Filed 5/25/17 In re Marisol M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

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

KINGS COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

SANTIAGO M.,

Defendant and Appellant.

F074671

(Super. Ct. Nos. 15JD0291, 15JD0292, 15JD0294)


OPINION

APPEAL from orders of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Santiago M. (father) appeals from the juvenile court’s orders terminating his parental rights as to his now eight-year-old daughter, Marisol, and seven- and two-year-old sons, Alfredo and Lorenzo respectively. (Welf. & Inst. Code, § 366.26.) Father contends the Kings County Human Services Agency (agency) and the juvenile court failed to comply with section 361.3, subdivision (a), which he contends required the agency to place the children with a relative. We conclude father lacks standing to raise the issue of relative placement and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2015, the agency responded to a report that G.W., the mother of father’s children, tested positive for methamphetamine and cannabis while giving birth to their son Santiago, Jr. (Santiago). Santiago’s urine was tested and the results were negative. G.W. (mother) admitted using methamphetamine during her pregnancy but did not believe it was a problem. She said she lived alone with the children and was unemployed. She claimed she and father were not in a relationship and did not live together because of their history of domestic violence.
Father was on parole and there was a no-contact order between him and mother. He had not completed domestic violence treatment and tested positive for methamphetamine in January 2015.
Social worker Stephanie Matassa and sheriff’s deputies went to father’s residence to assess the family situation. As it turned out, the maternal and paternal relatives lived in the same apartment complex. When Matassa and the deputies went to what they thought was father’s apartment, Cesar, the maternal grandfather, answered the door. He said he and his wife, Reyna, the maternal grandmother, lived in the apartment. He could not confirm where father lived but knew he was on his way home from visiting mother at the hospital. He said three of the children, Marisol, Isabella and Lorenzo, were with him and Alfredo was with father. While Matassa was talking to Cesar, one of the deputies ran a background check on Cesar and Reyna and found there was a restraining order between them. The deputy inquired about the restraining order and was told Cesar and Reyna could have contact. Cesar told Matassa he watched the children three times a week and he fed them when they were at his house but that Reyna watched them most of the time. Matassa viewed the interior of the home and found it unsafe and unsanitary. It was infested with bugs and the bathroom floor was smeared with feces. There was a broken window in the room where one of the children was sleeping.
Father arrived with Alfredo while Matassa and the deputies were at the apartment. He acknowledged he was not supposed to have contact with mother but had been with her that day. He pointed out his parents’ residence where he lived with his sister and her husband. He said he did not stay overnight with mother but helped her with the children. Matassa observed father’s home to be clean and hazard-free and the refrigerator had plenty of food inside. Matassa left the children in father’s care with a safety plan but advised him that they could not stay at the maternal grandparents’ home.
The following day, the agency obtained criminal background checks on all the relatives that lived in the apartment complex and had contact with the children. Cesar was a registered sex offender and was prohibited from having unsupervised contact with children. He also had convictions for violent crimes and arrests for being under the influence of a controlled substance. Reyna had a conviction for theft and her 21-year-old son, Cesar, Jr., was also a registered sex offender and served an eight-year prison term for rape. The paternal aunt, Carmen L. and paternal uncle, Delfino did not have any criminal history.
The agency took the children, then six-year-old Marisol, five-year-old Alfredo, two-year-old Isabella, one-year-old Lorenzo and newborn Santiago, into protective custody and filed dependency petitions on their behalf under section 300, subdivision (b) (failure to protect). Cesar, Jr. requested but was refused emergency placement of the children. A social worker contacted mother and encouraged her to identify relatives that would be appropriate for placement.
The agency placed Marisol and Alfredo together in one foster home and Isabella, Lorenzo and Santiago in three separate foster homes.
The juvenile court ordered the children detained pursuant to the petition and ordered the parents to disclose the names of all known maternal and paternal relatives to the agency.
In September 2015, the juvenile court conducted a combined hearing on jurisdiction and disposition. The parents appeared with their attorneys. Reyna was present. Father’s attorney informed the court that father wanted his sister, Maria, evaluated for placement. Father planned to talk to the social worker about her following the hearing. The court advised father that Maria would have to contact the social worker and express her interest in having the children placed with her because the agency could not force her to take the children. Father expressed his understanding. The juvenile court exercised its dependency jurisdiction over the children and ordered six months of reunification services for both parents. There is no further mention of Maria in the record.
Over the next six months, mother continued to use methamphetamine and minimally engaged with the children during visitation. By March 7, 2016, the time set for the six-month review hearing, she was four months pregnant with father’s child and father was incarcerated for threatening to kill the maternal grandparents and possessing a firearm. He remained in custody throughout the proceedings.
On March 7, social worker Patricia Aguilar completed an adoption staffing form to reflect that only Santiago’s care provider was willing to provide a permanent home and that Marisol, Alfredo, Isabella and Lorenzo did not have a permanent plan. Marisol and Alfredo were still together in the same foster home and Isabella was placed with Santiago. Lorenzo remained in a separate placement. Reyna telephoned Aguilar and asked for an application to request placement of the children. Aguilar mailed her an application but explained the children were removed from her home because it was uninhabitable. Reyna said she was moving to another place and wanted guardianship of the children. There is no evidence Reyna submitted an application.
On March 23, the juvenile court conducted a contested six-month review hearing. Both parents appeared with their attorneys; father was in custody. The attorneys proceeded by way of argument only. Father’s attorney argued that he had not been able to complete his case plan because he was in custody and his opportunities were limited. The juvenile court terminated reunification services and set a section 366.26 hearing for July 13. Neither parent filed a writ petition.
On June 22, the agency placed Lorenzo with Santiago and Isabella.
On July 13, county counsel informed the juvenile court it was prepared to proceed with termination of parental rights as to Isabella and Santiago. However, county counsel asked the court to continue the section 366.26 hearing as to Marisol, Alfredo and Lorenzo. The agency wanted to assess their placements before proceeding with termination of parental rights. The court continued the hearing to August 2.
On July 15, the agency placed Marisol and Alfredo in a foster home with the specific goal of adoption.
On August 2, the juvenile court convened the contested 366.26 hearing. Mother and father appeared with their attorneys. Reyna and Jennifer, mother’s cousin, were also present. County counsel asked the court to terminate parental rights as to Isabella and Santiago and free them for adoption and to continue the hearing as to Marisol, Alfredo and Lorenzo. The parents’ attorneys withdrew their request for a contested hearing. Father’s attorney advised the court that father was opposed to adoption and preferred a guardianship or long-term foster care. Mother’s attorney joined in father’s statement on mother’s behalf. Reyna raised her hand to address the court. The court stated, “Ma’am, you are not a party to the action, and so based on that I’m—I’m going to proceed, I’m sorry.” The court found by clear and convincing evidence Isabella and Santiago were likely to be adopted and terminated parental rights. The court found continued placement for the other children was appropriate and continued their hearing until November 1.
In an addendum report filed for the November hearing, the agency informed the juvenile court that its representatives met with various paternal and maternal relatives (not identified in the record) in September who requested placement of Marisol and Alfredo. The attendees agreed that social worker Va Lee would speak to the children to ascertain their desires with respect to placement. The children told Mr. Lee they were happy and wanted to stay with their caretakers. In addition, Marisol and Alfredo’s foster parents were committed to adoption, as was Lorenzo’s foster parent who said Lorenzo was adjusting well in her home and she was forming a positive emotional bond with him. The agency recommended the juvenile court find the three children were likely to be adopted and terminate parental rights.
On November 1, the juvenile court conducted a contested section 366.26 hearing as to Marisol, Alfredo and Lorenzo. Father appeared with his attorney. Mother absented herself from the hearing and her attorney objected to the recommended findings and orders on her behalf. Father’s attorney expressed father’s concern about who the adoptive parents would be. He said he explained to father that the court did not make that determination but instead determined whether to terminate parental rights and submitted the matter. The court found by clear and convincing evidence the children were likely to be adopted, terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
Father contends the juvenile court and the agency violated their statutory obligation under section 361.3 to conduct an ongoing inquiry to identify relatives interested in placement and to investigate their placement requests. As a result, he argues, Reyna and any of the other interested relatives were precluded from obtaining legal guardianship of the children. Given these failures, he argues that remand is required for the juvenile court to independently review the question of relative placement, including whether the agency initially complied with its relative notification duties.
Relative Placement Preference
Section 361.3, often referred to as the relative placement preference, provides in relevant part, “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 .…” (§ 361, subd. (a).) “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) “The statute does ‘not supply an evidentiary presumption that placement with a relative is in the child’s best interests’ but it does require the social services agency and juvenile court to determine whether such a placement is appropriate, taking into account multiple factors including the best interest of the child, the parents’ wishes, and the fitness of the relative.” (In re R.T. (2015) 232 Cal.App.4th 1284, 1295-1296, fn. omitted.) “The correct application of the relative placement preference places the relative ‘at the head of the line when the court is determining which placement is in the child’s best interests.’ ” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 (Cesar V.).)
Section 361.3 governs in two situations: (1) at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)); and (2) when “a new placement … must be made .…” (§ 361.3, subd. (d); see Cesar V., supra, 91 Cal.App.4th at p. 1032.) With respect to a new placement, the relative placement preference applies during reunification and even after reunification services are terminated. (Cesar V., supra, at p. 1032.) However, once reunification has failed and the juvenile court has before it a proposed permanent plan of adoption, the only relative with a preference is a “relative caretaker” seeking to adopt the child. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285-286.)
Standing
“Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.” (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)
Here, father made no attempt to challenge the termination of his parental rights by rebutting evidence of the children’s adoptability, for example, or raising any of the exceptions to adoption provided in section 366.26, subdivision (c)(1)(B). Consequently, he relinquished his interest in the children and cannot show that he was aggrieved. In a factually similar case, the California Supreme Court in K.C., supra, 52 Cal.4th 231, held that a father did not have standing to object to his child’s placement because he was not an aggrieved party. We find the court’s explanation of standing vis-à-vis the relative placement preference instructive for our purposes here.
The child in K.C. was removed from the parents and placed with a prospective adoptive family. The juvenile court bypassed reunification services for the parents and set a section 366.26 hearing. The child’s grandparents filed a section 388 petition, seeking placement of the child in their home. At a combined hearing, the juvenile court denied the grandparents’ section 388 petition, selected adoption as the permanent plan, and terminated the parents’ rights. Both the father and the grandparents appealed. The grandparents’ appeal was dismissed as untimely, and the father’s appeal was dismissed based on a lack of standing. The Supreme Court affirmed. (K.C., supra, 52 Cal.4th at pp. 234-235.) The K.C. court held the father had no standing to appeal the denial of the grandparents’ section 388 petition because he did not contest termination of his parental rights and thus “relinquished the only interest in K.C. that could render him aggrieved by the juvenile court’s order declining to place the child with the grandparents.” (Id. at p. 238.)
The K.C. court explained that whether a parent is aggrieved by a juvenile court’s order depends on the parent’s interest in the matter and that the parent’s interest shifts during the course of the dependency proceedings. (K.C., supra, 52 Cal.4th at p. 236.) “All parents, unless and until their parental rights are terminated, have an interest in their children’s ‘companionship, care, custody and management .…’ [Citation.] This interest is a ‘compelling one, ranked among the most basic of civil rights.’ [Citation.] While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their best interests [citations], the law’s first priority when dependency proceedings are commenced is to preserve family relationships, if possible. [Citation.] To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. [Citations.] In contrast, after reunification services are terminated or bypassed …, ‘the parents’ 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.…” ’ [Citations.] For this reason, the decision to terminate or bypass reunification services ordinarily constitutes a sufficient basis for terminating parental rights. (§ 366.26, subd. (c)(1).)” (Id. at pp. 236-237.)
The K.C. court also explained the consequences of failing to assert the parental interest by raising any of the statutory exceptions to adoption at the section 366.26 hearing. The statutory exceptions to adoption “permit the juvenile court not to terminate parental rights when compelling reasons show termination would be detrimental to the child.” (K.C., supra, 52 Cal.4th at p. 237; § 366.26, subd. (c)(1).) In K.C., the court stated that, by not asserting any exceptions and acquiescing in the termination of parental rights, the father relinquished the only interest in his child that could render him aggrieved by the juvenile court’s order declining to place the child with the grandparents. (Id. at p. 238.)
Here, because father did not contest the termination of his parental rights in the dependency court, he relinquished the only interest in the children that could have rendered him aggrieved by the juvenile court’s order. Thus, under the reasoning of K.C., father lacks standing to raise the relative placement preference issue on appeal.
Father nevertheless contends he has standing for the following reasons: (1) he objected to termination of his parental rights at the section 366.26 hearing; (2) reversal would advance his argument against termination on remand; and (3) he desired the children’s placement with a relative. His contentions lack merit.
First, father fails to show how an objection confers standing to raise the relative placement preference. Further, the “objection” was really a statement regarding father’s preference made by his attorney at the August 2016 section 366.26 hearing as to Isabella and Santiago, not Marisol, Alfredo and Lorenzo. Moreover, the objection, according to father’s attorney, had no legal basis:
“[Father] did want me to make a statement that he would be opposed to the idea of adoption, he would certainly prefer a guardianship or long-term foster care, that would be his strong desire, but legally there’s not much of a basis for that, so I will be withdrawing our request [for a contested hearing] and submitting.”
Secondly, father’s argument that reversal of the juvenile court’s termination order would advance his position before the juvenile court is faulty for a variety of reasons. To begin with, the case he cites as authority, In re H.G. (2006) 146 Cal.App.4th 1 (H.G.), is wholly distinguishable. H.G. concerned a child removed from her paternal grandparents pursuant to a section 387 supplemental petition. At a combined hearing under sections 387 and 366.26, the juvenile court ordered the child removed, terminated parental rights and ordered a permanent plan of adoption. The parents appealed the juvenile court’s order removing their daughter from her grandparents’ custody and its judgment terminating their parental rights. They argued the juvenile court did not consider the relative placement preference. (Id. at pp. 6-9.)
The H.G. court concluded the parents had standing to challenge the juvenile court’s removal order under section 387 and reversed, stating:
“At the time of the section 387 hearing, [parental rights] had not been terminated. Although parent-child reunification was no longer a goal of the dependency proceedings, the parents retained a fundamental interest in H.G.’s companionship, custody, management and care. [Citation.] This principle is reflected in the language of section 361.3, subdivision (a)(2), which obligates the juvenile court to consider the wishes of the parent when determining whether relative placement is appropriate under section 387. [Citation.]
“In addition, a placement decision under section 387 has the potential to alter the court’s determination of the child’s best interests and the appropriate permanency plan for that child, and thus may affect a parent’s interest in his or her legal status with respect to the child.” (Id. at pp. 9-10.)
Father contends the instant juvenile court’s failure to consider the relative placement preference, like the juvenile court in H.G., altered the children’s ultimate placement and his interest in them. He reasons that if the juvenile court had applied the preference, the children would have been placed with Reyna since she was actively seeking placement and guardian status and she would have become their relative caregiver. Father could have raised the relative caregiver exception to termination of parental rights recognized in section 366.26, subdivision (c)(1)(A) and retained his parental status. Following H.G.’s reasoning, he contends, he has standing to appeal the termination of his parental rights.
H.G. is distinguishable because it involved the removal of a child from relatives under section 387, which directly implicated the relative placement preference. The juvenile court’s failure to comply with the statute rendered its order terminating parental rights premature and potentially erroneous in the event placement with a relative made termination of parental rights unnecessary. The appellate court concluded the parents had standing to challenge the juvenile court’s findings and orders under section 387 on appeal. (H.G., supra, 146 Cal.App.4th at p. 10; see K.C., supra, 52 Cal.4th at pp. 237-238.) Here, father’s children were not being removed from their placement with a relative and therefore relative placement did not apply.
Further, father’s theory of how the case might have proceeded has no foundation in the record. Reyna did not formally request placement at any time. While she and other relatives expressed some interest, there is no evidence any of them followed through by submitting an application. Thus, father’s theory as to how he was injured is purely speculative and does not confer standing. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1000.)
Finally, father’s contention that his desire for relative placement confers standing to appeal fails as well. The wishes of a parent is one of the factors the juvenile court must consider when applying the relative placement preference but it does not grant a parent standing.
Our conclusion father lacks standing to raise the relative placement preference issue obviates the need for us to address the merits. Nevertheless, assuming father had standing we would conclude the placement preference did not apply. Conceivably, father could only raise the issue based on the record of the November 2016 section 366.26 hearing because he did not raise it on appeal from the dispositional order or by extraordinary writ petition from the setting hearing. Consequently, he forfeited any prior opportunity to challenge it on appeal. Further, as we have already stated, relative placement was not an issue at the November hearing because there was no need to find a new placement for the children. They were all placed with foster parents committed to adoption.
DISPOSITION
The appeal is dismissed.



GOMES, J.
WE CONCUR:



HILL, P.J.



LEVY, J.