Opinion
A122558
10-30-2008
H.R., Petitioner, v. ALAMEDA COUNTY SUPERIOR COURT, JUVENILE DIVISION, Respondent ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Party in Interest.
Not to be Published
H.R., the father of R.R. and N.R. (the children), petitions for extraordinary relief pursuant to Welfare and Institutions Code section 366.26, subdivision (l), seeking review of an order setting a hearing on a permanent plan. He contends: (1) real party in interest failed to protect the childrens right to contact their paternal relatives; (2) the juvenile court abused its discretion in failing to place the children with their paternal grandparents; and (3) the court erred in declining to issue a protective order when the children were not returned from Russia. His arguments have no merit.
I. FACTS AND PROCEDURAL HISTORY
The proceedings in this matter are extensive and the subject of prior appeals. We set forth only the events most germane to this appeal.
A. Dependency Petition
In September 2006, the Alameda County Social Services Agency (Agency) filed a petition in the juvenile court, alleging that the children were within the jurisdiction of the court under Welfare and Institutions Code section 300. The Agency alleged that their mother N.R. had disappeared, and that their father H.R. had made "death threats to the mother and to the childrens safety in the past and there are concerns for the minors safety in the care of the father." The Agency removed the children from the mothers home and, in October 2006, H.R. was arrested for her murder.
Except where otherwise indicated, all statutory references are to the Welfare and Institutions Code.
In December 2006, the juvenile court approved the Agencys request to allow the maternal grandmother to take the children to Russia for the Christmas holidays. The children did not return by the appointed date of January 7, 2007.
B. Jurisdictional and Dispositional Order
After extended jurisdictional and dispositional hearings, the juvenile court on March 28, 2007, sustained the Agencys fourth amended petition, adjudged the children dependents of the court, removed them from parental custody, approved placement with the maternal grandmother in Russia, and limited H.R. and the paternal grandparents to contacting the children by letter through the Agency. H.R. appealed from the dispositional order (appeal number A117698).
C. Six-Month Review Order
Several review proceedings were held pursuant to section 366.21, subdivision (e). In regard to the six-month review, the juvenile court in August 2007 continued out of home placement, finding among other things that such placement was necessary and appropriate, the Agency had complied with the case plan, and reasonable services had been provided or offered to H.R. The court also ordered that the children be returned from Russia for further evaluation (Transportation Order) and reserved jurisdiction to determine whether reunification services for H.R. would be deemed to commence only upon their return.
The minors appealed, challenging the Transportation Order and the order reserving jurisdiction; H.R. appealed, challenging the juvenile courts findings that he received reasonable reunification services, the return of the children would create substantial risk of harm to them, and their placement in Russia was necessary and appropriate.
D. H.R.s Request for Change of Placement
In February 2008, H.R. asked the juvenile court to order a return of the children to Alameda County, a change in placement from the maternal grandmother to paternal relatives, and visitation with H.R. As to returning the children and placing them with paternal relatives, the court ruled that H.R. failed to make the prima facie showing required for a hearing. The court granted a hearing on the visitation issue, after which it denied H.R.s request. H.R. did not seek appellate review.
E. 12-Month and 18-Month Review Hearing
The 12-month review hearing commenced in October 2007 and, combined with the 18-month review hearing, continued until June 2008.
The court considered numerous Agency reports and the evidence presented by the parties. Among other things, the Agency continued to favor placement with the maternal grandmother in Russia, noting the children were making positive adjustments, adapting well, and continuously expressing a desire to remain with their maternal grandmother. In a January 2008 report of the Agency, the child welfare worker noted the receipt of letters from paternal relatives requesting consideration for placement, but noted that the Agency was not contemplating a change of relative placement due to the childrens stability in Russia and their desire to remain with their maternal grandmother.
In April or May 2008, the Agency asked the court to terminate reunification services for H.R. and terminate his contact with the children, on the ground that he had been convicted of the first degree murder of their mother.
F. Affirmance of Sixth-Month Review Order
Meanwhile, in March 2008, we issued our opinion in appeal number A118904. We ruled that the childrens challenges to the juvenile courts orders after the six-month review, including the Transportation Order, were unripe. As to H.R.s cross-appeal, we held that substantial evidence supported the juvenile courts findings of reasonable services, substantial risk of harm to the children if they were returned, and the propriety of out-of-home placement.
G. Affirmance of Dispositional Order
In June 2008, we filed our opinion in appeal number A117698, in which H.R. had challenged the dispositional order. We rejected H.R.s contentions that the court erred in proceeding to jurisdiction and disposition while the children remained in Russia, placing the children with the maternal grandmother in Russia, and denying him visitation while he was incarcerated.
H. 12-Month and 18-Month Review Order
On August 4, 2008, the juvenile court issued written "12 Month and 18 Month Findings and Orders," which included findings that: the out-of-home placement of the children was necessary and appropriate; the Agency complied with the case plan by making reasonable efforts to return the children to a safe home and to complete steps necessary to finalize their permanent placement; there was clear and convincing evidence that reasonable services had been provided; the court had considered the extent to which the parties had availed themselves of services and attempted to alleviate or mitigate the causes necessitating placement, and H.R. had made only minimal progress in this regard; and the return of the children would create a substantial risk of detriment to their safety, protection and physical or emotional well-being.
The court terminated reunification services, finding there was no substantial probability of return to H.R. during the statutory period, since he was incarcerated and convicted of the first degree murder of the childrens mother. The court further found that the permanent plan of termination of parental rights and adoption was appropriate. In addition, the court denied visitation to H.R. on the grounds it would be detrimental to the children. A section 366.26 hearing was set for November 13, 2008.
This petition followed.
II. DISCUSSION
H.R. seeks extraordinary relief from the juvenile courts order setting a section 366.26 hearing. "When the juvenile court at the 12-month or 18-month status review hearing orders the termination of reunification services, the court must set the matter within 120 days for a section 366.26 hearing to select and implement a permanent plan at which time parental rights may be terminated." (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1506.) Thus, in reviewing an order setting a section 366.26 hearing after the 12- or 18-month review hearing, the central question is whether the court erred in terminating reunification services.
Overwhelming evidence supports the juvenile courts finding that there was no reasonable probability the children could be returned to H.R.s custody within the statutory 18-month period, and that reunification services should therefore be terminated: H.R. had made only minimal progress on the case plan and, moreover, he is in prison for the murder of the childrens mother.
H.R. does not express any direct challenge to the termination of reunification services. Broadly viewed, his arguments touch upon the issue by challenging the juvenile courts finding that there was no reasonable probability the children could be returned to H.R.s custody within the statutory period, by insisting the Agency did not protect the childrens right to paternal contact, including paternal relatives besides H.R. His argument, much of which we rejected in prior appeals, has no merit whatsoever.
A. Childrens Contact With Paternal Relatives
H.R. provides no legal authority or substantive argument to support his contention that the Agency failed to protect the childrens interest in maintaining contact with their paternal relatives, other than to proclaim "[t]he erosion of the right of the paternal side of the family to have contact with the children started when the court did not properly assess the paternal family for placement." The issue of placement we revisit next. To the extent H.R. suggests there is some other way the court failed to protect the childrens interest in contacting their paternal relatives, we reject his contention based on our appropriate review of the record and his failure to muster any support for such a proposition.
B. Placement With Maternal Grandmother
H.R. contends the court abused its discretion in declining to place the children with the paternal grandmother in Oakland, where the children had friends and attended school. He notes that the paternal grandmother requested placement in September 2006, and in November 2006 the paternal grandfather indicated he would like to be considered as the childrens guardian if H.R. was convicted. Nonetheless, H.R. complains, the court approved placement of the children with the maternal grandmother in Russia on March 28, 2007, and limited the paternal relatives contact with the children to letters. H.R. contends the "agency has continually disregarded the paternal relatives[] request to participate in these minors [sic] lives," and "[t]his is a total abuse of discretion," but he provides neither legal authority nor substantive argument for his assertion.
The law favors placing children removed from their parents custody with a relative. (Fam. Code, § 7950, subd. (a)(1).) "Preferential consideration" is given to adults relatives who are grandparents, aunts, uncles or siblings of the children. (Welf. & Inst Code, § 361.3, subd. (c)(2).). Where more than one such relative requests preferential consideration, each is considered by the agency in light of factors such as the: (1) bests interests of the child, including any special physical, psychological, educational, medical or emotional needs; (2) wishes of the parent, relative and child; (3) placements of other siblings; (4) relatives good moral character; (5) duration and nature of relationship with the relative; (6) relatives ability to provide a safe, secure, and stable environment; (7) relatives ability to facilitate implementation of the case plan and provide for legal permanence if reunification fails; (8) relatives ability to arrange for safe and appropriate child care; and (9) safety of the relatives home. (Welf. & Inst Code, § 361.3, subd. (a), (b); see also § 361.3, subd. (d).)
The dispositional order of March 28, 2007, which placed the children with the maternal grandmother, has already been affirmed. In appeal number A117698, we held that the juvenile court could reasonably conclude that placing the children with the maternal grandmother was in the childrens best interests. We rejected H.R.s arguments that the placement with the maternal grandmother impaired his ability to visit and ultimately reunify with them: "the court declined to order visitation not because the children were in Russia, but because appellant was in a maximum security jail pending his trial for murdering [N.R.]." We also rejected H.R.s geographic arguments based on the paternal grandparents residence in Oakland.
Furthermore, in appeal number A118904, we affirmed the juvenile courts decision at the six-month review hearing in August 2007 to maintain placement with the maternal grandmother, as well as its finding that the placement was necessary and appropriate.
H.R. does not assert any subsequent change of circumstances requiring the Agency, the juvenile court, or this court to consider a change of placement. He notes that, on November 28, 2007, the Agency received a request from a paternal great aunt and paternal cousin for placement and guardianship of the children. This request was brought to the juvenile courts attention in connection with H.R.s section 388 petition in February 2008, which sought a change of placement to a paternal relative. On March 7, 2008, the juvenile court rejected that portion of his section 388 motion for failure to make a prima facie showing. H.R. did not seek appellate review of that order. Nor does he demonstrate any error in the courts ruling.
C. Protective Order
Lastly, H.R. contends the court abused its discretion in failing to issue a protective order or warrant for the childrens return from Russia.
This issue was also decided in our review of the dispositional order in appeal number A117698. We stated: "Appellant contends that when the court learned [the maternal grandmother] was keeping the children in Russia it should have immediately ordered her arrest under sections 338 and 339, and issued protective custody warrants for [the children] under section 340. However, each of the powers appellant has identified is discretionary. [Citations.] Given the significant benefit that [the children] were experiencing because of their [maternal] grandmothers efforts, we cannot conclude the court abused its discretion when it declined to order [the maternal grandmothers] arrest or to issue a protective custody warrant." (Footnotes omitted.)
In sum, there is no indication that the purported "erosion of paternal contact" derives from any abuse of discretion by the juvenile court or untoward action by the Agency, let alone that it compels reversal of the courts order setting the section 366.26 hearing.
Counsel for the children opines that the erosion of paternal contact derives from the fact that H.R. "murdered the [childrens] mother, hid her body in an unmarked grave, denied knowledge of her whereabouts, slandered her to the children and put his children as well as the extended family, including his own mother and father, aunts, and cousins, and the entire paternal family through the spectacle, trauma, and expense of an infamous, highly publicized protracted criminal proceeding." In resolving the petition at hand, it is sufficient for us to say that H.R.s petition has no merit whatsoever.
III. DISPOSITION
The petition is denied.
We concur:
SIMONS, Acting P. J.
DONDERO, J.