Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 2359-2360-DEP
REARDON, J.
Maternal grandmother for minors N. and Z. filed a petition seeking a change in the minors’ placement for adoption from the foster home, where they had been for more than a year, to her home. The court summarily denied the petition. We affirm.
Background
On May 17, 2006, the Sonoma County Human Services Department (the Department) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g). As amended in June, the petition alleged that Mother and Michael H., Z.’s father, failed to protect the children because Mother left N. for extended periods with nonfamily members without provision for his support, and because Mother and Michael H. both had histories of substance abuse and domestic violence. The whereabouts of Nicholas S., N.’s father, were unknown. The children were detained and placed in foster care.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Early Relative Placement Requests
In a June 2006 jurisdiction and disposition report, the Department wrote that Mother “does not want the children placed with her mother, Catherine [R.]. She is interested in having the children placed with her sister . . . in Colorado.” The report continues: “Catherine [R.], the maternal grandmother, has requested placement. The Undersigned met with Ms. [R.] on June 6, 2006, at the Department Office. The Department is declining to place the children with Ms. [R.] for a number of reasons, including: inadequate housing, no source of income, an inability to support reunification efforts due to an estranged relationship with the children’s mother, and her past history with our Department during which several concerns were raised with respect to her mental health issues. Ms. [R.] did appear to the Undersigned to have untreated mental health problems during the interview. The Department is in the process of evaluating the maternal aunt, Laura [T.], and the paternal grandparents (of N.), Walter and Jan [S.], all who live out of state, for concurrent planning.” Catherine was granted regular visitation with the children.
We note that, as a minor, Mother had been the subject of a child protective services investigation for abuse and neglect by appellant, Catherine. No dependency proceedings were initiated.
In an August 11, 2006 addendum to the jurisdiction and disposition report, the Department wrote that it had flown Mother’s sister and her husband out from Colorado and had interviewed them, but the couple had withdrawn their request for placement. “An ICPC request for Walt and Jan [S.] has been prepared, but cannot be submitted until dispositional orders are made.”
The combined jurisdiction and disposition hearing took place on August 11, 2006. Michael H., Mother, and Catherine were absent. The Department recommended removal of the children, reunification services for Mother, and no services for the fathers. Michael H.’s attorney summarily opposed the denial of services. There was no other objection or opposition to the Department’s recommendations. The court announced that it would sign the Department’s proposed order but made no oral findings or rulings from the bench. The written order included the following language regarding relative placement: “The worker has considered the request of Catherine [R.], maternal grandmother, for placement of the child and that based on the Relative Placement Section of the social worker’s report, including the following factors, such placement is not appropriate: [¶] The relative does not have the ability to provide a secure and stable environment for the children; [¶] The relative is unlikely to facilitate court-ordered reunification efforts with the mother.”
Catherine later averred that she repeatedly asked the Department to place the children with her: “While the case was under investigation, I spoke with the investigating social worker, Ericka [C.] [who wrote the June 2006 jurisdiction and disposition report and August 2006 addendum], requesting custody of the children as a relative placement. Erica told me that I would not be considered because I was ‘too flakey.’ In August, I notified Ericka [C.] that I had secured employment and wanted to begin the process to adopt. She would not call me back. I faxed her a confirmation letter of employment signed by my new employer. Again, I got no response. I mailed the letter, and then I called her supervisor. Apparently Erika went on vacation and I had to wait for the next worker. Christina [S.] refused each request for an appointment, even when I asked her in the halls at CPS in Windsor. Her reply was that she hadn’t completed reading the file yet. She promised to call when she was ready for an interview. [It] had been six weeks since her appointment as our grandchildren’s worker. She then took off due to a death in her family. When I contacted the supervisor, he told me I couldn’t work with him or anyone else to move the process along in the alloted [sic] time fram[e] necessary to qualify. At the same time, I understood that the grandparents in Colorado, Jan and Walt [S.], would be considered for a relative placement and as fost-adopt parents. We were all hoping one of us would succeed so the children would remain with the family.”
In a January 2007 six-month status review report, the Department (Christina S.) recommended terminating reunification services for Mother and setting a section 366.26 hearing. The children had been placed together in a prospective adoptive home since June 2006 (with Z. in the home since May 2006). Although the children were doing very well with the foster parents, an “additional concurrent placement is being considered [i.e., Walt and Jan S.], as they are relatives of the children.” Both the foster parents and Walt and Jan S. (hereafter, paternal grandparents) had expressed a desire to adopt the children if they did not reunify with Mother.
The children had twice monthly visits with Catherine. The visits were initially supervised “due to the possible mental instability of the maternal grandmother. However, over the past period of supervision the undersigned has reviewed the notes from the monitor during the visits and she has appeared appropriate. At the approval of the undersigned, the children’s foster parents have arranged for unmonitored visits with the maternal grandmother in January 2007. The children seem to enjoy visits with the maternal grandmother . . . .” The children had also visited with paternal grandparents and the visit went well. A further visit was scheduled.
Safety Concerns About Foster Home
At the March 7, 2007 six-month hearing, Catherine appeared with an attorney, Carolyn McBeath, and produced declarations by herself and by the paternal grandparents. Catherine’s declaration raised safety concerns about the foster home, based on her personal observations during visits from January 31 to February 3 and on February 23, 2007.
On February 2, 2007, the foster mother told Catherine she had found drugs (white powder in a twisted piece of tissue that she thought was methamphetamine) in the home while cleaning. She locked the drugs away and was trying to decide how to respond. She considered holding a house meeting with a neighbor who was a police officer to try to find out who brought the drugs into the home, but the officer suggested she just throw the drugs away. Two days after the incident, she had not taken any other action. Catherine observed hostile interactions between the foster mother and her teenage daughters. Catherine reported that the social worker told Mother on February 21 that N. had been sexually assaulted in the foster home a few days earlier by a teenage foster son and that Z. may have been assaulted as well. The perpetrator was permanently removed from the home. Mother was not notified until a few days after the molestation occurred.
During her visit on February 23, N. pulled nunchakus out of a toy storage area in the home and began swinging them over his head. When alerted by Catherine, the foster mother took the nunchakus away from N. There was a lot of noise and confusion in the home. Two adults and two of the children sleep in the living room on a blow-up mattress; two or three toddlers are dropped off each afternoon and stay until 10:00 or 11:00 p.m.; an older daughter in her 20s lives in the home; and older teenagers drop by with friends. The children received limited attention from the foster parents. The foster father did not interact with N. or Z. at all during Catherine’s three-day visit. He always arrived home after their bedtime. The foster mother was taking two classes and taught Sunday school. She ran a babysitting group on the ground floor until 10:00 or 11:00 p.m., and the children’s bedrooms were upstairs. She implied they were unsupervised. Z.’s psychologist recommended that the foster mother spend more time with Z. and not send her to preschool. The foster mother was noncommittal in response to this recommendation.
Catherine asked the court to place the children with the paternal grandparents for adoption. The paternal grandparents’ home study had been completed in October 2006 and was forwarded to the Department and to “State Adoptions.” The grandparents told their Colorado social worker on February 5, 2007 that they were sure they wanted to adopt N. and Z. At that social worker’s direction, they contacted the Sonoma County social worker and they met with the Department in February. They declared: “[W]e were disappointed to learn that [the Sonoma County social worker] characterized us as not being full[y] committed to the children . . . . This is not the case. We are fully committed and wish to make our intentions clear by this Declaration.”
After reviewing the declarations, the attorney appearing for minors’ counsel said, “My understanding was the children were fine. I’m kind of concerned with this document that was just handed to me. . . . I’m not sure that Ms. Sowers [the regularly assigned minors’ counsel] is aware of what is going on. So I kind of would like to hear from maybe the department . . . .” County counsel said, “I’m just reading this four-page document . . . [¶] . . . [¶] I feel a little bit like I wasn’t notified at all that any of this was coming. I just had a conversation with the social worker today . . . . She didn’t give me any update about the children.”
Catherine’s counsel asked to address the court “as a friend of the court counsel.” She explained the declarations were not relevant to “mother’s position in this case” but had to do with the paternal grandparents’ request to adopt the children. “The declarations that have been set forth are not fashioned as a change in court order contemplating a [section 388 petition], but I felt at this point in time, it was probably important to bring this to the Court’s attention and then hopefully the social worker can then begin to address it.” The following colloquy ensued:
“[County Counsel]: Well, how does what was submitted to the Court, again, relate to the issues that are before the Court at the six-month review hearing?
“The Court: I’m not sure it does.
“Ms. McBeath: They do not.
“The Court: It notifies the department that there are potential family members stepping forward to be considered for adoption. So it does bring some concerns for the department to take back as to the safety of the current placement. [¶] I mean, nunchakus are prohibited weapons in the State of California. That is on page three, there were some nunchakus in the home, so those are some concerns that need to be looked into by the social worker as to the conditions in the foster home. . . .
“[Minors’ Counsel]: . . . I will bring this information to the attention of Ms. Sowers and make sure that she follows up with the department and they discuss what’s going on.”
After Mother submitted on the report, the court terminated reunification services and scheduled a section 366.26 hearing for July 5, 2007.
In its section 366.26 report, the Department made a “preliminary assessment” that the children should be placed for adoption with the foster parents. The foster father was 52 years old and worked full time as an ordained minister. The mother was 38 and ran a day-care facility in the home. Living with the couple were the mother’s two biological daughters, 16 and 17 years old, and a four-year-old son who was adopted at four months of age. The foster parents had no criminal or child abuse record.
On April 13, 2007, the social worker and her supervisor observed the children in the foster home. They appeared to be healthy and active; they were dressed appropriately; and they seemed interwoven with the foster family. The children had improved under the foster family’s care. In June 2006, Z. was pulling her hair out and had visible hair loss on the left side of her head. That behavior had ceased by February 2007. In the spring of 2006, N. had been moved from third to second grade due to his academic performance. The foster mother “has done an excellent job of locating, and requesting educational services. She has worked closely with N.’s educational providers, which has assisted in improving his reading skills.” N. was involved in after school tutoring, sports and the foster family’s church. “The prospective adoptive parents appear to be demonstrating good parenting practices . . . . All of the minors’ medical, dental, educational, emotional, mental and social needs are being met.”
The social worker and supervisor interviewed the children to assess their attitudes toward placement. N. said he had a good time with the paternal grandparents during a visit in January. He also said he was close to the foster parents’ four-year-old son. Z. had said she did not like her foster mother because she did not understand why the foster mother had removed a boy from the home (identified by the social worker as “another foster child with a history of inappropriate sexual behavior”) whom Z. had liked. The Department arranged for Z.’s therapist to address the issue with Z. “As of this date, this issue has been resolved.”
Z.’s therapist recommended that Z. stay in her current placement “with as much stability and permanence as soon as possible.” The therapist ascribed Z.’s “current emotional problems, bladder incontinence, frustration and crying easily” to her fear of being moved from her current placement. N.’s court-appointed special advocate (CASA) also recommended adoption by the foster parents. “The home is a busy place . . . [but] N. seems to handle the activity well. The foster parents are clear in their expectations of N. and follow through as a team with consequences. They verbalize and exhibit their love for him.” She wrote that “N. wants and plans to be adopted by his foster family. He has a good relationship with his local extended family and sees them often. He at last has the chance to attend school regularly; . . . he is making good progress and loves going to school.”
On April 18, the Department reviewed the case with State Adoptions. On May 24, the Department met with minors’ counsel to discuss a possible adoption plan. On May 29, the Department met with the foster parents “to discuss their home environment and assess if they could provide constant supervision and quality of care for the minors.”
The Department wrote that the foster parents were entitled to adoption placement preference pursuant to section 366.26, subdivision (k). The Department concluded: “Preliminary evaluation shows the prospective parents to be suitable and committed to the adoption.” Moreover, “[r]emoval from the current home would be seriously detrimental to the children’s well being.”
Section 388 Petition
Sometime between June 28 and July 5, 2007, Ms. McBeath delivered to the court and the parties a section 388 petition for modification of a court order, also referred to as a Judicial Council form JV-180. The petition asked the court to order the Department to “explore a relative placement for the children” with Catherine or, in the alternative, the paternal grandparents. It stated that the children were bonded to Catherine and the paternal grandparents, that relatives are entitled to preferential consideration under section 361.3, and that placement with the relatives would preserve the children’s extended family relationships. Attached to the petitions were the declarations that had been submitted at the March 7, 2007 hearing, a new declaration by Catherine that recited the history of her efforts to get relative placement, a March 2, 2007 letter to the Department by the paternal grandparents, and a copy of the paternal grandparents’ home study.
At the July 5, 2007 hearing, Catherine again appeared with her attorney, Ms. McBeath. The following colloquy took place:
“The Court: We’ll need to have a date, Ms. McBeath, on the JV-180 filed with the Court. The issue raised is one of who the child or the children should be placed with for adoption or for guardianship.
“Ms. McBeath: It’s actually for adoption, your Honor. . . .
“The Court: Procedurally, at a 26 hearing, I mean, the Court’s determination is going to be what the plan should be. If the plan is adoption, I mean, that’s not inconsistent with your JV-180.
“Ms. McBeath: That’s correct. And what we’re doing is making sure the Court is well aware that we have relatives who are interested in placement, and they’re all working cooperatively with one another.
“The Court: Excellent. That’s all good things. But, I mean, the Court doesn’t see a need right now to rule on the JV-180 in light of the fact it’s not inconsistent with the recommendation of the 26 . . . .
“Ms. McBeath: Yes, your Honor. And since the JV-180 was only very recently submitted, I wouldn’t expect the hearing to be today. But their solidarity and being present in the Court, I figured was pretty important.
“The Court: All right.
“Ms. McBeath: Thank you.”
The contested section 366.26 hearing took place on August 24, 2007. The court found the children were adoptable, selected adoption as the permanent plan, and terminated Mother’s parental rights. After the Department said its plan was for the children to be adopted by the foster parents, Ms. McBeath asked the court to consider the requests of Catherine and the paternal grandparents to adopt the children. Minors’ counsel and the Department objected to these requests. The court said it “will now review and consider the JV-180 and issue a written order.”
On September 13, 2007, the court denied the petition without a hearing by checking a box to indicate the petition did not state new evidence or a change of circumstances that might justify a change in a court order to further the best interests of the children. The JV-180, though received by the court earlier, was not file stamped until September 14, 2007.
Discussion
Catherine appeals from: “Order of July 5, 2007 denying consideration of the Grandparents request to be considered as the adoptive placement at that time[;] Order of September 13, 2007 denying the request to be considered as the adoptive placement after parental rights were terminated on August 24, 2007.” The notice of appeal further identifies the challenged orders as, “The court’s refusal to consider the JV 180 on July 5, 2007.” In her appellate briefs, Catherine reaches even further back in time, challenging the Department’s failure to act on her requests for relative placement from the time the children were first removed from Mother’s care.
The timing of the decision to deny Catherine’s request for placement is critical to this appeal because the legal standards governing placement change over time. At the time minors are first removed from their parents’ custody, section 361.3 governs relative placement: “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a).) The statute lists eight factors that must be considered in assessing a relative for placement and provides that “ ‘preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subds. (a) & (c)(1).)
After the 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).) Placement decisions before termination of parental rights are committed to the independent judgment of the juvenile court. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033-1034.)
A different statute comes into play after the court has adopted a permanent plan of adoption for the children or the children have been freed for adoption. “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).)
After termination of parental rights (which usually, as in this case, coincides with approval of a permanent plan of adoption), “[t]he State Department of Social Services or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption is granted,” with an exception not relevant in this case. (§ 366.26, subd. (j), italics added.) The juvenile court has the duty to review periodically the appropriateness of any placement pending adoption (§ 366.3, subd. (e)(1)), but it cannot substitute its independent judgment for that of the adoption agency; it reviews the adoption agency’s placement decision only for abuse of discretion. (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 732-734.)
We first address Catherine’s arguments arising from her early requests for relative placement. We then address her claim that the trial court erred by not ruling on her section 388 petition on July 5, 2007 or on some other date before parental rights were terminated. Finally, we address her claim that the court erred in denying her section 388 petition in September 2007.
I. Early Requests for Relative Placement
Catherine argues that she “triggered” the Department’s and the juvenile court’s duty to assess her for relative placement under section 361.3 when she requested placement early in the dependency proceedings.
We do not address this argument on the merits because the issue has become moot. At the time Catherine filed her section 388 petition, her burden was “to show that the change [of placement] was in the best interests of the child at that time. Evidence that at earlier proceedings the court had not sufficiently considered placement with the grandmother was not relevant to establish that at the time of the hearing under review, placement with the grandmother was in the child’s best interest.” (In re Stephanie M. (1994) 7 Cal.4th 295, 322 [applying section 361.3].) In several cases, courts of appeal have similarly held that errors early in a dependency case may become moot simply by the passage of time, which causes the child’s interest in permanence and stability to take priority over a relative’s request for placement. (See In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1099-1100 [criticizing agency and court for not assessing relative for placement six months into dependency, but holding that on appeal from order following 12-month hearing the issue was the appropriateness of relative placement at that time]; Los Angeles County Dept. of Children Etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 10 [rejecting argument that it should review denial of placement made months before the order on appeal as the real “genesis of this dispute”]; In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [although relative asked for placement early in proceedings, issue is appropriateness of placement at time of challenged ruling].)
The Department’s argument that Catherine forfeited her challenge to the jurisdiction and disposition order (by failing to file a timely appeal) is unpersuasive. There is no indication in the record that Catherine ever received notice of the order or even notice of the fact that her request for relative placement had been considered and denied. As far as the record discloses, neither the June 2006 jurisdiction and disposition report (which explained why Catherine had been rejected for relative placement), the August 2006 addendum to the report, nor the jurisdictional/dispositional order was served on Catherine. Catherine was not present at the August 11, 2006 hearing when the order was adopted and, in any event, the relative placement ruling was not even mentioned during the hearing. Catherine’s declaration implies that she was never even told that she had been formally rejected for relative placement by the juvenile court. Her continuing requests for placement were met with stonewalling, she avers, not with a statement that the issue was closed based on the court’s ruling. (See In re Antonio G. (2007) 159 Cal.App.4th 369, 378 [where relative had no notice of hearing, finding of unsuitability not binding in later proceedings].)
The only issues before us in this appeal are whether the court erred by not ruling on Catherine’s section 388 petition on July 5, 2007 or some other date before parental rights were terminated, and whether the court erred by denying her petition in September 2007.
II. Catherine’s Section 388 Petition
Section 388 provides: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” (§ 388, subd. (a).) The court must order a hearing on the petition “[i]f it appears that the best interests of the child may be promoted by the proposed change of order.” (§ 388, subd. (c).) The petition “must be liberally construed in favor of its sufficiency.” (Cal. Rules of Court, rule 5.570(a).) However, “[i]f the petition fails to state a change of circumstance or new evidence that may require a change of order . . . or that the requested modification would promote the best interest of the child, the court may deny the application ex parte.” (Rule 5.570(d).)
All rule references are to the California Rules of Court unless otherwise indicated.
The denial of a section 388 petition without a hearing is reviewed for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) “We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘ “exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’ ” (Ibid.) Moreover, “[i]n any custody determination, a primary consideration in determining the child’s best interest is the goal of assuring stability and continuity. [Citation.] ‘When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’ ” (In re Stephanie M., supra, 7 Cal.4th at p. 317, italics added.)
A. Failure to Rule on Petition Before Termination of Parental Rights
Catherine argues that the juvenile court erred by not ruling on her section 388 petition before the court terminated parental rights and approved a permanent plan of adoption at the August 24, 2007 hearing. She argues the court erred by failing to recognize that the petition needed to be adjudicated before the children were freed for adoption in order to preserve the petitioners’ rights to a relative placement preference. She also argues that the court violated rule 5.570(f) by not setting a hearing within 30 days of the effective filing date of the petition, which she claims was no later than July 5.
Although Catherine’s petition sought placement with either her or with the S.’s, she lacks standing to appeal the denial of the petition as to the S.’s. (Cf. Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1035 [parent has no standing to challenge denial of placement to a relative].) We do not construe her appellate briefs as requesting such relief.
Neither of these arguments is persuasive in light of the express representations of Catherine’s attorney at the July 5, 2007 hearing. Ms. McBeath told the court the petition sought placement of the children with Catherine or the paternal grandparents “for adoption” and she agreed that these requests were not inconsistent with termination of parental rights and thus did not need to be decided immediately. Ms. McBeath did not seek placement pending adoption of a permanent plan. Although Catherine had raised safety concerns about the foster home, the tenor of Ms. McBeath’s statements at the July 5 hearing was that Catherine and the paternal grandparents wanted to be considered for adoption, not that there was an urgent need for a change in the children’s placement.
Moreover, the section 388 petition itself was ambiguous. It identified the order sought to be changed as a February 21, 2007 order approving a permanent plan of adoption, with the foster parents identified as the prospective adoptive parents. No such order exists. Nevertheless, this statement indicated that the central concern of the petition was adoptive placement. In describing the change requested, the petition discusses relative placement, which was not inconsistent with a focus on adoptive placement. Finally, when the petition cites section 361.3, it does so in the context of seeking adoptive placement: “Sec. 361.3 states that preferential consideration must be given to a relative placement. They can thrive and maintain their relative connections for a lifetime by a relative adoption.” (Italics added.) In light of both the wording of the section 388 petition and the in-court statements of Ms. McBeath, the court could have reasonably concluded that Catherine was only seeking placement of the children for adoption, not an immediate change of placement. On that basis, the court reasonably postponed a ruling on the petition.
There is an order of March 7, 2007, in which the court, finding that a permanent plan of adoption was appropriate and likely, ordered that a permanency planning hearing pursuant to section 366.26 be held. However, that order does not identify anyone (particularly the foster parents) as potential or likely adoptive parents.
Catherine argues that the court erred in delaying its ruling on the petition beyond the 30-day time limit of rule 5.570. “If it appears to the court that the requested modification will be contested or if the court desires to receive further evidence on the issue, the court must order that a hearing on the petition for modification be held within 30 calendar days after the petition is filed.” (Rule 5.570(f).) If the court must hold any hearing within 30 days of filing, Catherine reasonably argues, the court must decide whether to hold a hearing in less than 30 days. The Sonoma County Superior Court Rules permit the juvenile court to delay the filing of a petition until after it has decided whether to order a hearing on the merits of the petition. (Super. Ct. Sonoma County, Local Rules, rule 10.20(B)(5), (6); but see rule 10.20(B)(5)(a) [initial determination on whether to order a merits hearing must be made within two days of court’s receipt of petition]. However, Catherine argues this local rule inappropriately allows the court to manipulate the filing date to avoid compliance with rule 5.570.
We need not consider the validity of the local rule. Catherine has forfeited any argument that the court violated rule 5.570 by failing to raise the issue below. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 [forfeiture rule].) Catherine not only failed to object to the court’s delaying its decision on her petition, she essentially agreed to the delay at the July 5, 2007 hearing, as described above. Catherine argues that she did not agree that the petition could be heard more than 30 days after the petition was effectively filed; she only agreed the petition could be decided after the section 366.26 hearing. As of July 5, the section 366.26 hearing was scheduled for July 25. (It was later continued to August 8 and then again to August 24.) Therefore, the petition could have been heard after the section 366.26 hearing but still within the 30-day limit. However, when the court still had not ruled on the petition as of the August 24 hearing, long after the 30-day time period had expired, Catherine raised no objection to the court’s deciding the section 366.26 issues before ruling on her petition. Her rule 5.570 argument is forfeited.
We reject Catherine’s argument that her right to a hearing on her petition within 30 days of filing pursuant to rule 5.570 was not subject to forfeiture, but only to affirmative waiver. In re Rodger H., cited by Catherine, involved an argument that relatives had waived their request for relative placement by failing to follow up with the social worker after making an initial request for placement at the jurisdictional hearing. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1185.) The appellate court held the relatives had triggered the social worker’s duty to investigate them for relative placement by requesting placement during the hearing; their failure to follow up with the social worker did not extinguish that duty to investigate them for placement. (Id. at pp. 1185-1186.) The duty would have been extinguished only by an affirmative waiver by the relatives. There was no issue of forfeiture in Rodger H. (i.e., of abandoning a claim of error by failing to timely object to or appeal from the error). (See People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) The issue was raised on appeal of the disposition order, when the initial placement decision was made. (In re Rodger H., at p. 1177.)
Moreover, Catherine’s main argument is that the petition should have been heard before parental rights were terminated so that she could have the benefit of the section 361.3 relative placement preference. Invoking the 30-day limit is merely a means to that end. However, Catherine does not dispute that she agreed at the July 5, 2007 hearing that the petition could be heard after parental rights were terminated. Similarly, at the August 24 hearing, she raised no objection when the court terminated parental rights before it ruled on the petition. She thus acquiesced in the court’s delaying a decision on her petition until after it terminated parental rights. Stated differently, Catherine essentially agreed to a continuance of any hearing on the section 388 petition and thus rule 5.570 was never violated. (See § 352, subd. (a) [for good cause, “the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held”].)
B. Denial of Petition After Termination of Parental Rights
As of September 13, 2007, when the court denied Catherine’s section 388 petition, the court had approved a permanent plan of adoption and terminated parental rights. At that point, the decision where to place the children was committed to the exclusive discretion of the adoption agency, subject only to abuse of discretion review by the juvenile court. (§ 366.26, subd. (j).) Moreover, the foster parents were entitled to preference as an adoptive placement “if the agency making the placement determine[d] 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).)
Catherine’s declaration regarding safety concerns about the foster home, which was attached to her section 388 petition, had a direct bearing on the question of whether the foster parents should be entitled to preferential placement under section 366.26, subdivision (k)—that is, whether removal from the foster home would be detrimental to the children. Most alarmingly, Catherine reported that N. had been sexually molested in the home and that drugs and weapons were found in the home. The court confirmed that the declaration raised serious concerns that needed to be investigated by the Department.
The Department followed up on this directive by reassessing the foster home and reporting on its reassessment in its section 366.26 report. The social worker and her supervisor observed the children in the home, interviewed the children, and met with the foster parents to discuss their ability to supervise and care for the children. The Department consulted with minors’ counsel, State Adoptions workers, and child protective services social workers. It considered the opinions of Z.’s therapist, N.’s CASA, and extended family members who lived in Sonoma County (Z.’s paternal grandmother, Carol F., and the twins she was raising). It concluded with a “[p]reliminary evaluation” that N. and Z. had substantial emotional ties to the foster parents and removal from the foster home would be seriously detrimental to the children’s well-being. The report was served on the parties (but not Catherine) before the July 5 hearing and the court entered it into evidence at the hearing, which Catherine and her attorney attended. No objection to the preliminary evaluation of the foster parents was raised at the July 5 or the August 24 hearings.
At the time the court reviewed the petition to determine whether it merited a hearing, therefore, Catherine’s March 2007 declaration was no longer new evidence. The Department had investigated the allegations and concluded that the foster family remained an appropriate placement for the children.
Catherine’s petition fails to cite any other new evidence or changed circumstances that might warrant a change in the children’s placement to further their best interests. As relevant to Catherine’s request for placement, the petition cited two facts. First, it cited Catherine’s fitness and willingness to adopt the children. The petition did not explain why this was a change in circumstances in light of Catherine’s consistent representations that she could adopt the children. Even assuming her fitness and willingness, the foster parents had a legal right to priority for adoptive placement. Second, the petition cited the fact that Catherine’s visitation had been changed from unsupervised to supervised visits after she complained about the presence of weapons in the foster family’s home. The petition did not explain why this fact (which seems to be contradicted in the Department’s section 366.26 report) would support a change in the children’s placement to Catherine to further the children’s best interest. To the extent the allegation suggests retaliation and bad faith by the foster parents or Department, it is answered by the Department’s thorough reevaluation of the foster home and determination that it remained an appropriate placement.
The juvenile court could reverse the Department’s conclusion that the foster home was an appropriate placement only if it found an abuse of discretion. In light of the unanimous support for adoption by the foster parents among the social services professionals and the childrens’ advocates, the court had no ground to conclude the Department abused its discretion. We conclude, therefore, that the juvenile court did not abuse its discretion in denying the petition without a hearing. On its face, the petition failed to show that it might be in the children’s best interest, at this late stage of the dependency proceedings, to change their placement for prospective adoption.
Disposition
The September 13, 2007 order summarily denying Catherine’s section 388 petition is affirmed.
We concur: JONES, P. J., SIMONS, J.
The record is mixed regarding Catherine’s mental stability and suitability as a caretaker.
On the one hand, Catherine had a significant child protective services history while Mother was a minor in her care. In 2005, Mother told a Mendocino County social worker she thought Catherine had Alzheimer’s disease. As just noted, the Sonoma County social worker commented, following an interview with Catherine, that Catherine seemed to have untreated mental health problems.
On the other hand, the Mendocino social worker observed visits between the children, Mother, and Catherine and did not report any problems. She reported that Catherine was a “supportive link” for Mother, and that Catherine’s support for Mother in part justified terminating the dependency case. (Of course, the children were removed from Mother again in a matter of two months.) Mother’s characterizations of Catherine are suspect based on her own mental instability and apparently unreliable reporting of past events. Catherine’s visitation with the children was changed from supervised (due to concerns about her “possible mental instability”) to unsupervised (based on direct observations of her interactions with the children). The foster parents apparently concurred in this assessment because they arranged for Catherine to have extended visits with the children in the foster home. Finally, Catherine’s declarations are lucidly written and none of Catherine’s allegations regarding the foster home (including sexual molestation, weapons, and drugs in the home) is refuted or even disputed in the record.
Here, the issue is not whether Catherine affirmatively waived her right to relative placement, but whether she failed to preserve her claim of error by raising a timely objection to what she claims was the juvenile court’s failure to hold a hearing within 30 days of the effective filing date of the petition. That issue is one of forfeiture, not waiver.