Filed 10/18/18 In re N.O. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

M.O., the mother of three-year-old N.O., whose parental rights were terminated pursuant to Welfare and Institutions Code section 366.26,[1] challenges the juvenile court’s decision to place her son with the foster mother—who provided him with required specialized medical care—rather than with her sister. Plaintiff Alameda County Social Services Agency (Agency) contends M.O. (Mother) lacks standing to appeal the order because her parental rights were terminated. We agree and dismiss the appeal because Mother lacks standing, but note that—if we had jurisdiction to decide the case on the merits—we would affirm on that ground as well.

FACTUAL AND PROCEDURAL BACKGROUND

1. Petition and Detention

N.O. was born at 28 weeks gestation to Mother and A.B. (Father). N.O. was diagnosed with a respiratory syncytial virus infection and bronchitis, and on May 2, 2016,[2] was admitted to Children’s Hospital, where he underwent emergency surgery because of pneumothorax. N.O. was diagnosed as medically fragile, and upon discharge would require feeding with a nasogastric (NG) tube. Before he could be discharged parents had to be trained to care for him and to insert the NG tube. Despite their need to learn NG feeding, parents missed several training appointments and only visited N.O. sporadically. They attributed their failure to attend the training to transportation issues or the need to care for their son, A.O. (Brother). However, the parents were provided with money and gas cards, and had been offered door-to-door transportation. Upon discharge N.O. also required ongoing follow-up medical appointments and was to be referred to Special Start, a long-term family support program for families with special needs children.

On May 26, the hospital staff arranged to train Mother on the NG tube at 11:00 a.m.; when she failed to show up, the trainer reached her by phone and offered to come to Mother’s home. Mother, who initially declined the trainer’s offer, later accepted it, but was not home when the trainer arrived. The trainer returned to the home and trained Mother on May 26. Two days later, the parents went to the hospital and—contrary to medical advice—attempted to have N.O. discharged. Security personnel intervened. Mother insisted that she was able to feed N.O. The attending physician asked the parents to return later that day to complete two or three more NG tube feedings with the goal of discharging N.O. the next day; they did not attend.

At the time of N.O.’s hospital admission, parents reported that a maternal aunt was supportive and that they were living with unnamed grandparents. Mother reported that her older son, J.C., resided with the maternal aunt, Catherine (Aunt). Mother said Father, Brother and she had lived with Aunt until the manager advised that, since they were not on the lease, they could not reside there. Nevertheless, Mother reported that she spent a lot of time at Aunt’s home.

Agency told Mother of its concerns about the parents’ attempt to remove N.O. from the hospital against medical advice and their failure to attend appointments and to complete training. Father admitted that he did not visit the minor and confirmed that he would not be participating in feeding N.O.

On June 1, after the parents again failed to appear for an NG tube training, Agency served a warrant, and N.O. was taken into protective custody. A child welfare worker conducted an unannounced home visit at Aunt’s home, but the parents were not present. Aunt volunteered to be a placement option and divulged that Father is her oldest sister’s son: Mother is Father’s aunt. Aunt, who sponsored Father’s residency to the United States, reported that the family was upset with Mother for having a relationship with her nephew. Concerned about the legal implications of the parents’ biological relationship, Agency investigated the family dynamics.

On June 2, Agency held a team decision meeting via conference call. Children’s Hospital medical treatment team members and Aunt participated; parents did not. At the meeting, hospital staff advised that N.O. may have developmental issues; expressed concerns about the parents’ lack of participation in required trainings and infrequent visitation; and emphasized the need for N.O.’s caregiver to monitor him vigilantly and to ensure his attendance to all medical appointments. Aunt reported that she had been informally caring for N.O.’s half-brother, J.C., for over two years and she was willing to adopt N.O. if needed. Agency assigned a placement worker to assess Aunt’s ability to comply with court orders and to set appropriate boundaries with the parents. Agency recommended that the court detain N.O. and filed a section 300 juvenile dependency petition. At the June 6 hearing, the court granted the petition; found removal pursuant to section 319, subdivision (a) to be necessary; ordered temporary placement; and continued the hearing to the next day. Agency filed a detention report and, on June 7, the court ordered N.O. detained. N.O. was placed in an Alameda County foster care home with Beth (Foster Mother) who had experience with NG tube feeding.

B. Jurisdiction/Disposition

Agency filed a first amended juvenile dependency petition advising the court that: on June 14, the police observed parents to be under the influence of a controlled substance; a glass pipe with methamphetamine residue was found in Mother’s possession; parents’ car was in significant disrepair, and Brother was found wearing a two-day-old soiled diaper. The police detained parents. At a June 17 hearing, Foster Mother advised that N.O. pulls out the NG tube at least once a day, requiring that it be reinserted, which she does using a stethoscope to listen for the sound of air hitting the stomach wall. The court adopted the social worker’s report findings and set a further hearing on June 29.

On June 29, Agency filed a jurisdiction/disposition report, recommending that N.O. and Brother be declared dependents, placed out of home, and that the Mother receive family reunification services.

Agency arranged for the parents to visit with Brother and N.O., supervised by both Foster Mother and Aunt, but parents did not attend. Aunt and Brother visited with N.O. Before the visit, the child welfare worker advised Foster Mother to inform Aunt of N.O.’s medical needs. Foster Mother reported that Aunt was very pleasant throughout the visit, but expressed concern that Aunt did not fully understand the severity of N.O.’s medical needs. When Foster Mother explained that N.O. would need to be taught how to swallow, eat and breathe due to being on the feeding tube for so long, Aunt responded, “no he doesn’t” “he was eating before he got the feeding tube.” Aunt advised that she worked nights and would not be able to take N.O. to his numerous medical appointments. N.O. was being treated at both Children’s Hospital and Stanford Medical Clinic with approximately three medical appointments per week and a bi-weekly visit by a Children’s Hospital Early Start Nurse. He was treated for being cross-eyed—“hypertonia,” a weakness of the eye muscle possibly a result of premature birth, lack of nutrition, and inadequate stimulation—which could be minimized with proper care. N.O. was also referred to neurology, pulmonary, endocrinology and gastro-intestinal specialists. Physical therapy and occupational therapy were also being arranged. N.O. had been observed to engage in “self-injurious behaviors” including pulling his hair aggressively and banging his head against toys.

The child welfare worker wanted to assess Aunt’s ability to supervise and manage N.O.’s complicated medical needs. Aunt stated that she was willing and able to care for N.O., but admitted she had not been trained to provide the necessary medical treatment. She did not appear able to care for N.O. and was unable to articulate what needed to be done for him.

The court conducted a hearing on June 29, at which Father was elevated to presumed father status and the matter was continued to August 29 for a jurisdictional hearing.

At the August 29, hearing, the court found the amended petition true, adjudged N.O. a dependent, placed him out of home, and ordered family reunification services to Mother and Father. Agency reported on placement efforts with Aunt, but expressed concern about her failure to complete medical training and child care arrangements. N.O.’s maternal grandmother, who also lived with Aunt, was aware of N.O.’s circumstances but had not been trained to care for him and, like Aunt, had not attended his medical appointments. The court approved the placement of Brother with Aunt; and the placement of N.O. in a licensed foster home, with Foster Mother. No appeals were filed.

C. Six-Month Status Review Hearing

On January 26, 2017, Foster Mother filed a caregiver information form detailing N.O.’s feeding schedule, medical appointments, and visitation schedule, indicating Aunt’s failures to appear at sibling visits and medical appointments, despite notification. Foster Mother also provided a care journal chronicling N.O.’s feeding and medication schedule each day from June 2, to October 31.

In preparation for the February 15, 2017, section 366.21, subdivision (e) hearing, Agency filed a status review report recommending that both Brother and N.O. remain dependents and that family reunification services be terminated. Neither parent had cooperated with their case plans or visited with N.O.: Mother did not attend any meetings, appointments or visits with N.O.; Father had been arrested twice and was incarcerated at Santa Rita jail at the writing of the report. Brother remained with Aunt and N.O. was with Foster Mother.

At his medical visit, it was noted that N.O. was experiencing night terrors, was developmentally delayed, had “poor tone,” an elevated lead level, and chronic lung disease. N.O. was referred for mental health services. N.O. continued to receive weekly physical therapy and occupational therapy twice weekly. Foster Mother reported that N.O. was doing well in her home, and her family was committed to providing a permanent placement for N.O.

Aunt told the child welfare worker that she wanted to have N.O. placed with her. Agency submitted a resource family approval (RFA) to assess Aunt’s home for placement of N.O., but had concerns because Aunt did not offer support during N.O.’s month-long stay in the hospital; did not complete the NG tube training; and rarely contacted Foster Mother.

The court conducted a hearing on February 15, 2017; both Aunt and Foster Mother appeared. Both parents contested the recommendation to terminate family reunification services. The matter was set for a contested hearing on April 24, 2017. Neither parent objected to N.O.’s continued placement in Foster Mother’s home; Mother asked Agency to investigate relatives interested in placement.

Agency’s addendum report for the contested section 366.21, subdivision (e) hearing, again, recommended termination of family reunification services and that a Section 366.26 hearing be set to establish legal guardianship of Brother with Aunt and adoption of N.O. by Foster Mother.

On April 25, 2017, Foster Mother and her husband, Darrel, filed a de facto parent application, which was granted on May 15, 2017.

On May 26, 2017, the court terminated reunification services to the parents and set a section 366.26 hearing. Neither parent objected to N.O.’s continued placement in Foster Mother’s home. Neither parent filed a writ to appeal the court’s order terminating services or any other orders made at that time.

D. Section 366.26 Proceedings

Agency’s “366.26 WIC Report” for the September 21, 2017, hearing recommended termination of parental rights and a permanent plan of adoption for N.O. N.O.’s health had improved, but he continued to have respiratory issues and received daily nebulizer treatment in the morning and at night, acid reflux medication, allergies and nasal drip; and was seeing a pulmonologist and a gastroenterologist. He no longer needed the NG tube, but required assistance in learning how to eat regularly. N.O. remained nonverbal, communicating mainly by gestures and sign language and was referred for speech therapy. He received weekly occupational and physical therapy.

At the October 12, 2017, section 366.26 hearing, N.O.’s counsel advocated for his remaining with Foster Mother where he had been since the inception of the dependency case and was getting “excellent care.” Mother and Father requested that the minor be placed in Aunt’s home. Agency argued that the relative preference did not apply at a section 366.26 hearing, but—even considering the section 361.3 relative preference factors—recommended that N.O. remain with Foster Mother.

On October 18, 2017, the court found that reasonable services were provided and N.O.’s placement was necessary and appropriate; the court terminated Mother and Father’s parental rights. In reaching its conclusion the court observed that, while Mother objected to termination of her parental rights, she did not submit evidence in support of that position and “offered no express legal basis nor argued any applicable applications.” As to both parents, the court found “evidence of refusal to avail themselves of services and little to no visits during a substantial period of time on the case. We have a situation here where the current caretakers are ready and willing to adopt. [¶] So termination of parental rights is clearly appropriate here. I don’t think that’s a question at all hearing the evidence in this case and the Court finds that the child is adoptable and that the proposed permanent plan here is adoption.” On that basis the court terminated Mother and Father’s parental rights and then considered placement. After evaluating all the evidence, the court concluded that placement with Foster Mother and Darrel was “necessary” and “appropriate.”

On December 5, 2017, Mother filed a timely notice of appeal of the order terminating parental rights. Although Mother appealed the order, she does not contest the termination of parental rights, but only the placement with Foster Mother and Darrel, rather than with Aunt.

DISCUSSION

1. Legal Standards

Agency argues that the court’s termination of parental rights limits Mother’s standing to challenge the placement and relies on In re K.C. (2011) 52 Cal.4th 231 (In re K.C.), which arose in a similar procedural context: “The issue before us is one of standing, not appealability. . . . Section 395 expressly provides that any order subsequent to the judgment under section 300 declaring a child to be a dependent ‘may be appealed as an order after judgment.’ (§ 395, subd. (a)(1)[.]) [¶] 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.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [Citations.] These rules apply with full force to appeals from dependency proceedings. [Citation.] [¶] . . . [A]fter reunification services are terminated . . . ‘the parents’ interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point “the focus shifts to the needs of the child for permanency and stability.” ’ ” (In re K.C., supra, 52 Cal.4th at pp. 235–236.)

If—contrary to Agency’s position—Mother has standing to object to placement, we would review the record to decide whether the juvenile court’s 366.26 order “is supported by substantial evidence.[3] [Citations.] Under this standard, we review the entire record but do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court’s order, and affirm the order even if there is other evidence to the contrary. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court’s finding.” (In re Collin E. (2018) 25 Cal.App.5th 647, 660–661.)

2. Mother’s Standing

It is undisputed that the juvenile court order is appealable, but the sole issue Mother challenges is the order placing N.O. with foster mother Foster Mother, rather than with Aunt. (§§ 366.26, 395.) Because Mother’s parental rights were terminated, Agency challenges Mother’s standing to appeal the placement order. (In re K.C, supra, 52 Cal.4th at p. 236.) “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.) The issue here arises in essentially the same procedural context as in In re K.C., supra, 52 Cal.4th 231.[4] K.C.’s father, whose parental rights were terminated, did not challenge that termination on appeal, but only disputed the juvenile court’s order denying placement with his parents (grandparents). Grandparents—unlike Aunt—filed a section 388 petition— seeking minor’s placement with them—which the juvenile court denied. Father appealed from that order as well. Having articulated the standard a parent whose rights were terminated must meet when challenging a placement order, the In re K.C. court evaluated each of father’s arguments to decide whether the “placement order’s reversal advances the parent’s argument against terminating parental rights.” (Id. at pp. 238–240.) The analysis began by recognizing that “after reunification services are terminated . . . ‘the parents’ interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability.” (Id. at p. 236.) The court concluded: “father does not contend the order terminating his parental rights was improper in any respect. That he has no remaining, legally cognizable interest in [minor’s] affairs, including his placement, logically follows.” (Id. at p. 237.)

While Mother asserted her standing in her opening brief, she did not discuss or attempt to meet the In re K.C. test, nor did she file a reply brief. Whether or not that is Mother’s concession that she lacks standing, we agree with Agency and will dismiss the appeal on that basis.

3. The Merits

“While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their interests [citations], the law’s first priority when dependency proceedings are commenced is to preserve family relationships, if possible.” (In re K.C., supra, 52 Cal.4th at p. 236.) Given the importance of that objective—to assure that Mother, Father and Aunt understand the court’s decision—we briefly address Mother’s claims. Were we to decide the case on the merits, we would find substantial evidence and affirm. (In re Collin E., supra, 25 Cal.App.5th at pp. 660–661.)

Mother argues that the court erred by failing to give section 361.3 preferential consideration to Aunt. “It is well established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption.” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031.) The juvenile court correctly reached that same conclusion and then considered the application of section 366.26, subdivision (k). Recognizing that placement with Aunt would have allowed N.O. to reside with his half-brother and brother, the court concluded: “So I understand parents’ position and the notion of the importance of siblings and it’s one that I will be sensitive to. However, in this particular instance, I think the weight of the evidence requires that the minor stay with the current care providers, with the de facto parents, and I believe that taking that child out of that context after such a long amount of time would be detrimental.”

If Mother had standing to challenge the court’s decision, we would find substantial evidence to support the court’s order. The juvenile court accepted the proposed permanent plan of adoption and found that N.O. had been with de facto parents, Foster Mother and Darrel, since age eight months and that they “have not only provided the regular duties and responsibilities of a typical parent, quite frankly, they’ve gone above and beyond in this particular case what is expected of a typical parent because of the special needs. [¶] . . . [T]hese particular care providers have been with and nurtured and cared for and about this child throughout an enormous time of difficulty and those difficulties, in my mind, have no doubt bonded the minor to the caretakers. [¶] And so I think there’s a substantial emotional tie here. . . . [¶] With regard to whether removal would cause a serious detriment, the caretakers are uniquely qualified to meet the minor’s special needs. They have proven that over time and I think removing him from their care at this point would be highly detrimental.” The juvenile court supported the decision with numerous references to overwhelming evidence.

In contrast, Aunt neither provided care nor demonstrated any ability to address N.O.’s medical needs and did not qualify for “relative caretaker” preference. (§ 366.26, subd. (k).)

We agree with Agency that Mother’s reliance on our decision in In re. R.T., supra, 232 Cal.App.4th 1284 is misplaced. There, both the agency and court ignored R.T.’s aunts for placement notwithstanding section 361.3, subdivision (a)’s requirements and their having filed a section 388 motion to modify based on the court’s failure to accord them preferential consideration. (Id. at pp. 1293–1294.) Here, both Agency and the juvenile court carefully considered, but rejected, parents’ request for placement with Aunt. N.O.’s need for “for permanency and stability” can best be achieved by the court’s thoughtful order.

DISPOSITION

Because Mother does not have standing, we dismiss the appeal.

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Ross, J.*

We concur:

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Pollak, Acting P.J.

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Jenkins, J.

A153129