Filed 8/29/17 In re I.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Dismissed.

Roni Keller, under appointment by the Court of Appeal, for Defendants and Appellants.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court terminated the parental rights of J.T. (mother) and D.H. (father) as to their three children and selected adoption as the permanent plan. Neither parent appealed from those orders, and they are now final. K.S. and W.S., the maternal grandparents, appeal from an order of the juvenile court denying their petition under Welfare and Institutions Code[1] section 388 to place the children in their care and custody.

The grandparents argue, inter alia, the Riverside County Department of Public Social Services (DPSS) did not properly assess them for relative placement and, in fact, defied orders of the juvenile court to do so. They further argue the juvenile court did not exercise independent discretion to determine whether the children should be placed with them. Because the orders terminating parental rights and freeing the children for adoption were not appealed, and have since become final, we cannot provide the grandparents with any effective relief, and their appeal is moot. Therefore, we must dismiss the appeal.

I.

FACTS AND PROCEDURAL BACKGROUND[2]

E.D. was born three months premature and tested positive for THC at birth. Due to his fragile health, DPSS detained the child and placed him in a medically fragile foster home. After mother and father were arrested for shoplifting, a social worker spoke to mother about where to place her other young child, I.T. Mother requested that I.T. be released to his grandparents, with whom mother had been living. The grandparents expressed interest in caring for I.T., but did not believe they could care for E.D. due to his medically fragile state. At a detention hearing, the juvenile court ordered that I.T. not be detained in the custody of DPSS, but instead remain in the custody of his parents on the condition that they continue to live in the grandparents’ home. The court ordered that E.D. be detained and continued in the temporary care and custody of DPSS.

Mother did not comply with the juvenile court’s order that she live in the grandparents’ home, so DPSS detained I.T. and placed him in a foster home. The grandparents again expressed interest in caring for I.T., but disclosed to the social worker that their adult son (the maternal uncle), who lived in their home, had a conviction for driving under the influence (DUI). The social worker informed the grandparents that I.T. could not be placed in their home because of the uncle’s DUI, but DPSS would submit the form for a relative placement assessment. At a detention hearing on an amended petition under section 300, the juvenile court ordered that the children be detained and placed in the temporary care and custody of DPSS.

In a jurisdiction/disposition report, the social worker reported that mother was scheduled to surrender to the sheriff’s department. The grandmother asked that I.T., who was still in a foster home, be placed in her care. E.D. remained in a medically fragile foster home. The social worker reported that the grandparents had been referred for a relative placement assessment. An addendum report indicated the grandparents had submitted to a live scan and their home had been evaluated. However, the social worker reported the grandparents would need an exemption before I.T. could be placed with them due to their prior history with DPSS (relating to mother) and the uncle’s criminal history. At the jurisdictional hearing, the juvenile court sustained the amended petition, found I.T. and E.D. to be dependent children within the meaning of section 300, subdivision (b), and ordered that they remain in the care and custody of DPSS.

In a report filed for a six-month status review hearing, the social worker reported that I.T.’s caregiver had expressed an interest in obtaining the medically fragile training necessary to have E.D. placed in her care as well. In addition, the social worker reported that the request for a criminal exemption for the grandparents was still pending. On the day of the status review hearing, mother’s attorney asked that the juvenile court direct DPSS to provide an update regarding the grandparents’ assessment. The grandfather also informed the juvenile court that he and the grandmother had completed the medically fragile training in order to care for E.D. The court set a contested status review hearing and directed DPSS to file an addendum report regarding the grandparents’ assessment. In its addendum report filed after the hearing, DPSS reported the criminal exemption for the grandparents was still pending.

At the contested six-month review hearing, counsel for the children informed the juvenile court that the uncle was in custody and asked that the court direct DPSS to reassess the grandparents for placement. Mother’s attorney also asked that the grandparents be assessed for relative placement. The juvenile court found the parents had not made significant progress on their case plans and it was unlikely the parents would be reunited with the children within six months. Therefore, the court terminated reunification services and set a hearing under section 366.26 for termination of parental rights and selection of a permanent plan. The juvenile court ordered that the children remain in the custody and care of DPSS. The juvenile court also directed DPSS to continue assessing the grandparents for relative placement and, in particular, to consider whether the children would be exposed to the uncle.[3]

In a report filed for the section 366.26 hearing, the social worker reported that two potential adoptive families had been identified for the children. With respect to placement with the grandparents, the social worker reported that several issues had to be resolved before they could be considered as adoptive parents. The social worker recommended: (1) both grandparents submit to a psychological evaluation; (2) grandfather attend an alcohol assessment to rule out current substance abuse; (3) grandfather be assessed for potential sexual abuse; (4) both grandparents complete counseling to address their coping skills and ability to care for the children; and (5) both grandparents receive favorable reports supporting their suitability as adoptive parents. The social worker discussed these concerns and recommendations with the grandparents, and they agreed to submit to the recommended assessments and counseling. The report indicates the grandfather had completed his alcohol assessment, and the social worker indicated the prognosis for adoption by the grandparents was “guarded.”

Mother gave birth to another child, M.D., who was detained by DPSS. The parents asked that the grandparents be assessed for placement of M.D., who were still being assessed for placement of E.D. and I.T. The grandmother told the social worker that she was open to taking M.D., but she was worried about being overwhelmed caring for three children under the age of five. The social worker reported that the grandparents had made substantial progress addressing DPSS’s concerns regarding their suitability as adoptive parents. However, the social worker expressed concern about the grandmother’s ability to protect the children from their mother in light of the circumstances in which D.M. had been removed from mother at the grandparents’ home, and especially the fact the grandmother had failed to notify DPSS that mother had given birth to another child. Nonetheless, the social worker reported the children’s visitation with the grandparents was being progressively increased with the goal of placing the children in their home upon successful assessment and evaluation.

At the detention hearing and the jurisdiction and disposition hearing for M.D., the juvenile court ordered M.D. be detained and placed in the care and custody of DPSS. The juvenile court sustained the petition regarding M.D., denied reunification services to the parents, and set a hearing pursuant to section 366.26.

A postpermanent plan review report stated the grandparents visited regularly with the children, and the children had developed a bond with the grandparents. The social worker reported the grandparents had alleviated the concerns regarding their suitability to adopt the children. The grandparents provided DPSS with documentation that they had completed their psychological evaluations and parenting classes. The social worker reported the grandparents’ documentation had been reviewed thoroughly, and that an adoption supervisor had expressed the opinion that the grandparents could be considered as adoptive parents “if everything else remained in place.” Visitation with the grandparents was further increased with the goal of placing the children with them.

I.T. and E.D. were placed with the grandparents, but removed by DPSS two weeks later because of safety concerns. DPSS learned the uncle had been arrested for disorderly conduct and being under the influence. One of the conditions of placing the children with the grandparents was that no new criminal activity occur in the home that would require an additional exemption. The grandmother informed the social worker that she was aware the uncle had been arrested, but said the incident was away from the home and involved alcohol (not drugs). The social worker was concerned that the grandmother had prioritized the uncle living in her home over the safety of the children. When the social worker told the grandmother that the uncle would have to move out, she replied that she was not sure she could kick him out and would have to discuss the matter with the grandfather. Later, the grandmother told the social worker that the uncle would try to find a new place to live, but he would need more than a month to save up money in order to move out. DPSS determined the children needed to be moved from the grandparents’ home to provide them with a stable, permanent home, which would not require an additional criminal exemption.

During a review hearing conducted five months later, mother’s counsel informed the juvenile court that the grandparents had not been provided with notice that DPSS was going to remove the children from their home, and had not been notified they could challenge the removal. The grandparents told the juvenile court that the uncle had been arrested almost 100 miles away from their home and that no charges were ever brought against him. The juvenile court directed DPSS to perform an immediate assessment of the grandparents to determine whether the children should be returned to them, authorized increased visitation with the grandparents, and directed DPSS to provide the grandparents with judicial council forms to object to the removal.

Two months later, the social worker filed petitions under section 388 requesting the juvenile court vacate its order directing DPSS to provide the grandparents with forms to challenge the removal of E.D. and I.T. from their care. The social worker informed the court that DPSS had conducted a formal staffing and had determined the grandparents had no standing as prospective adoptive parents because (1) the court never declared them as prospective adoptive parents, (2) the children were not placed with the grandparents through the adoption matching process, (3) the grandparents’ preliminary assessment as prospective adoptive parents had not been completed, and (4) a referral for an assessment as prospective adoptive parents had never been submitted.

In addition, the social worker informed the juvenile court that DPSS had completed the immediate assessment for placement, as directed, and had concluded the children would not be returned to the grandparents. According to the social worker, the grandmother’s failure to report to DPSS that mother gave birth to M.D. and her failure to report the uncle’s arrest showed a “lack of ability to demonstrate protectiveness and effective safety planning” for the children. Finally, the social worker informed the juvenile court that the grandparents had, in fact, been informed of the reasons for the children’s removal. The court set a hearing on the petitions.

In an addendum report filed for the section 366.26 hearing, the social worker reported that a preliminary assessment of the children’s foster family had been completed and recommended that adoption planning continue with the foster family as the prospective adoptive parents.

At the scheduled section 366.26 hearing, an attorney who the grandparents wished to retain requested the hearing be continued so she he could obtain discovery and move for relative placement under section 361.3. Mother’s counsel indicated her belief that the grandparents did not meet the criteria for prospective adoptive parents and, therefore, they lacked standing to object to the removal of the children without notice. However, mother’s counsel informed the court that mother wanted the grandparents to be given the opportunity to be heard regarding relative placement. Father’s counsel concurred. The juvenile court continued the hearing and directed DPSS to provide the attorney for the grandparents with relevant discovery.

The grandparents filed a motion with the juvenile court arguing they had standing to request relative placement under section 361.3, that DPSS abused its discretion by not properly assessing them for relative placement, and requested the juvenile court conduct an independent assessment of their suitability as caregivers to the children. In its opposition, DPSS conceded the grandparents had standing to request relative placement, but argued section 361.3 no longer applied because the juvenile court had already terminated reunification services to the parents with respect to I.T. and E.D. and had denied reunification services with respect to M.D. DPSS also argued it did properly assess the grandparents and did not abuse its discretion by removing the children based on safety concerns.

After conducting an evidentiary hearing on the grandparents’ request for relative placement, the juvenile court denied the motion. The court concluded DPSS did not “simply discount the maternal grandmother and grandfather,” as suggested by the grandparents’ retained counsel, but instead DPSS assessed the grandparents for relative placement, provided a number of necessary exemptions, and eventually placed the children with the grandparents. The court, making its own “independent analysis,” concluded DPSS did not abuse its discretion by removing the children from the home because the grandmother’s failure to report mother’s pregnancy with M.D. and failure to report the uncle’s arrest showed the grandparents continued to prioritize their adult children over the safety of their grandchildren. The grandparents timely appealed from that order.

The juvenile court then granted the petition to vacate its order directing DPSS to provide the grandparents with judicial council forms with which to challenge the removal of the children, terminated mother and father’s parental rights, and selected adoption as the permanent plan for the children. Neither parent appealed.

II.

DISCUSSION

Among other things, the grandparents contend DPSS did not properly assess them under section 361.3 for relative placement and the juvenile court did not exercise its independent judgment when determining whether the children should be returned to their care.[4] The relative placement provisions in section 361.3 apply when a child is taken from his or her parents and placed outside the home pending the determination whether reunification is possible. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)

Section 361.3 requires preferential consideration for a relative who requests placement, but it does not create an evidentiary presumption in favor of placement with a relative. (In re Sarah S., supra, 43 Cal.App.4th at p. 286.) “‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) In other words, a relative will be considered before a stranger’s request for placement. (In re Sarah S., at p. 285.) But a relative must be assessed and approved before preferential placement may be ordered. (§ 361.3, subd.(a)(8).) Thus, preferential consideration does not necessarily compel a relative placement; the relative placement preference is not a relative placement guarantee. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Where a relative requests placement of a child prior to a dispositional hearing, and the agency does not timely complete a relative home assessment, the relative requesting placement is entitled to a hearing pursuant to section 361.3, without having to file a section 388 petition. (In re Isabella G. (2016) 246 Cal.App.4th 708, 712.)

The relative placement preference also applies to placements made after the dispositional hearing, even when reunification efforts are no longer ongoing, whenever a child must be moved. (§ 361.3, subd. (d); see Cesar V. v. Superior Court, supra, 91 Cal.App.4th at pp. 1031-1032.) However, the relative placement preference does not apply to an adoptive placement; there is no relative placement preference for adoption. (In re Lauren R. (2007) 148 Cal.App.4th 841, 855; see In re K.L. (2016) 248 Cal.App.4th 52, 65-66.) Once the juvenile court has determined that reunification is not possible, the most pronounced reason for trying to maintain family ties terminates as well, although, even then, access to relatives may still be a factor a court considers in making permanent placement decisions. (Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 113, citing In re Lauren R., at pp. 854-855.) Instead, at the section 366.26 hearing, the court must apply the caretaker preference under section 366.26, subdivision (k). (In re Lauren R., at p. 853.)

DPSS argues the grandparents’ appeal is moot because: (1) no appeal was taken from the orders terminating parental rights and freeing the children for adoption, and those orders are now final; and (2) the relative placement preference does not apply to adoption. Because the termination orders are final, we agree the appeal is moot.

“As a general rule, it is a court’s duty to decide ‘“‘actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’”’ (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 . . . .) An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief. (Ibid.)” (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)

“An order of the dependency court terminating parental rights may be modified only by a timely direct appeal from the order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161 . . . .) It is not subject to collateral attack, such as by petition for writ of habeas corpus. (Ibid.)” (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316.) In In re Jessica K., the mother timely appealed from an order denying her petition under section 388 requesting her child be returned to her custody. The juvenile court terminated the mother’s parental rights while her appeal was pending, but she neglected to appeal from the termination order. (In re Jessica K., at p. 1315.) The appellate court concluded the order terminating parental rights rendered her appeal moot. “In this case, mother appealed from the order summarily denying her section 388 petition, but did not appeal from the order terminating parental rights, allowing the termination order to become final. The 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.” (In re Jessica K., at pp. 1316-1317.) The Court of Appeal therefore dismissed the appeal. (Id. at p. 1317.)

In this case, the grandparents timely appealed from the order denying their section 388 petitions seeking return of the children. But the juvenile court had terminated parental rights and freed the children for adoption and, as stated, neither parent appealed, timely or otherwise. The orders terminating parental rights and freeing the children for adoption are now final. (In re Carrie M. (2001) 90 Cal.App.4th 530, 533-534 [“An order is final when the time for appeal has expired and no timely appeal has been filed or the order has been appealed and affirmed.”].) Even if the grandparents are correct on the merits of their appeal, we cannot provide them with the relief they seek, viz., a new relative placement hearing.[5] Because the grandparents’ appeal is moot, we must dismiss the appeal.

III.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.