Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. Super. Ct. No. EJ3093B
HALLER, J.
Richard N. and Lacey R. (together, the parents) appeal following the termination of their parental rights to Jesse R. The parents' sole contention is that the juvenile court erred by denying Richard's modification petition (Welf. & Inst. Code, § 388), which requested Jesse's placement with a paternal aunt. We conclude the parents lack standing and dismiss the appeals.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
In August 2009, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for newborn Jesse. Lacey reported that Jesse W. was Jesse's father, and the petition named Jesse W. as an alleged father. The petition did not mention Richard. The petition alleged there was domestic violence between Lacey and Jesse W.; in July 2008, Lacey was convicted of battery; she had a history of substance abuse; and Lacey and Jesse W. had not complied with their substance abuse and domestic violence treatment programs.
After being released from the hospital, Jesse spent six days in a foster home. He was then detained in the home of Jesse W.'s parents, the W.'s. The W.'s wished to adopt Jesse if his parents did not reunify with him.
The W.'s were the caretakers of Lacey's older son, Jeremy R., who was a juvenile court dependent. By the time of the hearing on Richard's section 388 petition and the section 366.26 hearing, the W.'s adoption of four-year-old Jeremy had been finalized.
In late August 2009, Lacey told the Agency that Brandon L. might be Jesse's father. In September, the court ordered paternity testing. Lacey did not appear for testing as ordered, and in October the court ordered a "motherless draw." Test results received that month showed that neither Jesse W. nor Brandon was Jesse's biological father.
In November 2009, the court entered a true finding on Jesse's dependency petition. The court ordered him placed with the W.'s as nonrelative extended family members.
In April 2010, the Agency reported Lacey had stated to unnamed persons that Richard was Jesse's father. In May, the court ordered further paternity testing. Test results received in late May showed that Richard was Jesse's biological father. In June, the court amended the dependency petition to reflect Richard's status as the biological father.
At the time the Agency learned of Lacey's statements, Richard, a known methamphetamine user, was awaiting sentencing for first degree murder.
On August 11, 2010, at the pretrial status conference for the six-month review hearing, Richard's counsel requested an evaluation of the paternal aunt's home pursuant to the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). The court granted the request. On August 19, at the six-month review hearing, Richard's counsel noted the court had authorized an ICPC, and requested "that that continue." Counsel clarified this was "only intended as a backup should anything happen to the current placement, " and Richard would not request Jesse's removal at the section 366.26 hearing if the W.'s were still able to care for him. The court said it believed the ICPC process was underway. The court denied Richard's request for reunification services, terminated Lacey's services and set a section 366.26 hearing.
The paternal aunt lived in Georgia. In 2008, she had adopted another son of Richard's.
On November 3, 2010, the paternal aunt told the social worker she had received a letter from Richard stating he wanted "blood relatives, " not the W.'s, to adopt Jesse. The paternal aunt said she would decide whether to be evaluated for Jesse's placement after she heard from Richard again. On November 3 or 4, Richard told the social worker that he wanted his relatives, not the W.'s, to adopt Jesse. On November 10, the paternal aunt told the social worker she and her husband wished to adopt Jesse. On November 16, the social worker submitted a request to have the paternal aunt's home evaluated pursuant to the ICPC.
On December 14, 2010, the date originally set for the section 366.26 hearing, Richard's counsel announced that Richard intended to file a section 388 petition. Richard's counsel repeated that her August request for an ICPC evaluation of the paternal aunt's home had been "intended as a backup plan, " and noted the ICPC had not been started until November 16. The court ordered the Agency "to continue to pursue" the ICPC.
On January 25, 2011, Richard filed his section 388 petition. The petition asked the court to vacate the order placing Jesse with the W.'s as nonrelative extended family members and to order Jesse placed with the paternal aunt. On January 31, the court set an evidentiary hearing on the petition and granted the W.'s request for de facto parent status. By April 6, the paternal aunt's home study had been approved.
The sections 366.26 and 388 petition hearing took place on April 27, 2011. At the hearing, Richard's counsel stated that if the court granted Richard's section 388 petition and "designated [the paternal aunt] to adopt Jesse, " Richard would not object to termination of his parental rights. Otherwise, Richard asked that his parental rights not be terminated, and the court order a permanent plan of guardianship or another planned permanent living arrangement. Lacey's counsel said he had not been able to contact Lacey recently; their last contact was at the section 366.26 hearing for her other son. At that time, Lacey opposed a permanent plan of adoption and requested a lesser plan such as guardianship. Counsel believed Lacey would prefer that Jesse be adopted by the paternal aunt rather than remaining with the W.'s. The parents did not offer any justification for a lesser permanent plan, contest Jesse's adoptability or argue for the application of any exception to termination of parental rights (§ 366.26, subd. (c)). The court denied Richard's section 388 petition and terminated parental rights.
DISCUSSION
In In re K.C. (2011) 52 Cal.4th 231, the juvenile court denied the grandparents' section 388 petition which sought the child's placement with the grandparents. (Id. at pp. 234-235.) At the same hearing, the court terminated parental rights. (Id. at p. 234.) In the juvenile court, the father argued the child should be placed with the grandparents. (Id. at p. 235.) He did not, however, "offer[] any argument against terminating... parental rights" (ibid.); that is, he did not argue for the application of any exception to termination (id. at p. 237).
The father in In re K.C., supra, 52 Cal.4th 231 filed a notice of appeal from the order denying the grandparents' section 388 petition and the judgment terminating parental rights. (Id. at p. 235.) The father did not contend the court erred by terminating his parental rights, that is, that any exception applied. (Id. at pp. 234-235, 237.) Rather, he "limited his argument to the question of K.C.'s placement and contended that, should the Court of Appeal reverse the placement order, the court should also reverse the judgment terminating parental rights to restore the parties to their prior positions. [Citations.] The Court of Appeal, reasoning that father was not aggrieved by the placement decision because it could not be shown to affect his parental rights, dismissed father's appeal." (Id. at p. 235.) The California Supreme Court stated that because the father did not contend the judgment "terminating his parental rights was improper in any respect[, ]... he ha[d] no remaining, legally cognizable interest in K.C.'s affairs, including his placement...." (Id. at p. 237.) The Supreme Court concluded the father lacked "standing to appeal the order concerning placement" (id. at p. 234), and the fact that he had joined in the grandparents' section 388 petition and actively litigated it did not change this result (id. at p. 239). The Supreme Court affirmed the judgment of the Court of Appeal (id. at p. 240), distinguishing the cases on which the father relied, In re Esperanza C. (2008) 165 Cal.App.4th 1042 and In re H.G. (2006) 146 Cal.App.4th 1.
The grandparents' appeal was dismissed as untimely. (In re K.C., supra, 52 Cal.4th at pp. 235, 239.)
In re Esperanza C., supra, 165 Cal.App.4th 1042, the mother filed a section 388 petition after the dispositional hearing, at which the court had set a section 366.26 hearing. (Id. at pp. 1049-1051.) The section 388 petition sought placement with relatives and review of the Agency's denial of a criminal records exemption for one of the relatives. (Id. at p. 1051.) The juvenile court denied the section 388 petition and the mother appealed. (Id. at p. 1049.) While the appeal was pending, the juvenile court terminated parental rights, and this court took judicial notice of that judgment. (Id. at pp. 1051-1052.) The mother did not contest the termination but, in response to a mootness argument, contended that reversal on the section 388 issue required reversal of the termination judgment in order to provide effective relief. (Id. at pp. 1054, 1061.)
Our court rejected the mootness argument (In re Esperanza C., supra, 165 Cal.App.4th at p. 1055), and agreed reversal of the termination judgment was required, under the circumstances of the case, so the juvenile court could exercise its independent judgment to consider the relatives for placement despite the criminal history (id. at pp. 1061-1062). Resolving doubts in the mother's favor, we concluded she had standing and until termination of parental rights, she retained "a fundamental interest in... her child's companionship, custody, management and care." (Id. at pp. 1053-1054.) Our court noted "that placement of a child with a relative has the potential to alter the juvenile court's determination of the child's best interests and the appropriate permanency plan for that child, and may affect a parent's interest in his or her legal status with respect to the child." (Id. at p. 1054.)
In In re H.G., supra, 146 Cal.App.4th 1, the parents appealed a section 387 order removing the child from the grandparents' care and also appealed the immediately ensuing termination of parental rights. (Id. at pp. 4, 8-9.) Our court determined the juvenile court had failed to comply with sections 387 (id. at p. 18) and 361.3 (relative placement) (id. at pp. 16-17). We also concluded the parents had standing because parental rights had not been terminated and a section 387 placement decision could affect the choice of a permanent plan (id. at pp. 9-10), and noted reversal of the section 387 order necessitated reversal of the termination judgment (id. at pp. 4, 18).
In In re K.C., supra, 52 Cal.4th at page 238, the California Supreme Court stated: "From [In re Esperanza C., supra, 165 Cal.App.4th 1042 and In re H.G., supra, 146 Cal.App.4th 1] we derive 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. 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 K.C. that could render him aggrieved by the juvenile court's order declining to place the child with grandparents."
In re K.C., supra, 52 Cal.4th 231 requires the conclusion that there is no standing in the instant case. Reversal of the order denying Richard's section 388 petition would not advance an argument against termination of parental rights. The parents did not contest the termination of their parental rights in the juvenile court, thus acquiescing in the termination and "relinquish[ing] the only interest in [Jesse] that could render [them] aggrieved by the juvenile court's order declining to place" Jesse with the paternal aunt. (Id. at p. 238.) Moreover, on appeal the parents do not point to any error in the termination judgment. Thus, they lack standing to appeal the denial of the section 388 petition which concerned Jesse's placement. We therefore dismiss the appeals.
Richard contends that In re K.C., supra, 52 Cal.4th 231 is distinguishable because in that case the grandparents filed the section 388 petition, not the appellant father. This contention lacks merit in light of the fact that the father in In re K.C. "joined in grandparents' [section 388 petition] and took an active part in litigating the [petition] in the juvenile court." (Id. at p. 239.)
DISPOSITION
The appeals are dismissed.
WE CONCUR: McCONNELL, P. J. IRION, J.