In re M.B.

Filed 2/10/10 In re M.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Michael J. Rushton, Judge. Affirmed.

Zulu Ali for Defendant and Appellant.

Pamela J. Walls, County Counsel, Anna M Deckert, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for minors.

Appellant R.H. (mother) is the mother of M.B., born in March 2003, and S.B., born in January 2004. Mother appeals from the juvenile courts order terminating her parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code.^[1] Mother contends the court erred in denying her motion to have minors great-aunt assessed for placement. We affirm the judgment in full.

FACTUAL AND PROCEDURAL HISTORY

The Riverside County Department of Public Social Services (the department) received a referral on September 6, 2006, regarding mother and father,^[2]alleging that they slept all day while leaving minors unsupervised. It was further alleged that minors were always naked and not properly fed. On September 15, 2006, a social worker went to parents home to investigate. She observed the home to be extremely dirty with cobwebs, rotting and spoiled food, the floor covered in dirty diapers and dirty clothing, and feces in the shower. The home contained a minimal amount of food, consisting primarily of condiments, macaroni, and boxed cereal, but no milk. The children smelled of urine and wore soiled diapers and stained clothing. Minors had limited language skills, showed behavioral problems, and were not up-to-date on their immunizations. M.Bs teeth appeared discolored and rotting. Both minors were eventually determined to have extensive dental decay. M.B. required root canals, crowns, and other restorative dentistry on 20 teeth. S.B. was found to have suffered baby bottle decay syndrome requiring root canals, crowns, fillings, and the eventual extraction of two teeth.

Parents tested positive for methamphetamine that day, September 15, 2006, and admitted to using methamphetamine and marijuana within the week. Both father and mother had extensive histories of substance abuse and prior involvement with the department. Minors were removed from the home. Mother requested that minors be placed with their relative, S.S.; however, mother could not provide the social worker with S.S.s phone number. The department filed a section 300 petition alleging parents failure or inability to care for minors. In the detention report, the social worker noted that [a]s of this writing mother has not provided me with any further information [as to S.S.]. Should the mother or father provide additional information a referral to the relative assessment unit will be completed.

Minors were placed in foster care. In the jurisdiction/disposition report, the social worker noted that paternal relatives A.B. and M.B. had expressed an interest in having minors placed with them. At the jurisdiction/disposition hearing held on October 12, 2006, mothers attorney noted that when the children were first removed, they told the emergency response worker of the relative that was able and willing to take the children immediately on the spot. Those people had no criminal record, nothing. A forthwith home evaluation was made on 9-20. To date today that home evaluation has still not been made. The social worker responded that the department was in the process of contacting the relatives in order to conduct the requisite Live-Scan assessment. The court noted that there was no excuse for not having completed the assessment already: Lets get it done. The court took jurisdiction over minors and ordered them removed.

During the ensuing 12 months, mother progressed admirably with her services, receiving glowing reviews. Mother consistently tested negatively for drugs, attended parenting classes, obtained full-time work, participated in weekly supervised visits with minors, progressed to six- to eight-hour unsupervised weekly visitation, and eventually received an overnight visit. At the six-month review hearing, the only expressed concern with returning minors to mother was the fact that mother had active, outstanding misdemeanor warrants, one on which she had been arrested. Mother expressed concern that the home of A.B. and M.B had still not been assessed for minors placement. However, in her service log, the social worker gave a detailed account of the numerous unsuccessful attempts she had made to schedule a home assessment with A.B. and M.B. In the 12-month review report it was noted that mother had cleared up her warrants; however, she had yet to obtain suitable housing for minors. The court continued placement of minors and services for mother for an additional six months.

In the 18-month review report, it was noted that mother had continued to have regular, consistent unsupervised visitation with minors, including at least two overnight visits. However, during the latest overnight visit, mother and father became embroiled in a domestic dispute in the presence of minors during which mother threatened to call the police. Mother had missed one recent drug test. The department recommended that services be terminated.

Two addendum reports filed February 25, 2008, and March 13, 2008, reflected that mother had relapsed. Mother failed to show for six ordered drug tests. Mother stopped visiting minors. The department had no communication with mother between December 20, 2007, and February 27, 2008, despite repeated attempts by the department to contact her. When mother finally contacted the department, she admitted to using marijuana. On March 5, 2008, mother left a message with the department requesting that her sister J.H. be considered for minors placement. Subsequent messages for mother left at the number she provided went unreturned.

On March 18, 2008, the court terminated mothers reunification services. A selection and implementation report filed September 8, 2008, noted that at the previous hearing mother submitted the names of two family members that may be interested in placement of the children. A maternal aunt was contacted, who was willing, but unable to have the children placed with her, as the mother was living with her. Also, another maternal aunt, [A.L.], was contacted for possible placement, and a Relative Assessment was initiated on May 5, 2008. On July 31, 2008, the home of [A.L.] was certified through the Relative Assessment Unit. Nevertheless, the department determined that placement with A.L. would not be appropriate: neither minor had apparently ever met her, she lived with two adult males in a small apartment, and was not financially stable enough to support the children. Minors remained in the foster care placement in which they had resided since September 19, 2006; however, the foster parents were unwilling to provide minors with a permanent placement. Therefore, minors were engaging in successful visits with prospective adoptive parents. The department requested a 30-day continuance to transition minors to placement with the prospective adoptive parents. An addendum report dated September 17, 2008, recommended a 120-day continuance to secure a new prospective adoptive placement; the previous prospective adoptive parents decided not to pursue the adoption.

A selection and implementation report filed December 30, 2008, reflected that minors had been placed in a prospective adoptive home on November 6, 2008, and were bonded with the prospective adoptive parents. The department recommended termination of parental rights and adoption as the permanent plan for minors. At the selection and implementation hearing on January 20, 2009, father appeared and requested to know why minors had not been placed with A.B. and M.B. Mother requested that an assessment of S.S. be conducted for possible placement. The department contended that it had no obligation to assess or reassess the relatives because minors were currently in a stable placement. Mother contended that S.S. had been waiting for the department to contact her for some time. The court ordered parents counsel to convey to the department all the relatives contact information. It directed the department to prepare an addendum report regarding the status of placement and detailing what efforts have been made regarding the two names provided. Nevertheless, it also directed the department to inform the court whether it was even necessary for the department to make such inquiries: Ill ask you to carry out your obligation under the law as you see it at this point in time. Im not going to make any specific orders in that regard.^[3] The court continued the matter for 60 days.

In the addendum report filed March 12, 2009, the social worker noted that A.B. and M.B. had already been assessed previously and that the department was currently under no obligation to have them reassessed. The social worker further commented on efforts relative to assessing S.S.: Regarding placement of the children with [S.S.], the great maternal aunt whom the mothers attorney . . . stated was interested in placement, I called her to obtain information. She said she had applied for placement shortly after the children were removed from the parents. She moved to Idaho at about the same time, but never followed up with it. She said she would like to adopt the boys. I searched the Delivered Service Log from the day of the first referral to the present, and did not find any reference to [S.S.]. I also checked in the case file to no avail. I called the previous Social Worker[.] She said she remembered the paternal uncle and aunt not being cooperative and the Relative Assessment Unit closing the case. She also said that the mother had said something about her sister, [S.S.], but never provided any further information. The Department was never contacted by [S.S.] at that time or since. Again, the department asserted that since minors were doing well in their prospective adoptive placement, the department was not obligated to assess the relatives for placement.

Mothers counsel contemporaneously filed a so-called Cesar V.,^[4]motion requesting that the court exercise its independent judgment regarding the suitability of placing minors with S.S. In that motion, mother asserted that [t]he paternal [sic] aunt, [S.S.] (hereafter aunt), requested placement and was willing to pursue adoption before placement with the present prospective adoptive parents. This information was provided to [the department] by both the mother and aunt. [The department] never assessed the aunt. [The department] should have conducted an investigation into relative placement with the aunt.

At the selection and implementation hearing held on March 23, 2009, mother submitted the declaration of S.S. in which the latter asserted she was minors maternal great aunt currently residing in Idaho. She declared that she contacted the social worker in September 2006 regarding her interest in taking the children, informing the social worker that she had no criminal record and had previously been approved for placement. She was advised someone would return her call. After failing to receive a return call several days later, she made several attempts to contact the social worker again, generally leaving a message. She was never contacted by the department. She declared that she was currently willing and able to take minors.

The department reiterated that, according to the reports, mother had initially mentioned S.S., but failed to provide any information about her. The social workers service log contained no mention of receiving any contact from S.S. S.S. continued to reside in Idaho. She had no visitation or contact with minors during the entirety of the dependency proceedings. As to A.B. and M.B., it was noted that they had failed to follow through with a Live Scan, a prerequisite for assessment.

The court determined that [a]lthough [S.S.] is a relative, under [section] 361.3 she is not a relative of the immediacy which requires a preferable placement. Let me tell you what the exactpreferable consideration I think is the language. She is a great aunt and under [section] 361.3 as a great aunt she is not entitled to preferable consideration. So in my view the . . . motion does not apply to her. The court reiterated, And as to the aunt, the great aunt, I dont believe under [section] 361.3 Im required to do that analysis because of her status as a great aunt. Furthermore, the court concluded that [g]iven the location where the child[ren are] today and given the fact that [S.S.] is not an individual entitled to preferable consideration under [section] 361.3 . . . given that the children have been in their current situation now since [early] November of 2008, . . . []  . . . [] I dont believe it is in the best interests of the children at this time to move them away from their current foster home situation to an aunt whoa great aunt who has made no effort to contact the children, who has established no relationship with the children. The court found that S.S.s name was not one of the names mother provided to the department, referred to in the report filed on March 18, 2008. The court denied mothers motion, and terminated her parental rights.

DISCUSSION

Mother contends the juvenile court erred in denying her motion for a relative placement assessment of S.S. because the department failed to perform its statutory duty to make diligent efforts to locate and investigate her as a possible placement. We hold that, to the extent mother maintains the court failed to assess S.S. when mother first gave her name to the department, mother waived her right to raise the issue now by failing to appeal from the dispositional order. Moreover, we hold that any duty of the department to investigate S.S. as a possible placement after the filing of mothers Cesar V. motion was not statutorily triggered because minors were already placed. Therefore, we affirm the judgment in full.

A. Forfeiture By Failure to Appeal

Mother contends that because she and S.S. requested placement of minors with S.S. back in September 2006, the department was required to conduct diligent efforts to assess S.S. She contends that its alleged failure to do so resulted in prejudicial error and requests that we remand the matter to the juvenile court with directions that it evaluate placement of minors with S.S. in its own, independent judgment. We hold that, even to the extent mother provided sufficient information for the department to conduct such an assessment or that S.S. even contacted the department, mother waived the issue by failing to appeal from the dispositional order.

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 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. 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. ( 361.3, subd. (c)(2).)^[5]

The first appealable order in the dependency process is the dispositional order. [Citations.] [Citation.] (In re Athena P. (2002) 103 Cal.App.4th 617, 624.) Failure to appeal from the dispositional order forfeits any challenge to it. (Ibid.)

Here, to the extent that the department had any obligation to assess S.S. with the limited information it had regarding her, mother forfeited any challenge to its failure to do so by failing to raise it at the dispositional hearing or appeal from that order. The record reflects that mother gave the department S.S.s name on September 15, 2006, the date minors were detained. However, according to the social workers report, mother gave her no further information regarding S.S. The social worker indicated that if and when more information regarding S.S. was forthcoming, the department would then conduct a placement assessment. However, mother failed to give the social worker any further information regarding S.S. Even if S.S.s declaration, that she contacted the department several times soon after dependency proceedings were initiated is true, mother, nevertheless, failed to raise the issue of placement with S.S. at the dispositional hearing, failed to object to minors placement in the foster home at the dispositional hearing, and failed to appeal from the dispositional order. Thus, mother has forfeited the issue to the extent that mother contends the department should have conducted an assessment of S.S. when mother initially provided her name to the department.

B. A Relative Assessment Was Not Triggered at the Section 366.26 Hearing

To the extent that mother contends her Cesar V. motion required the department to assess S.S. forthwith, we hold that no assessment was required because, as asserted by the department below, minors were already placed.

As noted above, a relative assessment is generally first triggered when minors are initially declared dependents of the juvenile court and removed from their parents custody pursuant to section 361. ( 361.3, subd. (a).) Subsequent to the hearing conducted pursuant to Section 358 [the dispositional hearing], 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 childs reunification or permanent plan requirements. ( 361.3, subd. (d).) Thus, the triggering event for a relative placement assessment after the children have already been removed from parental custody is the necessity of finding a new placement. (See Cesar V., supra, 91 Cal.App.4th at pp. 1027-1028, [childrens foster family not interested in adoption, necessitating a change in placement]; In re Esperanza, (2008) 165 Cal.App.4th 1042, 1054 [department actively seeking placement for minor]; In re H.G. (2006) 146 Cal.App.4th 1, 6-7, 9-10 [court removed minor from relative placement].)

Here, mother did not again bring S.S. to the attention of the department as a possible placement for minors until the filing of her motion on March 12, 2009. However, minors had been placed in a prospective adoptive home on November 6, 2008. Thus, no new placement for minors was necessary; hence, no triggering event had occurred which would require relative assessment, let alone preferential relative assessment.

Contrary to mothers contention, Cesar V. does not support her position. In Cesar V., the father and the paternal grandmother sought extraordinary writ relief from a juvenile court order refusing to place the minors with the grandmother after the father stipulated to termination of reunification services. (Cesar V., supra, 91 Cal.App.4th at pp. 1026-1027.) The foster family with which the minors had been placed was not interested in adoption, requiring that the department find a new placement. (Id. at p. 1027.) The parties stipulated to an assessment of the grandmother. (Ibid.) The social worker found that the grandmother was unsuitable for placement and placed the minors in a prospective adoptive home. (Id. at pp. 1027-1028.) At the permanency hearing, the father challenged the departments denial of placement of the minors with the grandmother. The juvenile court bifurcated the matter, taking five days of testimony and argument on the placement issue. (Id. at p. 1028.) The grandmother testified. (Id. at pp. 1029-1030.) The juvenile court found that the department had not abused its discretion in declining to place the minors with the grandmother. (Id. at p. 1030.) The father filed a section 388 petition alleging new evidence showing the grandmothers suitability for placement. (Cesar V., at p. 1030.) The court denied the petition without holding a hearing. (Ibid.)

On petition for writ relief, the father and the grandmother maintained that the department failed to adequately assess the grandmother and that the juvenile court erred in failing to independently assess her suitability for placement. (Cesar V., supra, 91 Cal.App.4th at p. 1030) The appellate court noted that the statutory relative placement preference may appropriately apply to proceedings following termination of reunification services, so long as it preceded termination of parental rights. (Id. at pp. 1031-1032.) The court further held that the departments evaluation of the grandmother under the relative placement preference had been insufficient. (Id. at p. 1033.) Furthermore, the court held that the juvenile court must independently assess the departments placement decision, not merely review it for abuse of discretion. (Id. at pp. 1033-1034.) Nevertheless, the court found that the father lacked standing to challenge the denial of placement with the grandmother, particularly because he had stipulated to termination of his reunification services. (Id. at p. 1035.) However, the appellate court issued a writ of mandate on the grandmothers petition directing the juvenile court to order a proper assessment of the grandmother and hold a new hearing exercising its independent judgment as to the suitability of placement with the grandmother. (Id. at p. 1036.)

Here, although mother did not stipulate to the termination of her reunification services, she failed to file a petition for extraordinary writ to challenge that order. (See In re Athena P. (2002) 103 Cal.App.4th 617, 624 [failure to take writ from nonappealable dispositional order forfeits any challenge to it].) Thus, like in Cesar V., we do not see how the denial of placement with S.S. affects mothers interest in reunification with minors. (Cesar V., supra, 91 Cal.App.4th at p. 1035.) Indeed, mothers parental rights were terminated at the same hearing at which the juvenile court resolved mothers Cesar V. motion. Moreover, the department was asked to assess S.S.s suitability for placement more than four months after minors had already been placed in a prospective adoptive home. Thus, unlike in Cesar V., mother failed to timely raise and challenge the placement issue. Furthermore, as noted above, unlike the grandmother in Cesar V., S.S. was not even entitled to relative placement preference. Finally, unlike in Cesar V. where the relative formally requested placement and challenged the denial of placement, S.S. failed to challenge below or on appeal the juvenile courts order declining to order a relative placement assessment and was not even present at the hearing below. (See Cesar V., supra, 91 Cal.App.4th at p. 1034 [non-party has standing to challenge denial of request for placement pursuant to section 361.3].) Thus, mother had no right to a relative placement assessment of S.S. at the time of the filing of her Cesar V. motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHI

Acting P. J.

/s/ KING

J.

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

^[2] Father is not a party to this appeal.

^[3] The minute order for the hearing contradictorily reflects the court explicitly ordered the department to conduct assessments on [S.S.], [A.B.], and [M.B.].

^[4]Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 (Cesar V.). The department below contended there was technically no such thing as a Cesar V. motion and that mother should have filed a section 388 petition instead.

^[5] Thus, although S.S. would be entitled to consideration for placement of minors, she would not be given preferential consideration due to her status as minors great-aunt. (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1494, superseded by statute on other grounds as stated in Cesar V., supra, 91Cal.App.4th at p. 1032; In re Luke L. (1996) 44 Cal.App.4th 670, 680.)