In re B.D.
Filed 4/12/13 In re B.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.D., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
R.D.,
Defendant
and Appellant.
E056197
(Super.Ct.No.
SWJ003820)
OPINION
APPEAL
from the Superior Court
of
County. John M.
Monterosso, Judge. Affirmed.
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel,
and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
The
juvenile court terminated the parental rights of defendant and appellant R.D.
(Father) regarding his son, B.D., pursuant to Welfare and Institutions Code
366.26. On appeal, Father contends: (1) the trial court abdicated its authority
under section 366.26, subdivision (n), when it failed to make a decision on
B.D’s removal from the paternal grandparents’ home; (2) the relative placement
preference in section 361.3 was violated; and (3) the trial court erred in
failing to apply the sibling relationship exception. We reject these contentions and affirm.
I. PROCEDURAL
BACKGROUND AND FACTS
On
November 19, 2009, the Department of
Public Social Services (the Department) filed a dependency petition on
behalf of B.D., and his older half sibling, J.B.,
(g), and (j), alleging their mother’s unresolved
abuse issues, inappropriate discipline of J.B., and prior child welfare
history placed them at risk of harm, and their respective fathers failed to
protect and provide for them. The
petition was later amended twice to include an allegation that Father also had
an unresolved substance abuse problem.
At
the detention hearing on November 20,
2009, Father was found to be B.D.’s presumed father. The court ordered the child detained in
protective custody and authorized supervised
visitation twice a week.
According
to the addendum report filed on February 5, 2010, and prepared for the
contested jurisdiction/disposition hearing, the Department recommended that
B.D. be declared a dependent of the court pursuant to section 300, subdivisions
(b), (g), and (j), and that Father be offered six months of reunification
services and supervised visitation. At
the contested jurisdiction/disposition hearing on February 10, 2010, the trial court found the
allegations of the second amended petition to be true, declared B.D. to be a
dependent of the court, removed him from parental
custody, and ordered family reunification services.
According
to the six-month review report filed on August 2,
2010, Father and his wife had another juvenile case pending
regarding their two children. Father’s
wife had an “extensive criminal history in addition to a prior CPS case where
an infant died in her care.†Father
worked part time at a family restaurant, struggled with diabetes, took insulin
daily, and had a violent criminal history that included spousal abuse. B.D. was placed in the home of his paternal
“grandparents,†“paternal grandmother,†or “grandmotherâ€) on April 14, 2010, where his
four-year-old sibling resides under a plan of legal guardianship. The paternal grandparents were willing to
adopt B.D. if the parents failed to reunify with him. The Department recommended termination of
reunification services, reduction in supervised visitation, and that the court
set a section 366.26 hearing. A
contested six-month review hearing was set for September 20, 2010.
At
the contested six-month review hearing, Father’s attorney represented that
Father had completed the components of his case plan, as he had another case
pending involving his older children.
Father was willing to waive further services so that B.D. could remain
with the paternal grandparents. The
court accepted Father’s waiver, terminated reunification services, and set the
permanency planning hearing.
The
section 366.26 report filed on December 30,
2010, requested 30 days to complete the preliminary adoption
assessment of the paternal grandparents.
The Department noted that B.D. was often surrounded by paternal family
members and he “appear[ed] to enjoy his family a great deal.†According to the “Delivered Service Log†the
paternal grandmother’s home was “very clean†and had “plenty of food and baby
supplies.†B.D. was dressed in clean
clothing and no suspicious marks or bruises were observed. He appeared to get along well with family
members and seemed happy and secure. The
permanency planning hearing was continued to May 18, 2011, to allow the Department time to
complete the preliminary adoption assessment of the paternal grandparents.
In
the addendum report filed on May 12,
2011, the Department noted that on March 3 the paternal
grandparents completed a safety plan stating that no adults with a criminal
history could reside in the home without being permitted by the
Department. The safety plan was
necessary because the grandmother had disclosed that her son, E.D., who had a
criminal history, stayed in her home on a temporary basis. On March 21, the grandmother informed
the Department that four other grandchildren had been placed in her home. The social worker expressed concern as to
grandmother’s ability to handle all six children; however, the paternal
grandmother insisted the grandchildren needed her. By April 7, the grandmother informed the
Department that Los Angeles County
wanted to give her custody of the four other grandchildren.
On
April 11, 2011, the
Department removed B.D. from the grandmother’s home. The Department’s concern involved
grandmother’s 16-year-old granddaughter who was helping grandmother with the
children by driving them around. B.D.
cried and called grandmother “Mommy.â€
B.D. was placed in the home of a paternal uncle and aunt, I.
and V.D.
On
May 18, 2011, Father
requested and the court ordered the Department to reassess the paternal
grandparents’ home for placement. The
permanency planning hearing was continued to September 15, 2011.
Another
addendum report, filed on September 12,
2011, indicated the paternal uncle had passed away on July 9, 2011, and his widow had
requested that the child be removed from her home. The paternal grandparents’ home was
re-evaluated on July 18, and live scans of all adults in the home were
clear. The Department expected to have
the assessment completed by the scheduled hearing date. However, on August 1, B.D. was placed in
a nonrelative foster home. The
September 15 hearing was continued to December 7 as a contested
hearing.
The
section 366.26 contested hearing report was filed on November 21, 2011. The Department expressed concern regarding
the paternal grandparents’ “ability to establish boundaries with their adult
children who have known criminal histories and significant history with child
welfare agencies.†Their home was
described as a “haven for all of their adult children and their grandchildren
when they need a place to stay.†The
Department opined that placement of B.D. in their home “does not appear to be
in the child’s best interest.†B.D. was
currently living with foster parents, who had “expressed their interest in
adoption and are committed to continued visitation with the child’s extended
family members, if contact with these family members [is] appropriate.†The Department had denied the return of B.D.
to paternal grandparents’ home, citing previous child welfare allegations
against them from January 2004 to January 2010, along with two prior filings
for an injunction prohibiting harassment against the grandmother. One was filed by B.D.’s mother and the other
by Father’s wife. Meanwhile, both the
paternal grandparents and Father continued to visit the child.
On
December 7, 2011, the
section 366.26 hearing was continued to April 5,
2012, to allow the Department more time to complete the adoption
assessment as to the current caregivers.
The Department recommended adoption by the current caregivers, who were
willing to adopt B.D. On January 18, 2012, the trial
court ordered that visitation between the paternal grandparents and B.D. be
supervised twice a month for one hour.
On
January 23, 2012, the paternal grandparents filed a motion for de facto parent
status. Three days later, they filed a
caregiver information form in which they expressed their desire to have B.D.
returned to them and see him reunited with his brother, whom they care
for. On March 12, the paternal
grandmother filed a declaration requesting another opportunity to be given
placement of B.D. She recognized her
failure to report changes to her household to the Department but opined that
her “language can be a barrier with communicating information due to not always
having access to someone that can communicate in Spanish.†She further expressed how B.D.’s absence had
affected her, her husband, and B.D.’s brother.
On April 5, 2012, the trial court denied the motion for de facto
parent status. The court terminated
parental rights and selected adoption as being in the best interests of the
child. Father appeals.
II. COMPLIANCE WITH SECTION 366.26, SUBDIVISION
(N)
Father
contends the Department failed to comply with section 366.26, subdivision (n),
when it removed B.D. from the paternal grandparents’ home, and such failure
resulted in a miscarriage of justice.
Arguing that the grandparents met the criteria to be considered
designated prospective adoptive parents (PAP) and the Department failed to give
statutory notice of B.D.’s removal, Father claims the trial court abdicated its
authority under section 366.26, subdivision (n) when it failed to make a
decision on B.D’s removal.
Section
366.26, subdivision (n), in relevant part, provides: “Notwithstanding Section 8704 of the Family
Code [that is, notwithstanding the adoption agency’s exclusive custody or
control of a child after the termination of parental rights] or any other
provision of law, the court, at a [Welfare and Institutions Code section
366.26] hearing . . . or anytime thereafter, may designate a current
caretaker as a prospective adoptive parent if the child has lived with the
caretaker for at least six months, the caretaker currently expresses a
commitment to adopt the child, and the caretaker has taken at least one step to
facilitate the adoption process. . . .†(Section 366.26, subd. (n)(1).)
“Subdivision
(n) further provides that a PAP, or any caretaker who would qualify as a PAP,
must be given notice and an opportunity to object to any decision by a social
services agency to remove a child from the PAP’s or caretaker’s home. The PAP or caretaker may then object to
removal of the child from his or her care.
Upon receiving an objection from a PAP, the juvenile court must conduct
a hearing and determine whether removal of the child from the PAP’s home is in
the best interest of the child.†(
Cal.App.4th 1331, 1334.)
To
begin with, we note the language of section 366.26, subdivision (n), limits its
application to the court’s actions by stating, “at a [Welfare and Institutions
Code section 366.26] hearing . . . or anytime
thereafter . . . .â€
(§ 366.26, subd. (n)(1).)
The section 366.26 hearing was held on April 5, 2012. The child was removed from the paternal
grandparents’ care the prior year, April 11, 2011. Accordingly, section 366.26, subdivision (n),
concerns the “standards to be applied to agency decisions in the narrow
category of posttermination removal
of children from designated prospective adoptive placements and gives to the
court the wide discretion previously afforded the adoption agencies to
determine whether the placement is in the best interest of the child. [Citation.]â€
(State Dept. of Social Services v.
Superior Court (2008) 162 Cal.App.4th 273, 286; italics added.)
Notwithstanding
the above, even if we assume that section 366.26, subdivision (n) was
applicable, the Department argues that failure to object to a lack of notice
means both Father and the paternal grandparents have forfeited the issue on
appeal. We agree. “A defect in notice . . . is a most
serious issue, potentially jeopardizing the integrity of the entire judicial
process. However, when a parent had the
opportunity to present that issue to the juvenile court and failed to do so,
appellate courts routinely refuse to exercise their limited discretion to
consider the matter on appeal. This is
precisely because defective notice and the consequences flowing from it may
easily be corrected if promptly raised in the juvenile court. [Citation.]
For example, in In re B. G.[ (1974)
11 Cal.3d 679, 689], the Supreme Court held that a mother had received
inadequate notice of a jurisdictional hearing, but concluded she had forfeited
her right to raise that issue on appeal when she appeared at subsequent
hearings with her counsel in the juvenile court yet failed to challenge the
validity of the jurisdictional order.
[Citations.]†(
Despite
the error in failing to provide notice and an opportunity to be heard on the
issue of B.D.’s removal from the paternal grandparents’ home, there were
several hearings held after the child was removed, but neither Father nor the
grandparents objected to a lack of notice and opportunity to be heard pursuant
to section 366.26, subdivision (n).
Thus, the juvenile court was deprived of the opportunity to correct the
error. Accordingly, the issue has been
waived.
Moreover,
the record before this court shows there was good cause for removal of B.D.
from the paternal grandparents’ home.
The grandparents allowed an uncle who had a CPS and criminal history
involving domestic violence to live in their home; four additional
grandchildren were placed in the grandparents’ home; the grandmother was having
her 16-year-old granddaughter, who had not been live scanned, help out with the
children; and grandmother allowed another granddaughter to assist in providing
transportation for the children even though she did not have a driver’s license
or car insurance. Thus, by
March 31, 2011, when the grandparents’ home was not recertified, B.D.
could not remain there. On October 18,
2011, the home was conditionally certified for placement by the Relative
Assessment Unit. Placement was
conditioned on no other adults living in the home; B.D. would be transported
only by a person with a valid driver’s license, vehicle registration and
insurance; and another child, A., could not have unsupervised visits with B.D.
and he could not stay in the home. On
November 16, 2011, it was determined that placing B.D. with the paternal
grandparents was not in his best interests, based on the child welfare history
of the grandmother and other concerns.
By this time, B.D. had been placed in a nonrelative foster home since
August 1, 2011. The Department
would not approve placement or adoption by the paternal grandmother.
For
the above reasons, we reject Father’s claim that the juvenile court “abdicatedâ€
its authority under section 366.26, subdivision (n), when it failed to make a
decision on B.D’s removal.
III. RELATIVE PLACEMENT
Father
faults the juvenile court for “refusing to decide on [his] repeated requests
for reassessment of the paternal grandparents’ home for [B.D.’s]
placement.†He contends the “court’s
refusal to make a decision resulted in violation of section 361.3 and denial of
preferential relative placement consideration of the grandparents, whose home
was approved for [B.D.’s] placement†and resulted in a miscarriage of
justice. Father further asserts he has
standing to raise this issue. In
response, the Department argues Father lacks standing to assert relative
placement issues in this appeal from the section 366.26 hearing; that section
361.3 was followed; and there is no basis to reverse the order terminating
Father’s parental rights.
Our
Supreme Court has considered whether a father had standing to appeal a juvenile
court’s order declining to place a child with the child’s grandparents. (In re
K.C. (2011) 52 Cal.4th 231, 236 (K.C.).) In K.C.,
the court reviewed appellate decisions and derived the following rule: “A parent’s appeal from a judgment
terminating parental rights confers standing to appeal an order concerning the
dependent child’s placement only if the placement order’s reversal advances the
parent’s argument against terminating parental rights.†(Id.
at p. 238.)
In
Father’s opening brief, he asserts the trial court and Department erred by not
following the proper relative assessment/placement procedures
(§ 361.3). He claims the Department
failed to afford the paternal grandparents preferential placement consideration
when it placed B.D. in a nonrelative foster home on August 1, 2011, and
the Department misled the court, Father, and the grandparents to believe that
B.D. would be replaced into paternal grandparents’ home, when it was really
looking for more information to deny their placement request. In a single paragraph, Father claims “the
resolution of the placement issue has the potential to alter the decision to
terminate parental rights under both sibling and relative-guardian exceptions
to adoption, given [B.D.’s brother, R.] lived with the grandparents under the
plan of legal guardianship.†At oral
argument, counsel for Father asserted that the error in not placing B.D. with
the grandparents impacted the decision to terminate his parental rights. Thus, Father maintains that he has standing
to raise the relative placement issue.
Assuming
Father has standing, we will address the merits of his contention. Section 361.3 provides that in any case where
a child is removed from the physical custody of his or her parents,
“preferential consideration shall be given to a request by a relative of the
child for placement of the child with the
relative . . . .â€
(§ 361.3, 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 lists a number of factors to be
used by the county social worker (i.e., the Department) in determining whether a
placement is appropriate, although consideration is not limited to the
specified factors. (§ 361.3, subd.
(a)(1)-(a)(8).) Among these are the
following: “The best interest of the
child, including special physical, psychological, educational, medical, or
emotional needs†(§ 361.3, subd. (a)(1)); the placement of siblings
together (§ 361.3, subd. (a)(4); the character of adults in the relative’s
home (§ 361.3, subd. (a)(5)); the nature and duration of the relationship
between the relative and the child (§ 361.3, subd. (a)(6)); the ability of
the relative to provide a safe, secure, and stable environment for the child
(§ 361.3, subd. (a)(7)(A)); and the safety of the relative’s home
(§ 361.3, subd. (a)(8)).
Cases
interpreting the statute have stressed that it does not create an evidentiary
presumption. Instead, “‘relatives [are
to] be assessed and considered favorably, subject to the juvenile
court’s consideration of the suitability of the relative’s home and the best
interests of the child.’
[Citations.]†(In re Antonio
G. (2007) 159 Cal.App.4th 369, 377.)
The preference applies “when a new placement becomes necessary after
reunification services are terminated but before parental rights are terminated
and adoptive placement becomes an issue.â€
(Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)
Here,
the record demonstrates that the paternal grandparents’ home had been
repeatedly assessed and carefully considered by the Department and the juvenile
court as required by section 361.3. In
fact, the Department’s initial plan had been to place the child with the
paternal grandparents, pending the results of its assessment. Unfortunately, the grandparents allowed
family members with criminal backgrounds and histories with CPS to stay in
their home; they allowed the child to be driven by an unlicensed driver, they
took in four additional grandchildren, and they allowed their home to be a
“safe haven†for their adult children and grandchildren whenever they needed a
place to stay. Further, the Department
learned the grandmother also had a history with CPS. Thus, the Department did not find that placing
B.D. with his paternal grandparents would be in his best interests and the
court agreed. (See discussion in section
IV.) Regarding the relative-guardian
exception, the Department argues that this exception was never raised at the
trial level, and it is inapplicable because the grandparents were willing to
adopt B.D.
For
the above reasons, we reject Father’s challenge to the court’s refusal to place
B.D. with the grandparents.
IV. SIBLING RELATIONSHIP EXCEPTION
Father
contends the sibling relationship exception (§ 366.26, subd. (c)(1)(B)(v))
to the termination of parental rights applies.
He argues that B.D. had a “highly significant attachment to [his
brother, R.] and ongoing contact between them was in his best interests.â€
The
sibling relationship exception applies if the court finds a compelling reason
for determining that termination would be detrimental to the child due to
“substantial interference with a child’s sibling relationship, taking into
consideration the nature and extent of the relationship, including, but not
limited to, whether the child was raised with a sibling in the same home,
whether the child shared significant common experiences or has existing close
and strong bonds with a sibling, and whether ongoing contact is in the child’s
best interest, including the child’s long-term emotional interest, as compared
to the benefit of legal permanence through adoption.†(§ 366.26, subd. (c)(1)(B)(v).)
“Reflecting
the Legislature’s preference for adoption when possible, the ‘sibling
relationship exception contains strong language creating a heavy burden for the
party opposing adoption. It only applies
when the juvenile court determines that there is a “compelling reason†for
concluding that the termination of parental rights would be “detrimental†to
the child due to “substantial interference†with a sibling relationship.’ [Citations.]
Indeed, even if adoption would interfere with a strong sibling
relationship, the court must nevertheless weigh the benefit to the child of
continuing the sibling relationship against the benefit the child would receive
by gaining a permanent home through adoption.
[Citation.]†(
Father has the burden of establishing the applicability of the
exception. (See In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
In
reviewing challenges to a trial court’s decision as to the applicability of
these exceptions, we will employ the substantial evidence or abuse of
discretion standards of review depending on the nature of the challenge. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.) We will apply the
to evaluate the evidentiary showing with respect to factual issues, such as
whether the parent has maintained regular visits with the child (for the beneficial
parental relationship exception) or whether the child has a close and strong
bond with a sibling (for the sibling relationship exception). (Id.
at p. 1315; § 366.26, subd. (c)(1)(B)(i), (v).) However, a challenge to the trial court’s
determination of questions such as whether, given the existence of beneficial
parental relationship or a sibling relationship, there is a compelling reason
for determining that termination of parental rights would be detrimental to the
child “‘is a quintessentially discretionary determination.’†(In re
Scott B. (2010) 188 Cal.App.4th 452, 469.) We review such decisions for abuse of
discretion. (Ibid.) In the dependency
context, both standards call for a high degree of appellate court
deference. (Ibid.; see also In re Jasmine
D. (2000) 78 Cal.App.4th 1339, 1351.)
Turning
to the record before this court, we conclude that the evidence does not support
application of the sibling relationship exception. B.D.’s brother, R., did reside with the
paternal grandparents who had been granted legal guardianship of him on
December 1, 2009. B.D. was placed with
the same grandparents on April 14, 2010, when he was one year old and R.
was five years old. In January 2011, it
was reported that B.D. and R. enjoyed playing together and had a close
bond. However, by April 2011, B.D. was
removed from the grandparents’ home and has not returned. Termination of parental rights does not mean
that B.D. will never see R. again.
Rather, the prospective adoptive parents were committed to continued
visitation with extended family members if contact with these members was
appropriate. In addition, the foster
parents were willing to maintain informal contact between R. and B.D. through
letters, telephone calls, or visits.
Regarding
B.D.’s best interests, the recent record shows he has been flourishing in the
care of the foster parents, who want to adopt him. He no longer has temper tantrums and presents
himself as a happy child. He has
adjusted well to the foster parents’ home and appears anxious when separated
from them. B.D. has bonded with the
foster parents and has been thriving in their care; he refers to the foster
family as his parents and sisters.
Given
the above, there is no evidence that interference with B.D.’s sibling
relationship with R. would outweigh the benefits of adoption or otherwise be
detrimental to B.D. We therefore
conclude the sibling relationship exception does not apply.
V. DISPOSITION
The
order appealed from is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] J.B. is not a party to this appeal and thus
will be discussed only if necessary.
