In re Jordan N.

Filed 3/9/07 In re Jordan N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. William A. Anderson, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Plaintiffs and Appellants.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Defendant and Respondent.

Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.

Cathy and Charles B. are the maternal grandparents of five-year-old Jordan N. and two-year-old H.B. The grandparents are appealing from the denial of their Welfare and Institutions Code section 388 petition,^[1]which asked the juvenile court to order the Riverside County Department of Public Social Services (DPSS) to seek an adoptive placement for the children through the Latter Day Saints (LDS) Family Services. The maternal grandparents sole contention on appeal is that the juvenile court erred in denying their section 388 petition. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 2005, DPSS received an immediate-response referral regarding then‑three-year-old Jordan and three-month-old H.B. The referral alleged that the childrens mother (Mother) was developmentally delayed with a mental capacity of a 14 year old and would not allow doctors at Riverside County Medical Center to perform necessary tests on H., who was having difficulty keeping her formula down. The referral further alleged that Mothers boyfriend was developmentally delayed as well, had a history of sexually molesting a child, and had fantasies about H. At that time, Mother had two other open referrals: one regarding allegations of general neglect and substantial risk of sexual abuse involving her boyfriend, who admitted to having sexual urges with the children, and another general neglect allegation because H. had not been seen by a doctor since birth. In addition, Mother had numerous prior DPSS referrals from 2001 to 2004 for general neglect, physical abuse of Jordan by Mother and the maternal grandmother, substantial risk of sexual abuse, and caretaker incapacity.

When social workers responded to Mothers apartment, Mother admitted taking H. to the hospital and refusing tests. She explained that she could do what she wanted with H. because H. was her daughter. Mother also admitted her boyfriend had told her about the previous sexual abuse charges. While Mother did not believe he had been convicted, she knew he was in counseling and denied leaving the children alone with him. Mother further acknowledged that she had allowed her brother to live with her to help care for the children. However, it was discovered that her brother had been out of the family home due to allegations of his molesting his sisters in the past. Mother claimed those allegations were false and explained that her brother merely beat the girls up; that he lived mainly with her parents; and that she did not see what the big deal was with where he lived. Mother received monthly government aid for her developmental disability and child support from Jordans father. She did not know who H.s father was as she was sexually involved with three different men at the time of conception. She also stated that she wanted to have at least 10 more children and that she did not use any protection when having intercourse.

When the social workers went into the bedroom, they found H. sleeping face down in her crib in a dark, stuffy room. She was lethargic, and her head bobbed unnaturally. Jordan was found sleeping on Mothers bed, which had no bedding on it. He was overweight, pale, and did not speak. He was diagnosed as being developmentally delayed. When Mother was informed that allowing a baby to sleep face down increased the risk of Sudden Infant Death Syndrome, she said she would do whatever she wanted with her children. Also, when the social worker observed Mother throwing H. into the air and catching her roughly and cautioned her against this behavior, Mother again said she could do what she wanted with her children.

The maternal grandparents told the social worker that Mother had the mental capacity of a 14 year old. They also explained that she had a volatile temper at times.

An anonymous neighbor stated that he did not believe Mother had the skills to take care of her children. He worried that Mother did not feed the children appropriately and left them unattended. He was also concerned that her family, namely her brother and parents, took advantage of Mother by taking her money. He opined that Mothers entire family was mentally marginal in functioning.

The children were taken into protective custody with the assistance of law enforcement on April 29, 2005, and placed in foster homes. The social worker was concerned that H. may have been shaken, and she was therefore examined by a Dr. Murray. Dr. Murray recommended that H. be assessed for possible neurological, congenital, and chromosomal abnormalities.

After Mother reluctantly gave the social worker Jordans fathers telephone number, the social worker made contact with him. Jordans father stated that he had been married to Mother for about a year and half until he found out she was having an affair and was pregnant with another mans baby (which she later miscarried). He also stated that Mother had informed him that she wanted as many babies as possible to collect welfare money. He disclosed that Jordan had already been diagnosed with Smith Syndrome, and he was concerned about him. Jordans father had several mental breakdowns and admitted to being hospitalized on two occasions.

On May 3, 2005, DPSS filed petitions on behalf of the children pursuant to section 300, subdivisions (b) and (g). At the detention hearing, the juvenile court found a prima facie showing had been made and ordered the children detained in foster care.

In an addendum report filed May 23, 2005, the social worker requested a three‑week continuance to more fully investigate Mothers developmental delays and recommended the court order two psychological evaluations for both Mother and Jordans father. The social worker reported that in 2003 Mother had been diagnosed with intermittent explosive disorder and mild mental retardation.

On May 25, 2005, the juvenile court granted the continuance and ordered the psychological evaluations.

In a second addendum report filed June 14, 2005, the social worker again requested a three‑week continuance to complete the psychological evaluations. During this time, Mother had completed one assessment, and her second was scheduled. Mother and the maternal grandfather had asked the social worker to have a church member evaluated for placement.

In a jurisdictional/dispositional report filed July 15, 2005, the social worker recommended the court find the allegations in the petitions true and deny services to Mother and Jordans father pursuant to section 361.5, subdivision (b)(2). Both Drs. Suiter and Ryan, who had performed Mothers and Jordans fathers psychological evaluations, opined that neither Mother nor Jordans father could benefit from services due to their limited intellectual ability coupled with abnormal personality traits. Visitation had been occurring between the children and their parents and extended family members. It appeared as though Mother had a limited ability to connect with her children and did not take much initiative to hold and bond with H.

Jordan and H. were placed in separate foster homes. H. was showing signs of developmental delays and had chromosomal abnormalities that resulted in dysmorphic facial features and an epicanthal fold. She had been referred for genetic testing. However, she appeared to be doing well in foster care. Jordan also had developmental delays and was being assessed for services. Nonetheless, Jordan had made developmental strides in foster care â€‘‑ he was eating better, potty training, and beginning to talk.

The church member recommended by the maternal grandfather and Mother was assessed for placement. However, the church member later declined to have the children placed in her care due to illness. Therefore, DPSS was working with the family to find another church member to be assessed for placement.

In an addendum report filed October 6, 2005, the social worker reported that Mother had been actively participating in a parenting education program and visiting with her children. Visitation had brought up concerns of Mothers poor judgment and anger management issues. She had continued to display limited bonding with H. and a lack of parenting skills. Meanwhile, H. and Jordan were doing very well in their respective foster homes.

On October 11, 2005, the juvenile court found the allegations in the petitions true, declared the children dependents of the court, and ordered them formally removed from parental custody. The court also ordered that reunification services to both parents be denied pursuant to section 361.5, subdivision (b)(2) and set a permanency planning hearing. In addition, the court referred the case to mediation for a postadoption visitation contract.

In the section 366.26 report, DPSS recommended that the children be placed in long-term foster care with adoption as the goal for their placement plan. Jordan and H. remained in their respective foster homes and were doing well. An adoptive home had not been located by the time the report was filed in January 2006, and further medical information was needed on H. By May 2006, an adoptive family that would accept both children with their developmental problems had still not been located.

On February 14, 2006, the maternal grandparents filed a section 388 petition requesting that, if the children could not be returned to Mother, they be considered for adoption or be adopted through LDS Family Services or a State of CA licensed adoption agency. They also requested that Mothers services be reinstated. They alleged that this order would be in the childrens best interest because they would then be kept together and raised in their familys religion. Attached to the petition was a letter from LDS Family Services indicating they were a licensed foster and adoption agency and that they had worked with other counties to arrange adoptions within their faith.

At the May 11, 2006, section 388 hearing, counsel for DPSS informed the court that H.s alleged father had been located, and his mother was interested in adopting both children.^[2] Thus, counsel requested that the section 366.26 hearing be continued for 90 days for paternity testing and to locate an adoptive home. Counsel also asked the court to deny the section 388 petition, as a court order was not necessary for LDS Family Services to become involved in the adoption. Counsel believed that LDS Family Services could contact the county adoption agency. Counsel further reminded the court that H.s alleged fathers mother was interested in adopting both children. As to reinstatement of Mothers services, counsel pointed out that there was no change of circumstances, and Mother had been denied services on the basis of her mental health. Regarding the maternal grandparents request to be considered as adoptive parents, counsel argued that they had been denied placement because they, too, had mental health issues and a history with DPSS.

Minors counsel concurred with counsel for DPSS and argued that the section 388 petition should be denied. Minors counsel was not opposed to having the potential paternal grandmother be assessed as an adoptive parent for the children or a 90‑day continuance of the section 366.26 hearing.

Mothers counsel supported the section 388 petition and asserted that using LDS Family Services was a viable option to keep the children in the local area. In addition, Mothers counsel did not believe that the social worker would work with LDS Family Services absent some form of court order.

The juvenile court denied the grandparents section 388 petition but ordered DPSS to consider LDS Family Services for a possible adoptive placement, if LDS Family Services indicated an interest. The court then continued the section 366.26 hearing for another 90 days.

On June 12, 2006, the maternal grandparents filed their notice of appeal.

II

DISCUSSION

The maternal grandparents (hereinafter the grandparents) contend that the juvenile court erred when it denied their section 388 petition. Specifically, they assert that the court should have ordered DPSS to facilitate the childrens adoption through LDS Family Services.^[3]

DPSS responds that the grandparents lack standing to assert this issue; that the issue is premature; and, in the alternative, that the juvenile court did not abuse its discretion in denying the section 388 petition.

On review, we conclude the grandparents are unable to show how they are aggrieved by the juvenile courts ruling ordering DPSS to consider LDS Family Services for a possible adoptive placement, if LDS Family Services indicated an interest, and therefore how they have standing to raise their arguments before this court.

Though standing to appeal is to be liberally construed (In re Matthew C. (1993) 6 Cal.4th 386, 394), whether 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. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) Any aggrieved party has standing. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) To have standing an appellant must be both (1) a party and (2) aggrieved. (Ibid.) Any person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment, is considered a party aggrieved for purposes of appellate standing. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1196; see also In re Harmony B. (2005) 125 Cal.App.4th 831, 837.) In other words, a party is aggrieved if its own legal rights are affected. (In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) In the absence of standing, there is no justiciable controversy for a court to entertain. (Ibid.)

The case that most strongly supports the DPSSs position here (although DPSS does not cite it) is In re Miguel E. (2004) 120 Cal.App.4th 521. There, the childrens grandparents appealed from an order sustaining a section 387 petition and removing the children from placement with them. The court held: [The] Grandparents do not have standing to appeal as de facto parents or as relatives. (Miguel E., at p. 539, italics added.) It explained that they had not applied for or achieved de facto parent status. . . . If Grandparents had sought de facto parent status in a timely manner, and had been granted that status, they would have standing to appeal. [Citation.] They did not do so. (Id. at p. 539, fn. omitted.)

The court specifically rejected the grandparents contention that they had standing as de facto parents who had not yet been officially granted that status [citations]. (In re Miguel E., supra, 120 Cal.App.4th at p. 539.) . . . Grandparents did not seek to participate in the proceedings below. [T]he de facto issue was disputed and Grandparents were not described as de facto parents in the juvenile court. Californias doctrine of de facto parent status is a judicially created doctrine, but one which is now spelled out in the California Rules of Court. [Citation.] De facto parent status is a factual matter for the juvenile court to decide; the applicant bears the burden of proof. [Citations.] (Ibid., quoting In re Brandon M. (1997) 54 Cal.App.4th 1387, 1393.)

The court explained that the grandparents in Miguel E. had been present at the juvenile dependency proceedings, but [t]hey did not ask to address the court and did not seek to participate in the proceedings below. (In re Miguel E., supra, 120 Cal.App.4th at p. 539.) Thus, they were merely relatives, not parties. (Id. at p. 539.) The court denied appellate standing because they did not become a party by tak[ing] the appropriate steps to become a party of record in the proceedings. (Ibid., citing In re Joseph G. (2000) 83 Cal.App.4th 712, 715.)

Likewise, here, in the proceedings below, there is no evidence that the grandparents sought to participate in the proceedings or take the necessary steps to become a party. They never spoke in the proceedings below even though they were present. In fact, the grandparents were not even considered as relative caretakers for the children due to their prior DPSS history, and they were not treated as de facto parents. Thus, they were merely relatives, not parties. (In re Miguel E., supra, 120 Cal.App.4th at p. 539.)

On the other hand, the court in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 held the grandparents had standing to appeal. However, Cesar V. is distinguishable from the present case. In that case, the paternal grandmother had sought placement of the minor in her home, but the Social Services Agency (SSA) did not make significant efforts to gather the required information before deciding [the paternal grandmother] was unsuitable and abandoning the assessment. Furthermore, the social worker began looking for another foster family before [the paternal grandmother] had even received SSAs forms. (Id. at p. 1033.) She appealed the decision of the juvenile court to uphold the SSAs placement assessment of the grandmother pursuant to section 361.3. The grandmother had almost daily contact with the children before the dependency proceedings were initiated (Cesar V., at p. 1029), and she was joined by the presumed father, who no longer had standing himself but had extensively litigated the issue below. (Id. at p. 1035.) The court in Cesar V. granted standing because of the grandmothers significant relationship with the children prior to the juvenile dependency proceeding and the legally recognized relationship that was protected under section 361.3. (Cesar V., at pp. 1030, 1035.)

Here, by contrast, there is no evidence that the grandparents had a significant relationship with the children prior to the juvenile dependency proceeding, and there is no legally recognized relationship under section 361.3. Rather, the record shows that the grandparents had a minimal relationship with the children, and they did not even challenge the denial of the children to be placed in their care. In certain circumstances, a relative has legally protected rights to preference in the placement of a minor. (In re Aaron R. (2005) 130 Cal.App.4th 697, 704-705.) The grandparents did not assert any legally protected rights that might have authorized the court to order DPSS to facilitate the childrens adoption through LDS Family Services. They were not asserting their own interests but instead the childrens interest in maintaining their relationship with each other by being placed together and being raised in the familys religion. The grandparents in their capacities as relatives did not suffer cognizable injury to their legally protected rights when the court did not order DPSS to facilitate the childrens adoption through LDS Family Services.^[4] Therefore, they lack standing to appeal on that ground.

In any event, we find the juvenile court did not abuse its discretion in denying the grandparents section 388 petition. Section 388, subdivision (a) provides, Any parent or other person having an interest in a . . . dependent child . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petitioner must show by a preponderance of the evidence that: (1) there is new evidence or a change of circumstances; and (2) that the proposed modification based on the new evidence or change of circumstances would be in the childs best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527, fn. 5.) The showing must be one of true changed circumstances, not merely changing circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.)

We review the juvenile courts decision on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) []The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] The denial of a section 388 motion rarely merits reversal . . . . [Citation.] (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445, quoting In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 and In re Amber M. ( 2002) 103 Cal.App.4th 681, 685-686.)

The grandparents here did not cite any changed circumstances in their section 388 petition to support their request for LDS Family services to facilitate the adoption. On appeal, the grandparents contend that they established changed circumstances in that DPSS refused to cooperate with the family in trying to locate a LDS family to adopt the children. In support of this assertion, the grandparents cite Mothers counsels argument at the section 388 hearing, in which counsel stated, With respect to the LDS Family Services, I dont think the social worker will, Im not sure if they will deal with them until the social worker involves themselves and gets in contact with LDS and sets up the appropriate meeting between the two entities . . . . However, this argument was mere speculation and was contrary to the record. As explained in footnote 4, ante, the social worker attempted to place the children with a church family. There is no evidence that DPSS refused to cooperate with the family in pursuing a placement with an LDS family, that DPSS ever determined that it would not continue to cooperate with the family to locate a placement with members of the LDS faith, or that DPSS declined to assess any other person that was a member of the LDS faith. In addition, the grandparents in their section 388 petition never alleged that DPSS would not work with LDS Family Services absent a court order, and Mother did not testify to this effect. Moreover, the court did order DPSS to consider LDS Family Services for a possible adoptive placement.

Based on the foregoing, we find the juvenile court did not abuse its discretion in denying the grandparents section 388 petition.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

HOLLENHORST

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2] Mother indicated that this man, Joshua B., might be H.s father, as Mother had been having a relationship with him.

^[3] The maternal grandparents had also asked the court to grant reunification services to Mother and to place the children with them. However, they are not raising these issues on appeal.

^[4] In addition, we fail to see any difference in the courts order and the order the grandparents now request on appeal. At the section 388 hearing, the court ordered DPSS to consider LDS Family Services for a possible adoptive placement. The court explained, I think the best thing to do from a practical standpoint is to have LDS Family Services contact the social worker to provide them with that if they want to actively be involved in it, to let the Department know they are available. Mothers counsels fear that the social worker would not work with LDS Family Services absent some form of court order is unfounded. The record shows that the social worker attempted to place the children with a church member and was working with the family to have the children placed with another church member.