Opinion
A150560
08-03-2017
In re A.P. et al., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JASON O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. 84356, 84771)
Appellant Jason O. (father) challenges a juvenile court order that denied a request he made just before his parental rights were terminated to have his two children placed with his sister, whom he identified as a potential placement long after his children were taken from his custody. Because father does not challenge the termination of his parental rights, we conclude that he lacks standing, and we therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Father does not challenge the decision to terminate his parental rights, and our summary of the proceedings below will accordingly be limited to matters affecting his standing. Suffice it to say, father has a history of domestic violence and substance abuse, was barred from seeing his two children during much of the proceedings below because of a restraining order against him, and was serving a prison sentence when his parental rights were terminated.
Respondent San Mateo County Human Services Agency (Agency) filed a petition in April 2015 alleging that father's nine-month-old son faced a substantial risk of harm (Welf. & Inst. Code, § 300, subd. (b)) after his mother (who is not a party to this appeal) drove with the infant while she was intoxicated. Mother was seven months pregnant at the time. The son was first placed with father, but the infant was soon thereafter placed in a foster home with an older half sister who is not the subject of this appeal.
Father's two children are a boy and a girl who have the same initials. We shall refer to them individually as the son or the daughter.
All statutory references are to the Welfare and Institutions Code.
Father has four sisters and one brother. Father notified a social worker around the time of his son's removal from his care that he would like his sister Jennifer O. to be considered for placement. She was scheduled for a fingerprint appointment and underwent a relative-assessment process. It is unclear what became of this possible placement, as Jennifer was not mentioned in the Agency's next review report.
At a combined jurisdictional/dispositional hearing in May 2015, the juvenile court sustained the petition, adjudged the son a dependent child, and ordered out-of-home placement as well as reunification services for both parents. Mother and father's daughter was born the next month.
The son was continued as a dependent minor following a six-month review hearing in November 2015. The day of the hearing, concerns were raised that the parents were living together after having agreed to live separately and that father had recently become violent with mother in the presence of their infant daughter. The daughter was taken into protective custody, and, later that month, the Agency filed a dependency petition as to her. The daughter was placed in a separate foster home from her older brother, and the social worker did not report any possible relative placements in her detention report.
The Agency's jurisdictional/dispositional report dated December 2015 again mentioned Jennifer as father's desired placement, this time for his daughter. Jennifer said she would consider being a placement but was concerned about the parents' "drama" coming into her home if she were to take the daughter. Also in December, father was arrested and jailed for making criminal threats. He told a social worker that he wanted his daughter returned to her mother but that if that was not possible, he wanted his daughter placed with one of his (the father's) sisters. The social worker submitted a relative assessment "with the names and information of family members that was provided by the father and mother," presumably a reference to Jennifer and the maternal relatives previously identified by mother.
Around this time, the Agency arranged weekly, hour-long visits between the daughter and paternal relatives, including father's sister Heidi O. The son was later added to the visits, which went well. Heidi also drove the son to his weekly speech therapy sessions.
The juvenile court in December 2015 entered a criminal domestic-violence protective order barring father from contacting mother and both their children. Then, in January 2016, the court sustained the dependency petition in the daughter's case and found that the daughter was a child described by section 300, subdivision (b) (failure to protect), because she was present when father pushed and hit mother and she (the daughter) was later found to have a bruise on her face. The court also adjudged the daughter a dependent child and ordered out-of-home placement as well as reunification services.
A status review report dated April 2016 stated there were no relatives to consider for placement. Because the Agency at that time was still hoping that mother would be able to reunify with her children, relative placement was not a priority. That same month, the daughter's foster parents applied for de facto parent status, which the juvenile court granted.
The Agency changed its recommendation in a report dated June 2016 and advocated that the parents' reunification services be terminated. Mother had relapsed in her sobriety, and father was still incarcerated. Around this same time, the son was moved to a new foster home.
Also in June, father renewed his requests to have his children placed with a sibling. In a letter dated June 17, father told the social worker that he did not want his children to be adopted as the Agency was advocating, and he wanted them instead placed with one of his three sisters. He provided contact information for the sisters so that they could be assessed for relative placement. As of this date, Jennifer O. and another sister had not indicated an affirmative interest in being assessed for relative placement. On June 22, the social worker submitted a referral for paternal aunts Heidi O. and D.O. to be assessed. In July, the son's foster mother was considered to be a "fost/adopt placement" for the son after the foster mother said she wanted to be considered for such a placement and submitted the appropriate paperwork.
Following a hearing in September 2016, the juvenile court terminated the parents' reunifications services as to both children and scheduled a selection-and-implementation hearing under section 366.26. The Agency ultimately recommended that the parents' parental rights be terminated and that the children's permanent plan be adoption.
Also in September 2016, Heidi O. was approved for relative placement. This was around the time that an assigned social worker learned that Heidi was interested in adoption. Social workers assigned to the children's cases met to discuss possible placement with the aunt. They acknowledged Heidi's efforts to maintain a relationship with the children but were concerned that father did not mention Heidi as a possible placement when his children were first removed from his care and that Heidi had not come forward as a prospective placement until more than a year after the son's removal and seven months after the daughter's removal. The social workers discussed the children's need for stability and the possibility that a move would be detrimental to their well-being, and they unanimously decided to continue their current placements with their foster families, where they were currently thriving. Heidi continued to visit with the children on a weekly basis because she loves them "[w]ith all [her] heart."
In November, the son's caregiver applied for de facto parent status, which the juvenile court granted.
After the termination of reunification services but before the selection-and-implementation hearing, father filed a request to change court order under section 388 (section 388 petition) asking that Heidi O. be approved as a relative placement and that both children be transitioned to her care.
A combined hearing was held on both the section 388 petition and on selection of a permanent plan (§ 366.26). Father's counsel questioned a social worker on why Heidi O. was not considered sooner for placement. The social worker explained that her name was not listed as a potential relative for placement when both son and later daughter were removed from the parents.
The juvenile court denied father's motion to modify, concluding that the Agency had done everything it was required to do in order to assess Heidi O. for placement and that the Agency acted in the children's best interests. The issue of termination of parental rights was submitted, with no argument offered against it. The court then terminated both parents' parental rights and selected adoption as the children's permanent plans. Father appealed. Heidi O. did not.
II.
DISCUSSION
Father argues that the juvenile court erred in not transitioning his children to his sister's care and in failing to ensure that the Agency followed statutory guidelines relating to relative placement. He argues that he was prejudiced by these errors, that his due process rights were violated, and that both the order on his section 388 petition and the order terminating his parental rights must be reversed. Because father lacks standing to challenge the order affecting the placement of his two children, we affirm the juvenile court's order.
Our Supreme Court set forth guidance for determining standing in appeals of placement decisions in In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.): "Not every party has standing to appeal every appealable order. 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. [Citations.] These rules apply with full force to appeals from dependency proceedings." In K.C., as in this case, the father did not offer any argument in the juvenile court against terminating his parental rights, the father did not offer any argument on appeal that it was error to terminate those rights, and the parties with whom the father wanted his child placed were not parties to the appeal. (Id. at p. 235.) In a holding directly applicable here, the court held that the father lacked standing under such circumstances: "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. This rule does not support father's claim of standing to appeal because he did not contest the termination of his parental rights in the juvenile court. By thus acquiescing in the termination of his rights, he relinquished the only interest in [his children] that could render him aggrieved by the juvenile court's order declining to place the child[ren] with [his relatives rather than their foster parents]." (Id. at p. 238.)
Under K.C., father lacks standing to challenge the denial of his section 388 petition to have his children placed with his sister Heidi O., and his arguments to the contrary lack merit. He ignores the factual similarities between this case and K.C. and claims that because the court denied his section 388 petition before terminating his parental rights, he retained a fundamental interest in them at the time the petition was denied. True, parents retain a fundamental interest in their children until parental rights are terminated. (In re R.V. (2012) 208 Cal.App.4th 837, 848-849 [appeal from dispositional order].) But K.C. makes clear that where, as here, a section 388 petition regarding placement is denied at the same hearing where parental rights are terminated and no challenge is made to the termination, the parent lacks standing to challenge the denial of the placement decision because reversal would not change the decision on the termination of parental rights. (K.C., supra, 52 Cal.4th at p. 238.)
We disagree with father's argument that this case is akin to In re H.G. (2006) 146 Cal.App.4th 1. In H.G., the social services agency placed a child with her grandparents after reunification efforts with the child's parents failed, and the juvenile court terminated the parents' reunification services. (Id. at pp. 5-6.) The agency later filed a supplemental petition under section 387 and removed the child from her grandparents' care following allegations that the placement was no longer appropriate. (H.G., at pp. 6-7.) The juvenile court sustained the supplemental petition at a contested jurisdictional and dispositional hearing, then immediately proceeded to a selection-and-implementation hearing, terminated parental rights, and ordered a permanent plan of adoption. (Id. at pp. 7-8.) The Court of Appeal concluded that the parents had standing to challenge the juvenile court's findings and orders under section 387, because "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." (H.G., at p. 10.) Unlike in this case, the parents challenged on appeal the juvenile court's findings under section 366.26. (H.G., at p. 18.) In K.C., the Supreme Court derived from H.G. the rule that a parent has standing only if a placement order's reversal advances a parent's argument against the termination of parental rights. (K.C., supra, 52 Cal.4th at pp. 237-238.) Again, father does not challenge the termination of those rights.
Father relies on several other cases that also are distinguishable either because the party who was denied placement appealed (and thus an aggrieved person was a party to the appeal) or because the resolution of the placement issue had the potential to change the decision appealed from given that parental rights had not yet been terminated and the parent thus retained a fundamental interest in the dependent minor. For example, in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1030, both a parent and the relative who was denied placement (his mother) challenged the denial. The appellate court agreed that the father lacked standing but allowed him to support his mother's arguments (id. at p. 1035), thus granting him "a status loosely akin to that of amicus curiae." (K.C., supra, 52 Cal.4th at p. 239.) Here, as in K.C., "there is no appeal on the merits in which father might participate in a similar capacity." (Ibid.) In In re Esperanza C. (2008) 165 Cal.App.4th 1042, both a mother and her dependent minor appealed after the juvenile court denied placement with maternal relatives at a hearing that took place three months before mother's parental rights were terminated. (Id. at pp. 1050-1052.) The appellate court concluded that the mother had standing because placement of a child at that stage in the proceedings conceivably affected the appropriate permanency plan for the child and the parent's legal interests in the child. (Id. at pp. 1053-1054; see K.C., at p. 238 [distinguishing Esperanza C.]; In re A.S. (2012) 205 Cal.App.4th 1332, 1334, 1339-1340 [children were in long-term foster care and mother's parental rights thus had not been terminated when juvenile court entered placement order].) Again, by contrast here, Heidi O. did not appeal, and father does not challenge the termination of his parental rights (other than to say the termination should be reversed if the denial of his section 388 petition is reversed).
It was undisputed below that Heidi O. had a good relationship with her niece and nephew and that she regularly visited with them. The sole question we address here is whether father has standing in these circumstances to challenge the denial of his section 388 petition requesting that his children be placed with Heidi. We conclude that he does not.
III.
DISPOSITION
The order denying father's petition under section 388 and terminating his parental rights is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.