Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Nos. JD122657 & JD122658 Peter A. Warmerdam, Juvenile Court Referee.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Alexander R. (appellant) challenges the juvenile court’s orders denying placement of the minors Jasmine G. and Gabriel G. with their paternal grandmother. We find no error and affirm.
FACTUAL AND PROCEDURAL HISTORY
Six-year-old Jasmine and her two-year-old half brother Gabriel were placed in protective custody in November of 2009, when they were found living with their mother (mother) in deplorable, filthy, and dilapidated living quarters without food. Mother had a long history of methamphetamine use, and the minors had been continually neglected since birth due to her drug use. Jasmine had not attended school and could not count, recite her colors or letters, and had no concept of time nor ability to answer simple questions posed by the social worker. According to mother, Gabriel’s father was in Mexico and she had no contact with him. Mother stated that appellant was Jasmine’s father, but she had no contact with him either. Mother had another daughter, D.R., a year younger than Jasmine, who was also appellant’s child. Mother had given D.R. to appellant and had not seen her in several years.
A petition was filed under Welfare and Institutions Code section 300, subdivision (b) based on mother’s drug use and neglect of the minors. At the November 10, 2009, detention hearing, the minors were ordered detained and placed into a licensed foster home.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
At the jurisdiction hearing on December 22, 2009, appellant had not been located and did not appear. The petition was found true and the children were made dependents of the court. Appellant was subsequently located prior to the dispositional hearing scheduled for January 26, 2010.
At the dispositional hearing, appellant was found to be the presumed father of Jasmine Appellant requested placement of Jasmine or, in the alternative, reunification services. At this point, no other relative had asked for placement of either minor. The hearing was continued until February to allow the Kern County Department of Human Services (the Department) to conduct an investigation on the issue of placing Jasmine with appellant.
The supplemental social study prepared in anticipation of the hearing disclosed that appellant had an extensive criminal and drug abuse history. The Department recommended appellant participate in substance abuse counseling prior to any placement.
Appellant was not present at the subsequent February 9, 2010, hearing. Mother was ordered six months of reunification services and was advised that, since Gabriel was under the age of three when he was removed, services may terminate after only six months. Appellant was denied placement of Jasmine, but given 12 months of reunification services, including child neglect, parenting, and substance abuse counseling. He was ordered to submit to random drug testing. A section 366.21, subdivision (e) review hearing was scheduled for August 5, 2010.
The report prepared in anticipation of the review hearing stated that appellant did not participate in reunification services or visits with Jasmine. Mother, who did not participate in her case plan, could not be located, and it was reported that she had been deported in May of 2010. The Department recommended that reunification services be terminated for both mother and appellant. Jasmine and Gabriel had been residing together in a foster home since March of 2010. In July of 2010, following an adoption review, the children were found appropriate for adoption planning and a home was located.
Appellant was present at the six-month review hearing on August 5, 2010. According to appellant’s counsel, appellant’s mother (grandmother) had applied for placement five to six months earlier, had been fingerprinted, and had made modifications and changes to her home in compliance with instructions from a social worker. County counsel was not aware of this development, and appellant’s counsel acknowledged this was the first he had learned of the issue as well. County counsel then stated that the Department had information that a relative placement for Jasmine was pending, but that grandmother had not shown interest in placement of Gabriel, and the Department felt the minors should be kept together.
The juvenile court terminated reunification services as to both parents and a section 366.26 hearing was set for December 3, 2010. A hearing on the issue of relative placement was set for August 18, 2010.
A supplemental report was prepared in anticipation of the placement hearing. In it, the social worker set out somewhat of a timeline on the placement issue. According to the social worker, grandmother was sent an “immediate action” letter on March 29, 2010. On May 19, 2010, the social worker received a call from another social worker that appellant was noncompliant and would not provide a home address. It was suspected that he was living with grandmother. There was also a note that grandmother was not sure that Jasmine was appellant’s child and she wanted DNA testing.
The social worker subsequently spoke to grandmother on August 10, 2010, and asked why grandmother had not requested visitation with the minors. Grandmother stated that she had called the social worker, but her calls were not returned. According to grandmother, she put aside previous concerns that Jasmine was not appellant’s child and that she would now be willing to adopt both Jasmine and Gabriel, although she acknowledged that she had never met Gabriel. According to grandmother, appellant never came to her house to visit D.R. and rarely communicated with her. The social worker noted that grandmother did not ask how Jasmine and Gabriel were.
As explained at the subsequent hearing, grandmother testified that appellant gave custody of D.R. to her in February of 2005 and she obtained guardianship of her in February of 2006.
Following completion of the assessment, the Department denied grandmother placement of Jasmine and Gabriel. While grandmother met the basic requirements for placement, there was no established relationship between grandmother and the children. The social worker did schedule a visit between grandmother and the children on August 13, 2010, to help establish a relationship for possible future placement.
Appellant did not appear at the August 18, 2010, placement hearing, although grandmother was present. The parties agreed to the following facts: Jasmine and Gabriel were placed with their present caretakers on July 24, 2010; that sometime after the February 2010 dispositional hearing grandmother made a relative application for placement of the children; that grandmother met the requirements for placement, but the determination not to place the children with her was made on August 11, 2010, after the children were already placed with their prospective adoptive family.
Grandmother was somewhat equivocal in her testimony. She testified that she applied for placement of the children, made required repairs to her home for placement, and was fingerprinted, but greatly vacillated on dates when those events occurred. Grandmother had only one visit with the children, which occurred just prior to the current hearing. When asked why she had not had other visits, grandmother said she had spoken with someone who never returned her call. Other than the one visit, she had only seen Jasmine on one occasion in 2005, when Jasmine was left at her house for a few days. She had never seen Gabriel. Grandmother then explained that she hadn’t visited the children because she had looked for them but could not find them.
Grandmother testified that she knew in November of 2009 that Jasmine had been removed from mother’s care because appellant had told her. But she then claimed she did not attend any of the prior hearings because she did not know anything. She also testified that she did not ask for placement of Jasmine because appellant told her one of mother’s brothers was going to take the children. When asked why she later decided to pursue placement, grandmother stated it was because appellant told her in August of 2010 that mother had been deported. According to grandmother, appellant has told her “many lies.” Grandmother, who had initial concerns about whether Jasmine was appellant’s child, no longer wished to have a paternity test done to resolve the issue. Grandmother acknowledged that she knew Jasmine was not being properly cared for by mother over the years and claimed she filed one report in 2004, but that no one paid any attention. She acknowledged that she made no efforts to seek custody of Jasmine over the years. According to grandmother, she was now willing to adopt both minors.
Following argument, the juvenile court found the minors’ current placement appropriate and did not violate the requirements of section 361.3. The court noted that the Department’s placement on July 24, 2010, was made, although just barely, prior to grandmother’s call on July 25, 2010, to the Department advising them that she had completed the necessary repairs on her home. Placement was also made prior to the Department’s ultimate approval of grandmother on August 10, 2010. As stated by the court, although the Department does have an obligation to consider the request of relatives for placement, it is not an obligation to leave that issue unresolved for an indefinite period of time. The court also noted that the request for placement may have been ongoing for as little as a month or as long as five months.
Appellant’s counsel agreed that it was unclear whether grandmother applied for placement in March, June, or July of 2010, although it was clear that she had informed the Department that she completed repairs to her home on July 25th, one day after the children had been placed in their preadoptive home.
The juvenile court further denied placement with grandmother at the time, finding it in the children’s best interest to remain where they are. The court noted specifically that the children had no relationship with grandmother.
DISCUSSION
Appellant challenges the juvenile court’s order denying placement with grandmother.
As a general rule, a parent may appeal a judgment or appealable order in a juvenile dependency matter. (§ 395, subd. (a)(1).) As in any appeal, however, the parent must establish he or she is an aggrieved party to obtain an on-the-merits review of a particular ruling. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court’s decision. (Ibid., citing County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) An appellant’s interest must not be nominal or a remote consequence of the court’s decision. (Ibid.)
Respondent contends that appellant lacks standing to raise the issue affecting grandmother’s interests in placement of the minors, citing Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035, which held that when reunification is no longer the goal, a parent lacks appellate standing to challenge the court’s ruling on a relative placement issue. Appellant contends that he raised the issue of relative placement prior to termination of reunification services and has standing to seek review of the issue on appeal.
We note that in In re H.G. (2006) 146 Cal.App.4th 1, 9-10, the appellate court articulated a broader view of a parent’s interests, that is, a parent retains a fundamental interest in the child’s companionship, custody, management and care until parental rights are terminated. At the time of the juvenile court’s section 361.3 placement order in this case, appellant’s parental rights had not been terminated. We will assume, for purposes of this appeal, that the court’s denial of grandmother’s placement request injuriously affected appellant’s interest and he therefore has standing to appeal the order. We will also assume, for purposes of this appeal, that appellant is appealing the order as to both children even though grandmother is not related to Gabriel and is therefore not to be afforded “preferential consideration” as she is to the placement of Jasmine. (§ 361.3, subd. (c)(1) & (2).) In any event, we nonetheless find that the juvenile court did not abuse its discretion in denying placement with grandmother.
The juvenile court is given wide discretion in its placement determination, and we will not overturn its orders absent an abuse of discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) Discretion is abused only if we find that under all the evidence, viewed most favorably in support of the juvenile court’s decision, no judge could have reasonably made the order that he or she did. (Ibid.) Thus, we must indulge all inferences in favor of the juvenile court’s decision. (Ibid.)
Appellant contends that the juvenile court failed to comply with the statutory requirements of section 361.3. Specifically, he contends that grandmother did not receive the “preferential consideration” she was due under section 361.3. He also contends the Department’s untimely placement evaluation of grandmother was error, and the juvenile court abused its discretion when it denied grandmother placement. We disagree.
The relative placement preference, codified in section 361.3, 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” does not create a “presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child’s best interests.” (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) Although the statute does not guarantee relative placement, it does “express[] a command that relatives be assessed and considered favorably, subject to the juvenile court’s consideration of the suitability of the relative’s home and the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 320.)
The relative placement preference statute lists a number of factors the department of social services and the juvenile court must consider in determining whether placement is appropriate. (§ 361.3, subd. (a).) These criteria include, but are not limited, to the child’s best interest (§ 361.3, subd. (a)(1)); the wishes of the parent and the relative (id., subd. (a)(2)); the good moral character of the relative and any other adults living in the home (id., subd. (a)(5); the nature and duration of the child-relative relationship, and the relative’s desire to care for the child and provide permanency if reunification is unsuccessful (id., subd. (a)(6)); the relative’s ability to provide a safe, secure, and stable home environment, as well as the necessities of life, and to protect the child from the parents, facilitate reunification, relative visitation, and implementation of the case plan (id., subd. (a)(7)-(8)).
The juvenile court is required to consider the factors indentified in section 361.3, subdivision (a) “in determining whether placement with a particular relative who requests such placement is appropriate.” (In re Antonio G. (2007) 159 Cal.App.4th 369, 377.) Although all the statutory factors are important (id. at p. 379), the “linchpin” is always the best interests of the child. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1068.)
Appellant contends grandmother made an application in March of 2010, but the Department did not act on the matter until after the children were placed with new foster parents on July 24, 2010. The timeline is somewhat confusing; neither the Department nor grandmother had a firm handle on the dates at issue. In grandmother’s scenario, she did not make any effort until after she found out mother was deported, which was in late May of 2010. She then completed the required home repairs two months later on July 23, 2010, and called the Department on July 25, 2010, a day after the children were placed in the new foster home. In the Department’s scenario, grandmother submitted an application which was responded to in March of 2010, but she did not complete the process until July 25, 2010, when she called the Department to let them know repairs were complete. Under either scenario, it appears that the delay in completing the application process lies with grandmother and not the Department.
We also find that the juvenile court complied with the statutory mandate to give grandmother preferential consideration to the request for relative placement and properly exercised its discretion in choosing alternative placement. The record contains ample evidence that the relative placement preference was considered by the court and overridden. Although grandmother requested that Jasmine and Gabriel be placed with her and she said she would be willing to adopt the children if necessary, grandmother did not have a relationship with either Jasmine or Gabriel. Other than the visit just prior to the hearing, grandmother had only seen Jasmine, her own grandchild, for a few days in 2005, and she had never met Gabriel. She testified that she had not visited them because she did not know where they lived.
The record also casts doubt on whether grandmother was adequately committed to caring for the children. She acknowledged that she had known Jasmine was not being properly cared for by mother over the years, but other than making one report in 2004, she made no effort to seek custody of Jasmine. While she claimed now to want to adopt the children, she made no effort in November of 2009 when she first knew Jasmine had been removed from mother’s care.
On this record, the juvenile court could properly find that continuation of the children’s placement with their potential adoptive family was in their best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 321.) We will not disturb the juvenile court’s decision.
DISPOSITION
The juvenile court’s orders are affirmed.
WE CONCUR: HILL, P.J., DETJEN, J.