Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK57197, Elizabeth Kim, Temporary Judge (pursuant to Cal. Const., art. VI, § 6).
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Objector and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Respondent.
Aida Aslanian, under appointment by the Court of Appeal, for Minor.
No appearance for Plaintiff.
VOGEL, J.
In 2004, the dependency court placed Jennifer A. with her maternal grandmother, Rosario S. In August 2006, Jennifer’s father, Marcos C., first appeared in the dependency proceedings, and the court thereafter ordered the Department of Children and Family Services to provide reunification services for Marcos. Rosario appeals, contending Jennifer should be freed for adoption by Rosario. We disagree and affirm.
FACTS
A.
Jennifer was born in December 2003. She came to the attention of the Department in November 2004 after police officers observed her mother, Maria A., walking the streets at midnight under “irrational and bizarre” circumstances. A petition was filed alleging that Maria had mental and emotional problems rendering her incapable of caring for Jennifer (Welf. & Inst. Code, § 300, subds. (b), (g)), that the whereabouts of Jennifer’s father (Marcos C.) were unknown, and that he had in any event failed to provide for Jennifer (§ 300, subds. (b), (g)). Jennifer was placed with Rosario.
All section references are to the Welfare and Institutions Code.
Maria told the social workers she “wanted to live on the street” and refused to live with Rosario (her mother) because she “does not want anyone to tell her what to do.” She said she would rather have the Department take Jennifer than have to move back in with Rosario. Maria is not a party to this appeal.
The Department reported in December that it had no information about Marcos’s whereabouts, other than that he might have been in prison and, on his release, might have been deported. On December 6, the dependency court found the investigation insufficient and continued the proceedings to January. Although Marcos had not yet been found, on January 5, 2005, the court found Marcos was Jennifer’s alleged father and set an adjudication hearing for February. When neither parent appeared at the adjudication hearing, a default hearing was held and the petition was sustained. Reunification services were ordered for Maria.
In August, the Department reported that Jennifer had bonded with Rosario, that Maria had not participated in any of the court-ordered programs, and that Marcos’s whereabouts were still unknown. Maria’s reunification services were terminated on August 22, and a permanent plan hearing (§ 366.26) was set. In December, the Department reported that although Jennifer was “too young to verbalize a statement,” she was very warm, loving, and affectionate toward Rosario and was adjusting well. Rosario was not interested in adoption because she wanted to leave open the possibility that Maria might reunite with Jennifer. In February 2006, the dependency court placed Jennifer in a long-term legal guardianship with Rosario.
B.
Marcos appeared in August 2006, at which time counsel was appointed to represent him and the Department was ordered to interview him. In October, the Department reported that Marcos had left three telephone messages for the social worker, but they had not connected by telephone. The proceedings were continued.
In February 2007, Rosario filed a pro se section 388 petition in which she told the court she wanted to adopt Jennifer and asked for the appointment of counsel to represent her. The section 388 petition was set for hearing, but the court did not appoint counsel for Rosario. Later in February, the Department reported that Marcos had been interviewed and had agreed to a “live-scan” to determine his criminal record. He told the social worker he lived with his mother, worked in a car wash, and did not have any criminal record (which the live-scan established was not a true statement -- he had numerous arrests and convictions for drug-related offenses, and had served three separate prison terms, albeit not recently since the most recent in 1991). The Department reported that Marcos had visited Jennifer regularly at the Department’s offices, and his behavior had been appropriate.
At a hearing held on February 21, the court accepted an offer of proof that Marcos would testify that Maria had been diagnosed as paranoid schizophrenic, that she had not told Marcos about the dependency court proceedings, and that she had not given him any information about where Jennifer was living. Marcos offered to sign a statement accepting paternity. Based on these facts, Marcos’s lawyer argued that Maria had actively concealed Jennifer, that Marcos had come forward (and formally appeared) immediately after he learned about the dependency proceedings, and that Marcos had regularly visited Jennifer. Counsel urged the court to treat Marcos as Jennifer’s presumed father, to deny Rosario’s section 388 petition or, at a minimum, to continue it until after Marcos’s relationship with Jennifer could be evaluated.
At the conclusion of the hearing, the trial court found Marcos was Jennifer’s presumed father, ordered the Department to provide family reunification services for a six-month period, denied Rosario’s section 388 petition, and continued the legal guardianship. Rosario appeals from the order denying her section 388 petition.
DISCUSSION
In related arguments, Rosario contends the trial court should have granted her section 388 petition, terminated Marcos’s parental rights, and freed Jennifer for adoption by Rosario. We disagree.
A section 388 petition will not be granted unless the dependency court finds, in an exercise of its discretion, that the petitioner has shown a substantial change in circumstances regarding the child’s welfare, and that the proposed modification is in the child’s best interests -- and we will not reverse absent a showing of abused discretion. (In re Heather P. (1989) 209 Cal.App.3d 886, 891; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
Both Jennifer and Marcos have filed respondents’ briefs opposing the relief sought by Rosario, and both question whether Rosario has standing to pursue this appeal. Clearly, she does. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.)
A.
Rosario contends the dependency court violated her right to due process by failing to appoint counsel for her with regard to her section 388 petition. We disagree.
First, Rosario offers no authority to support her claim that she had a federal or state constitutional right to appointed counsel to pursue her section 388 petition; in fact, the law defeats rather than supports her claim. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [in evaluating the right of an indigent party to appointed counsel in dependency proceedings, the court must consider the private interest at stake, the government’s interest, and the risk that the procedure will lead to an erroneous decision, all of which must be balanced “against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom”].) Because Lassiter holds that a parent does not necessarily have a due process right to appointed counsel at a hearing to decide whether parental rights shall be terminated (id. at pp. 31-34), we do not see how Rosario, whose legal guardianship remained intact, can claim she had a right to counsel.
Second, the fact that Rosario’s statutory right to appointed counsel (§ 317 et seq.) may have been violated is immaterial in light of her inability to establish prejudice. (Cf. In re Angel W. (2001) 93 Cal.App.4th 1074, 1080-1085 [because the right of a party to appointed counsel in a dependency proceeding is purely statutory, a denial of the parent’s right of self-representation is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 837].) In light of Marcos’s appearance and his presumed father status, it is inconceivable that the dependency court would have terminated his parental rights -- and thus plain that, had the court appointed counsel for Rosario, the result would have been the same.
B.
Rosario contends her petition should have been granted because adoption is preferred over legal guardianship. We disagree.
Because family preservation is the “first priority” of dependency law (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787), Marcos’s and Jennifer’s right to reunification services trumps Rosario’s efforts to adopt Jennifer. If Marcos fails at his reunification efforts or is otherwise found unfit, then and only then will it be time to consider adoption. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256; In re Mark L. (2001) 94 Cal.App.4th 573, 584-585; In re Gladys L. (2006) 141 Cal.App.4th 845, 848; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117; Santosky v. Kramer (1982) 455 U.S. 745, 747-748; and see In re Marilyn H. (1993) 5 Cal.4th 295, 306 [just as a parent has a protected interest in the companionship of his children, so too does a child have an interest in remaining with a parent].)
For the same reasons, we reject Rosario’s contention that the trial court was required to set a permanency planning hearing before Marcos has had an opportunity to participate in a meaningful reunification plan.
DISPOSITION
The order is affirmed.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.