Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. Nos. JV 23774; JV 23775
McGuiness, P.J.
Angela F. and Rosario M. appeal from juvenile court orders filed on May 1, 2007, that denied their separate Welfare and Institutions Code section 388 petitions to vacate orders denying reunification services for their children, and terminated their parental rights pursuant to section 366.26. The parents challenge the orders on various grounds, none of which warrants reversal. Accordingly, we affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS
A. Background
Angela F. is the mother, and Rosario M. is the presumed father, of Adrian and Lilly. On June 2, 2006, the Marin County Department of Health and Human Services (the Department) filed a dependency petition on behalf of Adrian and Lilly, who were then three years old and two years old, respectively. The petition alleged, in relevant part, that the children had suffered or there was a substantial risk that the children would suffer serious physical harm or illness as a result of Angela’s failure to provide proper supervision and to protect the children due to driving under the influence of drugs or alcohol with the children in the car, allowing Adrian to wander the streets alone, and failing to keep medical appointments and attend to the children’s special educational needs. (§ 300, subd. (b).) Additionally, the petition alleged that two other children had been removed from Angela’s custody due to a similar pattern of abuse and neglect, and parental rights to those children were terminated in 1998. (§ 300, subd. (j).) The petition alleged that Rosario had been deported to Mexico and his whereabouts were unknown.
On June 5, 2006, the juvenile court directed the Department to detain the children, who were placed together in a licensed foster care home. The court appointed separate counsel for Angela, Rosario, and the children. Rosario’s whereabouts were still unknown. Angela was directed to give the Department all the available information she had to locate Rosario. Angela was granted supervised visitation with the children.
At the jurisdiction hearing on July 25, 2006, neither Rosario nor his counsel were present. Angela did not contest the allegations in the petition. The juvenile court found Adrian and Lilly were dependent children under section 300, subdivisions (b) and (j).
A contested disposition hearing was held on August 8, 2006, and August 31, 2006. In his absence, Rosario was declared the children’s alleged father. The children were removed from the custody of Angela and Rosario after the juvenile court found by clear and convincing evidence that the children would suffer substantial danger to their physical health if they were returned home. As recommended by the Department, the court denied reunification services to Angela because she had previously failed to reunify with the children’s half-siblings (§ 361.5, subd. (b)(10)), and to Rosario because his location was unknown despite a diligent search (§ 361.5, subd. (b)(1)). Angela was granted supervised visits with the children. The matter was scheduled for a section 366.26 hearing on December 12, 2006, to establish permanent plans for the children.
Section 361.5, provides, in relevant part, that “[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence,” “[t]hat the whereabouts of the parent . . . is unknown,” or “the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent . . . .” (§ 361.5, subds. (b)(1), (10).)
On September 6, 2006, Rosario first spoke with the Department’s social worker concerning the children. The Department social worker told him about the bypass hearing. Rosario explained that he wanted to return to Marin County but because he had been deported from the United States, he would have to do so illegally. The Department social worker gave Rosario her telephone number. Although Rosario agreed to stay in touch with the Department, and despite a phone message left for him by the Department social worker on October 6, he did not contact the Department again.
On November 13, 2006, Angela reported to the Department social worker that Rosario had returned to the United States and was being held under an alias in the Marin County jail. Although Rosario had been in this country at least since his arrest on November 1, 2006, he made no efforts to contact the Department social worker. The Department social worker visited Rosario in jail and informed him of the upcoming section 366.26 hearing and his right to appear with an attorney, and she gave him contact information for Legal Aid. Rosario said he wanted his children but he was under an immigration hold and he would soon be deported back to Mexico.
Rosario had 12 AKA’s in his criminal history record with the FBI.
On November 21, 2006, the juvenile court appointed new counsel to represent Rosario, and scheduled a hearing on his legal status. On November 28, 2006, the court found Rosario to be the presumed father of the children. Although Rosario remained in custody, he was granted one hour weekly visits with the children to be facilitated by the Department and the county jail officials. The section 366.26 hearing that had been scheduled for December 12, 2006, was vacated, and the matter was scheduled for a new disposition hearing on January 9, 2007, on the issue of whether Rosario should be offered reunifications services.
The Department filed a report in advance of the January 9, 2007, hearing. The social worker noted that Rosario, a Mexican citizen, had been arrested in November 1998 on drug-related charges. He pleaded guilty to transporting/selling a narcotic/controlled substance and possession/purchasing cocaine base for sale. He was sentenced to ten months in jail, and then deported to Mexico. He was ordered to check in with his probation officer monthly in writing if he was deported, and he was not to re-enter the United States without proper authorization.
Rosario, Angela, and maternal relatives reported that Rosario was present in the household when Adrian was born in September 2002, when Lilly was born in September 2003, and until December 2005. Maternal relatives also reported that Rosario worked a lot and appeared to be the sole money earner, leaving much of the parenting to Angela.
As to Rosario’s circumstances, the Department social worker reported that while Rosario was on his way to Mexico in December 2005, he was arrested for re-entry after deportation as he attempted to cross the Texas border into Mexico. Rosario reported that he was sentenced to eight months in a Texas jail, served his sentence, and was then deported to Mexico. Rosario returned to the United States, was arrested on November 1, 2006, and sentenced to four months in jail based on a violation of his probation in the earlier drug possession case. He was to be released from jail on January 19, 2007, at which time he would be held by ICE (Immigration and Custody Enforcement) and then deported to Mexico.
ICE was formerly the Immigration and Naturalization Service (INS).
The Department’s report also detailed Rosario’s plans for the children. On September 6, 2006, Rosario stated that he intended to return to the United States and have the children with him. He admitted his plan was problematic because it meant he would be in this country illegally. After his return to this country and his incarceration in Marin County, on December 11, 2006, Rosario told the Department social worker that he wanted the children to live with his mother in Mexico in the interim while he was being deported. He gave the Department social worker two telephone numbers to call his relatives, but both numbers were wrong. On December 27, 2006, Rosario told the Department social worker that he hoped Angela could bring the children to Mexico, or that the Department would send the children to Mexico. Rosario gave the Department social worker two other telephone numbers to call his family in Mexico. The Department social worker spoke on the telephone with Rosario’s sister in Mexico. The sister indicated they would like the children to live with them in Mexico, and would like someone to assess their home for a possible placement.
In its relative placement assessment, the Department social worker noted that the children’s paternal aunt had expressed interest in having the children placed with her and their family in Mexico. The aunt, two sisters, and their parents lived in the same household. The Department recommended that the court rule out placement of the children with their paternal Mexican relatives, noting that the children had never met these family members, and the last time their paternal aunt spoke to them on the telephone was a year before when the children were toddlers and did not speak Spanish. The children were American born citizens, who did not speak Spanish and, indeed, were just learning the English language. If the children moved to Mexico, it would be difficult for them to maintain their strong relationships with their maternal grandmother and great-aunt. As part of the Department’s obligation to concurrently plan for the permanent placement of the children, the social worker had found the children prospective adoptive parents, who had adopted the children’s half-siblings eight years earlier. The children had regular telephone contact with the prospective adoptive parents, who lived in Arizona, and had met one time. The adoptive parents were willing to help maintain the children’s connection with their maternal relatives provided the relatives were able and willing to maintain regular and consistent contact with the children.
At the beginning of the January 9, 2007 hearing, the court heard argument from counsel regarding the issues to be resolved at that time. Rosario’s counsel confirmed that he was only seeking reunification services, and not either custody of the children or to change the children’s placement at that time. The court heard testimony from the Department’s social worker and both parents. The court found by clear and convincing evidence that providing reunification services for Rosario would be detrimental to the children, pursuant to the first paragraph of subdivision (e) of section 361.5. The court found that any findings regarding the children’s placement with their paternal relatives in Mexico were not necessary or applicable because the matter was post disposition and reunification. The court allowed Rosario supervised visits with the children one hour per week. Although a section 366.26 hearing was scheduled for February 6, 2007, the matter was continued for several months for various reasons.
Section 361.5, subdivision (e), paragraph (1), provides, in relevant part: “If the parent . . . is incarcerated . . ., the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, . . . the nature of the crime . . ., the degree of detriment to the child if services are not offered, . . . and any other appropriate factors.”
On January 16, 2007, Rosario unsuccessfully petitioned this court for writ review of the January 9, 2007 order, challenging the denial of reunification services on the ground of detriment to the children. We concluded that the juvenile court’s finding of detriment was supported by substantial evidence establishing the children’s need for stability, the weakness of their parental bond with Rosario, the uncertain length of Rosario’s incarceration in the local jail, and the logistical impossibility of providing meaningful services after Rosario was remanded to federal custody and later deported to Mexico. (Rosario M. v. Superior Court (Mar. 29, 2007, A116632) [nonpub. opn.] at p. 7.)
B. Section 388/Section 366.26 Proceedings
On May 1, 2007, the date scheduled for the section 366.26 hearing, both parents appeared and asked the court to consider separately their third section 388 petitions by which they sought to change the court’s prior orders denying them reunification services.
One month before the May 1, 2007, hearing, each parent filed two section 388 petitions seeking to change the juvenile court’s orders denying reunification services. The court denied both of Angela’s petitions without hearings on the ground that there was no showing that it would be in the best interests of the children to change the court’s order. The court denied Rosario’s petitions without hearings on the ground that the first request did not show new evidence or a change of circumstances, and the second request did not show new evidence or a change of circumstances or that it would be in the best interests of the children to change the court’s order.
In her third section 388 request, Angela asked for reunification services for six months on the ground that she had entered drug rehabilitation treatment and it would be in the best interests of the children if she were granted six months of services to reunify with the children.
The court denied Angela’s section 388 petition without an evidentiary hearing, concluding there was no prima facie showing of either a meaningful change of circumstances or that offering her another six months of reunification services would serve the best interests of the children. In so ruling, the court viewed, as argued by counsel, the alleged facts as true and in the light most favorable to granting the relief.
In his third section 388 petition, Rosario sought immediate custody of the children. He had returned to the United States the night before the hearing. Because he still had no legal status in this country, the impracticability of offering him reunification services had not changed and therefore, he did not seek services. After argument by counsel, the court granted Rosario’s request for a hearing.
Rosario testified that he had returned to the United States to attend the May 1, 2007, hearing because he missed and loved his children and would do whatever it took to have them. Rosario’s extended family in Mexico consisted of his parents, brothers, sisters, nephews, and nieces. The family had a ranch, and Rosario worked at his sister’s store. The family had money, and was willing to care and provide for the children’s needs. One of Rosario’s sisters had expressed an interest in the children, but the Department had not made any effort to learn about his family in Mexico. He had resources in Mexico to care for the children, and he would be able to take custody of the children that day. He was aware that Lilly had learning difficulties in that she did not begin to speak early and even at two years of age, she still did not speak well. When asked what resources he had in Mexico to provide for the child’s special needs, Rosario replied that his family had money, and among themselves they would be able to help the child. When asked how he would get the children to Mexico, Rosario claimed he would board an airplane. He had a Mexican passport, but it did not have it with him. He would send for his passport and then leave with the children.
Rosario first testified that the Department’s social worker had called Mexico within the past month to speak to his family about placing the children in Mexico, but he did not know his family’s response. He later testified that in response to telephone calls from the Department’s social worker, his sister told the worker that she wanted the children, asked if the children could come to Mexico and said that they would take care of them. Rosario also stated that the Department had sent a letter to Mexico saying that Rosario’s family should not continue fighting for the children because the children did not want to go to Mexico.
After he was deported to Mexico in January 2007, he kept in touch with the children by calling them on the telephone when they visited Angela’s aunt. He spoke to the children in English almost every week. The children could count from one to ten in Spanish, but they did not really speak Spanish. Rosario did not have any contact with the Department, he only spoke with his attorney. He did not notify the Department that he was contacting his children, he only told his attorney.
Rosario was questioned about the reason for his absence from the children’s lives from December 2005 to November 2006. When he was on his way to Mexico in December 2005, he was stopped at an immigration check point in Texas, his fingerprints were taken, and he was held under an alias on an outstanding California warrant that was issued for his arrest under a different alias. He was arrested by immigration officers but sent to a county jail to await extradition to California. After eight months in a Texas County jail, Rosario posted bail and was released and sent to Mexico. He did not return to California because he was afraid to come back. After his family told him he had to go back for his children, and he wanted to come back for his children, he came back to the United States in November 2006.
The children’s adoption worker testified to how the children’s speech and language skills would be affected if they were placed with their father and moved to Mexico. The worker did not know if Adrian had ever asked to see Rosario, and the foster mother had reported that the children mentioned Angela, but not Rosario. Nor did the worker know that Rosario was speaking to the children when they were at their aunt’s home.
The children’s foster mother testified regarding the children’s behavior over the course of time that they were placed in her home. After Adrian’s last visit with Rosario, the foster mother told Adrian that his visits with his father were all done, and the child never asked to see his father again. The foster mother did not know that Adrian was speaking to his father on the telephone. Adrian had been at his aunt’s home every other weekend for about a month or two, and before that the schedule was every Sunday. Adrian had not told his foster mother that he had been talking to his father. Lilly never commented about her father. Nor had Lilly mentioned speaking with her father on the telephone.
After argument by counsel, the court denied Rosario’s section 388 petition for custody of his children. The court initially noted that the children’s speech and language issues did not contraindicate placement with Rosario. However, Rosario’s appearance in court was not really a change of circumstances, and more importantly, his presence did not indicate that the children should be placed with him. The court expressly found that Rosario’s “sudden appearance in court on May 1st of 2007” with a request that the children be placed with him did not “even remotely” constitute evidence showing that it would be in the best interests of the children to place them with him. “[R]eally the contrary is the case. That to change [the children’s] plans at this time simply because [Rosario] has made a sudden . . . return appearance . . . would be very detrimental to their interests.” The court found Rosario’s testimony was highly questionable, his credibility was doubtful, and a lot of what he said did not seem to withstand critical scrutiny. The court specifically questioned Rosario’s explanation regarding the criminal proceedings that kept him in Texas for eight months. Even assuming the truth of his testimony, the court noted that Rosario had made a knowing choice to stay away from his family simply to avoid facing the consequence of a probation violation, which turned out to be a rather short jail term before he was released and returned to Mexico. Additionally, the court noted that Rosario’s testimony regarding his weekly telephone contact with the children, was contradicted by the foster mother’s testimony that for the two months before the hearing, the children had not been at their aunt’s home every week. The court found that it would not be in the children’s best interests to discontinue the plan to place the children with the prospective adoptive family in Arizona in order to place them with Rosario, who the children did not particularly want to see and about whom they made no inquiry.
After denying Rosario’s section 388 petition, the court immediately commenced the section 366.26 hearing, which was continued on May 2, 4, and 7, for further testimony and counsels’ arguments. At the conclusion of the section 366.26 hearing, the court terminated the parental rights of Rosario and Angela after finding by clear and convincing evidence that the children were likely to be adopted. The court also found that neither parent had established that the beneficial parent-child relationship exception under former section 366.26, subdivision (c)(1)(A) (now § 366.26, subdivision (c)(1)(B)(i)), applied so as to preclude termination of parental rights and adoption as the children’s permanent plans. In rejecting Rosario’s arguments that his parental rights should not be terminated, the juvenile court rejected his explanation for his absence from the children’s lives for a year as inadequate and unsubstantiated, and found that the quality of his relationship with the children, even if it might have been good at one time, was not such that severance of his parental rights would “in any fashion inflict great harm on the children at this point.” The court approved the Department’s request to place the children in their foster care prospective adoptive home in Arizona. Both parents timely appealed.
DISCUSSION
I. Denial of Angela’s Third Section 388 Petition
Angela seeks reversal on the sole ground that the juvenile court abused its discretion in denying her request for an evidentiary hearing on her third section 388 petition. She specifically argues that she met her prima facie burden of showing that since being denied reunification services, her circumstances had changed and the proposed modification would be in the children’s best interests. We conclude there is no basis to disturb the juvenile court’s ruling.
“Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests. [Citation.] A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] ‘ “[C]hildhood does not wait for the parent to become adequate.” ’ [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The parent’s prima facie showing requirement is not met unless the alleged facts, if supported by evidence at the hearing, would sustain a favorable decision on the parent’s behalf. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
The juvenile court properly ruled that Angela had failed to make a prima facie showing of a meaningful change in circumstances that it would be in the best interests of the children to warrant granting her reunification services at the May 1, 2007, hearing. “At the point of these proceedings—on the eve of the section 366.26 permanency planning hearing—the children’s interest in stability was the court’s foremost concern and outweighed any interest in reunification. [Citation.]” (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) Angela did not make a serious attempt to address her substance abuse problem until December 29, 2006, after the section 366.26 hearing had been postponed from its scheduled date of December 12, 2006, and the children had been detained for seven months. By the May 1, 2007, hearing, the children had spent 11 months in foster care, and eight months had passed since the August 31, 2006, depositional hearing. Angela had been in treatment for 116 days: 12 days in one facility and 104 days in another highly structured residential facility. The juvenile court could properly conclude that although Angela was making a serious effort at rehabilitation, her ability to stay in treatment under the supervision of a treatment program or in a residential facility, even if supported by credible evidence at a hearing, would be insufficient to show enough of a change in circumstances to warrant granting her additional reunification services. (See In re Casey D., supra, 70 Cal.App.4th at p. 48; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.)
We reject Angela’s argument that the court erred by considering her prior unsuccessful attempts at drug rehabilitation during previous dependency proceedings. “[I]n considering whether a juvenile court abuses its discretion in denying a section 388” petition, “[i]t is only common sense that . . . the gravity of the problem leading to the dependency, and the reason that the problem was not [previously] overcome . . . must be taken into account.” (In re Kimberley F., supra, 56 Cal.App.4th at p. 531.) In cases like this, where substance abuse is a central issue, the juvenile court has the duty “to evaluate the likelihood that [a parent] would be able to maintain a stable, sober and noncriminal lifestyle for the remainder of [the child’s] childhood.” (In re Brian R. (1991) 2 Cal.App.4th 904, 918.)
We also reject Angela’s argument that she was entitled to an evidentiary hearing based upon her allegations that she had a strong bond with the children and the children were starting to develop behavioral issues associated with removal. In response to the court’s questions and comments, Angela’s counsel did not offer to produce any evidence showing that the bond between Angela and the children had become stronger since the court’s order denying reunification services or that there was a causal link between the children’s alleged behavior and their removal from her care.
By the time of the May 1, 2007, hearing, Angela had not progressed beyond supervised weekly visits. Given these young children’s need for stability and a permanent home, and the uncertainty that Angela would be successful in overcoming her substance abuse problem, the juvenile court properly decided that Angela had not made a prima facie showing that it would be in the best interests of the children to order six months of reunification services to see if she could do what was required to regain custody. (See In re Casey D., supra, 70 Cal.App.4th at p. 48 .) Accordingly, we see no abuse of discretion in the court’s denial of Angela’s section 388 petition without an evidentiary hearing.
II. Denial of Rosario’s Third Section 388 Petition
Rosario challenges the denial of his third section 388 petition on the ground that the evidence he presented at the May 1, 2007, hearing was sufficient to show by a preponderance of the evidence that his circumstances had changed and that the best interests of the children would be served if prior court orders were modified to allow reunification services, or upon proper investigation of his circumstances in Mexico, the return of the children to his care or his relatives’ care.
However, as conceded by Rosario, our review power is limited; we cannot reweigh the evidence and substitute our judgment for that the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) “The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Additionally, the juvenile court’s ruling “should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] . . . ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
At the May 1, 2007, hearing, the issue before the juvenile court was whether there had been such a change in Rosario’s circumstances that it would at that time be in the best interests of the children to grant him custody of the children. While Rosario had been with the children for the first 39 months of Adrian’s life and the first 27 months of Lilly’s life, he had been substantively gone from their lives for 16 months by the time of the May 1, 2007, hearing. During that time, he had minimal contact with the children. Rosario reported that, for the year he was gone, he had talked to the children only once by telephone, although Angela stated that he called all the time. While incarcerated in California from November 1, 2006, through mid-January 2007, Rosario had weekly visits with the children from December 8, 2006 until January 18, 2007. Since his deportation in mid-January 2007, Rosario made no attempts to contact the Department’s social worker to inquire about the children. Rosario asserts that during the few months since his deportation, he maintained telephone contact with the children. But, he ignores the juvenile court’s express rejection of his testimony as not credible and contradicted by other testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [trier of fact “is not required to believe the testimony of any witness, even if uncontradicted”].) We see no reason to set aside the court’s credibility determination. Even assuming the truth of Rosario’s testimony, his minimal contact with the children did not show that their best interests would have been promoted by granting him custody. Because of his immigration status, Rosario was unable to come to this country to reunify with the children. But, he offered no evidence at the May 1, 2007, hearing to substantiate his testimony that he or his relatives were in a position to take custody of the children at that time. Given the state of the record, we cannot conclude that the juvenile court abused its discretion in denying Rosario’s request for custody at the May 1, 2007, hearing.
III. Termination of Rosario’s Parental Rights
Rosario argues that the order terminating his parental rights violated due process because the juvenile court was never provided with clear and convincing evidence showing he was an unfit parent. We disagree.
“California’s dependency scheme no longer uses the term ‘parental unfitness,’ but instead requires the juvenile court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child.” (In re P.A. (2007) 155 Cal.App.4th 1197, 1211, citing In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)
Section 366.26, subdivision (c)(1), provides, in relevant part: “If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under . . . paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, . . . shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless . . . [¶] . . . [¶] [t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . .the following circumstances: . . . [¶] The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A), (B)(i).)
The juvenile court complied with the statutory requirements for termination of Rosario’s parental rights. Before the section 366.26 hearing, the court had found by clear and convincing evidence that Rosario should not be offered reunification services under paragraph (1) of subdivision (e) of section 361.5, because to do so would be detrimental to the children. Contrary to Rosario’s contention, this finding of detriment was not based solely on the uncertainty of his period of incarceration, but also because of the children’s need for stability and the weakness of their parental bond with Rosario. (Rosario M. v. Superior Court, supra, A116632 at p. 4.) Additionally, this finding of detriment distinguishes this case from In re Gladys L. (2006) 141 Cal.App.4th 845, in which the record did not show that the juvenile court had made a finding of detriment before terminating the parental rights of the child’s presumed father. (Id. at p. 848, fn. 3.)
We are also not persuaded by Rosario’s argument that an order terminating parental rights cannot stand if the section 300 petition does not make any reference to the parent’s unfitness. “To the extent the disposition in In re Gladys L. suggests a sustained dependency petition alleging unfitness of each parent is necessary precedent to termination of parental rights, we respectfully disagree.” (In re P.A., supra, 155 Cal.App.4th at p. 1212.) “[A] child may be declared a dependent if the actions of either parent bring the child within the statutory definitions of dependency. [Citations.] Additionally, a jurisdictional finding is not a adequate finding of parental unfitness because it is made by a preponderance of the evidence. [Citations.] Therefore, even if the dependency petition had alleged [Rosario’s] unfitness, the order sustaining the petition would have been inadequate, by itself, to terminate [his] parental rights without a subsequent finding of detriment by clear and convincing evidence. Thus, the absence of a jurisdictional finding that related to [Rosario] does not prevent termination of parental rights.” (Ibid.)
IV. Relative Placement
Rosario argues that the juvenile court failed to grant preferential consideration to placing the children with their paternal aunt as required under section 361.3. We conclude that Rosario’s arguments do not warrant reversal.
Section 361.3 requires that when “a child is removed from . . . his or her parents . . ., preferential consideration shall be given to a request by a relative . . . for placement of the child with the relative” based upon a consideration of certain statutory factors. (§ 361.3, subd. (a).) “Subsequent to the [disposition] hearing . . ., whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child.” (§ 361.3, subd. (d).) “If the court does not place the child with a relative who has been considered for placement pursuant to [section 361.3], the court shall state for the record the reasons placement with that relative was denied.” (§ 361.3, subd. (e).)
To the extent Rosario asks us to review the relative placement assessment that appears in the Department’s report for the reopened deposition hearing on January 9, 2007, the request is not properly before us. If Rosario had any objections to the adequacy of Department’s relative placement assessment, he had an obligation to raise the issue at the reopened disposition hearing held on January 9, 2007, but he failed to do so. Also, when Rosario filed his writ petition for review of the court’s January 9, 2007, rulings, he did not seek review of the ruling that relative placement was not applicable. Therefore, we will not now review any objections to the Department’s relative placement assessment in its January 9, 2007, report, or the juvenile court’s January 9, 2007, ruling on the issue. (See § 366.26, subd. (l), (1), (2), (4).)
At the May 1, 2007, hearing on his third section 388 petition, Rosario testified concerning the Department’s contacts with the children’s paternal aunt regarding the placement of the children with her. He also informed the court that if he were granted custody, he intended to take the children to his family in Mexico. At the conclusion of the section 366.26 hearing, he opposed the termination of his parental rights on the grounds, among other things, that he and his extended family continued to be available to care for the children. However, at no time did he object to the court’s ruling allowing the children to be placed in their prospective adoptive home in Arizona on the grounds that before moving the children to the new placement, the Department should be required to properly assess and grant preferential consideration to the children’s paternal aunt pursuant to section 361.3. Thus, he has forfeited the right to raise that issue on this appeal. Had Rosario asked for a ruling on the issue of relative placement, the juvenile court could have entered an order on the merits. To now consider this “intensely factual issue” (In re Casey D., supra, 70 Cal.App.4th at p. 54) would be unfair to the children, as well as the Department and the juvenile court. As explained by our Supreme Court, “Although an appellate court’s discretion to consider forfeited claims extends to dependency cases (citations), the discretion must be exercised with special care in such matters. . . . Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. (§ 366.26.)” (In re S. B. (2004) 32 Cal.4th 1287, 1293.) In this case, we are not faced with an important question of law, or statutory error that justifies overriding the rule of forfeiture in this case. (See In re Seaton (2004) 34 Cal.4th 193, 198 [forfeiture applies to both statutory error and violations of fundamental constitutional rights].)
DISPOSITION
The orders of May 1, 2007, denying the section 388 petitions and terminating parental rights are affirmed.
We concur: Siggins, J. Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.