Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIJ112130, Robert M. Padia, Temporary Judge., Pursuant to Cal. Const., art. VI, § 21.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyne E. Gentry, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
All statutory references are to the Welfare and Institutions Code.
Appellant, Jerry S., father of a minor girl, E.W., appeals from the order finding E.W. adoptable and terminating his parental rights. His main argument on appeal is that the juvenile court did not give preferential consideration to Virginia S., his mother and E.W.’s paternal grandmother, for placement. For factual and legal reasons, we affirm the judgment.
Father’s paternity was confirmed in December 2006.
2. Factual and Procedural Background
In his recitation of the case, appellant confuses facts concerning Virginia S. with facts concerning Hester P., E.W.’s paternal great-grandmother. Hester P. died in February 2007.
Immediately after the birth of E.W. in May 2006, the Riverside County Department of Public Social Services (DPSS) filed an original juvenile dependency petition, alleging failure to protect and no provision for support (§ 300, subds. (b) & (g)) because mother was using drugs and had not obtained prenatal care. E.W. was born drug-exposed and was treated for drug withdrawal in the hospital. Mother had been diagnosed as suffering from schizophrenia with auditory and visual hallucinations and mother had a criminal history and was on probation. Mother admitted using drugs and acknowledged she had another child who was living with his paternal grandparents. She was receiving social security for her mental disability. The maternal grandfather said mother had been recently released from jail and had a history of drug use. Mother lacked employment or suitable housing. Additionally, the hospital nurses reported mother was disinterested in or irritable with E.W. and was considering relinquishing her for adoption. Father was not providing E.W. with any care or support. His whereabouts were unknown but he was believed to be incarcerated. The court detained E.W. for placement in a foster home.
In the jurisdiction and disposition report dated June 2006, DPSS stated it had not been able to contact mother. Father was incarcerated at Calipatria State Prison with a release date of August 1, 2006.
DPSS had conducted relative assessments of the maternal aunt and the maternal grandmother and determined they were unsuitable because of past history and present circumstances. The paternal grandmother, Virginia S., had a history of contact with DPSS involving physical abuse and neglect, including her son, Jerry S., the father in this case, and his younger siblings. The paternal great-grandmother, Hester P., asked to be assessed for placement of E.W.
E.W.’s foster placement was changed in June 2006 because of problems in her first placement. In July, E.W. was moved to a third foster placement with a prospective adoptive family.
In August 2006, DPSS reported father had an extensive criminal history, dating from 2001 and including drug offenses and willful cruelty to a child. During an interview, he appeared distracted and confused. He described using drugs and alcohol beginning at age seven but said he had not used drugs for a year and a half. He asked DPSS to assess Hester P., his grandmother, and Virginia S., his mother, for placement. DPSS reported the assessment of Virginia S. had been closed because adults in her home had not submitted to the screening process.
The court made jurisdictional findings, ordered a paternity test, and set a dispositional hearing for September 2006. DPSS recommended mother not receive services but father should have a psychological evaluation and receive services. Father had two negative drug tests in August. He missed a paternity test because of work. He had attended one parenting class but missed another. DPSS commented negatively on father’s over-reliance on Hester P. to be responsible for parenting E.W. At the disposition hearing, the court ordered reunification services for both parents, psychological evaluation and drug testing for both parents, and an assessment of the paternal great-grandparents for placement.
In January 2007, DPSS recommended termination of parental services. Father was unemployed and living in a small trailer, illegally parked, without utilities. His hygiene was poor. Mother, who had been incarcerated, was living again with father and was not employed. She was using drugs again. Father had attended parenting and substance abuse classes intermittently but he had not completed a course. Father was not employed and did not have suitable housing. Father had a positive drug test on September 18, 2006. He missed four other drug tests in September, October, and November. Father’s psychological evaluation concluded that father, who cannot read, was not capable of functioning well enough to parent E.W. Father, accompanied by the paternal great-grandparents, had participated in some visitation with E.W. The paternal great-grandparents had already adopted one child and DPSS expressed concern a second child would place too much strain on them. E.W. was thriving in her foster placement, the prospective adoptive home.
At the contested six-month review hearing on February 26, 2007, the dependency court found parents had failed to make substantial progress toward reunification. The dependency court terminated reunification services and scheduled a hearing for selection and implementation of a permanent plan. (§ 366.26.) At the end of the hearing, father’s counsel asked for immediate placement with Virginia S. but it is apparent he was basing his request on the assessment made of Hester P., not of Virginia S.
Hester P. died before the review hearing. After the hearing, father, the paternal great-grandfather, and Virginia S. contacted DPSS again about placement. On March 30, 2007, Virginia S. came to the DPSS office and asked to be evaluated again for placement. She was informed she would probably not be considered for placement because of her past history of contacts with DPSS. Nevertheless, DPSS initiated a relative placement referral. After the paternal grandfather and uncle did not complete the necessary screening forms, DPSS closed the referral on May 9, 2007.
In June 2007, at the hearing for selection and implementation, father testified that he opposed adoption and wanted E.W. placed with a family member. Virginia S. testified she did not complete the referral process because of problems with mail delivery.
The dependency court found E.W. was adoptable and terminated parental rights.
Specifically regarding the fitness of Virginia S. for placement, the record demonstrates the following. Father, who was born in 1972, said that he has seven siblings and he spent part of his childhood in foster care because Virginia S. was abusive and she and her several husbands had trouble providing stable housing. Between 1997 and 1999, DPSS investigated and substantiated allegations that both Virginia S. and her husband, Gerald S., were physically abusing father’s minor siblings. In 2002, DPSS investigated allegations that the children were hungry and living in a residence with no working utilities. They were bathing in barrels of water. They had filthy clothes and no shoes. Jerry S., then 30 years old, was smoking “speed” in front of the children. Virginia S. left the children unsupervised and alone for days at a time.
3. Standing
Father acknowledges California law denies him standing to argue an error regarding relative placement under section 361.3. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.) He urges this court to reject that limitation.
Standing is not established merely because a father takes a position on a matter affecting the child. The interest of a grandmother in her relationship with the child is separate from that of the father. Therefore, father has no standing to raise issues related to Virginia S.’s rights. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.)
Virginia S. and father also waived any right to appeal by not filing a timely appeal after the hearing on February 26, 2007, in which the court did not grant immediate placement to Virginia S. (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.)
Furthermore, father and Virginia S. did not raise the issue of placement with Virginia S. at the section 366.26 hearing in June 2007. Father made a request for placement with a family member. Virginia S. testified she had not timely completed the referral paperwork. The dependency court was not asked expressly or directly to make a placement with Virginia S. Under these circumstances, father cannot successfully complain the dependency court failed to act. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642.)
4. Preference for Relative Placement
We also reject father’s substantive argument that the dependency court abused its discretion when it failed to consider Virginia S. for placement. As the record reflects, Virginia S. had originally been given preferential consideration. (§ 361.3.) In June 2006, DPSS performed assessments of the maternal grandmother, the maternal aunt, Virginia S., and Hester P. for placement. Hester P. may have been considered suitable for placement but she died. Contrary to father’s incorrect assertion, Virginia S. was never evaluated as suitable, in part because of her past DPSS history and in part because she twice failed to complete the referral screening process in August 2006 and May 2007. The factual predicate for father’s argument is based on misrepresentations of the record.
Father also misrepresents Virginia S.’s involvement during the reunification proceedings. It was Hester P., not Virginia S., who primarily supported father’s efforts to achieve reunification. Additionally, father is wrong in his assertion that Virginia S. was not considered for placement after reunification services were terminated on February 26, 2007. In March, April, and May 2007, DPSS was still trying to complete the second assessment process but Virginia S. did not cooperate in a timely manner. After May 9, 2007, Virginia S. did not contact DPSS again about placement.
Finally, any error was harmless. Based on the record at the time of the section 366.26 hearing, Virginia S., a negligent mother of seven children, could never have been considered a suitable placement. It was not in the best interests of E.W. to remove her from a stable prospective adoptive home, committed foster parents, and a prospective adoptive sibling. Six months after E.W. was born drug-exposed to indifferent or negligent parents, she had been transformed into an adored chubby, smiling baby in a Christmas elf costume.
5. Disposition
Father lacks standing to appeal and waived or forfeited his claims below. The dependency court did not abuse its discretion and any error was harmless. We affirm the judgment.
We concur: Hollenhorst, Acting P. J., McKinster, J.