In re J.T.
Filed 5/23/13 In re J.T. CA4/2
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT
OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION TWO
In
re J.T., a Person Coming Under the Juvenile Court Law.
RIVERSIDE
COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
K.T.,
Defendant and Appellant.
E056769
(Super.Ct.No. INJ020993)
O P I N I O N
APPEAL from
the Superior Court of
County. Lawrence P. Best,
Temporary Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.
Mitchell
Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J.
Walls, County Counsel, and Julie
Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant
and appellant, K.T. (Mother), appeals from May
16, 2012, orders terminating parental
rights to Mother’s fourth child, J.T., a girl born in July 2010, and
placing J.T. for adoption. (Welf. &
Inst. Code, § 366.26.)
name="_ftnref1" title="">[1] Mother does not challenge the propriety of
the order terminating parental rights or placing J.T. for adoption. Instead, Mother claims that the juvenile
court reversibly erred in failing to consider placing J.T. with J.T.’s maternal
aunt, T.T. (Aunt), at the time of the May
16, 2012, section 366.26 hearing, or in June 2011 when J.T. needed a
new placement. (§ 361.3.)
We reject Mother’s challenge to
the order refusing to consider Aunt for placement or to place J.T. with Aunt
because Mother has no standing to challenge that order. Mother does not claim that the failure to
place J.T. with Aunt, at any time, had or would have had any bearing on the
court’s decision to terminate parental rights.
Thus, Mother is not aggrieved by the court’s refusal to consider Aunt
for placement. (In re K.C. (2011) 52 Cal.4th 231, 238-239 (K.C.) [parent lacks standing to challenge placement order on appeal
when parent does not claim the order had any bearing on court’s decision to
terminate parental rights].)
II. BACKGROUND
J.T. was
born in July 2010 and was taken into protective
custody only two days after her birth.
Mother tested positive for methamphetamine upon her admission to the
hospital, refused to comply with hospital directives concerning J.T.’s care,
and handled J.T. in a way that could have injured her. Mother previously lost custody of three older
children due to her ongoing substance abuse, and the older children were living
in different placements.
When J.T. was taken into
protective custody in July 2010, Mother’s oldest child, K., was in a permanent
placement with a maternal uncle in Modesto. Mother’s second oldest child, A., was in
another permanent placement in Sacramento, and her
third oldest child, T., was living with Aunt in Fresno. Aunt desired to adopt T., and plaintiff and
respondent, Riverside County Department of Public Social Services (DPSS), was
seeking to terminate parental rights to T. and place T. for adoption. The social worker for J.T. promptly contacted
Aunt and asked her whether she “and her family†would be interested in the placement
of J.T. Aunt was “understandably upset,â€
and asked that she be allowed “time to think about it and discuss it with her
family.†The August
4, 2010, detention report states that DPSS was likely to have an
answer from Aunt before the jurisdictional/dispositional hearing for J.T. J.T. was initially placed in foster
care.
On August
25, 2010, the maternal grandmother (Grandmother) told the social
worker that she would like to be considered for placement of J.T. On September 22, the court declared J.T. a
dependent based on Mother’s substance abuse and neglect, and the alleged
father’s failure to provide.
name="_ftnref2" title="">[2] (§ 300, subds. (b), (g).) The court denied reunification services to
Mother based on her failure to reunify with and loss of parental rights to her
older children (§ 361.5, subd. (b)(10), (b)(11)), and ordered J.T. removed
from Mother’s care.
name="_ftnref3" title="">[3] Mother “made it clear†that she was not
interested in services “or even visiting with†J.T. J.T. was continued in foster care, and review
and selection and implementation hearings were scheduled for January 20, 2011.
On January
20, 2011, DPSS was in the process of considering Grandmother for
placement. Grandmother had been visiting
J.T. and wanted to adopt her. The delay
in assessing Grandmother for placement since August 2010 was due to
Grandmother’s delay in providing DPSS with fingerprints for a background check,
and in moving her residence. Grandmother
moved because her residence was deemed “not appropriate for an infant.†Grandmother’s hospitalization further delayed
the process. The selection and
implementation hearing was continued so that DPSS could complete its assessment
of Grandmother and her home for placement.
By July 2011, DPSS concluded that
Grandmother’s failure to schedule a “live scan†background check and home
assessment precluded placing J.T. with her.
At that time, DPSS reported that there were “no other relatives to
consider for placement†and that J.T.’s current caretakers, Mr. and Mrs. B.,
with whom J.T. was placed on June 8, 2011, were willing to adopt her. Mr. and Mrs. B. were bonded to J.T. and had
known her since her birth, having served as her respite caregivers for the
original foster parents.
Also in July 2011, DPSS reported
that two of J.T.’s siblings had been adopted by different relatives, and that
these relatives were asked whether they were interested in adopting J.T., but
both said they were not interested in adopting J.T. The report did not identify which of J.T.’s
siblings had been adopted or by whom.
Then, in November 2011, DPSS reported that Grandmother had only visited
J.T. twice during 2011, and that no other relatives (including Aunt) had ever
visited J.T. The report stated: “Unfortunately [the] biological family seems
to have other priorities in their lives that prevent them [from] visiting
[J.T.]â€
In a February
21, 2012, section 366.26 report, DPSS reported that its adoptions
unit had contacted Aunt, that Aunt now wanted to adopt J.T., and that Aunt was
requesting placement of J.T. It was also
noted that Aunt had been contacted on August 6, 2010, and at that time said she
could not take J.T. because she was “having difficulties with just the one
child [T.]†and felt she could not “take . . . on†another child. Aunt had now “changed her mind,†however, and
wanted to provide J.T. with the permanency of adoption.
In a January
26, 2012, entry in the DPSS service log, the social worker noted
that Aunt was now willing to adopt J.T., and her interest in J.T. was “just
discovered.†On the same date, the social
worker discussed Aunt’s interest in J.T. with Mrs. B. Mrs. B. felt that she should be able to adopt
J.T., given the amount of time J.T. had been in her care. Additional service log entries from January
2012 show that DPSS was assessing Aunt’s Fresno home for
placement at that time.
Thus, in its February 21, 2012, section 366.26 report, DPSS
requested a further continuance of the selection and implementation hearing,
then set for March 5, in order to “finalize†J.T.’s permanent plan. The report explained that when the adoptions
unit received the adoption packet from Mr. and Mrs. B., they realized that Aunt
had just adopted T. and contacted Aunt “once more regarding the placement of
[J.T.].†Aunt felt that T. and J.T.
should be together, and DPSS was “expediting the assessment process to clear
[Aunt’s] home†in order to place J.T. with Aunt as soon as possible.
Then, on February 28, 2012, a new
social worker was assigned to the case, and DPSS determined that it was in the
best interest of J.T. to stay in her placement with Mr. and Mrs. B. In a May 8 addendum report, DPSS noted that
although Aunt had adopted T., Aunt had never visited J.T., and J.T. was not
bonded with her biological family, who were “strangers to her.†DPSS again noted that Aunt had declined to
take custody of J.T. at the inception of the proceedings in August 2010. J.T. was nearly 22 months old in May 2012,
and was bonded with Mr. and Mrs. B.
Accordingly, DPSS recommended that J.T. be adopted by Mr. and Mrs.
B.
At the continued selection and
implementation hearing on May 16, 2012, the court terminated parental rights
and placed J.T. for adoption. Prior to
the hearing, Aunt and other family members wrote letters to the court
protesting DPSS’s refusal to consider Aunt for placement, and on March 9,
Aunt’s home was approved for placement.
Mother’s counsel asked the court to place J.T. with Aunt and allow Aunt,
rather than Mr. and Mrs. B., to adopt J.T.
Counsel for J.T. told the court
that “the best scenario†would have been to place J.T. with Aunt at an earlier
date, but now that J.T. had been with Mr. and Mrs. B. for so many months and
was nearly two years old, her best interests would be served by keeping her in
her current placement. The court agreed
and noted that: “To change the placement
would not be in the best interest of the child and, in my opinion, would be
detrimental. So whether what was done
before was right or wrong . . . it is clearly in this child’s best
interest to remain in the current placement. . . .â€
Mother, Aunt, and Grandmother
each filed notices of appeal from the
March 16, 2012, orders. This court
dismissed the appeals of Aunt and Grandmother on the grounds that their notices
of appeal did not indicate that they were parties or had standing to
appeal. (In re Miguel E. (2004) 120 Cal.App.4th 521, 539.) Grandmother’s appeal was also untimely. Mother’s appeal was allowed to proceed, and
only Mother filed an opening brief on appeal.
III. DISCUSSION
Mother claims the juvenile court
reversibly erred in rejecting her request to place J.T. with Aunt at the May
16, 2012, section 366.26 hearing, and further erred in rejecting documents
Mother submitted at the hearing showing Aunt’s attempts to gain placement of J.T. We reject these claims because Mother had no
standing to challenge the May 16, 2012, order refusing to place J.T. with
Aunt. (K.C., supra, 52 Cal.4th at pp. 236-237.)
We begin by outlining the
relative placement preference. “The
relative placement preference, codified in section 361.3, provides that
whenever a new placement of a dependent child must be made, preferential
consideration must be given to suitable relatives who request placement. (§ 361.3, subds. (a), (d).) ‘“Preferential consideration†means that the
relative seeking placement shall be the first placement to be considered and
investigated.’ (§ 361.3, subd.
(c)(1).) Preferential consideration
‘does not create an evidentiary presumption in favor of a relative, but merely
places the relative at the head of the line when the court is determining which
placement is in the child’s best interests.’
[Citation.]†(
369, 376.) Thus, section 363.1
“‘express[es] a command that relatives be assessed and considered favorably, subject to the juvenile court’s consideration
of the suitability of the relative’s home and the best interests of the
child.’ [Citations.]†(In re
Antonio G., supra, at p. 377.)
Mother claims the court had a
duty to preferentially consider Aunt for placement when J.T. needed a new
placement in June 2011, after J.T.’s “possible placement with Grandmother fell
through†and J.T. was placed with Mr. and Mrs. B. In sum, Mother argues that DPSS and the court
“failed to consider Aunt [for placement] as required by law.†Consequently, Mother argues that the May 16,
2012, order terminating parental rights must be reversed and the matter
remanded to the juvenile court with directions “to hold a contested hearing in
which Mother, Aunt and J.T. may be heard as to their placement requests.â€
The threshold question we must
determine is not whether DPSS or the court erred in failing to consider Aunt
for placement in June 2011 or on May 16, 2012, but whether Mother has
in refusing to consider Aunt for placement, at any time. “‘[W]hether one has standing in a particular
case generally revolves around the question whether that person has rights that
may suffer some injury, actual or threatened.’
[Citation.]†(
Cal.App.4th 1023, 1034-1035.) Thus, a
parent in a juvenile dependency proceeding may not raise claims of error on
appeal unless the error affected the parent’s “own rights.†(In re
Jasmine J. (1996) 46 Cal.App.4th 1802, 1806.)
When, as here, reunification
services have been terminated or bypassed (here, they were bypassed at the
September 22, 2011, dispositional hearing), the parent’s 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
Stephanie M. (1994) 7 Cal.4th 295, 317.)
And when, as here, a parent does not claim that his or her parental
rights were improperly terminated, the parent has no “remaining, legally
cognizable interest†in the child’s affairs, including the child’s
placement. (K.C., supra, 52 Cal.4th at p. 237.)
Thus here, Mother has no legally cognizable interest in J.T.’s
placement, and as a result has no standing to challenge the May 16, 2012, order
refusing to consider Aunt for placement.
The K.C. court summarized the applicable rule as follows: “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.†(
italics added.) In K.C., the father had no standing to appeal an order denying a petition
by the dependent child’s grandparents to have the child placed with them
because the father did not contest the termination of his parental rights in
the juvenile court. (
“By thus acquiescing in the termination of his rights, he relinquished the
only interest in K.C. that could render him aggrieved by the juvenile court’s
order declining to place the child with grandparents.†(Ibid.,
fn. omitted.)
Here too, Mother acquiesced in
the termination of her parental rights.
She makes no claim that her parental rights were erroneously terminated,
or that the failure to consider Aunt for placement or place J.T. with Aunt had
any potential to alter the court’s decision to terminate Mother’s parental
rights. Mother is thus not aggrieved by
DPSS’s or the court’s refusal to consider Aunt for placement, or place J.T.
with Aunt, and has no standing to challenge DPSS’s or the court’s refusal to
consider placing J.T. with Aunt. (
at p. 1804.)
In
re H.G.
(2006) 146 Cal.App.4th 1 and In re
Esperanza C. (2008) 165 Cal.App.4th 1042 are distinguishable. As explained in K.C., the parents in these cases, “were aggrieved by, and thus
pretermination orders concerning their children’s placement, because the
possibility existed that reversing [the placement] orders might [have led] the
juvenile court not to terminate parental rights.†(K.C.,
supra, 52 Cal.4th at pp. 237-238.)
But like the father in K.C.,
Mother does not claim that reversal of the court’s May 16, 2012, order refusing
to consider Aunt for placement or place J.T. with Aunt would have any bearing
on the court’s decision to terminate parental rights.
To be sure, and as Mother points
out, the “placement of a child with a relative has the potential to alter the
juvenile court’s determination of the child’s best interests and the
appropriate permanency plan for that child, and may affect a parent’s interest
in his or her legal status with respect to the child.†(In re
Esperanza C., supra, 165 Cal.App.4th at p. 1054.) But Mother’s suggestion that the juvenile
court would have selected guardianship over adoption as J.T.’s permanent plan
(thus preserving parental rights) had J.T. been placed with Aunt as early as
June 2011, is based on pure speculation.
IV. DISPOSITION
The May 16,
2012, orders refusing to consider Aunt for placement, terminating parental
rights, and placing J.T. for adoption, are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RICHLI
Acting
P.J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] At the August 4, 2010, detention hearing, Mother identified
G.P. as J.T.’s alleged father. A
paternity test showed that G.P. was not J.T.’s biological father.
