the children be removed and placed in out-of-home care, and that no family reunification services be provided. Regarding relative placement, the home assessment of a maternal relative, C.H., was complete; however, RAU was waiting for the Live Scan results. On March 29, 2016, the social worker informed the court that the children had been placed with C.H. on March 14, 2016; however, on March 18, 2016, C.H. requested that the children be removed due to harassment from the parents. The parents also contacted the social worker and requested that the children be moved to another relative's home, since C.H. would not allow the parents to visit them in her home. The social worker removed the children on March 25, 2016, and placed them in a foster home. On March 30, 2016, the social worker informed the court that the parents had been provided with services but had not contacted the service coordinator. Mother had enrolled in an outpatient substance abuse treatment program on October 12, 2015, but her last contact was on October 20, 2015. The parents had visited the children five times between December 10, 2015, and February 24, 2016.
A contested jurisdiction/disposition hearing began on March 30, 2016, and concluded on April 15, 2016. Father denied physically abusing the children and stated that the doctors never told him they had suffered any rib fractures. He wanted the juvenile court to find him to be D.S.'s presumed father.
The social worker testified that mother had not tested positive for marijuana since D.S.'s birth. She stated that the doctors had different opinions regarding D.S.'s injuries; however, they agreed as to R.J.'s diagnosis of multiple rib fractures caused by nonaccidental trauma. She described the services that the parents refused, including drug tests, and she pointed out that they continued to deny any injuries to the children. Nonetheless, mother had completed a parenting course and had provided the notes she had taken during the course. The social worker testified that the parents were married after the children were detained.
Dr. Heidi Knipe-Laird opined that father was a loving and nurturing father, who behaved in ways typical of how loving and devoted fathers act. She was not aware that father refused to attend services provided by CFS, but expressed concern if he had been offered services and consistently ignored or turned them down. The doctor found father to be open and sincere, even though he would sometimes "gloss over" things.
The juvenile court looked at the allegations as to each child separately. The court found that K.J. came within section 300, subdivisions (a), (b), and (j); that R.J. came within section 300, subdivisions (a), (b), and (e); and that D.S. came within section 300, subdivisions (a), (b), (e), and (g). Mother requested reunification services and that maternal relatives (M.F. and W.F.) be assessed for placement. The court found father to be the presumed father of all three children, ordered relatives assessed for placement, and ordered all three children be placed in a concurrent planning home. The court denied services to the parents pursuant to section 361.5, subdivisions (b)(5) and (b)(6), reduced the supervised visitation to once a month for one hour, and set a section 366.26 hearing. The parents were advised of their writ rights but did not exercise them.
C. Selection and Implementation—February 15, 2017.
In the section 366.26 report filed on August 5, 2016, CFS recommended that the children remain in out-of-home placement and the matter be continued to locate a concurrent plan home. Since the last hearing, the children had remained in foster care while CFS attempted to locate appropriate relatives; however, no relatives were eligible or available for placement. The current foster home was "willing to be a part of the [p]ermanent plan, but not willing to adopt" the children. As of the date of the report, CFS was assessing seven different relative homes: three were ineligible, two were "undetermined—insufficient info," one was out of state or undetermined, and the seventh was "In Process." CFS recommended adoption as the permanent plan having determined that the children were adoptable given their young ages. Both parents had consistently visited the children in a supervised setting and were cooperative during visits.
On August 15, 2016, mother asked that D.M, a maternal great-aunt who lived in Nevada, be assessed for placement.
On September 8, 2016, mother requested an ICPC order for D.M. CFS indicated there was an order in place but it was unable to contact the relative. The juvenile court ordered the ICPC and advised the parents that the relatives needed to cooperate in order to be assessed. On September 21, 2016, the children were moved to the foster home of Mr. and Mrs. C., who expressed a commitment to adopting them. CFS requested that the section 366.26 hearing be continued for 90 days.
On October 14, 2016, both parents objected to the placement in a concurrent planning home and asked that the juvenile court recognize the relative placement preference. CFS noted that the court had already authorized concurrent placement. The court agreed, adding: "In any case, because there is no relative approved for placement in California, [CFS] has the obligation to place in a concurrent planning home while still having the obligation to follow up with a relative placement." The court ordered the matter continued for 90 days.
On December 27, 2016, Mr. and Mrs. C. requested de facto parent status. In an addendum report filed on January 6, 2017, CFS recommended that Mr. and Mrs. C. be granted de facto parent status, that parental rights be terminated, and that the permanent plan of adoption be ordered. The children were one, three and four years of age, and had been living with Mr. and Mrs. C. since September 21, 2016. They had adjusted well to the home and had bonded with the prospective adoptive parents, who had been married for approximately 13 years and had no children together. The C.'s were willing and eager to solidify their relationship with the children through adoption. The children had developed parent/child relationships with the prospective adoptive parents.
On January 12, 2017, over parents' objection, the juvenile court granted de facto parent status to Mr. and Mrs. C. Mother inquired about the ICPC for D.M., stating that she had had the background check, but not a home assessment. Mother asserted that no progress had been made on the ICPC since October 2016. CFS disagreed, contending that it had no control over the process or progress. Although it appeared that D.M. would be approved, CFS did not know when that would happen. CFS opined that any request to place the children with D.M. would require a section 388 petition. Mother offered the name of another relative, T.D., for placement. CFS objected on the ground it would delay the children's permanency. The court ordered an assessment of T.D.; however, it informed the parties that the it would not allow the assessment to delay the section 366.26 hearing since mother had just provided the relative's name.
On February 2, 2017, mother filed a petition to change the court's order denying her reunification services and setting a section 366.26 hearing. In support of the petition, mother argued that she had completed two parenting programs and had facilitated a positive change in her life. She did not raise any issue regarding relative placement. On February 3, 2017, the juvenile court summarily denied the petition on the grounds it did not state new evidence or a change of circumstances, and the request was not in the best interests of the children. The court noted that the children had been out of mother's care for more than one year, that mother's statement about the children's best interests was conclusory, and that her circumstance may have been changing, but were not changed.
The section 366.26 hearing was held on February 15, 2017. Mother testified that the children were always excited to see her during visits. She described how they would run to her, hug and kiss her, and did not want to leave her at the end of the visits. Mother played with the children, attended to their needs, and provided comfort if necessary. She opined that they were bonded to her. However, mother admitted that the children had lived outside of her care for nearly 18 months. Father testified that he consistently visited with the children, playing with them and correcting their behavior if necessary. He stated that the supervisor of his visits would complement him on the way he handled situations with the children.
Counsel for CFS advised the juvenile court that the social worker had received an email from the ICPC worker in Nevada, who indicated that they were closing the file due to "issues regarding the paperwork being submitted and things of that nature." Mother's counsel disagreed with CFS, asserting that communication with the relative in Nevada indicated that "there was a mistake about who was in the home, and so they're being fingerprinted, [etcetera]. . . ." Counsel for both mother and father objected to termination of their parental rights, asked that the court consider a less permanent plan, and argued for application of the parent/child beneficial relationship exception. The children's counsel agreed with the recommendation of CFS. She argued that the exception does not apply and that the children would benefit from adoption. Counsel for CFS concurred.
The juvenile court found by clear and convincing evidence that the children are adoptable. After concluding that neither parent met their burden of establishing the parent/child beneficial relationship exception, and that termination of parental rights was not detrimental to the children, the court terminated parental rights. ICPC was never addressed.
A. Neither CFS Nor the Juvenile Court Failed to Consider Relative Placement Under Section 361.5.
In August 2016, when CFS reported that the children's foster parents were not willing to adopt the children, the social worker also reported that D.M., a maternal relative in Nevada, was being assessed for placement. The ICPC was initiated on August 23, 2016. One month later, the children were placed with Mr. and Mrs. C., who wanted to adopt them. On January 12, 2017, when mother provided the name of another relative that could be assessed for placement, the juvenile court ordered the assessment, but informed the parties that the it would not allow the assessment to delay the section 366.26 hearing. At the time of the section 366.26 hearing in February 2017, the ICPC had not been completed. Although the court was made aware of this information, it failed to make any findings or orders regarding the relative placement issue. Both parents contend CFS and the juvenile court failed to timely consider D.M. for placement under section 361.3.
CFS challenges the parents' standing to raise the issue of relative placement. Alternatively, CFS argues that even if the relative placement preference did apply at the section 366.26 hearing, there was no abuse of discretion. We agree with both of CFS's arguments.
1. The Parents Lack Standing to Raise the Relative Placement Preference Issue.
Whether a person has standing to raise a particular issue on appeal depends upon whether the person's rights were injuriously affected by the judgment or order appealed from. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 (Cesar V.).) A person does not have standing to urge errors on appeal that only affect the interests of others. (In re Gary P. (1995) 40 Cal.App.4th 875, 877.) Thus, "a parent is precluded from raising issues on appeal which did not affect his or her own rights. [Citations.]" (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806.)
In dependency proceedings, "preferential consideration" is required to be given to a relative's request for placement of a dependent child with a relative. (§ 361.3, subd. (a).) Thus, it has been said that section 361.3 protects a relative's "separate interest" in a relationship with the child. (Cesar V., supra, 91 Cal.App.4th at pp. 1034-1035.) In contrast, a parent's interest in a dependency proceeding is in reunifying with the child. (Id. at p. 1035; In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; § 361.5.) This parental interest in reunification is to be distinguished from a relative's "separate interest" in preferential placement consideration or in having a relationship with the child. (Cesar V., supra, at pp. 1034-1035.)
In view of this distinction, the court in Cesar V. held that a parent does not have standing to raise relative placement issues on appeal, where the parent's reunification services have been terminated. (Cesar V., supra, 91 Cal.App.4th at p. 1035.) This is because decisions concerning placement of the child do not affect the parent's interest in reunification, where the parent is no longer able to reunify with the child. (See id. at pp. 1034-1035.) In contrast, where the parent's reunification services have not been terminated, placement of the child with a relative arguably affects the parent's chances of reunifying with the child. Thus, where reunification remains a possibility, the parent has standing to raise relative placement issues on appeal. (Id. at p. 1035, citing In re Daniel D. (1994) 24 Cal.App.4th 1823, 1833-1834.)
The parents contend they have standing because placement of the children with a relative would affect their legal status. Specifically, they argue that if the placement order is reversed, it advances their argument against terminating parental rights. However, even if relative placement had been appropriate at the permanency planning stage, reunification was no longer an issue, and relative placement would not have prevented the court from proceeding to terminate parental rights because the children were adoptable. (See § 366.26, subd. (c)(1).) Thus, the issue of the children's placement at this stage of the proceedings did not affect the parents' rights or interests.
A section 366.26 hearing is designed to protect children's compelling rights to have a placement that is stable and permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) If, as here, a dependent child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Here, there was no basis on which to find that termination would be detrimental. (See discussion below.)
Based on the foregoing, the parents have no standing to raise relative placement issues in this appeal from orders made at the section 366.26 hearing.
2. The Relative Placement Preference Is Inapplicable.
Even though the parents lack standing to contend that CFS and the juvenile court failed to properly apply the relative placement preference (§ 361.3), we will nevertheless address the issue on the merits.
Preferential consideration under section 361.3 is not a guarantee of placement. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798 (Joseph T.) ["[t]he relative placement preference . . . is not a relative placement guarantee"].) Section 361.3 also does not create an evidentiary presumption that must be overcome before a child may be placed with a nonrelative over a statutorily qualified preferred relative. (In re Stephanie M. (1994) 7 Cal.4th 295, 321 (Stephanie M.).) The only requirement imposed by section 361.3 is that the court consider as a first priority whether placement with the relative "is appropriate, taking into account the suitability of the relative's home and the best interest of the child. [Citation.]" (Stephanie M., supra, at p. 321, italics omitted.) In other words, a relative will be considered before a stranger's request for placement. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) But a relative must be assessed and approved before preferential placement may be ordered. (§ 361.3, subd.(a)(8).)
Appellate courts concur in finding the relative placement preference set forth in section 361.3 unequivocally applies from detention through the disposition hearing. There is a split of authority however, on whether it applies during the entire reunification period, up through termination of parental rights. (In re R.T. (2015) 232 Cal.App.4th 1284, 1300.) Some courts have interpreted the language in section 361.3, subdivision (d), stating that relatives shall again be given consideration for placement "`whenever a new placement of the child must be made'" after the disposition hearing, to mean the preference applies after the disposition hearing only when a change in placement becomes necessary. (See, e.g., In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855; see also Cesar V., supra, 91 Cal.App.4th at pp. 1031-1032.) Another court, however, has found the preference applies throughout the entire reunification period and up until termination of parental rights, whenever an adult relative comes forward and requests placement, irrespective of whether the child is in a stable, acceptable placement and no change in placement is indicated. (Joseph T., supra, 163 Cal.App.4th at pp. 794-795.) The panel in Joseph T. was divided, however, with the dissent finding that the statutory language and legislative history supported the conclusion that the preference applied postdisposition only when a change in placement was required. (Id. at pp. 799-800, conc. & dis. opn. of Mallano, J.)
Here, the issue of relative placement was raised after termination of reunification services but prior to termination of parental rights, and it involved an out-of-state relative whose ICPC was incomplete. Nonetheless, CFS and the juvenile court were diligent in assessing relatives for placement throughout the dependency. In March 2016, the children were placed with C.H., but that placement lasted for only 11 days due to the parents' harassing behavior towards her. CFS continued to assess several different relative homes for placement, but none were determined to be eligible. On August 23, 2015, CFS began the ICPC process in Nevada for D.M., a maternal great-aunt. A month later, on September 21, 2016, the children were placed in a concurrent planning home with Mr. and Mrs. C. At the October 14, 2016 continued section 366.26 hearing, the court specifically stated that CFS "has the obligation to place [the children] in a concurrent planning home while still having the obligation to follow up with a relative placement."
By the time that the section 366.26 hearing was held on February 15, 2017, the children had been living with the C.'s for five months, and were bonded with them. In contrast, D.M., a stranger to the children who lived in Nevada, had yet to be approved for placement. CFS did all that it could to prioritize placement of the children with a family member; however, it was not in control of Nevada's time schedule or issues in D.M.'s home that delayed completion of the ICPC. A similar factual setting is found in In re Lauren Z. (2008) 158 Cal.App.4th 1102. In that case, the court affirmed placement of a child with her foster parents over a maternal aunt in Florida, observing the child was bonded with her foster parents, while the aunt remained a stranger. (Id. at p. 1112.) The court found that "[u]nder these circumstances, [the child's] best interests have to prevail over all other considerations, and those interests are plainly served only by adoption by her foster parents." (Ibid.; see § 361.3; see also Stephanie M., supra, 7 Cal.4th at pp. 319-320 [even when the preference applies, it does not "overcome the juvenile court's duty to determine the best interest of the child"]; Lauren R., supra, 148 Cal.App.4th at p. 855 ["`regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.'"]; In re Robert L. (1993) 21 Cal.App.4th 1057, 1068 [the child's best interest must be the linchpin of the court's analysis].)
We conclude that neither CFS nor the juvenile court failed to timely consider D.M. for placement. Moreover, the court did not abuse its discretion when it placed the children in the C.'s home with a permanent plan of adoption.
B. The Juvenile Court Properly Found That the Beneficial Parental Relationship Exception Did Not Apply.
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child. (In re Celine R., supra, 31 Cal.4th at pp. 52-53.) Adoption is the preferred permanent plan because it is more secure and permanent than legal guardianship or long-term foster care. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) "Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the court finds `a compelling reason for determining that termination would be detrimental to the child'" under one or more of the exceptions set forth in section 366.26, subdivision (c)(1)(B). (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).) One such exception is the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)
To establish the beneficial parental relationship exception to termination of parental rights, a parent has the burden of showing "both regular visitation and contact [with the child] and the benefit to the child in maintaining the parent-child relationship." (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81; see § 366.26, subd. (c)(1)(B)(i).) With respect to the "benefit to the child" prong of the exception, a beneficial relationship is one that "`promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.'" (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) The parent has the burden of demonstrating that "severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. . . ." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
We apply the substantial evidence standard of review to the trial court's factual determinations, including the issue of regular visitation and contact with the child, and the existence of a beneficial parental relationship. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) The determination of whether the existence of a beneficial parental relationship constitutes a "compelling reason for determining that termination would be detrimental to the child" within the meaning of section 366.26, subdivision (c)(1)(B) is a "`quintessentially' discretionary decision," which we review under the deferential abuse of discretion standard. (Bailey J., supra, at pp. 1314-1315.) When the party with the burden of proof appeals, contending the trier of fact erred in concluding that party failed to meet his or her burden, the question on appeal "becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Accordingly, "a challenge to a juvenile court's finding that there is no beneficial relationship amounts to a contention that the `undisputed facts lead to only one conclusion.'" (Bailey J., supra, at p. 1314.)
Both parents contend the beneficial parent-child relationship exception precludes termination of their parental rights. The record here does not compel a finding in favor of the parents. Although they met the visitation prong, the evidence shows that the parent-child relationship is qualitatively insufficient and does not outweigh the benefit of adoption. "Satisfying the second prong requires the parent to prove that `severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.]. . . .' Evidence that a parent has maintained `"frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643, original italics.)
According to the parents, their primary interactions with the children consisted of teaching them through educational games and bringing them healthy snacks to each during visits. However, in the 17 months since the children were removed from the parents' custody, their supervised weekly visits never progressed to unsupervised or overnight. Once the section 366.26 hearing was set, their visits were reduced to monthly. The children were removed from their parents' custody when they were two years, one year, and six months old. For all but the oldest child, the parents had not fulfilled a parental role for most of their lives. In contrast, the children had been living with Mr. and Mrs. C. for five months and shared a healthy and bonded relationship with them.
Based on the evidence presented, the juvenile court reasonably concluded that the children's long-term emotional and developmental interests would be better served by the permanency of adoption. In short, the parents have demonstrated no error by the court.
The orders are affirmed.