In re Michael H.

Filed 10/23/06 In re Michael H. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

On November 7, 2005, the Contra Costa County Superior Court, Juvenile Division, held a hearing pursuant to section 366.26 of the Welfare and Institutions Code,^[1] to select a permanent plan for Michael H. (born December 2003). On that date it entered an order terminating the parental rights of Carolyn H. (Mother) and Michael H. (Father). On appeal from that order, Mother^[2] contends that the juvenile court and the Contra Costa Children and Family Services Bureau (Bureau) erred by failing properly to assess Michael’s maternal grandfather (Grandfather) for preferential placement pursuant to section 361.3. She also claims the court violated her constitutional right to freedom of association and her right to marry, by terminating her parental rights solely because of her desire to continue her relationship with Father. As discussed below, we affirm the order.

Background

The facts and procedural history leading to the June 15, 2005, order--by which the juvenile court terminated Mother’s reunification services and set the matter for a hearing under section 366.26--are summarized in our previous opinion in this proceeding, and need not be repeated. In our earlier opinion we denied a petition by Mother seeking an extraordinary writ to set aside the June 15, 2005, order. (Carolyn H. v. Superior Court (Sept. 7, 2005, A110693) [nonpub. opn.].)

Subsequently, the juvenile court conducted the section 366.26 hearing. On November 7, 2005, it entered an order terminating Mother’s and Father’s parental rights, and selecting a permanent plan of adoption for Michael. This appeal followed. (§ 395.)

Discussion

A. Preferential Consideration for Relative Placement

In a report signed April 21, 2005, and submitted at the 12-month permanency hearing, the case worker stated that “[o]n April 12th [Grandfather] called . . . and expressed interest in custody of Michael.” Grandfather, who lives in Utah, told the case worker that Mother had contacted him about moving out-of-state to live with him. He stated that Mother had mentioned this before, but “he [was] in a better position to take [Michael] now.” The case worker noted Grandfather had not previously contacted the Bureau about Michael, either to seek visitation or “even [to] inquire on his well being.” She expressed a concern that Grandfather would allow Mother and Father “in [Michael’s] life” if Michael were placed in his care. She also wondered “[w]here was [Grandfather] when [Mother] was exposed to her abuse” in the maternal grandmother’s home.

Mother argues that the foregoing was an inadequate assessment of Grandfather as a preferential relative placement under section 361.3. In her view, the case worker “did not document or review the required factors, but instead dismissed the idea without consideration.” She urges, in addition, that the juvenile court failed to address it’s obligation to make an “independent determination” of the appropriateness of placing Michael with Grandfather. She points out that the court never stated its reasons for denying such placement, as required by section 361.3. (See § 361.3, subd. (e).)

These objections have no merit. Section 361.3 requires that “preferential consideration” be given to certain relatives whenever a child is removed from parental custody. It applies until the termination of parental rights. (Cesar v. Superior Court (2001) 91 Cal.App.4th 1023, 1031-1032 (Cesar).) But after the dispositional hearing, the preferential consideration to be given to a relative’s request for placement applies only when “a new placement of the child must be made.” (§ 361.3, subd. (d).)

In this case, there is no indication that Grandfather sought placement prior to the dispositional hearing. Michael was placed in a concurrent foster home after that hearing, in September 2004. The record indicates that this placement has since remained stable. Thus, when Grandfather made his request for relative placement some seven months later, there was no need for “new placement.” In other words, the assessment and preferential consideration requirements under section 361.3 have never applied, either at the dispositional hearing or subsequently.

Further, the relative placement assessment of Grandfather, set out above, is found in the report made for the 12-month permanency hearing. It was at the conclusion of this hearing, on June 15, 2005, that the juvenile court terminated Mother’s reunification services and set the matter for a section 366.26 hearing. If Mother had any objection to the Bureau’s relative placement assessment, or to the juvenile court’s failure to state for the record its reasons for denying that placement, it was her obligation to raise her objections in the petition that she filed to challenge the order made following the 12-month permanency hearing. Mother did not do so, and consequently we cannot now review those objections in an appeal from a later order. (See § 366.26, subd. (l)(1), (2), (4).)^[3]

B. Freedom of Association and the Right to Marry

One element of Mother’s case plan required that she “[s]ecure housing and live independently from [Father] unless he . . . completed sexual offender treatment approved by the [Bureau], and . . . received a positive evaluation indicating that he is not a risk to children.” In its report submitted for the 12-month permanency hearing, the Bureau noted that Mother’s “one major requirement . . . was to separate from [Father] and she could not do it.” At the conclusion of this hearing the juvenile court terminated Mother’s reunification services.

Mother argues that her subsequent loss of parental rights was chiefly the result of this choice “to remain involved with [Father].” She takes the position that the court’s order terminating her parental rights was essentially based on its “condemn[ation]” of her “ongoing commitment” to her marital relationship with Father. She urges that, since the risk of detriment that Father posed to Michael was “purely speculative,” this order violated her constitutional freedom of association and her civil right to marry.

The jurisdictional findings sustained by the juvenile court in August 2004 included findings pursuant to section 300, subdivision (d), that Michael was subject to a substantial risk of sexual abuse. Specifically, Father was a registered sex offender; he had “not undergone substantial treatment addressing his status as a perpetrator of sexual abuse;” he did “not acknowledge the harmful effects of his sexual behavior;” and, in 2000, he was convicted of felonies in violation of Penal Code sections 261.5, 288a, and 289, subdivision (h), involving respectively “unlawful sexual intercourse with a minor,” “oral copulation of [a] minor under age 18;” and “foreign object anal/genital penetration of [a] person under age 18.” The court found that Mother was “unable to protect the child from possible sexual abuse because she [was] married to and live[d] with [Father] and she was a victim [herself] of sexual molestation by [Father] . . . [and did] not believe that [Father] pose[d] a danger to the child.”

The record elsewhere indicates Mother’s mother began a relationship with Father and invited him to move into the home where she and Mother resided. Father, over 40 years old at this time, began molesting Mother “almost immediately.” Mother was 16 years old. As a result, Father was convicted of the offenses noted above, and was thereafter listed as a “serious sex offender.” Other convictions included one in 1996 for injury to a minor, which arose from Father’s physical abuse of his son from a previous marriage. Nevertheless, when Father was released from his jail term for his offenses against Mother, Mother resumed a relationship with him. They married around the time of Michael’s birth. By this time Mother was no longer a minor and Father had finalized his divorce from his previous wife.

In our view, these facts--many of which were jurisdictional findings that have long been final--amply support the juvenile court’s conclusion that Father posed a substantial risk of harm to Michael, one by no means “purely speculative.” These facts also support the court’s imposition of the requirement that Mother separate from Father as a condition for her reunification with Michael. This requirement did not prohibit Mother’s marriage to Father, nor did it infringe unduly upon her freedom of association; its purpose was to protect Michael in the event of reunification. None of the authorities Mother has cited provide the least support for the proposition that her right to associate with or to marry Father precludes the state from imposing such a condition in the interest of protecting a defenseless child from a substantial risk of abuse. We conclude Mother’s constitutional objection has no merit whatever.

Disposition

The order of November 7, 2005, is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Margulies, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated; references to rules are to the California Rules of Court.

^[2] Both Mother and Father appealed separately. In addressing Mother’s contentions we also address Father’s, as he adopted her brief as his own. (See rule 13(a)(5).)

^[3] In addition, we observe that neither Mother nor Father ever raised any objection to the Bureau’s assessment of placement with Grandfather, either at the 12-month permanency hearing or the subsequent hearing under section 366.26. By failing to raise the issue below they have forfeited review of the claim on appeal. (Cf. In re S.B. (2004) 32 Cal.4th 1287, 1293; see also In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Such a forfeiture may be excused when an important legal issue is presented. (In re S.B., supra, 32 Cal.4th at p. 1293.) But no important issue is presented here, where it is evident that section 361.3 was never applicable. Finally, we note that Father was never offered reunification services, and Mother has raised her objection for the first time in an appellate brief filed one year after the termination of her reunification services. Thus, by the time Mother raised her claim of error regarding Grandfather’s assessment, neither she nor Father had standing to do so. By that time the error could have no effect on their interests as parents. (See Cesar, supra, 91 Cal.App.4th at pp. 1034-1035.)