Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County Los Angeles County Super. Ct. No. CK61726, Jan Levine, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Joanne Nielsen, Senior Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Jose O. (father) appeals from an order of the juvenile court terminating his parental rights to his son and daughter, Christopher and Selena. He contends the juvenile court failed to “exercise its independent discretion to consider” placing the children with his mother, their paternal grandmother, Ana A. He also contends the court erred by failing to apply the parental relationship exception to the termination of parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) We affirm the order.
Selena’s name sometimes appears in the record as Selina, but her birth certificate lists her name as Selena.
The paternal grandmother’s name sometimes is spelled “Ana,” and sometimes “Anna,” in the record.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Christopher, Selena, and their half-brother, A.B., came to the attention of the Los Angeles Department of Children and Family Services (the Department) in November 2005, when a social worker responded to a referral alleging that Christopher had been physically abused by Edward F., A.’s father. At that time, Christopher was seven years old, Selena was three years old, and A. was almost a year old. Christopher lived primarily with Ana, his paternal grandmother, but spent weekends with his mother and Edward. Selena and A. lived with their mother and Edward. Christopher’s and Selena’s father was incarcerated, with an expected release date in October 2007.
Mother did not appeal from the order terminating her parental rights. Although Edward did file a notice of appeal from the order, his appointed counsel informed us, under In re Sade C. (1996) 13 Cal.4th 952, that she was unable to find potentially meritorious issues to raise on appeal. We advised Edward that he had the right to personally submit any contentions he believed we should consider, and that his appeal would be dismissed in the absence of arguable issues. We did not receive any response from Edward, and dismissed his appeal as abandoned. In light of mother’s failure to appeal and the dismissal of Edward’s appeal, we limit our discussion of the facts to those relevant to father’s appeal.
The Department detained all three children on December 6, 2005, after it learned that mother tested positive for methamphetamine and Edward failed to report for drug testing. It filed a petition under section 300, subdivisions (a), (b), (g), (i), and (j), alleging domestic violence between mother and Edward, substance abuse by mother and Edward, physical abuse of Christopher by Edward, mother’s history of mental and emotional problems, and a detrimental and endangering home environment created by mother and father.
The petition also alleged domestic violence between mother and father, but those counts were later dismissed.
In a report filed for the detention hearing, the Department stated that Ana had provided excellent care for Christopher and that she was willing to take Selena (but not A.) into her home as well. The Department reported, however, that Ana’s home would not pass Adoptions and Safe Family Act (ASFA) requirements because it was too small. It was a “very small,” 300 square foot, one bedroom/one bathroom apartment. Ana and her husband slept on a small pull-out sofa, and their 16 and 10 year old daughters shared the double bed in the bedroom. Christopher slept on the sofa cushions at the foot of the girls’ bed.
Ana attended the detention hearing, held on December 9, 2005. Minors’ counsel asked that the children be released to Ana, but the Department objected on the ground that it had not completed a background check and on the ground that Ana’s house was too small. The juvenile court found that the children were a sibling set and should be placed together, and, over the Department’s objection, ordered the children placed in foster care until the Department received a clean background check, at which point the children were to be placed with Ana.
At some point, Christopher and Selena were placed with Ana, but they were replaced from her home to a foster home on December 27, 2005, due to Ana’s husband’s criminal history. His CLETS results showed a conviction for child cruelty and an arrest for oral copulation, but he refused to submit to fingerprinting or to provide any details regarding his criminal history. The Department filed an “Ex Parte Application And Order – 388 Petition” on January 12, 2006 (attached to an “Information for Court Officer” that referred to the section 388 petition), asking the juvenile court to vacate the children’s previous placement with Ana and approve their placement with foster parent Velma L., effective December 27, 2005. Although there is nothing in the record on appeal indicating that the court expressly ruled on the section 388 petition, the minute order for the January 12, 2006 hearing orders that all three children be detained in shelter care.
The foster mother’s name is spelled two different ways in the record: Velma and Vilma.
Father made his first appearance before the juvenile court on February 7, 2006. Ana also attended that hearing. At the hearing, the court dismissed certain counts alleged in the section 300 petition, sustained the remaining counts as amended, and ordered the children placed under the supervision of the Department for placement in a foster home. The court also found that father was a person described by section 361.5, subdivision (e)(1), in that he was currently incarcerated and his period of incarceration would extend well beyond the 18-month period for reunification services, and therefore the court ordered that he would not be provided reunification services. Father’s counsel informed the court that Ana may have some relatives who would be interested in having the children placed in their home. The court told Ana she should provide that information to the Department as soon as possible, and granted the Department discretion to place the children with any appropriate relative.
The social worker spoke to Ana on May 4, 2006. She told the social worker that her husband was still living with her, but they were getting a divorce. She said that once her husband moved out, she would be willing to take the children into her home. The social worker told Ana to contact her once her husband moved out so the Department could replace the children with her.
Three months later -- more than seven months after the children had been replaced from Ana’s home because of Ana’s husband’s criminal history -- Ana’s husband still had not moved out. In a report filed for the six-month review hearing, on August 8, 2006, the Department reported that the children were doing well in foster care, and that the foster parents were considering legal guardianship or adoption of all three children but had not come to any decision yet. The Department also reported that Ana would like to care for the children but was waiting for her divorce to be final and for her husband to move out of the home. The Department recommended that the children be referred for permanent placement services and identified Ana as the prospective adoptive parent or guardian.
At the six-month review hearing, which Ana attended, minors’ counsel informed the court that Ana’s husband was going to move out by August 20, 2006, and that Ana was interested in becoming caretaker for and adopting Christopher and Selena. The court terminated mother’s reunification services and set a permanency planning hearing under section 366.26. The court ordered the Department to prepare an assessment plan and to initiate a home study, ordered that the children remain placed with the foster parents with the goal of adoption, but also ordered that Christopher and Selena be moved to Ana’s home once Ana was available to become their caretaker.
At the time of the initial section 366.26 hearing, on December 5, 2006, all three children were still placed in foster care, and Velma and her husband had expressed an interest in adopting all of them. The Department had begun a home study for permanent placement with Velma, but it had not yet completed the process. Although the Department acknowledged that Ana was still interested in caring for Christopher and Selena, it noted that Ana did not have suitable housing and did not wish to care for A. Therefore, the Department recommended that the children remain with Velma and her husband, with the goal of adoption.
At the December 5 hearing, minors’ counsel complained that Ana had been trying to talk to a social worker about getting Christopher and Selena placed with her, but no one was calling her back. Counsel stated that Ana had the money and the means to move to a larger apartment, but she was hesitant to move to an apartment with a higher rent unless she was assured that the children would be placed with her, and the Department was not responding to her calls. The juvenile court expressed frustration with the Department, noting that Ana had appeared at almost every hearing for the past year and had consistently expressed her interest in caring for Christopher and Selena. The court asked why the children were not yet placed with Ana, and ordered the social worker to appear at the next hearing. It stated that by the time of that hearing it wanted the children either to be placed with Ana or for the social worker to explain why they had not been so placed. In response to the Department’s objection that the foster parents had preference because the case was at the permanency phase, the court disagreed, stating that Ana had preference because the Department “did not do its job.” The court said the Department’s job was to act in the children’s best interest, which the court found was being with their grandmother, “unless there is a problem with the grandmother’s home which I have not heard.”
In a report filed for the next hearing, held on February 6, 2007, the Department described its efforts to place Christopher and Selena with Ana. It arranged for Ana to meet with an ASFA worker for a home assessment on December 30, 2006, but no one was there when the worker arrived. The assessment was rescheduled and conducted on January 11, 2007. The ASFA worker found that Ana’s home could not be approved because it was too small. On January 25, the social worker spoke to Ana to see if she had found a bigger apartment so the social worker could schedule another home assessment. Ana had not yet moved.
The report also discussed the Department’s concerns about placing Christopher and Selena with Ana. The report described a telephone conversation the social worker had with Ana on December 19, 2006, two weeks after the initial section 366.26 hearing. During that conversation, Ana told the social worker that although her husband no longer lived with her, he “comes by once in a while.” The Department also expressed concerns about Ana’s two visits with Christopher and Selena between October and December. Each visit lasted no more than an hour, during which Ana talked only to Christopher and did not seem to try to build a relationship with Selena.
Ana attended the February 6, 2007 hearing, and told the court that she would be moving into a two-bedroom apartment by February 15. The court ordered the social worker to get an assessment of the new apartment as soon as possible, and to start a home study on Ana as soon as the children were placed with her. The court also asked for the status of the home study on Velma and her husband, and was told that it was almost complete. The court ordered the permanent plan to continue, which it stated was “placement with Velma . . . with the goal of an adoption either by . . . [Ana] or . . . [Velma and her] family.”
On March 2, 2007, the ASFA worker assessed Ana’s new apartment and conditionally approved it -- the approval would not be final until the worker made a second visit to confirm that Ana had gotten a toddler bed and the ASFA worker submitted the necessary paperwork to the social worker. A few weeks later, on March 19, the opinion in In re Lauren R. (2007) 148 Cal.App.4th 841 was issued, in which the appellate court reversed an order of the juvenile court removing a dependent child from her long-term caretaker, placing her with a relative, finding adoption to be the permanent plan, and terminating the parental rights of both parents. The appellate court found the order removing the child from her caretaker was improper because a new placement was not necessary at that time and the replacement violated the caretaker preference set forth in section 366.26, subdivision (k). (Id. at pp. 854-856.)
The continued section 366.26 hearing was held on April 2, 2007. Counsel for the Department asked the juvenile court to further continue the hearing, because the Department had not yet received final approval of Ana’s home to allow placement of Christopher and Selena with her. The court responded that, under In re Lauren R., supra, 148 Cal.App.4th 841, the children’s placement could not be changed unless an new placement was necessary, and no replacement was necessary because adoption had been identified as the permanent plan and there was an approved home study for Velma. Nevertheless, the court continued the section 366.26 hearing because the notice was inadequate, and set it for contest.
At the contested section 366.26 hearing on June 28, 2007, father testified about his contacts with Christopher and Selena, and asked that the children be placed with Ana for adoption if the court terminated his parental rights. His counsel argued that even though father was incarcerated throughout most of his children’s lives, he maintained contact with them to the extent he could, and he asked the court to find the parental relationship exception applied to preclude termination of his parental rights. The court found the exception did not apply, and found that the children were adoptable and needed a permanent and stable home. Therefore, it terminated mother’s and father’s parental rights and ordered the children be adopted by Velma. Father timely filed a notice of appeal from the order terminating his parental rights and recommending adoption by Velma rather than Ana.
DISCUSSION
A. Failure to Place Christopher and Selena With Ana
Father contends on appeal that the juvenile court had a duty to exercise its independent judgment at the section 366.26 hearing to determine whether Christopher and Selena had substantial emotional ties to Velma and whether their removal and placement with Ana would be detrimental to their emotional wellbeing. He contends the court erred by rejecting a change of placement and basing its rejection upon the length of their placement with Velma, their bond with her, and the lack of relative preference at that point of the proceedings -- especially in light of Ana’s continued requests for placement and the Department’s failure to facilitate the placement. Father’s contention is based upon a misapprehension of the basis for the juvenile court’s decision and a misapprehension of the law.
This case involves two statutory preferences for placements of dependent children. The first is found in section 361.3. That statute gives preference to relatives of the child when the child is adjudged a dependent child of the juvenile court and removed from the physical custody of his or her parents (§ 361.3, subd. (a)), or “whenever a new placement of the child must be made” (§ 361.3, subd. (d)). The second statutory preference is found in section 366.26. Under that statute, preference is given to “any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption.” (§ 366.26, subd. (k).)
Division One of this court explained how these preferences operate: “[S]ection 361.3 assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative’s application will be considered before a stranger’s application. . . . When reunification fails, section 366.26, subdivision (k), assures a ‘relative caretaker’ [or foster parent] who has cared for the child that, when parental rights are terminated and the child is freed for adoption, his or her application will be considered before those submitted by other relatives and strangers.” (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) Resolution of the present appeal rests upon which preference applies in this case.
Clearly, the section 361.3 relative placement preference applied when the children were initially detained. Thus, the juvenile court properly ordered the children placed with Ana, their grandmother, as soon as the Department received a clean background check for her. The court also properly ordered the children replaced in shelter care when the Department discovered Ana’s husband’s criminal history, because section 361.3 requires the Department and the court to take into consideration whether the relative or any adult living in the home has a history of violent criminal acts or child abuse. (§ 361.3, subd. (a)(5).) Indeed, father does not challenge that replacement.
By the time Ana’s husband moved out of her home, making her home potentially available for placement, the children had been living with Velma and her husband for eight months, and the court had terminated family reunification services, set a section 366.26 hearing, and identified adoption as the permanent placement goal. The Department did not replace the children with Ana immediately because her home was too small to accommodate the addition of two more children. By the time Ana moved into a larger apartment another six months had passed. At the April 2, 2007 continued section 366.26 hearing, the juvenile court refused to order the Department to replace the children, who were still placed with Velma, with Ana. At that point, Velma had been caring for the children for 15 months and had an approved home study.
Contrary to father’s contention on appeal, the juvenile court did not base its decision not to replace the children on the length of time Velma had cared for them or their bond with Velma. Rather, the court stated, “Once the Department has selected a plan of adoption, they cannot change the placement of the children without cause for changing the placement and there is no relative preference at this point in the case. So unless there is a reason to change the placement, this is not something that the Department can do at this point in time.” The court explained that under the newly-issued appellate court case, In re Lauren R., supra, 148 Cal.App.4th 841, “you may not change the placement unless there is a cause -- unless the new placement is necessary and it’s not. [Velma’s] got an approved home study. It’s not necessary.” The juvenile court was correct.
As the Lauren court explained, the relative placement preference of section 361.3 applies only when a new placement becomes necessary. (In re Lauren R., supra, 148 Cal.App.4th at pp. 854-855.) But once adoption is identified as the permanent placement goal, the caretaker preference of section 366.26, subdivision (k) applies. (Id. at p. 856.) Therefore, the court held that unless a new placement is necessary, a child cannot be removed from placement with a caretaker who wants to adopt in order to place the child with a relative for adoption. (Id. at pp. 854-855.) In this case, at the time the juvenile court refused to replace the children, the children were doing well in Velma’s care, Velma had stated that she wanted to adopt all three children, and her home study had been approved. Thus, replacement at that time would have been improper.
The fact that the Department may not have provided adequate assistance to Ana, who had been trying to get the children placed with her from the very first hearing, is unfortunate but it does not change the analysis. Indeed, in Lauren, the relative, Velda, had expressed her desire to have the child placed with her a month after the child was detained. (In re Lauren R., supra, 148 Cal.App.4th at p. 846.) Placement was not possible at that time, however, because Velda lived in Oregon and certain paperwork first had to be completed in compliance with the Interstate Compact for the Placement of Children (Fam. Code, § 7900 et seq.). (In re Lauren R., supra, 148 Cal.App.4th at p. 846.) Oregon did not approve Velda’s home for placement until six months later, by which time family reunification services had been terminated, a section 366.26 hearing had been scheduled, and the person who had been caring for the child had begun the paperwork to initiate a home study for adoption purposes. (Id. at p. 847.) Velda argued that it would be unfair under those circumstances not to apply the relative placement preference of section 361.3. (Id. at p. 855.) The appellate court rejected her argument: “The overriding concern of dependency proceedings, however, is not the interest of extended family members but the interest of the child. . . . The passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of her best interests.” (Ibid.)
In the instant case, by the time Ana moved into an apartment big enough to accommodate Christopher and Selena, they had been in Velma’s care for 14 months and were thriving there. At that point, their need for continuity and stability was paramount.
Finally, father states, “While [Ana] may not have had statutory placement preference at the time of the [final] section 366.26 hearing, the juvenile court nevertheless had a duty, particularly in light of the fact [Ana’s] repeated requests for placement were pending for over 18 months, to exercise independent judgment, weighing the Department’s concerns against the benefits of maintaining the biological family unity.” He provides no support for his assertion of such a duty, and there is none. While it is true that Ana repeatedly requested placement, her home was not appropriate for placement until 14 months had passed with the children in Velma’s care. Under the statutory scheme, the court was not at liberty to place the children with Ana until her home was found to be appropriate, by which time there was a statutory preference for placement with Velma. Thus, there was no need to engage in the weighing process father asserts was required. The Legislature has decreed that such weighing does not take place at that stage of the proceeding. (§ 366.26, subd. (k).)
B. Parental Relationship Exception
Father contends the juvenile court erred by failing to apply the parental relationship exception to the termination of his parental rights. We disagree.
The parental relationship exception is found in section 366.26, subdivision (c)(1)(A), which, at the time of the hearing, provided in relevant part: “(c)(1) If the court determines . . ., 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. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Under the express language of the exception, a parent seeking to show the exception applies must demonstrate both that the parent has maintained regular visitation and that the child would benefit from continuing the parental relationship. In this case, father did neither.
Father testified that he had been (and continued to be) incarcerated since August 2002, when Christopher was three years old and Selena was one month old. After his incarceration, he saw Christopher twice and Selena once. From August 2002 until December 2005, he had telephone contact with Christopher every couple of weeks, but had no telephone contact with him after December 2005. He did, however, write to Christopher at least once a month. He talked with Selena on the telephone once during her entire life. In short, the only contact father had with either child during the pendency of this case was through monthly letters to Christopher. Thus, father failed to show he maintained regular visitation with either child.
Given his lack of contact, it is not surprising that father also failed to show that either child would benefit from continuing the parental relationship. To establish this element of the exception, “the parent must show that he or she occupies a ‘parental role’ in the child’s life.” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) It is not enough that the child may derive some benefit from continuing the relationship. The relationship must be a real parental relationship, rather than a friendly or familiar one. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Although father testified that he had a close relationship with Christopher before his incarceration, he failed to show any parental relationship with him after that, and no relationship at all with Selena. Thus, the juvenile court did not err by refusing to apply the parental relationship exception.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.