Filed 4/13/18 In re J.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.R. et. al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

R.L.,

Defendant and Appellant;


E068478, E069180

(Super.Ct.Nos. J259790, J259791,
& J259792)

O P I N I O N

In re M.R. et. al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.R. et al.,

Defendant and Appellant.


(Super.Ct.Nos. J265490 &
J265491)


APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant R.L.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant J.R.
Michelle D. Blakemore, County Counsel, Michael A. Markel, Principal Assistant County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, R.L. (Mother), has eight children. Defendant and appellant, J.R. (Father), is the father of the youngest six of Mother’s eight children.
In the first of these consolidated appeals, in case No. E068478, Mother appeals from the juvenile court’s May 18, 2017, order summarily denying Mother’s Welfare and Institutions Code section 388 petition without a hearing. In that appeal, Mother claims the court erroneously failed to hold a hearing on the petition, in order to determine whether, as Mother was claiming, plaintiff and respondent, San Bernardino County Children and Family Services (CFS), violated the relative placement preference (§ 361.3) in failing to reassess the maternal aunt, M.G., for placement of Mother’s youngest five children, in February 2017.
In the second appeal, in case No. E069180, Mother and Father appeal the August 18, 2017, orders terminating parental rights to their youngest two children, twin girls M.J.R. and M.R.R. In that appeal, Mother and Father claim only that the order terminating their parental rights to the twins must be reversed if this court reverses the order denying Mother’s section 388 petition in case No. E068478. (In re Lauren R. (2007) 148 Cal.App.4th 841, 860-861 [order terminating parental rights reversed where necessary to restore parties to their prior positions based on erroneous failure to apply caretaker preference. (§ 366.26, subd. (k))].)
We conclude that Mother lacks standing to challenge CFS’s alleged errors in failing to reassess M.G. for placement or to place any of the children with M.G., because Mother does not claim CFS’s errors affected the subsequent orders terminating parental rights to the twins. (In re K.C. (2011) 52 Cal.4th 231, 237-238 [parent may challenge dependent child’s placement order only if the order’s reversal advances the parent’s argument against terminating parental rights].)
Additionally, when Mother filed her petition in May 2017, all of Mother’s services had been terminated, and Mother does not claim the court erroneously denied her petition to the extent the petition sought reinstated family maintenance or reunification services. Thus, Mother was not aggrieved by CFS’s failure to reassess or place any of the children with M.G. in February 2017. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.) “Once a parent’s reunification services have been terminated, the parent has no standing to appeal relative placement preference issues.” (In re Jayden M. (2014) 228 Cal.App.4th 1452, 1460.) Thus, we affirm the order denying Mother’s section 388 petition without a hearing and the orders terminating parental rights to M.J.R. and M.R.R.
II. BACKGROUND
A. Events Preceding the Children’s Dependency (March 2015 to April 2015)
Of Mother’s eight children, her two oldest daughters, P.L. and A.A. (born in 2003 and 2004), and her oldest son, J.R.J. (born in 2006), are not subjects of either of these appeals. Only Mother’s youngest five children are the subjects of Mother’s section 388 petition and the first appeal: J.L.R. (a boy born in 2007), D.R. (a girl born in 2009), J.J.R. (a boy born in 2014), and M.J.R. and M.R.R. (twin girls born in May 2016). P.L. and A.A. have different fathers. Father is the father of Mother’s youngest six children, including the twins, M.J.R. and M.R.R., the subjects of the second appeal by Mother and Father.
In March 2015, before M.J.R. and M.R.R. were born in May 2016, Mother, Father, and Mother’s oldest six children were living together as a family. That month, CFS received and began investigating two referrals, one alleging Mother and Father were generally neglecting and physically and emotionally abusing the children, and the other alleging Father was sexually abusing P.L. and A.A. P.L. and A.A. confirmed Father had been sexually abusing them. P.L. said Mother did not know about the sexual abuse because Father was “very sneaky,” but J.L.R. and D.R. reported witnessing the sexual abuse.
After learning Father had been sexually abusing P.L. and A.A., Mother immediately called law enforcement, who responded to the home and removed Father’s belongings, but did not arrest him. Mother obtained a temporary restraining order against Father, but the temporary restraining order was to expire on May 7 and Mother reported the court would not grant a permanent restraining order. Mother agreed to enforce the temporary restraining order and not allow Father back into the family home until CFS completed its investigation.
During the investigation, some of the children also reported that Mother and Father engaged in domestic violence in front of the children and that Mother and Father would spank the children with a belt, leaving marks and bruises. Mother said she disciplined the children with time-outs and, on rare occasions, spanked them with her hand or a belt, without leaving marks or bruises. Mother admitted she and Father used marijuana for medical reasons, but denied they used it in front of the children.
But in early April 2015, Mother told the social worker that Mother’s family was “doing all this to her to take her children away” and that the maternal grandmother, M.R.L., had sexually abused Mother as a child. Mother said she regretted “calling the police without talking to her husband [Father] first to find an explanation,” and told CFS she “want[ed] to be done with everything so her husband [Father] [could] come back to the home to help [Mother] with the discipline of the children” who were “‘out of control.’”
On April 9 and 10, 2015, the police and CFS attempted to serve a detention warrant for the children, but Mother evaded CFS and “went into hiding” with the children. Shortly thereafter, Mother, Father, and the children were found at the paternal grandparent’s home, the children were taken into protective custody, and Father was arrested for violating the temporary restraining order. The social worker believed Father’s sexual abuse of P.L. and A.A. and the parents’ physical and emotional abuses of all six children had been going on for at least three years. In 2013 and 2014, CFS received referrals alleging the parents’ physical abuse of the children and Father’s sexual abuse of P.L. and A.A., but during those investigations the children denied the allegations.
B. The Initial Dependency Proceedings (April 2015 to August 2015)
On April 14, 2015, CFS filed dependency petitions for P.L., A.A., J.R.J., J.L.R., D.R., and J.J.R., alleging the parents physically abused them by spanking them with hands, belts, and wires, resulting in marks and bruises; the parents had a problem with substance abuse, mental health, and domestic violence; and the four youngest children were at risk of the same sexual abuse Father had perpetrated against A.A. and P.L. (§ 300, subds. (a) [serious physical harm], (b) [failure to protect], (c) [serious emotional damage], and (j) [abuse of sibling].) At the April 15 detention hearing, the court found a prima facie showing that dependency jurisdiction had been made and ordered the children detained with CFS. Mother was granted weekly supervised visits with all of the children, and Father was ordered to have no contact with A.A. or P.L., but was granted weekly supervised visits with his four children.
On June 19, Mother filed form JV-190 (Waiver of Rights) and submitted on CFS’s reports and entered into a mediation agreement to amend the petitions. CFS dismissed the “A-1” and “A-2” allegations, as to J.L.R., that the parents spanked J.L.R. with a belt, hands, and wires, leaving marks and bruises, and dismissed the section 300, subdivision (c) allegations, as to all of the children, that the parents’ domestic violence placed the children at risk. Mother submitted on the remaining allegations, including amended allegations that Mother had physically abused D.R. by “spanking the child with a belt and hand”; that Mother “reasonably should have known” Father “had a problem with substance abuse which placed the child at risk of physical or emotional harm”; and that Mother had “ongoing anxiety which limit[ed] her ability to provide adequate care and supervision of the child.” (§ 300, subds. (a), (b).)
On August 17, the court sustained the remaining original and amended allegations of the petitions concerning Mother. On August 31, the court declared the children dependents, ordered them removed from parental custody, and granted Mother reunification services and supervised visitation. Father was denied reunification services (§ 361.5, subd. (b)(6)) and was again ordered not to contact P.L. or A.A., but was again granted supervised visits with his four children.
C. Mother’s Family Maintenance Plan (March 2016 to June 2016)
In March 2016, CFS recommended that the six dependent children be returned to Mother pursuant to a family maintenance plan, although P.L. was not ready to return to Mother. Mother had been having unsupervised and overnight visits with the children since December 2015, including with P.L. Mother had also completed her case plan and was seeking employment.
Mother was expected to give birth to the twins, M.J.R. and M.R.R., in May 2016, and Father was the father. But Mother and Father were no longer a couple, and Mother wanted to raise all of her children without Father. Mother had moved in with M.R.L. so that Father would stay away from her. The family maintenance plan was to return the children to Mother at M.R.L.’s home. On March 2, all of the children except P.L. were returned to Mother pursuant to the family maintenance plan.
On May 17, CFS filed petitions for M.J.R. and M.R.R., alleging Father failed to provide for the twins, his whereabouts were unknown, and the twins were at risk of physical and emotional abuses by Mother and Father and of sexual abuse by Father. (§ 300, subds. (b), (g), (j).) At the May 18 detention hearing, the court allowed the twins to remain in Mother’s care, provided Mother did not allow Father into the home or to have contact with the children outside CFS’s supervised visitation arrangements. On June 15, the court sustained the allegations for the twins, declared them dependents, and removed them from Father’s custody, but allowed them to remain with Mother pursuant to the family maintenance plan.
D. The Section 387 Petition for the Children, and the Termination of Mother’s Family Maintenance Plan and Other Services (July 2016 to September 2016)
On July 5, CFS filed a supplemental petition (§ 387), alleging Mother’s family maintenance plan was no longer effective because she and Father were violating the no-contact order for J.J.R., P.L., and A.A., the parents had engaged in domestic violence in front of the children, and Father had used corporal punishment to discipline J.L.R. Some of the children reported Mother sometimes allowed Father to stay in the home with the children, that Father had access to A.A., and the parents argued in front of the children. J.L.R. reported that Father hurt him by pulling him by his pants leg. Mother denied having any contact with Father.
At the July 6 detention hearing, Mother asked that a maternal aunt, J.H., be assessed for placement or that the children be placed with “any appropriate relative.” The court removed the children from Mother’s care and detained them with CFS. At the September 20 jurisdictional and dispositional hearing on the supplemental petition, the court sustained the allegations, ordered the children removed from Mother, and terminated Mother’s services. The court authorized CFS to place the children with “any appropriate relatives” and set section 366.26 hearings for January 18, 2017.
E. CFS’s Relative Placement Assessments (October 2016)
On October 13, 2016, CFS filed an “informational packet” recommending that the court not place the children with four maternal relatives, V.L., J.H., M.R.L., M.L., or the paternal grandparents. CFS recommended against placing the children with M.R.L., because M.R.L. had over 27 aliases, several social security numbers, and a criminal history as recent as 2011. M.R.L. was also living with the maternal aunt, J.H., and did not have her own home. Also, M.R.L. had recently asked the social worker not to assess M.R.L. for placement.
CFS also recommended against placing the children with V.L., because Mother had alleged that V.L. and a maternal uncle had sexually abused Mother as a child. Another maternal aunt, M.G., had expressed an interest in caring for two of the children, but M.G. did not have her own place to live and was living with J.H., M.R.L., and the maternal uncle. The paternal grandparents were ruled out for placement in part because Father lived with them.
F. The Children’s Placements (January 2017 to May 2017)
In January 2017, CFS recommended that the court continue the January 18 section 366.26 hearings for 180 days so that CFS could locate a single adoptive home for the six youngest children. At this time, the six youngest children were then in three foster homes; J.R.J. and J.L.R. were in one home, D.R. and J.J.R. were in a second home, and M.J.R. and M.R.R. were in a third home. For A.A. and P.L., CFS recommended planned permanent living arrangements. On January 18, the section 366.26 hearings were continued to May 18.
In a May 9 addendum report, CFS recommended terminating parental rights for Mother’s youngest four children, D.R., J.J.R., M.J.R., and M.R.R. These children were placed in two prospective adoptive homes in February 2017—D.R. and J.J.R. in one home, and M.J.R. and M.R.R. in another—and their caregivers were willing to adopt them. At this time, CFS was recommending planned permanent living arrangements for the oldest four children, P.L., A.A., J.R.J., and J.L.R., and adoption for the four youngest children, D.R., J.J.R., M.J.R., and M.R.R. On May 18, the court continued the section 366.26 hearings to July 18, for the four youngest children, and the hearings were “set contested” on behalf of Mother.
G. Mother’s Section 388 Petition (May 18, 2017)
On May 18, Mother filed a section 388 petition for her youngest five children, J.L.R., D.R., J.J.R., M.J.R., and M.R.R. In her petition, Mother asked the court to return these children to her care pursuant to a family maintenance plan or reinstate her reunification services and/or place the children with M.G. Mother claimed these changes of the court’s prior orders would serve the children’s best interests because the problems which led to their removal from Mother had been resolved, Mother and the children shared a strong bond, and the children “strongly desire[d]” to be placed with Mother or M.G. Mother claimed she had attended counseling to address her errors in judgment and had “rehabilitated sufficiently” to receive custody or reunification services.
Mother attached her own declaration to her petition attesting to her new insights as to why the children were removed from her care the second time and her commitment to protecting them. Mother also submitted a letter from her therapist, Deren Mikels, stating, among other things, that Mother had attended five therapy sessions, understood she had failed to protect her children, had stopped using marijuana, was employed, and was not in a relationship with Father.
Mother’s petition also included a letter dated February 3, 2017, from her attorney, John N. Vega, to county counsel, asking CFS to reassess M.G. for placement. The letter noted that M.G. had previously been denied placement because she did not have her own place to live, but stated that M.G. had recently acquired a four-bedroom home with sufficient room for the children. M.G. was employed at Nordstrom’s and her fiancé was a security officer.
On May 18, 2017, the court denied Mother’s petition without a hearing, stating in its order that the petition showed changing but not changed circumstances because it showed Mother had only attended five therapy sessions. In addition, the court also wrote on the order: “Relatives to be assessed if not already done.”
H. Further Proceedings for the Six Oldest Children (July 18, 2017), and the Section 366.26 Hearings for M.J.R. and M.R.R. (August 18, 2017)
On July 18, 2017, CFS advised the court that it was assessing M.G. for placement of the oldest four children, A.A., P.L., J.R.J., and J.L.R., who had planned permanent living arrangements. Minor’s counsel advised the court that the oldest six children, A.A., P.L., J.R.J., J.L.R., D.R., and J.J.R., wished to be placed with M.G. P.L. and A.A. were still in the same home, but a seven-day notice had been given for P.L., and J.R.J. and J.L.R. were already in different homes. D.R. and J.J.R. were no longer in their prospective adoptive home and were placed together in another home. On July 18, the court ordered CFS to assess M.G. for placement of the six oldest children, A.A., P.L., J.R.J., J.L.R., D.R., and J.J.R.
On August 18, section 366.26 hearings were held solely for M.J.R. and M.R.R., then ages 15 months. The court terminated parental rights to M.J.R. and M.R.R. and selected adoption as their permanent plan.
III. DISCUSSION
A. Section 388 and Standard of Review
Section 388 allows a parent of a dependent child to petition the juvenile court to change, modify, or set aside a previous order of the juvenile court. (§ 388; In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) The court may deny the petition—summarily, ex parte, and without a hearing—if the petition fails to make prima facie showings of changed circumstances or new evidence, and that the requested change will serve the best interests of the child. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478; Cal. Rules of Court, rule 5.570(d)(1), (2).) We review the grant or denial of a section 388 petition for an abuse of discretion. (In re Y.M. (2012) 207 Cal.App.4th 892, 920.)
B. Mother Has No Standing to Challenge CFS’s Failure to Reassess M.G. for Placement
As noted, Mother claims her section 388 petition was erroneously denied without a hearing to determine whether CFS violated section 361.3, subdivision (d) in failing to reassess the maternal aunt, M.G., for placement of Mother’s five youngest children (the only subjects of Mother’s petition), or to place those five children with M.G., based on Attorney Vega’s February 3, 2017, letter advising CFS that M.G. had recently acquired a four-bedroom home with sufficient room for the children.
Section 361.3 establishes a legislative preference that a dependent child who is removed from parental custody be placed with certain relatives, if the placement has been requested and is appropriate. Section 361.3, subdivision (a), provides: “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . .” (Italics added.)
An aunt is among the relatives who are entitled to “preferential consideration” for placement. (§ 361.3, subds. (a), (c)(1), (2).) The court is required to grant preferential consideration to such relatives for the temporary placement of the child, both at the initial disposition hearing if the child is removed from parental custody, and after the disposition hearing if and when a new placement becomes necessary. (§ 361.3, subds. (a), (d); In re K.L. (2016) 248 Cal.App.4th 52, 65-66.)
CFS assessed M.G. and other relatives for placement in October 2016, because at that time all of the children who had been placed with Mother pursuant to the terminated family maintenance plan—all of the children except P.L.—needed new placements. (§ 361.3, subd. (d).) In October 2016, CFS rejected M.G. for placement in part because she did not have her own home and also because she was living with three relatives, namely, the maternal grandmother, M.R.L., maternal aunt, L.H., and a maternal uncle, whom CFS had determined were unsuitable for placement. M.R.L. had an “extensive criminal background,” and Mother had accused J.H. and the maternal uncle of sexually molesting her as a child.
Mother correctly points out that the relative placement preference (§ 361.3, subd. (d)) “still applied” on January 18, 2017, when the court continued the section 366.26 hearings to May 18 in order to allow CFS to locate a single adoptive home for the youngest six children. But as of January 18, CFS had assessed and rejected M.G. for placement, and the record does not show that CFS or the court knew of any reason to reassess M.G. for placement on January 18. Mother did not file her section 388 petition raising the placement issue with M.G. until May 18, 2017.
Mother sought several forms of alternative relief in her petition: (1) the return of Mother’s five youngest children to her care pursuant to a new family maintenance plan; (2) reinstated reunification services for those children; and (3) independently of whether Mother received any reunification services, the placement of the five youngest children with M.G. But in her first appeal, Mother does not challenge the court’s refusal to grant her a new family maintenance plan or reunification services. Instead, she claims only that the court abused its discretion in failing to hold a hearing to independently determine whether CFS violated section 361.3, subdivision (d) in placing the children in homes with nonrelatives in February 2017, without reassessing the maternal aunt, M.G., and M.G.’s new four-bedroom home.
In these appeals, neither Mother nor Father have standing to challenge the juvenile court’s failure to order that M.G. be reassessed for placement or to order any of the five youngest children placed with M.G. A parent has standing to challenge the juvenile court’s failure to order a child placed with a relative only if the parent shows the placement of the child with the relative might have alternated the court’s subsequent decision to terminate parental rights to the child. (In re K.C., supra, 52 Cal.4th at pp. 237-238.) But here, neither Mother nor Father claim that the court’s failure to order any of the youngest five children placed with M.G. might have caused the court not to terminate parental rights to the twins and select a less restrictive permanent plan for the twins than adoption. (In re Isaiah S. (2016) 5 Cal.App.5th 428, 435-437.)
Additionally, Father never received reunification services for any of the children. And when Mother filed her petition in May 2017, all of her services had been terminated, and she does not claim the court erroneously denied her petition to the extent it sought further family maintenance or reunification services. Thus, neither parent was aggrieved by CFS’s failure to reassess or place any of the children with M.G. in February 2017 (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at pp. 1034-1035.) “Once a parent’s reunification services have been terminated, the parent has no standing to appeal relative placement preference issues.” (In re Jayden M., supra, 228 Cal.App.4th at p. 1460.) For these reasons, we affirm the order denying Mother’s section 388 petition without a hearing and the orders terminating parental rights to M.J.R. and M.R.R.
Mother extensively relies on In re Isabella G. (2016) 246 Cal.App.4th 708 and In re R.T. (2015) 232 Cal.App.4th 1284, but neither case assists her argument. In each case, the agencies and juvenile courts erroneously failed to assess relatives for placement, but the aggrieved relatives continually sought placement and either appealed or joined the parent’s appeal of the erroneous denial of the placements. (In re Isabella G., supra, at pp. 711-713; In re R.T., supra, at pp. 1292-1295.) Here, M.G. did not ask to be reassessed for placement and is not a party to either of these consolidated appeals.
IV. DISPOSITION
The May 18, 2017, order denying Mother’s section 388 petition without a hearing and the August 18, 2017, orders terminating parental rights and placing M.J.R. and M.M.R. for adoption are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

MILLER
Acting P. J.

CODRINGTON
J.