Opinion
E066923
05-03-2017
In re D.S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. W.P., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J265553) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
At a contested jurisdiction/disposition hearing, the juvenile court removed D.S. (child) from his parents, found there were no relative able and willing to provide a concurrent planning home for him, placed him in the care of Children and Family Services (CFS), and ordered services for father, but not mother. Mother appeals, contending the court failed to consider relative placement according to Welfare and Institutions Code section 361.3 and her child was denied the effective assistance of counsel. We affirm.
Father is not a party to this appeal and will only be referenced as needed.
All further statutory references are to the Welfare and Institutions Code.
Mother also petitions for writ of habeas corpus in case No. E067253. We ordered the writ petition considered with this appeal and will address it by separate order.
I. PROCEDURAL BACKGROUND AND FACTS
On May 19, 2016, CFS received an immediate response referral alleging that mother had a baby, that "several drug addicts" were coming to the house, and that the house had no electricity or gas and was being rebuilt. It was further reported that pit bull dogs had died in the home and were placed in trash cans, the home smelled very bad, and the trash was not being picked up. The responding police officers and social worker observed the home to be in "bad shape," with trash and dog feces all over, holes in the floor, and construction occurring throughout the home. Mother was arrested on an outstanding warrant and told the social worker that father had been deported to Mexico on May 18, 2016. Paternal cousin, L.P., called CFS and stated that her mother, M.P. (paternal aunt) was willing to care for the child. L.P. admitted knowing about the conditions in which the child was living; however, she failed to report the situation due to her fear of mother. M.P.'s home could not be approved on an emergency basis due to limited space.
On May 23, 2016, CFS filed a petition on behalf of the child pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petition alleged that mother and father engaged in domestic violence; mother had an unstable lifestyle, suffered from substance abuse, lived in a cluttered and unsuitable home, and had failed to reunify with the child's half sibling. At the detention hearing, the child was formally removed and placed in a foster home. Mother's counsel indicated there was a "nonrelated extended family member" to be assessed for placement.
The jurisdiction/disposition report filed on June 15, 2016, recommended that the juvenile court sustain the petition, not authorize reunification services, and set a section 366.26 hearing with a plan of adoption or guardianship. The social worker interviewed mother, who admitted that she would test positive for methamphetamine. She stated that her other child was removed from her care in 2012 when she was arrested and did not pick him up from school. She admitted that she did not complete the reunification services previously offered to her and her parental rights were terminated in 2013. Mother requested that her boyfriend's mother be assessed for placement; however, the social worker expressed concern that this person owned the home from which the child was removed, had only known the family a few months, and was not related to the child. The social worker notified L.P. about the jurisdiction/disposition hearing, and L.P. indicated she would gather the necessary information to be assessed for placement. The social worker left a message with L.P. for the paternal aunt, requesting a call back. An assessment of the paternal family was pending upon receipt of the information from L.P.
The jurisdiction/disposition report and the Declaration of Due Diligence (searching for father) included pictures of the home.
On June 22, 2016, CFS reported that father was located in Mexico and wanted the child placed in his care. CFS sought a continuance of the jurisdiction/disposition hearing to speak with father, assess his home, and arrange reunification services in Mexico. At that time there were no known maternal or paternal relatives available for a concurrent planning home placement due to insufficient information. On June 22, 2016, the court authorized relative visitation and continued the matter.
On July 6, 2016, CFS requested judicial notice of the findings and orders of the juvenile court in the case involving mother's older child. On August 1, 2016, CFS filed an amended petition adding allegations concerning father. On the next day, CFS provided further information to the juvenile court regarding father. Father informed the social worker that he was able to care for his child, as he had a home and employment in Mexico. He explained that the domestic violence with mother was mutual because they fought over infidelity. When he told mother that she could not use drugs if she wanted to remain with him, mother left with the child and prevented him from seeing the child. A home study for father was pending.
The contested jurisdiction/disposition hearing was held on September 13, 2016. The social worker's reports were admitted into evidence without objection; however, mother's counsel objected to the jurisdiction/disposition findings in general. The juvenile court sustained the allegations in the amended petition and found that the child came within section 300, subdivisions (b) and (j). Reunification services were ordered for father, but not mother.
II. DISCUSSION
Mother appeals the jurisdiction/disposition order on the ground that the juvenile court and CFS failed to comply with the requirements of section 361.3 in evaluating the placement request by the paternal aunt, because CFS never assessed her as it stated it would, and made inconsistent recommendations (no known relatives were available, or able and willing to care for the child, and CFS would continue to assess the home). Noting that "between May and September, no relative placement assessment was reported," mother asserts the child's counsel was ineffective in failing "to require [CFS] to evaluate relatives," and in failing "to conduct its own investigation regarding the relatives, while recognizing that the relatives' visitation was in the child's best interests." She also raises this issue in her petition for writ of habeas corpus in case No. E067253 (see fn. 3, ante). Mother lacks standing.
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 . . . ." (§ 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., CFS) in determining whether a placement is appropriate, although consideration is not limited to the specified factors. (§ 361.3, subds. (a)(1)-(a)(8).) --------
A. Mother Lacks Standing to Raise the Issue of Compliance with Section 361.3.
"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.]" (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).) In K.C., the California Supreme Court held the father did not have standing to object to his child's placement because he was not an aggrieved party. The child in K.C. was removed from the parents and placed with a prospective adoptive family. (Id. at p. 234.) 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. (K.C., supra, at p. 235.) 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. (Ibid.) The K.C. court held the father had no standing to appeal the denial of the grandparents' section 388 petition because the father 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 grandparents." (K.C., supra, at p. 238, fn. omitted.)
In In re Jayden M. (2014) 228 Cal.App.4th 1452, the court similarly held the parents did not have standing to appeal under section 361.3, which gives preferential consideration to a relative request for placement. The Jayden M. court concluded the parents had no standing to appeal relative placement preference issues once their reunification services were terminated. Only the relative requesting to be considered for relative placement could contest denial of the child's placement with the relative. (Jayden M., supra, at p. 1460, citing Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 (Cesar V.).)
Likewise, in Cesar V., the court held the grandmother, but not the father, had standing to raise the relative placement preference issue. The court explained: "Especially in light of his stipulation to terminate reunification services, we cannot see how the denial of placement with [the grandmother] affects his interest in reunification with the children. It does not preclude [the father] from presenting any evidence about the children's best interests or their relationship with him. [Citations.] 'An appellant cannot urge errors which affect only another party who does not appeal.' [Citation.]" (Cesar V., supra, 91 Cal.App.4th at p. 1035, fn. omitted; cf. In re Daniel D.[(1994) 24 Cal.App.4th 1823, 1833-1834 [although untimely, mother had standing to challenge denial of relative placement preference before termination of reunification services where such placement may have affected her chances at reunification].)
Applying the above, we conclude mother lacks standing. At the contested jurisdiction/disposition hearing, mother generally objected to the recommendation to deny her reunification services, but she did not offer any evidence or argument to oppose the recommendation. Other than appearing at the initial detention hearing and appearing late to the initial jurisdiction/disposition hearing, mother was absent from all further proceedings and made little or no attempt to gain the opportunity to reunify with the child. Mother failed to make any showing that she would have benefited if the paternal aunt was given relative placement preference. Indeed she concedes that she "is not currently a candidate to get placement of her son . . . ." Therefore, there is no evidence that mother was injuriously affected by the alleged failure to comply with section 361.3.
B. Mother Lacks Standing to Raise the Issue of Ineffective Assistance of Child's Counsel.
Mother lacks standing to raise the issue of the alleged ineffective assistance of another party's counsel. (Cf. In re Joshua M. (1997) 56 Cal.App.4th 801, 807 ["We are unaware of any authority for the proposition that one parent can claim ineffective assistance of the other parent's counsel when the other parent has not appealed. Indeed, the general rule is that '"an appellant cannot urge errors which effect only another party who does not appeal."'"].) Even if we consider the issue on its merits, we reject it because there is no evidence that counsel was incompetent or that mother was prejudiced by the claimed deficiencies of counsel who represented the child's interests.
"A parent seeking review of a claimed violation of section 317.5 must show a violation of the statute, i.e., that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) "The parent must also establish that the claimed error was prejudicial. . . . Thus, the parent must demonstrate that it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Id. at p. 1668.)
According to the record, CFS attempted to gain sufficient information to evaluate the paternal family for placement. Mother faults CFS for failing to act timely; however, the timing of a relative assessment is dependent upon the relative providing CFS with the necessary information. The social worker was in contact with a paternal cousin, who "indicated she would gather the necessary information to be assessed for placement." While awaiting that information, the social worker was aware that the paternal cousin and aunt had no contact with father. Once CFS learned of father's location in Mexico, arrangements were made with social services in Mexico to assist in providing reunification services for father. Given the status of CFS's actions, we do not find that the child's counsel failed to act in a manner to be expected of a reasonably competent attorney practicing in the field of juvenile dependency law. Regarding prejudice, mother concedes that she "is not currently a candidate to get placement of her son . . . ." While she asserts that counsel should have required CFS to evaluate relatives or conducted her own investigation regarding relatives, mother is unable to show how she would have benefitted from counsel's actions.
Because mother is unable to show that she was injuriously affected by the alleged failure to comply with section 361.3 or the alleged ineffectiveness of the child's counsel, we reject her claims on appeal.
III. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.