Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Super. Ct. Nos. BJP052589, BJP052590, BJP052591. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Before Levy, A.P.J., Cornell, J., and Dawson, J.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Brenda P. appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her three children. She contends the court erred by denying her petition to place them with their maternal grandfather and rejecting her claim that termination would be detrimental to the children. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In January 2005, the Madera County Superior Court adjudged two-year-old Jonathan, one-year-old Jamie, and seven-month-old Tyler dependent children and removed them from parental custody. Commencing in 2002, when Jonathan was an infant, appellant received voluntary family maintenance services on three separate occasions from respondent Madera County Department of Social Services (the department). Despite the lengthy services, she was unable to provide a clean and safe environment for her children. By November 2004, the family home was in a deplorable condition.
Appellant also failed to interact with her children such that they appeared to experience significant developmental delays. At the time of the children’s November 2004 detention, the department placed them in foster care with the D. family. With the foster mother’s appropriate stimulation and supervision, the children quickly began to make great strides in their physical and emotional development.
Over the following 12 months, appellant completed her case plan and made significant progress in resolving the issues that led to the children’s removal. As a consequence, in January 2006, the trial court terminated reunification services and returned the children to appellant’s custody with family maintenance services.
However, the children’s return to appellant’s custody was short-lived. By July 2006, appellant was once again unable to provide a clean and safe environment for her children. The children were also exhibiting language delays. Appellant acknowledged the children should not remain in her home at a July 11th decision-making conference and thereafter surrendered the children to the department. In turn, the department once more placed the children with the D. family and filed a supplemental petition recommending that the children return to foster care placement.
The proceedings on the supplemental petition - detention, jurisdiction and disposition - were contested, however, and prolonged. In late August 2006, following a contested evidentiary hearing, the court found true allegations in the supplemental petition for a more restrictive placement. As of that point, it appeared the “real issue” was one of placement with family under a theory of guardianship or other permanency planning. At an October 10, 2006 hearing, appellant through her trial counsel clarified for the court that she wanted her children to live with their maternal grandfather (grandfather) under a legal guardianship. He had requested relative placement and as of then had completed 10 out of the 16 requirements for the relative approval process.
At the same October hearing, the court granted appellant’s request that the department make the children available for a parent/child bonding study her attorney was arranging. The attorney also advised she might have the psychologist look at the relationship between the grandfather and the children. The court questioned the relevance of this and directed any such evaluation be kept separate and apart from the parent/child bonding study.
The court eventually conducted a contested dispositional hearing on the supplemental petition on December 5, 2006. At the hearing, the court admitted into evidence and considered the bonding study evaluating the relationship between appellant and her children. The psychologist, Dr. Katie Berggren, who conducted the bonding study, opined that it would be detrimental to the children’s emotional and psychological well-being to lose contact with appellant. Dr. Berggren did not address, notably, whether the benefit from maintaining the parent-child relationship outweighed the benefits of adoption. Dr. Berggren, also evaluated the grandfather and children, but as yet had been unable to submit a written report.
Dr. Berggren did not submit her report on the children’s relationship with their grandfather until mid-March 2007.
Appellant nevertheless argued based on the parent/child bonding study and her testimony, as well as that of the grandfather and an aunt, that the court should place the children with the grandfather as their legal guardian. As of the December hearing, the relative placement process remained incomplete. The grandfather had completed 15 of the 16 steps in the process. A home inspection was still needed. The department had twice scheduled the inspection but the grandfather had cancelled each date. He needed more time to get his home ready.
In response to appellant’s argument, the court ruled it could not order guardianship at that stage. The court added that if the grandfather had passed the final part of the relative placement approval process it would be in a different position with regard to making orders about the children’s placement. However, the only option before the court was to have the children remain in their current placement. The court then made the requisite findings to deny appellant further services, in effect to terminate services, and set a section 366.26 hearing.
Having set the section 366.26 hearing, the court gave appellant notice of her writ remedy. Although her trial counsel filed a notice of intent to pursue writ review by this court, appellant subsequently advised this court in writing of her request to withdraw the notice of intent. Pursuant to her request, this court dismissed the writ proceeding on January 23, 2007.
At approximately the same time, appellant filed a petition to modify (§ 388) the children’s placement. She alleged, as changed circumstances, the fact that a department social worker inspected the grandfather’s home on December 19, 2006 and approved his home for placement purposes. She further alleged it would be in the children’s best interests to live with their grandfather because they had a significant bond with appellant as well as with the grandparent and it was preferable that relatives raise the children. Although the court set the petition for hearing in early February 2007, it did not commence its hearing on appellant’s section 388 petition until late March 2007, the date set for the section 366.26 hearing.
Meanwhile, an adoption specialist with the California Department of Social Services/Adoptions (CDSS) filed a “366.26 WIC Report with the court. In it, CDSS recommended that the court find the children adoptable and order termination of parental rights. The D. family, who had been granted de facto parent status as to the three children, was committed to adopting them.
Relevant to this appeal, CDSS conducted a positive preliminary adoption assessment on the D. family in which it reported the D. family did not wish to enter into a formal post-adoption contact agreement with appellant’s family. Nevertheless, the D. family was willing to arrange up to monthly visits and special occasion visits between the children and the grandfather. They were not interested in similar contact between the children and appellant.
In addition to its preliminary adoption assessment of the D. family, CDSS conducted a preliminary assessment of the grandfather which it attached to its 366.26 WIC Report. In the grandfather’s case, however, CDSS concluded it could not recommend him.
At the section 388 proceedings, the court heard testimony from numerous witnesses. Those witnesses included Dr. Berggren, the grandfather, an aunt, appellant, the department’s current social worker, the adoption specialist, and Mrs. D.
Dr. Berggren testified she observed a close relationship between the grandfather and the two older children, Jonathan and Jamie. These children looked to their grandfather as a caring, parent-like figure. The psychologist observed less interaction and less of a relationship between Tyler and his grandfather. In her opinion, it would be detrimental for the children to lose contact with their grandfather.
The grandfather testified he did not step forward in 2004 and waited until July 2006 to express an interest in placement because he was brought up to let his children, including appellant, take care of themselves. Prior to 2004, however, he did provide a home briefly, first for appellant and Jonathan, then for appellant, Jonathan, and Jamie later still for all four of them. He also visited the children almost every other day once they returned to appellant’s home in early 2006. He saw her house in July 2006 and remarked it “wasn’t that bad.”
The grandfather realized, however, at the July 11, 2006, decision-making meeting which he too attended, that the children would be unable to remain with appellant. At that point, he expressed his willingness to take the children although, at that time, he wished to be their legal guardian. He went through a “big process” to become eligible for placement. He was now willing to adopt them and parent them and had started the paperwork.
The current social worker testified she observed a majority of the visits the children had with the grandfather since the December 2006 dispositional hearing. While she noted there were good visits and a lot of interaction between Jonathan and the grandfather, she noticed a much more distant relationship between Jamie and the grandfather. The youngest child, Tyler, did not especially seek out the grandfather. At five to ten minutes before the end of their visits, Tyler usually grabbed at the door to leave while the older two children usually picked up toys. No one cried at the end of their visits.
In the social worker’s opinion, it was not in the children’s best interests to change their placement given the length of time they had been with the D. family and her understanding they had never lived with the grandfather. She was concerned that the grandfather had not requested placement the first time the children were removed from appellant’s custody and they then bonded with the D. family. The social worker was also concerned because the grandfather told her another daughter of his would take care of the children and he would be “grandpa.” However, the social worker had no information about the aunt and the extent of her relationship with the children.
Mrs. D. testified she had no objection to the grandfather continuing a grandfather/grandchild relationship with the children.
Following considerable argument, the court denied appellant’s petition. The court found there was a very close family relationship at least between the grandfather and Jonathan. It also observed it would like to place the children with the grandfather. It explained nevertheless that it relied “primarily and most importantly” on section 361.3, subdivision (d) and the absence of any evidence that a new placement needed to be made.
Section 361.3, subdivision (d) provides:
A week later, the court conducted the section 366.26 hearing to select and implement a permanent plan for the children. Because it was undisputed that the children were adoptable, the hearing focused on appellant’s claim that termination of her rights would be detrimental to the children because they shared a beneficial relationship with her. (§ 366.26, subd. (c)(1)(A).)
Again, appellant called Dr. Berggren as a witness. She testified it would be emotionally and psychologically damaging to Jonathan and Jamie to sever their relationship with appellant. The psychologist could not say the same for Tyler as he did not share a parent/child relationship with appellant. When asked to explain the detriment she predicted, Dr. Berggren stated she believed Jonathan and Jamie would mourn the loss of their mother, similar to mourning the death of a loved one. She also offered her belief that it is very important for children to maintain relationships they have developed, particularly those with parents. If the parent/child relationship is severed, children can develop difficulty in establishing further relationships. At this point, Dr. Berggren did not observe any type of attachment disorder in these children. Also, Dr. Berggren could not make any judgment as to the development of a future attachment disorder.
After counsel submitted the matter, the court found the children adoptable and terminated parental rights. The court also retained the current visitation schedule for appellant, the grandfather, and the children at once a week. In so ruling, the court cited its recollection that the D. family was willing to maintain the relationship with the grandfather.
DISCUSSION
I. Petition to Modify Placement
Appellant contends the court erroneously denied her request (§ 388) to place the children with their grandfather. According to appellant, the grandfather was entitled to relative placement preference in July 2006 when the department once again detained the children from her care. She further claims the department set out to defy the preference and led the grandfather to believe: the children’s placement with the D. family was only temporary; the department would place the children with him once he “child-proofed” his home; and there was no urgency to his doing so. Appellant concludes by arguing she established the section 388 requirements for modification, that is, there was a change of circumstance and it was in the children’s best interest for the court to place them in his care. As discussed below, appellant’s contention is meritless; she glosses over the law as well as the record in this case. The court did not abuse its discretion by denying her request. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
One, to the extent appellant argues the grandfather was entitled to placement at any point prior to her January 2007 request, she should have raised that argument with this court by means of a petition for extraordinary review from the trial court’s December 2006 setting order. (§ 366.26, subd. (l); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.) However, as previously mentioned, appellant voluntarily withdrew her notice of intent to seek such review. A challenge to the most recent order entered in a dependency matter may not dispute prior orders for which the statutory time to seek review has passed. (Steven J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) Thus, appellant has forfeited her right to pursue of any claims of error predating her modification request.
Two, the law, as set forth in section 361.3, authorizes preferential consideration of a relative’s request for placement, that is, a relative’s request shall be considered and investigated first (§ 361.3, subd. (c)(1).) A requesting relative is not necessarily entitled to placement, as appellant assumes. Rather, the social worker and the court must consider a wide variety of factors in determining whether placement with a relative is appropriate. (§ 361.3, subd. (a).)
Those factors include but are not limited to:
Three, for a relative to be considered appropriate to receive placement of the child, the relative’s home must first be approved pursuant to the process and standards described in another portion of the code (§ 309, subd. (d)). (§ 361.3, subd. (a)(8).) In this case, there is no evidence the department failed to follow or somehow delayed the statutory approval process and standards. The record in fact discloses it was the grandfather who twice asked the department to postpone its investigation of his home for approval purposes. That investigation eventually occurred after the December 5, 2006, dispositional hearing. The department then issued its approval on December 19, 2006, two weeks after the dispositional hearing.
Four, appellant ignores the timing of the department’s approval and how it relates to preferential consideration of a relative’s placement request. Such consideration must be afforded when a child is removed from the parents’ physical custody at the dispositional phase (§ 361.3, subd. (a) [“In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361”]) and subsequent to the dispositional hearing “whenever a new placement of the child must be made” (§ 361.3, subd. (d)).
At the December 2006 dispositional hearing, the court ordered the children’s care, custody, and control to be under the supervision of the department (§ 361.2, subd. (e)) which placed the children with the D. family. Notably, appellant did not ask the trial court to exercise its discretion and defer a ruling on or otherwise leave open the relative placement issue. Thus, when appellant brought her petition subsequent to the December 2006 hearing, preferential consideration depended on whether there was a need for a new placement. (§ 361.3, subd. (d).) Appellant overlooks this requirement. Instead, she assumes the court should have changed the children’s placement simply on the basis of her modification petition.
However, the changed circumstance she alleged and proved was not that a new placement must be made but rather that the department recently approved the grandfather’s home for placement. To claim, as appellant does, that approval of a relative’s home necessitates a change in placement defies the language and logic of section 361.3. Also, lost in appellant’s rhetoric is the fact that her children had been in out-of-home placement for seven months before she petitioned to change their placement. In the meantime, the court set a section 366.26 hearing to select and implement a permanent plan for the children. At that juncture, the court’s focus shifted to the children’s needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The trial court properly could find that continued placement in the D. home satisfied those needs and was in their best interests.
Five, appellant overstates the record in support of her modification petition. Contrary to her claims, the superior court never found the department erred or was dishonest in the placement process. The record is also devoid of any ruling that the department should not have initially placed the children with the D. family. Further, the court did not determine the department should have considered placement with the grandfather as appropriate from the outset. Moreover, there was no evidence that the children needed to be raised by their grandfather. Indeed, while it was undisputed that Jonathan had a strong bond with his grandfather, the same could not be said about the other two children. At best the evidence was conflicting as to Jamie. In the case of the youngest children, it was accepted that his bond was with the prospective adoptive parents.
A final note. We are sympathetic, as was the trial court, to the grandfather’s efforts to obtain placement approval. We too are concerned that the department made no apparent effort to explain to appellant’s family that time is of the essence regarding out-of-home placement. The department’s silence may not have been unlawful or purposeful. Nonetheless, such silence gives an appearance that the department proceeded according to a “plan” which did not include relative placement for the children. We share the trial court’s encouragement to the department to pursue good faith steps to dispel such criticism and assure this does not occur in the future.
Under the circumstances presented in this case, we conclude the court did not abuse its discretion by denying appellant’s modification petition. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
II. Issue of Detriment
Appellant also argues she clearly established it was in the children's best interests to maintain their parent/child relationship with her such that the court erred by terminating her rights. (§ 366.26, subd. (c)(1)(A).) She relies largely on Dr. Berggren's opinion and the court's order maintaining visitation following termination. She also references the grandfather's relationship with the children to buttress her claim. Having reviewed the record, we disagree with appellant. The court did not err by rejecting her argument.
If, as in this case, the children are likely to be adopted, adoption is the norm at the permanency planning phase. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) It is the parent’s burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Dr. Berggren's report as well as her testimony supported appellant's claim that she shared a beneficial relationship with her two older children. Notably, there was no such evidence as to the youngest child. In addition, it was Dr. Berggren's opinion that to sever the relationship would be emotionally and psychologically damaging for the two older children. Yet, when asked to explain how and why, Dr. Berggren responded that, in her opinion, it is very important generally for children to maintain relationships they have developed, particularly with parents. If the relationship is severed, children can develop difficulty in establishing further relationships. These children had no attachment issues to this point. By Dr. Berggren's standard, parental rights would rarely be terminated. However, under California law, termination of parental rights and adoption is the preferred result for adoptable children when reunification efforts have failed. (In re Celine R., supra, 31 Cal.4th at p. 53.)
We also note that missing from Dr. Berggren's assessment was an evaluation of whether maintaining the relationship outweighed the benefits of adoption.
“The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance[] the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here no such evidence was introduced.
To the extent appellant relies on the grandfather's relationship with the children to support her claim that termination would be detrimental, she again loses sight of the law. Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, it does not identify other family relationships, such as a grandparent/grandchild relationship, as a basis for a court to find termination would be detrimental to a child.
Last, appellant's reliance on the court's post-termination order for visits is misplaced. The court expressly ordered continued visits based on its impression, from the section 388 hearing, that the D. family supported ongoing contact between the children and appellant. In fact, however, what Mrs. D. testified was she had no objection to the grandfather continuing a grandfather/grandchild relationship with the children. In any event, the court did not make its order based on any finding the visits were so beneficial to the children, as appellant argues.
Having reviewed the law and the record herein, we conclude the court did not abuse its discretion by rejecting appellant's detriment argument. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
DISPOSITION
The orders terminating parental rights are affirmed.
“Subsequent to the hearing conducted pursuant to Section 358, 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.”
“(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. “ (2) The wishes of the parent, the relative, and child, if appropriate. “ (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. “ (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. “ (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. “ (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. “ (7) The ability of the relative to do the following: “
(A) Provide a safe, secure, and stable environment for the child. “ (B) Exercise proper and effective care and control of the child. “ (C) Provide a home and the necessities of life for the child. “ (D) Protect the child from his or her parents. “ (E) Facilitate court-ordered reunification efforts with the parents. “ (F) Facilitate visitation with the child's other relatives. “ (G) Facilitate implementation of all elements of the case plan. “ (H) Provide legal permanence for the child if reunification fails. “ (I) Arrange for appropriate and safe child care, as necessary [and] “(8) The safety of the relative's home.”