Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIJ112140, Christian F. Thierbach, Judge.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
R.S. (mother) has appealed from an order of the juvenile court establishing legal guardianship as to her son, S.D. (born in 1997) (the child). Mother contends (1) the Riverside County Department of Public Social Services (the Department) violated her rights by failing to evaluate a maternal aunt’s request for placement, and the juvenile court erred in failing to consider the relative placement preference under Welfare and Institutions Code section 361.3; (2) the juvenile court’s finding that the child had waived his right to be present at the section 366.26 hearing was not supported by substantial evidence; and (3) the juvenile court violated the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1900 et seq.) by failing to inquire of mother whether she had any Indian ancestry.
All further statutory references are to the Welfare and Institutions Code.
The child has joined the position of the Department urging us to affirm the order of the juvenile court. We find no prejudicial error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
In February 2005, the San Bernardino County Department of Children’s Services filed a petition under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) as to the child. The petition alleged that mother had a substance abuse problem and was currently incarcerated but had made no provision for the support of the child. When mother was arrested, she had failed to inform the arresting officer that she had left her children at home for more than eight hours without supervision. The petition alleged that mother had had frequent incarcerations. The petition also alleged that the child’s father (father) was in prison. Father is not a party to this appeal.
The case was transferred to Riverside County in May 2006.
The detention report stated that mother had been arrested at 2:30 a.m. on February 22, 2005, for passing counterfeit checks. After her arrest, mother was uncooperative and did not mention that she had left the child (as well as her two grandchildren, R.J. and D.J., ages 7 and 8) alone in her apartment. A deputy sheriff obtained a search warrant to search mother’s apartment for check-making materials and served the warrant at 10:30 a.m., at which time the children were found alone and unsupervised. The children said they had been alone all night. Mother was charged with child endangerment as a result. The deputies located computers, personal identification for other individuals, and check-making materials in the house. The child’s alleged father was in state prison.
R.J. and D.J., the child’s niece and nephew, were made subjects of separate dependency proceedings and are not parties to this appeal.
The child’s maternal grandmother asked to have the children placed with her, and the social worker stated the Relative Assessment Unit would evaluate the maternal grandmother’s home. The maternal grandmother also requested that the maternal grandfather’s home be evaluated for placement. At the detention hearing, the juvenile court found that a prima facie case had been made.
The Department filed a jurisdictional/dispositional report in March 2005. Mother told the social worker that mother was on probation for grand theft auto and that she would probably be incarcerated for one to two years because her current arrest was a violation of probation. The report detailed mother’s lengthy criminal history, including theft by misrepresentation, receiving stolen property, five incidents of possession of controlled substances, vehicle theft, possession of documents to commit fraud and forgery, and second degree burglary. The maternal grandmother’s home was being evaluated. In an addendum report, the Department stated that in April 2005, the child had been placed in the home of his maternal grandfather.
At the jurisdiction/disposition hearing, the juvenile court found the allegations of an amended petition true and that the child came within section 300, subdivisions (b) and (g). The court stated that the child’s placement with the maternal grandfather was appropriate. The court ordered supervised visitation at least once a week after mother’s release from custody and authorized visitation during mother’s incarceration if the maternal grandfather provided transportation for the child. The court ordered that mother participate in reunification services.
The Department filed a status report in November 2005. The report stated that the child was then living with his maternal grandmother. The social worker had interviewed mother by telephone. Mother was in prison and believed she would be released in March 2006. She was participating in substance abuse, parenting, relapsing and life skills classes.
The maternal grandfather, with whom the child had previously been living, had moved out of state.
At the review hearing on December 14, 2005, the court found that mother, who was then still incarcerated, had made significant progress toward alleviating the issues underlying the child’s detention and that mother had been participating in her case plan. The court continued the child in placement with his maternal grandmother.
The Department filed a status report in April 2006. Mother had been released from prison and was living with her brother. The child was in good health and appeared to be well adjusted to his placement with the maternal grandmother. He was performing “exceedingly well academically.” Mother had completed several courses while in prison and was participating in drug testing as part of her parole.
At the review hearing on May 2, 2006, the court again found that mother had made significant progress toward alleviating the issues that had resulted in the child’s detention. The court established a permanent plan for the child of “placement with his maternal grandmother with the specific goal of return home.”
The Department filed a status report in September 2006. The Department recommended that mother’s reunification services be terminated, that the child’s placement with the maternal grandmother continue, and that the maternal grandmother be named his legal guardian. Mother was still living with her brother, but she visited the child daily, enjoyed spending time with him, and assisted him in his school work. Mother stated she could not provide a safe and stable home for the child, and she agreed with the recommendation for long-term guardianship with the maternal grandmother. The child’s niece and nephew, R.J. and D.J., were also living with the maternal grandmother—their great-grandmother.
The Department filed a section 366.26 report in October 2006. The report stated that the child was doing well in his placement with the maternal grandmother and his other relatives, and he enjoyed seeing mother.
At the section 366.26 hearing on November 22, 2006, the court found that termination of parental rights would be detrimental because the child was living with his maternal grandmother, who was unable or unwilling to adopt, but who could provide the child with a stable home. The court appointed the maternal grandmother as the legal guardian of the child and ordered that mother have reasonable and supervised visitation. The court terminated the dependency.
The Department filed an addendum report in May 2007. The report stated that the maternal grandmother had been hospitalized in November 2006, and the social worker learned in December 2006 that she had died. The child was placed in a foster home with his nephew and niece in December 2006. The social worker was investigating nonrelative and relative placements, including with the maternal grandfather, who was then living in Georgia.
In a status report filed in July 2007, the Department reported that the LiveScan (fingerprint identification) for two relatives had revealed “several criminal charges that require higher approval” for them to be considered for relative placement, and another relative failed to report for his LiveScan appointment. The maternal grandfather had expressed interest in placement; Mother wanted the child placed with a relative but did not want him placed out of state. Meanwhile, the child continued to be healthy. He appeared to have adjusted well to his foster placement and was excelling in school. Mother had visited the child only twice since his placement in the foster home in December 2006 but had been in telephone contact with him. The child wanted to remain with his current caretakers until he could be placed with his niece and nephew; the Department considered the three children a sibling set because of their ages and their interest in being placed together.
On May 24, 2007, the Department filed a request to change court order seeking rescission of the legal guardianship. The court granted the request pursuant to the agreement of the parties. The permanent planning goal was placement with a fit and willing relative.
On August 28, 2007, the Department filed a second request to change court order asking that a selection and implementation hearing be set. The reason for the request was as follows: “In speaking to the child, . . . he had decided he would like his current caretaker . . . to assume guardianship of him. [The child] was originally hesitant to have the caretaker assume guardianship of him as the Department was in the process of assessing relatives for placement. As of this date, the child has decided he is much happier with his current caretakers and would like to remain in their care on a long-term basis. The process of Legal Guardianship has been explained to him. In speaking to the current caretaker, . . . she would like to become the child’s Legal Guardian and would like to be able to provide the child with permanency.”
On October 12, 2007, A.T., the child’s maternal aunt and R.J. and D.J’s maternal great aunt, expressed her interest in becoming the caretaker for all three children. On November 1, it was determined that A.T. had no criminal history, and the LiveScan results were clear. A.T.’s home was certified the same day.
The Department filed a section 366.26 report in November 2007. The Department requested that the current caretakers be appointed the child’s legal guardians. The report stated, “During this reporting period, the Department attempted to place the child with relatives, at the parents[’] and grandparents[’] request. Unfortunately, the child has decided that he would like to remain with his current caregivers, but continue to visit with family.” The child had monthly visits and frequent telephone contact with mother and had had an extended visit with his maternal grandfather in Georgia over the summer. The child reported that he had enjoyed the trip, but he was happy to be home. The report described the current caretakers favorably and stated they were “very motivated” to obtain legal guardianship. The current caretakers were willing to allow the child to maintain contact with his birth relatives so long as it was in his best interest. The child’s niece and nephew were placed in the same home. The report stated the child had changed his mind several times about where he wished to be placed. The report also stated that the Department had evaluated another relative for possible placement, and “[t]he relative did pass the Department’s requirements for placement, but at this time, placement is not being considered as we would like to keep all three children . . . together. In addition, [the child’s] niece and nephew have stated several times to the Department that they do not want to live with relatives and do not want to be separated from their uncle. . . . The children have decided they are happier in their current placement and the current caregivers have expressed a desire to move forward with the plan of legal guardianship with all three children.”
At the section 366.26 hearing on December 6, 2007, the mother objected to the legal guardianship and requested that the child be placed with the maternal aunt. Mother’s counsel stated, “It is the mom’s feeling that the minor has been mislead [sic] to believe that if they remain in their current placement that the Department will not intervene in their lives anymore. But if the minors were to be placed with a relative caregiver, that there could be future intercedings by the Department. [¶] So, these beliefs, that’s the reason why the minor has represented he wishes to remain where he’s at. So, mother is just objecting to the guardianship at this time.” However, when the court asked if mother wished to present evidence, her counsel responded, “No affirmative evidence today, Your Honor.”
The court ordered a permanent plan of legal guardianship for the child with his current caretakers. The court terminated the dependency.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Relative Placement
Mother contends the Department violated her rights by failing to evaluate a maternal aunt’s request for placement, and the juvenile court erred in failing to consider placement with the maternal aunt who had passed the Department’s evaluation.
1. Additional Background
The social worker’s service log attached to the November 2007 section 366.26 report indicates that on October 11, 2007, a referral for A.T., the child’s maternal aunt, had been completed and submitted to the placement liaison. On October 18, it was determined that A.T. did not have any history with Child Protective Services. The same day, a home evaluation of A.T. was conducted. A.T. lived in a two-bedroom apartment with her 13-year-old son. The apartment was clean and well maintained and did not present any health or safety concerns. A.T. reported she had completed a LiveScan and had completed affidavits stating she had no criminal history.
The social worker interviewed the children on October 19. D.J. and R.J. told the social worker they did not want to consider other relative placements, and they preferred to stay with their current caretakers. The child “stated that he was happy in his current placement but would not care if he was placed with relatives.” The social worker asked him how he felt about being separated from his niece and nephew, and he “stated he did not mind that much, but kind of did.”
On November 1, A.T.’s home was certified after it was determined that she had no criminal history and that her LiveScan results were clear.
2. Standard of Review
We apply the abuse of discretion standard to determinations concerning relative placement. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
3. Standing
The Department contends mother lacks standing to raise the issue of relative placement.
“[W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened.” (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) “[A]ny person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment,” is considered a “‘party aggrieved’” for purposes of appellate standing. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1196.) In In re L.Y.L. (2002) 101 Cal.App.4th 942, the court stated that, “[g]enerally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter. [Citation.] To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court’s decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote. [Citation.] We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. [Citation.]” (Id. at p. 948.)
Mother argues that she had standing because the juvenile court’s order “would likely” adversely affect her right to visitation. The juvenile court found that adoption and termination of parental rights was not in the child’s best interest. Accordingly, the juvenile court was required to make an order for mother’s visitation with the child, unless the court found that visitation would be detrimental to the child’s physical or emotional well-being. (§ 366.26, subd. (c)(4)(C).) Here, the juvenile court did order visitation as “reasonable and as directed by the legal guardian.”
Mother notes that before the maternal grandmother died, mother visited the child daily after her release from prison and the visits had gone well. Mother states that after the child was placed in foster care with nonrelatives, her visitation was “markedly reduced” to one supervised visit per month. However, the record indicates the child has “constant phone contact with his mother” and “[t]he current caretakers are open to facilitating visits with relatives, as long as they are appropriate and the children are willing to visit.”
The record shows that for the first six months of the child’s placement in foster care after his grandmother’s death, mother visited him only twice—at the grandmother’s funeral in December 2006 and for his birthday in May 2007. In January 2007, the child asked the social worker when he could visit with mother, and the social worker stated she would set up a visit when mother contacted the Department.
In August 2007, the social worker stated mother’s visits and telephone conversations with the child should be supervised because mother had inappropriately discussed placement issues with the child. The caretakers indicated they were not opposed to further visitation.
In our view, this record does not support mother’s contention that she was aggrieved by the child’s placement with nonrelative caretakers. Mother’s contention of harm is merely speculative.
4. Forfeiture
The Department further argues that mother failed to raise the issue in the juvenile court, and she has therefore forfeited her challenge. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.)
Particularly if an issue requires a finding of fact, a parent is precluded from raising the issue on appeal when the parent has failed to raise an issue in the juvenile court. (In re Joshua G. (2005) 129 Cal.App.4th 189, 197.) In In re Erik P. (2002) 104 Cal.App.4th 395, for example, the court held that although a father had standing to raise a challenge to the trial court’s failure to find the sibling exception to termination of parental rights under section 366.26, former subdivision (c)(1)(E) (now subdivision (c)(1)(B)(v)), the father had waived his right to do so by failing to raise the issue at the section 366.26 hearing. (In re Erik P., supra, at p. 403.) Here, we agree that mother’s failure to raise the issue in the juvenile court constituted a forfeiture of the issue.
5. Preference for Relative Placement
Even if we concluded both that mother had standing and that she had not forfeited the issue, we would affirm on the merits. Under section 361.3, whenever a new placement of a dependent child must be made, preferential consideration must be given to suitable relatives who request placement. (§ 361.3, subds. (a), (d); In re Antonio G. (2007) 159 Cal.App.4th 369, 377.) “‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)
The preference for relative placement comes into play, however, when a new placement is being considered for the child. (§ 361.3, subd. (d); see In re Lauren R. (2007) 148 Cal.App.4th 841, 853.) Here, the child had been moved to a foster home in December 2006, along with his niece and nephew, when the maternal grandmother became ill. The three children liked their new placement and reported that they wanted to remain in placement together. In January 2007, the caretakers expressed a desire to provide permanency and act as legal guardians for all three children. The children later communicated they were interested in being placed with a relative, and the caretakers withdrew their request so relatives could be considered for placement. By July 2007, the Department and the parties agreed that the appropriate permanency plan was a Planned Permanent Living Arrangement. At a hearing on July 5, the court found that a compelling reason existed for not setting a section 366.26 hearing because no one was then willing to act as the child’s legal guardian. A review hearing was set, and the child remained in his foster care placement.
On August 28, 2007, the Department filed a second request to change order on the ground that the child had expressed his preference to stay with his current caretakers, and the current caretakers had stated they would like to become the child’s legal guardians. The maternal aunt did not step forward to request evaluation until October 2007, and at no time after that did the child require a new placement. Thus, the relative preference did not come into play because no new placement was required.
Finally, even if the relative placement preference did apply, compelling reasons existed to override that preference. The Department had determined that the child and his niece and nephew should be treated as a sibling set. The niece and nephew had told the social worker they wished to remain with their current caretakers and did not wish to be placed with relatives. If the court had placed the child with the maternal aunt, it is likely he would have then been separated from his niece and nephew. We conclude there was no error in rejecting placement with the maternal aunt.
B. Child’s Right to Attend Section 366.26 Hearing
Mother contends the juvenile court erred in finding that the child had waived his right to be present at the section 366.26 hearing because that finding was not supported by substantial evidence.
1. Additional Background
The child was 10 years old at the time of the December 6, 2007, section 366.26 hearing, and he therefore had a right to be present at the hearing unless he decided otherwise. (§§ 349, 366.26, subd. (h)(2).) At the section 366.26 hearing, the court inquired whether the child had been invited to be present and why he was not in court. The attorney for the Department responded that the child was in school, and that he had been present at the last hearing that had been continued at the request of mother’s counsel. The attorney represented to the court that the social worker had advised the child of his right to be present at the continued hearing. The social worker’s service log indicated that the child had told the social worker on September 20, 2007, that he wanted to attend the hearing. The social worker’s service log entry for October 19, 2007, stated, “I let [the child] know again that we had court next month and I wanted to make sure they still felt the same way as before so I can let the Court know.”
The court’s December 6, 2007, minute order states, “County Counsel informs the Court that the Social Worker spoke to the child at the last hearing and the child waived his presence for this hearing.” (We note, however, that the minute order from the November 28, 2007, hearing states the child was not present.)
2. Forfeiture
The Department contends that mother has waived any error because she did not raise an objection below.
Here, mother failed to object in the juvenile court on the ground that the child was not present and did not seek a continuance so the child could be present. She is therefore precluded from raising the issue on appeal. (In re Erik P., supra, 104 Cal.App.4th at p. 403.)
3. Harmless Error
We further observe that even if mother’s challenge had been properly preserved for appeal, we would find any error harmless. (In re Celine R. (2003) 31 Cal.4th 45, 59-60.) Minor has filed a brief on appeal joining the position of the Department in urging us to affirm the juvenile court’s order. We have no reason to believe he would have taken any different position had he appeared at the hearing.
C. ICWA Compliance
Mother contends the juvenile court and the Department failed to comply with the inquiry requirements of the ICWA.
1. Additional Background
The initial detention report stated, “The Indian Child Welfare Act does not apply.” At the detention hearing, the court ordered parents to “reveal membership in an Indian tribe.” The jurisdictional/dispositional report stated that the social worker had asked mother “if the family had any Native American bloodlines.” Mother stated that the child’s “paternal grandmother may be Native American,” but mother “could not provide [the social worker] with any names or other information, which would enable [the social worker] to begin the noticing process.” The jurisdictional/dispositional report stated that notice had been sent to the Bureau of Indian Affairs (BIA) on March 15, 2005, “in attempts to gain information regarding the Native American eligibility of the family.” A copy of the notice was attached to the report. An amended detention report dated May 6, 2005, stated that the ICWA might apply.
At the jurisdictional/dispositional hearing on June 14, 2005, the court stated: “And refresh my recollection, is it the Indian Child Welfare Act may apply? They have been noticed and apparently at this time there has not been any positive response but notice was sent March 15th of 2005.” The court found that ICWA might apply. However, the status reports filed November 29, 2005, April 14, 2006, September 19, 2006, and June 7, 2007, all state that the ICWA does not apply.
The Department concedes that the record does not contain any parental notification of Indian status form.
2. Analysis
Under the ICWA, “where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) If no tribe is known, notice must be sent to the BIA as the agent for the Secretary of the Interior. (Ibid.; 25 C.F.R. § 23.11 (2003); In re Edward H. (2002) 100 Cal.App.4th 1, 4, superseded by statute on other grounds as stated in In re Alice M. (2008) 161 Cal.App.4th 1189, 1201-1202.)
Error in ICWA notice is harmless, particularly when the source of the duty does not arise in the ICWA itself, but rather from a rule of court implementing the ICWA.” (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) Here, although mother made a vague suggestion that the child might have Indian ancestry through his father, mother has never made any offer of proof as to what she would have said had she been required to complete a parental notification of Indian status form or to answer on the record the juvenile court’s inquiries on that subject. In the absence of any affirmative representation of Indian ancestry, either in the dependency court or on appeal, we conclude any error by the juvenile court was harmless.
In In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, this court found ICWA notice error harmless. We explained, “There is nothing whatever which prevented the father, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not.” We further stated, “The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.” (Ibid.)
Here, likewise, because mother has made no assertion on appeal that she could provide any additional information concerning the child’s possible Indian heritage, we find the error harmless.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: RAMIREZ, P.J. MILLER, J.