Filed 5/8/18 In re L.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.E. et al., Persons Coming Under the Juvenile Court Law.


RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

E.E. et al.,

Defendants and Appellants;

H.B. et al.,

Appellants.

E069672

(Super.Ct.No. RIJ1600698)

OPINION


APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed.
Grace Clark, by appointment of the Court of Appeal, for Defendant and Appellant E.E.
Jesse McGowan, by appointment of the Court of Appeal, for Defendant and Appellant J.S.
William D. Caldwell, by appointment of the Court of Appeal, for Appellants H.B. and A.S.-B.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
J.S. (mother) has four children. The two older children (who are both boys) have a different father than the two younger children (who are twin girls). E.E. (father) is the father of the two twin girls. E.B., who is married to R.B. (collectively the B.’s) is the paternal grandfather of the two older boys.
At the time of the Welfare and Institutions Code section 366.26 (section 366.26) hearing below, the twin girls had been in a prospective adoptive placement for about a month and a half. Meanwhile, the B.’s had only just been approved as a prospective adoptive placement for the older boys. The juvenile court refused to place the twin girls with the B.’s. Moreover, it refused to continue the hearing so that the B.’s could be considered as a potential adoptive placement for the twin girls. Instead, it continued the hearing with respect to the older boys and terminated parental rights with respect to the twin girls.
The mother, the father, and the older boys appeal. They contend that the juvenile court erred by:
1. Failing to consider the B.’s as a prospective adoptive placement earlier.
2. Refusing to continue the section 366.26 hearing.
3. Refusing to place the twin girls with the B.’s so that they could be with the older boys.
Finding no error, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The mother has four children:
1. H.B. (H.), a boy, born in 2012;
2. A.S.-B. (A.), a boy, born in 2013; and
3 & 4. R.E. (R.) and L.E. (L.), twin girls, born in 2016.
The father is the father of the two twin girls; the two older boys have a different father.
The twin girls were born prematurely. They and the mother all tested positive for methamphetamine. The mother admitted a “long history of methamphetamine abuse.” She also admitted using methamphetamine during her pregnancy. The father admitted using marijuana.
The mother and father had been in a nonmarital relationship for about a year and a half. They had loud arguments, including at least one in front of the children; they admitted having “anger issues.”
In August 2016, the Department detained all four children and filed a dependency petition concerning them. In September 2016, after some brief interim placements, all four children were placed together in the same foster home.
Also in September 2016, at the jurisdictional/dispositional hearing, the parents submitted on the social worker’s reports. The juvenile court found that it had jurisdiction based on failure to protect. (Welf. & Inst. Code, § 300, subd. (b).) It ordered that the parents be provided with reunification services. It found that the children were a “sibling group.”
E.B. — the paternal grandfather of the older boys — and his wife R.B. indicated that they were willing to accept placement of all four children. Because the B.’s lived in San Bernardino County, the San Bernardino child welfare agency was in charge of their assessment. It started the assessment process in November 2016.
Meanwhile, H. had delayed speech. He behaved violently toward his caregiver as well as toward his younger brother A. He was diagnosed as having attention deficit hyperactivity disorder, plus a “disruptive impulse-control and conduct disorder.” As a result, in January 2017, he was placed in a “therapeutic” foster home, separate from his siblings.
In March 2017, at the six-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to section 366.26.
As of July 2017, H.’s behavior had improved. He still had tantrums and episodes of aggression, and he still failed to follow directions; however, these behaviors had decreased. By the age of four, A. still was not potty-trained. He also had problems with attention. It appeared that he, too, might have delayed speech. Whenever the older boys were together, their behavior deteriorated. They were “aggressive” toward each other as well as toward the twin girls.
Meanwhile, in April 2017, the B.’s attended an orientation session regarding the approval process. By July 2017, they had completed some but not all of the classes that they needed to be certified for placement. Their adult daughter and her two children, who were also living in their home, were “involve[d]” with child protective services; as a result, the B.’s would need an exemption. Meanwhile, the B.’s were having visitation with all four children.
While the B.’s were still being assessed, however, the Department decided that it would be better to place the twin girls in a different prospective adoptive home. It reasoned that: (1) the B.’s were already caring for their adult daughter’s two children; (2) the older boys “ha[d] specific behavioral and educational needs that require[d] more time and attention; (3) the twin girls were “active toddlers who require constant supervision and attention”; and (4) the B.’s were not biologically related to the twin girls.
Accordingly, in October 2017, the twin girls were placed in a prospective adoptive home. “They . . . made an excellent adjustment to this placement and [we]re clearly bonded to the prospective [a]doptive family . . . .” “They appear[ed] happy and comfortable in their surroundings and [we]re receiving the attention and love they deserve[d].” Moreover, A. had “adjusted well” to being parted from the twin girls and “d[id] not seem to be experiencing any significant emotional or behavioral issues” as a result.
As of November 2017, the Department was recommending that the B.’s adopt the older boys. The San Bernardino child welfare agency was still assessing the B.’s. They had received the necessary exemption, but they still had to have a health screening. It was expected that the assessment would be complete in 30 days. Both the B.’s and the prospective adoptive parents of the twin girls were willing to arrange for “frequent” sibling visitation.
In December 2017, at the section 366.26 hearing, the father’s counsel represented that the B.’s had at last been approved as a placement for the older boys. The juvenile court continued the hearing with regard to them. With regard to the twin girls, the father’s counsel, the mother’s counsel, and the older boys’ counsel all requested a continuance so that the B.’s could be considered as a placement for the twin girls. The juvenile court denied a continuance.
The juvenile court specifically approved of placing the twin girls separately from the older boys. It stated: “The Court doesn’t really buy the argument of counsel that this sibling set was broken up because it was inconvenient to keep them placed together. . . . The children H[.] and A[.], it appears[,] have very specific behavior needs. Both of them require individual attention and commitment. H[.] has problems with his siblings in the form of being aggressive. A[.] has specific special needs in his behaviors. The girls are two very young girls, two very active young toddlers. The Department has placed the children . . . in a very good, loving home where the children will receive lots of love. And they appear to be very bonded to their p[ro]spective adoptive parents.
“Given the needs of H[.] and A[.], the [c]ourt has significant doubt that . . . the grandparents . . . would be able to care for L[.] and R[.], give them the attention that they require given the considerable attention that is obviously going to be required by H[.] and A[.] and also the other children living in the home . . . .
“ . . . [T]he Court doesn’t take the decision to break up a sibling group lightly. The Court does find that it is in the best interest of . . . L[.] and R[.] . . . [I]t is in the best interest of H[.] and A[.] as well, . . . because they do need individual attention. And having these two very active toddlers in the home would take away from what they need . . . .”
The juvenile court then found that the twin girls were adoptable and that there was no applicable exception to termination. It therefore terminated parental rights to the twin girls.
II
THE DENIAL OF A CONTINUANCE
The mother and the father (parents) contend that the juvenile court erred by denying a continuance of the section 366.26 hearing.
In a dependency case, “[c]ontinuances shall be granted only upon a showing of good cause . . . .” (Welf. & Inst. Code, § 352, subd. (a).) “[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (Ibid.)
“We review an order denying or granting a continuance for abuse of discretion. [Citations.] ‘To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.’ [Citation.]” (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 779–780.)
The parents argue that a continuance was necessary for two reasons.
First, they argue that it was necessary to obtain an adoption assessment of the B.’s, because that might have shown that the B.’s would be able to adopt all four children. The twin girls, however, were already in an adoptive placement. Moreover, it appeared unlikely that an adoption assessment would favor the B.’s adopting all four children. The juvenile court could reason that it was not in the interest of the twin girls to delay their permanence in their existing placement for such a speculative purpose.
Second, they argue that a continuance was necessary “to see whether the sibling relationship exception to adoption applied.” Under the sibling relationship exception, the juvenile court must not terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child” because “[t]here would be substantial interference with a child’s sibling relationship . . . .” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v), italics added.)
“‘To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.’ [Citation.]” (In re I.R. (2014) 226 Cal.App.4th 201, 213.)
The juvenile court specifically found that the sibling relationship exception did not apply. The parents do not contend that this was error. They merely argue that this finding was premised on the B.’s willingness to continue sibling visitation and was therefore erroneous: “[I]f this . . . plan of adoption falls through and the older siblings are placed with caregivers who are either unwilling or unable to support sibling visitation, the sibling relationship exception may very well apply.”
Even leaving the B.’s willingness to continue sibling visitation out of the equation, however, there was no reason to suppose that the sibling relationship exception applied. If there were any evidence that it did, the parents would have introduced it at the section 366.26 hearing. Admittedly, as of July 2017, when the twin girls were still less than one year old, it was stated that they were “bonded” to their siblings as well as to their then-foster parent. It is not clear whether this included H., who was in a separate foster placement. In any event, by the time of the section 366.26 hearing, they had been separated from H. for 11 months and from A. for a month and a half; it appears that they had not had had any sibling visitation since their new placement. Nevertheless, they did not appear to be suffering any ill effects. Even if the juvenile court had continued the hearing, it seems unlikely that the sibling relationship exception would have been found to apply. And it was not required to continue the hearing to allow a sibling relationship (significant enough to cause detriment) to develop.
Finally, the Department seems to think the mother is arguing that a continuance was necessary to obtain more information about the prospective adoptive parents. However, we discern no such argument.
We therefore conclude that the juvenile court did not err by denying a continuance.
III
FAILURE TO CONSIDER RELATIVE PLACEMENT EARLIER
The parents contend that the juvenile court erred by “failing to exercise its independent judgment on the issue of relative placement for over a year . . . .”
The parents forfeited this contention by failing to file any previous appeal or writ petition. If they believed that the juvenile court committed this error at or before the jurisdictional/dispositional hearing, then they had to raise that issue in an appeal from the dispositional order. “If an order is appealable, . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata. [Citation.]” (In re Matthew C. (1993) 6 Cal.4th 386, 393.) Likewise, if they believed the juvenile court committed this error at or before the six-month review hearing, then they had to raise that issue in a timely writ petition. (Welf. & Inst. Code, § 366.26, subd. (l).) By the time the section 366.26 hearing rolled around, it was too late to challenge such errors. (In re Daniel D. (1994) 24 Cal.App.4th 1823, 1833–1834.)
In arguing that the failure to comply with the relative placement preference could still be raised at the section 366.26 hearing, the mother cites In re Isabella G. (2016) 246 Cal.App.4th 708 and In re R.T. (2015) 232 Cal.App.4th 1284. In both of those cases, however, the relatives who were seeking placement filed a “changed circumstances” petition under Welfare and Institutions Code section 388 and then filed a timely appeal from the denial of that petition. (In re Isabella G., supra, 246 Cal.App.4th at pp. 711–712, 715; In re R.T., supra, 232 Cal.App.4th at pp. 1292–1294.) Here, there was no such timely appeal in which the issue of past noncompliance may be properly presented.
The parents additionally forfeited this contention by failing to raise it at the section 366.26 hearing. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)”
Finally, precisely because the parents never raised the issue below, they cannot show that the juvenile court did not exercise its independent judgment. “An appealed-from judgment or order is presumed correct. [Citation.]” (In re Sade C. (1996) 13 Cal.4th 952, 994.) “All intendments and presumptions are made to support a trial court’s judgments, orders, rulings, and other actions where the record is silent, and it is the appellant’s burden on appeal to show those actions are erroneous. [Citations.]” (In re A.C. (2017) 13 Cal.App.5th 661, 673.) For all we know, the juvenile court did consider placement with the B.’s but decided that it was not warranted. (See Wertheim, LLC v. Omidvar (2016) 3 Cal.App.5th 921, 925.) The parents do not argue that this would have been an abuse of discretion; in light of the fact that the B.’s had not yet completed the assessment process, it would not have been. The parents do argue that the juvenile court could have ordered placement with the B.’s even before they had completed the assessment process; however, they are not so bold as to argue that it was absolutely required to do so.
IV
SEPARATE PLACEMENT OF THE SIBLINGS
All appellants contend that the trial court erred by placing the twin girls separately from the older boys.
“Placement decisions in dependency proceedings are ‘committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]’ [Citation.]” (In re A.S. (2012) 205 Cal.App.4th 1332, 1340.) However, “[l]egal issues underlying the court’s decision, such as the correct interpretation of the relevant statutes . . . , are reviewed de novo. [Citation.]” (In re H.C. (2017) 17 Cal.App.5th 1261, 1266.)
A. The Relative Placement Preference.
Appellants rely on the relative placement preference statute, Welfare and Institutions Code section 361.3. As it stood in 2017, at the time of the section 366.26 hearing, it provided:
“(a) 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 . . . . [¶] . . .
“(c) For purposes of this section:
“(1) ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.”
“(2) ‘Relative’ means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words ‘great,’ ‘great-great,’ or ‘grand,’ or the spouse of any of these persons even if the marriage was terminated by death or dissolution. However, only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle, or sibling.
“(d) Subsequent to the hearing conducted pursuant to Section 358, whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements.” (Welf. & Inst. Code, former § 361.3, Stats. 2016, ch. 612, § 71, p. 4307, italics added.)
The B.’s were not entitled to preferential consideration for placement of the twin girls because they were not grandparents of the twin girls. They were grandparents of the older boys only.
Admittedly, the statute was amended, effective January 1, 2018, so as to delete the language italicized above. (Stats. 2017, ch. 732, § 47, p. 5479.) Even if the amended statute applied, however, the B.’s still would not be entitled to preferential consideration for placement of the twin girls, because they were not “relatives” of the twin girls as defined in Welfare and Institutions Code section 361.3, subdivision (c)(2). “Relative by affinity” means “[s]omeone who is related solely as the result of a marriage and not by blood or adoption. A person is a relative by affinity (1) to any blood or adopted relative of his or her spouse, and (2) to any spouse of his or her blood and adopted relatives.” (Black’s Law Dict. (10th ed. 2014) p. 1480; see also Cal. Rules of Court, rule 5.502(1).) Here, the mother was not married to either of the fathers.
The older boys point out that “relatives” includes stepparents as well as relatives whose status is preceded by the word “great.” However, by expressly including stepparents, the Legislature implicitly excluded step-grandparents. Moreover, while “relatives” whose status is preceded by “great” are included, a step-grandparent is not a relative at all.
The older boys also point out that rule 5.502(1) of the California Rules of Court defines “affinity” as “the connection existing between one spouse or domestic partner and the blood or adoptive relatives of the other spouse or domestic partner.” (Italics added.) This definition is not limited to registered domestic partners. (Cal. Rules of Court, rule 5.502(12); see also Fam. Code, § 297.) However, it applies only “[a]s used in these rules,” and even then, it does not apply if “the context or subject matter otherwise requires . . . .” (Cal. Rules of Court, rule 5.502.) Rule 5.502 thus does not purport to define “affinity” as used in Welfare and Institutions Code section 361.3.
In any event, the relative placement preference merely requires that “the relative seeking placement shall be the first placement to be considered and investigated.” (Welf. & Inst. Code, § 361.3, subd. (c)(1).) It “‘does not create an evidentiary presumption in favor of a relative . . . .’ [Citation.]” (Alicia B. v. Superior Court of San Diego County (2004) 116 Cal.App.4th 856, 863.) Here, the Department did consider placement with the B.’s, but it concluded that a separate placement would be in the twin girls’ best interest. This was all that the relative placement preference would require.
B. Placement with Siblings.
The older boys also argue, more generally, that there is a statutory preference for placing siblings together.
They cite Welfare and Institutions Code section 16002, subdivision (a)(1), which provides: “It is the intent of the Legislature to maintain the continuity of the family unit, and ensure the preservation and strengthening of the child’s family ties by ensuring that when siblings have been removed from their home, either as a group on one occurrence or individually on separate occurrences, the siblings will be placed in foster care together, unless it has been determined that placement together is contrary to the safety or well-being of any sibling.” (Italics added.)
The older boys quote the non-italicized language but omit the italicized language. Here, of course, the juvenile court determined that a separate placement was in the twin girls’ best interest.
They also cite Welfare and Institutions Code section 16002, subdivision (b), which, as relevant here, provides: “The responsible local agency shall make a diligent effort in all out-of-home placements of dependent children and wards in foster care, including those with relatives, to place siblings together in the same placement, and to develop and maintain sibling relationships. If siblings are not placed together in the same home, the social worker or probation officer shall explain why the siblings are not placed together and what efforts he or she is making to place the siblings together or why making those efforts would be contrary to the safety and well-being of any of the siblings.”
Once again, this statute does not prohibit a separate placement when — as here — it is in a child’s best interest.
C. Abuse of Discretion.
Finally, the older boys argue that the juvenile court abused its discretion by finding that it was in the twin girls’ best interest to place them with the prospective adoptive parents rather than with the B.’s.
They argue that the conclusion that the B.’s could not effectively care for all four children was “speculative.” However, it was the collective opinion of the Department’s social workers, based on their observations. Moreover, it stands to reason that two adults old enough to be grandparents would be hard-pressed to care for six children — especially when two of them showed delays and were difficult to control, and the other two were active toddlers. If any party thought the social workers could be impeached, that party was free to call them as witnesses and to attempt to do so. Otherwise, the social workers’ opinion was substantial evidence.
They also argue that it was speculative to assume that sibling visitation would continue to occur. The juvenile court, however, specifically stated: “The Court did not consider sibling visitation at all in making its ruling.” “[T]his is not something that the Court considered at all because that is not anything that can be ordered or enforced.” The trial court was well aware that there was no enforceable agreement for continued visitation, because the father’s counsel had pointed this out.
They claim that all four children were bonded with the paternal grandparents. All the evidence showed, however, is that “[t]he children are developing a bond with Mr. and Mrs. B[.] . . . .” (Italics added.) At the same time, the twin girls were already “clearly bonded to the prospective [a]doptive family . . . .” (Italics added.) As the juvenile court had to separate them from one set of potential caregivers or the other, it could reasonably choose to keep them with the prospective adoptive parents.
We therefore conclude that the juvenile court did not err in approving the separate placement of the two sets of siblings.
V
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
J.
We concur:
McKINSTER
J.
FIELDS
J.