Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. No. CK78580 D. Zeke Zeidler, Judge.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
G.P. (father) appeals from the juvenile court’s placement order, made immediately before termination of parental rights, in which the court denied the paternal great-aunt’s request to have one-year-old G.P. removed from foster care and placed with her. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2009, the Los Angeles County Department of Children and Family Services (the department) removed two-month-old G.P. from his parents’ custody after finding their home in an unsanitary and unsafe condition, littered with trash and debris, lacking gas, electricity and telephone service, and learning that his parents had mental and emotional problems for which they were not taking their prescribed psychotropic medications. The department filed a petition on G.P.’s behalf under section 300 of the Welfare and Institutions Code, that was later sustained.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
G.P.’s mother, Rhonda W., has two older children with a different father, none of whom are parties to this appeal.
Upon removal, the social worker asked the parents if they had relatives with whom G.P. might be placed. Father stated that he had relatives in Pasadena, Victorville and Florida, but he could not find their telephone numbers because he was being “forced to clean up the house.” Mother stated that she had family in Fresno, but was too “fuzzy” and “confused” to remember “any information about anything or anyone.” G.P. was placed in foster care. A month later on September 25, 2009, G.P. was placed with a new foster father due to licensing problems with his first caretaker. His new foster father had previously adopted a child from the department and was eager to adopt again.
The parents attended the detention hearing and a pretrial conference but did not attend the jurisdiction/disposition hearing, and their whereabouts were unknown. The juvenile court ordered the department to provide reunification services and to attempt to identify paternal relatives for G.P.’s placement. The court ordered the parents to attend parent education classes and individual counseling, to be evaluated by a psychiatrist, and to take all prescribed medications. The six-month review hearing was set for May 13, 2010.
The trial court did not pursue the issue of relative placement with the parents while they were present in court.
On April 28, 2010, father appeared unexpectedly at the department’s office with his aunt, Toni J., who had recently learned of G.P.’s situation and was willing to care for him. The social worker had other commitments and was unable to meet with them, but asked father to call the following Monday to schedule an appointment. Father never called. The aunt called, but the social worker explained that she could not speak to her about the case because it was confidential.
It is unclear why the social worker did not obtain information from Toni J. at that time as a potential caregiver.
For the six-month review hearing, the department reported that the parents were not taking any actions to comply with the case plan or to visit G.P. and recommended termination of reunification services. The social worker had been informed that father was incarcerated, but the information had not been verified. Mother was present at the six-month review hearing on May 13, 2010; father was not present. Father’s attorney stated that G.P.’s paternal great-aunt Toni J. wanted the minor placed with her and that she wanted to adopt him. The matter was continued for a contested hearing on June 25, 2010, and the court ordered the department to conduct a prerelease investigation on Toni J. and to facilitate her weekly visits with G.P.
On June 1, 2010, G.P.’s foster father filed a request for de facto parent status, which the court granted on June 15, 2010.
For the June 25, 2010 contested hearing, the department reported that only one more visit was required to approve Toni J.’s home for placement and that she only needed to obtain a crib. The department also reported that she had visited G.P. only once before he was detained and had no relationship with him. The department recommended that G.P. remain in his current placement and not be placed with his paternal great-aunt.
Neither parent attended the contested hearing on June 25, 2010. The court noted that father had been released from custody the prior month. Toni J. testified that a social worker made a second visit to her home and saw that she had purchased a crib. The court stated that it could not place G.P. with Toni J. until the court received final written approval. The court then found the parents had failed to comply with the case plan, terminated their reunification services, and set a section 366.26 permanency planning hearing for October 14, 2010. The court also ordered the department to make efforts to place G.P. with his paternal great-aunt if his current placement failed.
A month later on July 26, 2010, father filed a motion asking the court to reconsider placing G.P. with Toni J. The motion attached a letter from the department to Toni J. dated July 14, 2010, stating that her home had received final approval effective June 19, 2010. The court set the motion for hearing on August 18, 2010.
In preparation for the hearing, the department reported that Toni J. had had eight visits with G.P. during which she minimally interacted with him. She did not approach or engage him in any way, but stood and observed him. On several occasions G.P.’s de facto father intentionally left the room, but Toni J. picked up G.P. only once and he cried. She never inquired about G.P.’s daily activities or preferences. The department believed that it would be in G.P.’s best interests to remain placed with his de facto father. G.P.’s de facto father also filed a brief stating that G.P. was psychologically bonded with him. On August 18, 2010, the court granted father’s motion for reconsideration and ordered the parties to file further briefing. The court set the motion for hearing on October 14, 2010, the same date as the section 366.26 hearing.
On October 14, 2010, the court first addressed father’s motion for reconsideration. The court found that because Toni J.’s home had actually been approved prior to the six-month review hearing, it considered the relative placement request to have been made during the reunification period. G.P.’s attorney advised the court that she believed it was in the minor’s best interests to remain with his de facto father. Balancing the minor’s best interests against the preference for relative placement, the court found it was in G.P.’s best interests to remain with his de facto father, rather than be placed with a relative who had not bonded with him, and that to replace him “touche[d] on detriment.” The court granted the department discretion to terminate Toni J.’s visits if it determined that visitation was not appropriate.
The court then conducted the section 366.26 hearing. After finding that G.P. was adoptable and that no exceptions to adoption applied, the court terminated the parents’ parental rights. Both father and Toni J. filed notices of appeal. On February 17, 2011, this court dismissed Toni J.’s appeal.
DISCUSSION
I. Motion to Dismiss
Preliminarily, we address the department’s motion to dismiss father’s appeal on the grounds that he lacks standing to challenge the juvenile court’s placement order and that the placement issue became moot when his parental rights were terminated.
The issue of standing is currently on appeal before the California Supreme Court. (See In re K.C. (2010) 184 Cal.App.4th 120, review granted July 14, 2010, S183320.)
The department argues that father is not an “aggrieved” party because his interest was not affected by the court’s order denying placement with a relative. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734 [to be aggrieved means the party “must have a legally cognizable immediate and substantial interest which is injuriously affected by the court’s decision”].) The department points out that a parent’s interest in a dependency proceeding is to reunify with his or her child. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.) After termination of reunification services, the parent’s interest decreases and the focus shifts to the stability and permanency of the minor. (In re Celine R. (2003) 31 Cal.4th 45, 52; In re Valerie A. (2007) 152 Cal.App.4th 987, 1000; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Here, the juvenile court determined that the relative placement request was made prior to the termination of reunification services because it was later discovered that the paternal great-aunt’s home had actually been approved prior to the June 25, 2010 contested six-month hearing. While father’s reunification services were terminated at the same hearing, there is authority for the proposition that until parental rights are terminated, a parent has standing to challenge a placement order. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053–1054; In re H.G. (2006) 146 Cal.App.4th 1, 9.) The juvenile court made its placement order immediately prior to terminating father’s parental rights. While an alternative permanency plan to adoption was unlikely, it still remained an option for the juvenile court. (In re Esperanza C., supra, at p. 1054.)
The placement issue is not moot. In In re H.G., the appellate court reversed the juvenile court’s order removing the parents’ daughter from her grandparents. There, as here, the juvenile court had terminated parental rights. Instead of finding the placement issue moot, the appellate court “necessarily” reversed the order terminating parental rights and concluded that the parents’ challenges to termination were rendered moot. (In re H.G., supra, 146 Cal.App.4th at p. 18.)
Because we conclude that father does not lack standing and that the placement issue is not moot, we deny the department’s motion to dismiss the appeal.
II. Placement Order
Turning to the merits of the appeal, father contends the juvenile court abused its discretion by refusing to place G.P. with his paternal great-aunt.
Father relies on section 361.3, which is commonly known as the relative placement preference. This section provides that preferential consideration must be given to suitable and requesting relatives whenever the placement of a dependent child must be made. (§ 361.3, subds. (a), (d).) “‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1); In re Sarah S. (1996) 43 Cal.App.4th 274, 286 [preferential consideration “places the relative at the head of the line when the court is determining which placement is in the child’s best interests”].) The reason for this preference is that “relative caregivers are more likely to favor the goal of reunification and less likely than nonrelative caregivers to compete with the parents for permanent placement of the child.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 797.)
The department disputes that section 361.3 is applicable here. It argues that Toni J. is not one of the relatives identified in the statute entitled to preferential consideration; there was no need for a new placement; and the placement order was made at the same hearing as the section 366.26 termination of parental rights, at which point the caretaker preference was applicable. But we need not determine whether section 361.3 is applicable here, because the issue before us is whether the juvenile court abused its discretion in denying a request for change of placement. (See In re Stephanie M., supra, 7 Cal.4th at p. 320 [“Assuming without deciding that the statutory preference applied at the late stage of the proceedings that we review here..., ” the Court used the same standard whether the placement request was made pursuant to section 388 or 361.3]; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) In making a placement decision, “the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.]” (Alicia B., supra, at p. 863.) “‘Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ [Citations.]” [Citation.]’” (Ibid.)
“‘Relative’ means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words ‘great, ’ ‘great-great’ or ‘grand’ or the spouse of any of these persons even if the marriage was terminated by death or dissolution. However, only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle, or sibling.” (§ 361.3, subd. (c)(2).)
“Subsequent to the hearing conducted pursuant to Section 358 [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.” (§ 361.3, subd. (d).)
“Notwithstanding any other provision of law, the application of 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, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being.” (§ 366.26, subd. (k); In re Stephanie M., supra, 7 Cal.4th at p. 317 [after termination of reunification services “there is a rebuttable presumption that continued foster care is in the best interests of the child”].)
At the time the juvenile court made its placement order on October 14, 2010, G.P. had lived with his de facto father for almost 13 months, which was nearly all of his short life, and had bonded with him. By contrast, Toni J. had no relationship with her great-nephew. Although she had visited him (the record is unclear as to the actual number of visits), she had not attempted to form any relationship or bond with him. During her visits, she minimally interacted with G.P. and mostly stood and observed him. On the one occasion in which she picked him up, he cried. She showed no interest in learning about his daily activities or preferences. At the late stage of the proceedings in which the placement order was made, the juvenile court was aware that it was not making a temporary placement, but a placement for adoption, as both Toni J. and the de facto father wanted to adopt G.P. The juvenile court determined that it would not be in G.P.’s best interests to change his placement. Given the evidence before the juvenile court, we conclude that it did not abuse its discretion in denying Toni J.’s request for placement.
To the extent father argues that his family’s substantive due process rights were violated by the department’s allegedly inadequate investigation of his relatives for placement, this argument also provides no basis for reversal of the placement order. When G.P. was detained, father never identified Toni J. as a potential placement. Nor, apparently, did he immediately inform her that G.P. was in foster care. While the department acknowledges that it was “unfortunate” the juvenile court was not made aware at the June 25, 2010 six-month hearing that Toni J.’s home had been approved for placement, the court nevertheless later treated the request as having been made during the reunification period. Given Toni J.’s failure to bond with G.P., and the recommendation of his attorney that it was in his best interests to remain with his foster family, father has not demonstrated that a different outcome was likely. At the June hearing, the court set the section 366.26 permanency planning hearing, and the rebuttable presumption arose that continuation of G.P.’s current placement was in his best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Joseph T., supra, 163 Cal.App.4th at pp. 792, 797.) Indeed, it turns out that Toni J. still failed to bond with G.P. during her visits with him after the June hearing.
Accordingly, we find no error in the juvenile court’s placement order.
DISPOSITION
The placement order is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.