In re X.V.
Filed 11/1/10 In re X.V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 X.V., a Person Coming Under the Juvenile Court Law. | |
| FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. C.O., Defendant and Appellant. | F060110 (Super. Ct. No. 08CEJ300272-1) OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
William G. Smith, Office of the County Counsel, for Plaintiff and Respondent.
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C.O. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her daughter X.V. (child).[1] Mother contends the Fresno County Superior Court (juvenile court) should have addressed the issue of relative placement at the termination hearing. In her view, respondent Fresno County Department of Social Services (department) and the juvenile court have erroneously denied the child’s paternal grandmother (grandmother) relative placement consideration since the outset of these proceedings. On review, we disagree and affirm.
PROCEDURAL AND FACTUAL HISTORY
Dispositional Phase
In April 2009, the juvenile court adjudged the child, who was then one year old, a juvenile dependent and removed her from parental custody. Mother previously waived her rights and submitted to the court’s jurisdiction under section 300, subdivision (b), based on her neglect. Specifically, mother had a substance abuse problem with marijuana and methamphetamines, which negatively affected her ability to provide regular care, protection and supervision for the child. On October 31, 2008, mother inappropriately left the child with an aunt, in a filthy home with no food to eat. Later that same day, the aunt was arrested for child endangerment. Four days later, mother tested positive for marijuana and methamphetamines.
At the April 2009 hearing, the juvenile court also granted mother reunification services, but denied services for the child’s alleged father pursuant to section 361.5, subdivision (a).[2] The alleged father recently signed a voluntary declaration of paternity (Fam. Code, § 7574) so that the grandmother could be considered for placement if mother failed to reunify. However, according to the department, “Sacramento” had yet to accept the declaration.[3] The department took a position that once this occurred and the man elevated his status to presumed father, it would consider the placement issue and begin the approval process under the Interstate Compact for Placement of Children (ICPC) because the grandmother lived out of state.[4] In the meantime, the juvenile court ordered a post-mediation hearing for early-June and required the department to notify all counsel when it received information from “Sacramento” concerning the declaration of paternity.
The juvenile court also advised mother of her right to appeal. Mother, however, did not file a notice of appeal.
Reunification Phase
In June 2009, the court granted a request by the department to elevate the alleged father’s status to that of presumed father and deny him services on multiple grounds. The court also granted the department discretion to allow supervised visits between the grandmother and the child when the grandmother was in Fresno. It made no order regarding relative placement. Once again, mother did not appeal.
According to the department’s report for the June hearing, mother recently entered into a residential substance abuse treatment program. She reported to a social worker she would like to reunify with the child and wanted her to remain in her current placement rather than be placed elsewhere. Mother could see that the child’s care providers took good care of her and the child seemed attached to them. In addition, because mother was receiving reunification services, placement outside of California, presumably with the grandmother, would impede visitation between her and the child. Under these circumstances and referring to section 361.3, the department did not recommend the child’s placement outside of California.[5] According to the department, it was not in the child’s best interests at that time.
By an October 2009 six-month status review hearing, mother had not complied with any of the court-ordered services and, in particular, “walked out of” two residential substance abuse treatment programs. Her whereabouts were unknown.
On September 1, 2009, in one of the last contacts the department had with mother, a social worker informed her that the department would not recommend further services and asked her position regarding placement and a permanent plan. Mother reported she knew the grandmother requested placement but mother did not want the child placed with the grandmother. Mother stated the child was already attached to the foster mother and if she (mother) “could not get her daughter back that they would take good care of her.” Mother also stated the grandmother did not raise two of her children and believed the grandmother had medical problems.
At the October hearing, the grandmother was present; she also had written the letter addressed to the court.[6] Mother’s attorney advised “[w]e’re strongly in favor of the [grandmother] getting more frequent visits and possible placement.” Mother’s attorney represented that the grandmother had taken the appropriate courses out of state and “[g]ot herself licensed as a foster parent.” The father’s attorney urged that because mother had failed at reunification, it was time to consider placement of the child with the grandmother. He suggested a continuance to see about immediate placement. Alternatively, if the ICPC process had not been started or completed, counsel urged the court to at least begin some lengthy visits between the child and the grandmother.
This prompted the court to inquire about the status of the ICPC. The court officer only knew the “ICPC was referred July 2, 2009” and the case manager was unavailable. The juvenile court offered the following in response:
“What I can do is set a .26 hearing and then have an interim review regarding the assessment and possible placement of the child with - I need to have more information from the department in regards to the grandmother.”
No one objected. The court also asked that copies of the grandmother’s letter be distributed.
The court in turn proceeded with its status review. Having found mother made no progress toward alleviating or mitigating the causes necessitating the child’s foster care placement, the court terminated reunification services for her and set a section 366.26 hearing to select and implement a permanent plan for the child.
The juvenile court also set an interim hearing for later in October regarding the child having visitation and possible placement with the grandmother. It added it desired information concerning the status of the ICPC.
Permanency Planning Phase
In advance of the interim hearing, the department prepared a report recommending the child remain in her current placement and requesting discretion for unsupervised visits between the child and the grandmother when she was in Fresno. According to the grandmother and an out-of-state social worker, the grandmother’s home had been approved. However, the department had not received the completed and approved ICPC. Starting in July, there had also been four supervised visits between the child and the grandmother. The grandmother was appropriate, tender and affectionate. However, the child was distraught at the beginning of the visits and continually asked for “mommy,” the child’s name for her care provider. As for placement, the department reported the child had been in the same placement since the date she was detained. She appeared very happy in her placement and the care providers were meeting all of the child’s physical, social and emotional needs. The care providers were also willing to adopt the child. At the interim hearing, mother was present and in custody. The court ordered the interim review continued to a December date. According to a minute order of the December hearing, mother was not present but the grandmother and other relatives were. The court continued its order for the grandmother to have supervised visits with the child but made no apparent order on the placement issue.[7]
By the time of the originally scheduled section 366.26 hearing, the department submitted its report, recommending that the court find the child adoptable and terminate parental rights. As there is no dispute on appeal regarding the likelihood of the child’s adoption, we do not summarize the supporting evidence here. The department also identified the child’s care providers as her prospective adoptive parents. It further continued to advocate against placing the child with the grandmother.
Section 366.26 Hearing
The court eventually conducted its section 366.26 hearing in mid-March 2010. Days earlier, the grandmother filed a request to change the child’s placement pursuant to section 388.[8]
At the start of the hearing, the department submitted on its earlier report and asked the court to follow its recommendations to find the child adoptable and order termination of parental rights. Mother then took the stand and testified she was presently in state prison. Her placement preference for the child was with the grandmother. She acknowledged she once objected to such a placement because she did not want the child to be so far away. However, if she could not have the child, mother now preferred for the child to be with the grandmother.
The court then turned its attention to the section 388 request filed by the grandmother. Counsel for the department argued there was neither a need for a change of placement nor a showing that such a change was in the child’s best interest. The child’s counsel agreed with the department’s report but wanted the department to make a record of its reasons why moving the child would not be in the child’s best interest.
The juvenile court announced it did not have the complete court file and would need to review it. In the meanwhile, it proposed proceeding with the section 366.26 hearing and continuing the section 388 issue so that it could review the file and for the department to respond in writing to the grandmother’s request. No one, including mother, her attorney or the grandmother, objected.
The juvenile court then proceeded to make its findings and orders under section 366.26. It found clear and convincing evidence that it was likely the child would be adopted and adoption was the appropriate permanent plan for the child. The court ordered parental rights terminated and advised mother of her appellate rights.
After mother left the courtroom, the juvenile court appointed counsel for the grandmother on her section 388 request so that there would be a clearer record. It also ordered the department to respond in writing to the grandmother’s request and identified a number of issues that the department needed to address and evaluate in making an ultimate recommendation concerning the grandmother’s request. The court further ordered the department to provide discovery to the grandmother’s newly appointed attorney and set the grandmother’s request for hearing in April 2010.
As of the time mother filed her notice of appeal, the grandmother had requested and the court set, a contested evidentiary hearing for May 2010.
DISCUSSION
Mother contends the juvenile court should have addressed the issue of relative placement at the section 366.26 hearing. She argues that the grandmother was entitled then to relative placement consideration because she expressed her desire to have placement of the child from the outset. However, in mother’s view, the department never seriously considered the grandmother for placement purposes at either the dispositional phase of the case or thereafter. Mother claims her interest in family preservation was harmed as a result.
Assuming for the sake of argument that mother has standing to raise this argument, her contention nevertheless fails. Mother fails to identify how the court erred by proceeding first with the section 366.26 hearing. She also dismisses the court’s decision to review the entire file, which it did not then have, order formal opposition from the department to the grandmother’s placement request under section 388 and set a further hearing in the matter. She focuses instead on what happened or did not happen at earlier stages of the proceedings.
The problem with mother’s approach is that we are not reviewing what happened in the past. Mother appealed from the order terminating parental rights and not any earlier order in these dependency proceedings. A challenge to the most recent order entered in a dependency matter may not dispute prior orders for which the statutory time for filing an appeal has passed. (Steven J. v. Superior Court (1995) 35 Cal.App.4th 798, 811; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.)
Mother also overlooks the fact that she never asked the court to rule on the grandmother’s request prior to announcing its permanency planning decision. Having not asked the court to exercise its discretion a certain way, mother is in no position to argue on appeal that the juvenile court erred by not doing so. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
In addition, mother sidesteps the fact that the court announced it would proceed with the section 366.26 hearing and continue the hearing on the grandmother’s section 388 request but neither mother nor her counsel objected. Their failure to object in the juvenile court also results in appellate forfeiture. (In re Richard K. (1994) 25 Cal.App.4th 580, 590.)
In any event, mother fails to establish how she was prejudiced because the juvenile court elected to proceed first with the section 366.26 hearing. It is undisputed that the child was likely to be adopted. There was also no showing whatsoever that termination would be detrimental to the child. To the extent mother maintains that family preservation is the goal of dependency proceedings, she overlooks the law in this regard at the permanency planning phase.
Once reunification efforts have ceased, a parent’s interest in the care, custody, and companionship of the child is no longer paramount. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The juvenile court’s focus rather shifts to the child’s needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The section 366.26 hearing is designed to protect the child’s compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (Id. at p. 306.)
Alternatively, mother fails to establish that the juvenile court would necessarily have granted a change in placement and, more importantly as to mother, not terminated parental rights had it elected to consider the grandmother’s section 388 request first.
DISPOSITION
The order terminating parental rights is affirmed.
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* Before Wiseman, Acting P.J., Levy, J. and Detjen, J.
[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] An alleged father is “[a] man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) Such a man is not entitled to reunification services. (§ 361.5, subd. (a).)
[3] “Sacramento” was apparently the department’s short-hand reference to the State Department of Child Support Services, with whom a voluntary declaration of paternity must be filed to establish the paternity of a child. (Fam. Code, § 7573.)
[4] The ICPC (Fam. Code, § 7901) promotes interstate cooperation for children requiring placement by creating a process between sending and receiving states for full investigation of proposed placements.
[5] Section 361.3 provides for preferential consideration of relatives, such as a grandparent, for placement in any case in which a child is removed from parental physical custody. (§ 361.3, subd. (a).) It also sets forth a nonexclusive list of factors for the department and juvenile court to consider in determining whether placement with a relative is appropriate. (Ibid.) Subsequent to a dispositional hearing (§ 358), whenever a new placement of the child must be made, consideration for placement shall again be given to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements. In addition to the factors described in section 361.3, subdivision (a), the department shall consider whether the relative has established and maintained a relationship with the child. (§ 361.3, subd. (d).)
[6] Although mother cites liberally to this letter in her briefing, there is no record that the juvenile court ever received it into evidence.
[7] Although the hearing was reported, mother did not augment the appellate record to include a reporter’s transcript of the December hearing.
[8] Section 388 provides a method for modifying a court order based on changed circumstances or new evidence and a showing that a child’s best interests would be promoted by a new order.
