Filed 11/14/18 In re Xavier C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Robin L. Wolfe, Judge.

Julie Braden, under appointment by the Court of Appeal, for Defendant and Appellant A.C.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant David C.

Deanne H. Peterson, County Counsel, and John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Appellant A.C. (mother) appeals from the juvenile court’s order terminating her parental rights as to her now one-year-old son, Xavier C., pursuant to Welfare and Institutions Code section 366.26.[1] She contends the juvenile court erred in not complying with section 361.3, which requires the court and the county agency to give preferential consideration to the request of a relative for placement of a dependent child. David C. (father) joins, arguing reversal of the termination order as to mother requires reversal of the termination order as to him. We affirm.

PROCEDURAL AND FACTUAL SUMMARY

On June 5, 2017, the Tulare County Health and Human Services Agency (agency) was notified that mother gave birth to Xavier, her 11th child, and that he was admitted to the neonatal intensive care unit. Although mother and Xavier tested negative for drugs, mother admitted using methamphetamine seven months before. She said she was prepared for Xavier and had baby supplies, but the social worker found otherwise when she visited the family home. On June 13, 2017, the agency placed a protective hold on Xavier at the hospital and placed him in a foster home upon his release. He remained in this placement throughout the proceedings.

On July 16, 2017, the juvenile court ordered Xavier detained based on allegations related to mother’s methamphetamine use, father’s failure to protect Xavier from it and their neglect of Xavier’s siblings, none of whom were in their care. (§ 300, subds. (b)(1) & (j).) Four had been adopted and the others had either reached the age of majority or were in long-term foster care. Mother’s attorney inquired what efforts were being made to place Xavier with relatives. County counsel stated the agency attempted unsuccessfully to contact the maternal grandmother concerning placement. The court ordered the parents to provide the agency the names of Xavier’s adult relatives and the agency to comply with section 309, subdivision (e) by identifying and locating them.

On July 17, 2017, the parents stated they wanted Xavier to be placed with paternal great-aunt Nellie F. in a plan of legal guardianship in the event a permanent plan became necessary. The agency attempted to contact Nellie that same day without success.

On July 28, 2017, Nellie was present at the jurisdictional hearing. There was no mention of placing Xavier with her. The parents submitted to the juvenile court’s jurisdiction and the court found the allegations true. The court set a contested dispositional hearing for September 6, 2017, on the agency’s recommendation to deny the parents reunification services pursuant to section 361.5, subdivision (b)(10), (11) and (13) because of their failure to reunify with Xavier’s siblings and resistance to court-ordered substance abuse treatment.

Mother and her recovery specialist/aftercare coordinator testified at the contested dispositional hearing about mother’s participation in residential treatment and aftercare. The juvenile court denied the parents reunification services as recommended and set a section 366.26 hearing for December 15, 2017. Mother’s attorney advised the court that Nellie, who was present in the courtroom, wanted to apply for placement. The court suggested Nellie contact social worker Paul Garcia or his supervisor, if necessary. Nellie had spoken to Garcia several times and was waiting for documentation from Sacramento County, her county of residence. She gave her contact information to the social worker present in court who said she would relay the information.

Neither parent filed a writ petition challenging the juvenile court’s setting of the section 366.26 hearing.

In its report for the section 366.26 hearing, the agency recommended the juvenile court find that Xavier was likely to be adopted and terminate parental rights. Xavier’s foster parents wanted to adopt him as did Nellie, who was being assessed by Sacramento County. Once approved, the agency planned to schedule a meeting to determine the most appropriate placement for Xavier. As to mother and father, the agency reported they had supervised visits which they attended half of the time.

The juvenile court continued the section 366.26 hearing to January 31, 2018. Meanwhile, mother filed a modification petition under section 388, asking the juvenile court to order reunification services for her. She claimed to have successfully completed a yearlong substance abuse treatment program, tested negative for drugs and obtained a two-bedroom apartment. She was also visiting Xavier on a more regular basis.

The juvenile court set an evidentiary hearing on mother’s section 388 petition on March 7, 2018, to coincide with the section 366.26 hearing. Mother was the sole witness at the hearing. At the conclusion of her testimony, the juvenile court denied her section 388 petition, finding it was not in Xavier’s best interest to offer her reunification services. The court proceeded to the permanency planning phase of the hearing and father testified legal guardianship would better serve Xavier’s best interest. During argument, mother’s attorney stated she was informed that Nellie was approved for placement. Based on that, her attorney argued Xavier’s interests would be best served by maintaining his contact with family through legal guardianship with or adoption by Nellie.

The juvenile court found that Xavier was likely to be adopted, that none of the exceptions to adoption applied and terminated parental rights.

DISCUSSION

The relative placement preference, set forth in section 361.3, subdivision (a), provides that “[i]n any case in which a child is removed from the physical custody of his or her parents … , preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative .…” The relative placement applies when a child is taken from his parents and placed outside the home pending the determination whether reunification is possible. It also applies to placements made after the dispositional hearing, even when reunification is no longer ongoing, whenever a child must be moved. (In re A.K. (2017) 12 Cal.App.5th 492, 498 (A.K.).)

“[P]referential consideration under section 361.3 ‘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.] In other words, when a child is taken from his [or her] parents’ care and requires placement outside the home, section 361.3 assures an interested relative that his or her application for placement will be considered before a stranger’s request.” (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)

Here, mother contends the juvenile court’s order terminating parental rights must be reversed because the agency and juvenile court failed to assess Nellie’s request for placement under the provisions of section 361.3. We conclude mother lacks standing to raise this contention and, in any event, forfeited it by failing to raise it in the juvenile court.

“Whether a person has standing to raise a particular issue on appeal depends upon whether the person’s rights were injuriously affected by the judgment or order appealed from. [Citation.] A person does not have standing to urge errors on appeal that affect only the interests of others. [Citation.] Accordingly, a parent is precluded from raising issues on appeal which do not affect his or her own rights.” (A.K., supra, 12 Cal.App.5th at p. 499.)

Section 361.3 “protects a relative’s ‘separate interest’ in a relationship with the child. [Citation.] In contrast, a parent’s interest in a dependency proceeding is in reunifying with the child. [Citations.] The parental interest in reunification is distinguished from a relative’s ‘separate interest’ in preferential placement consideration or in having a relationship with the child.” (A.K., supra, 12 Cal.App.5th at p. 499.) Because a parent’s interest is in reunification, “a parent does not have standing to raise relative placement issues on appeal, where the parent’s reunification services have been terminated.” (Ibid.)

Here, mother was denied reunification services at the dispositional hearing. She therefore cannot establish that her “rights and interest in reunification are injuriously affected” by any failure to consider Nellie for placement at the section 366.26 hearing, from which she has filed her appeal. (A.K., supra, 12 Cal.App.5th at p. 499.) Further, mother does not argue that the order terminating her parental rights was improper. Therefore, she has “no remaining, legally cognizable interest in [the child’s] affairs, including his placement .…” (In re K.C. (2011) 52 Cal.4th 231, 237.)

Additionally, even if mother had standing to raise the issue of relative placement preference, she forfeited it by failing to pursue it in the juvenile court. She contends on appeal the agency’s failure to comply with the law and the court’s failure to enforce it delayed agency action on her placement request. Specifically, she argues the agency failed to investigate Nellie for possible placement within 30 days of Xavier’s initial removal as required by section 309, subdivision (e) and afford her preferential placement pursuant to sections 319, subdivision (f)(2) and 361.3, subdivision (a).

“Dependency appeals are governed by section 395, which provides in relevant part: ‘A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment ….’ ” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149.) Section 395 makes the dispositional order the appealable “judgment.” Therefore, all subsequent orders are directly appealable, except for orders setting a section 366.26 hearing. (Id. at p. 1150.) Such orders must be challenged by extraordinary writ petition. (Cal. Rules of Court, rule 8.450(a).)

The dependency statutes seek to maintain a child in the custody of family, beginning with the initial removal from parental control. Section 309, subdivision (e)(1) requires the agency to conduct an investigation within 30 days of the child’s initial removal to identify and locate adult relatives. The agency is required to notify all adult relatives who are located that the child has been removed from parental custody and explain placement options. (§ 309, subd. (e)(1)(A)-(B).) If the juvenile court orders the child detained at the initial hearing (i.e., detention hearing), it may order the child into the temporary custody of a relative or nonrelative extended family member. The court must give preferential consideration to relatives. (§ 319, subd. (f)(1)(A)(i) & (f)(2).) Relatives are also afforded preferential placement preference when the court orders the child removed from parental custody at the dispositional hearing. (§ 361.3, subd. (a).) “Relative” is defined in both instances as “an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including … all relatives whose status is preceded by the words ‘great,’.…” (§§ 319, subd. (f)(2) & 361.3, subd. (c)(2).)

If mother believed the agency failed to identify Nellie and notify her of her placement options, or afford her relative placement preference under the statutes, she could have raised the issue at the dispositional hearing and, thereafter, by extraordinary writ petition from the court’s setting order. She did not do so. She therefore forfeited her objection.

Notwithstanding mother’s forfeiture, her contentions are meritless. Section 309, subdivision (e)(1) requires the agency to investigate the possibility of relatives, obtain their names and locate them. The parents did not identify Nellie as a placement option until the day after the detention hearing, which occurred more than 30 days after Xavier’s initial removal. The fact that Nellie was not identified sooner does not render the agency noncompliant with the statute. Further, Nellie’s appearance at the dispositional hearing and request for placement prove she received notice of the proceedings and her ability to request placement. Finally, the evidence reflects the agency intended to consider placing Xavier with Nellie once her application was approved.

Accordingly, we conclude mother forfeited any contentions she had regarding the agency’s duty to identify and locate Nellie and the agency and the juvenile court’s mandate to give her preferential placement as Xavier’s relative.

DISPOSITION

The juvenile court’s orders terminating parental rights are affirmed.