Opinion
NOT TO BE PUBLISHED
Contra Costa County, Super. Ct. No. J03-02017
Sepulveda, J.
Appellants R.G. (mother) and Sean M. (father) appeal various orders of the juvenile court, which terminated their parental rights as to their daughter S.M. They argue that the juvenile court erred in (1) denying father’s motion to set aside disposition orders that were entered before his status was elevated to that of presumed father, (2) denying mother additional reunification services, (3) terminating parental rights, (4) denying the request of the minor’s great-aunt to place the minor with her, and (5) precluding father’s counsel from questioning a social worker about the “financial motive” for selecting adoption as the permanent plan for the minor. We disagree and affirm the orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 5, 2003, respondent Contra Costa County Bureau of Children and Family Services (the Bureau) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect), alleging that mother had a substance abuse problem which hindered her ability to provide adequate care and supervision to her daughter, who was then about 16 months old. The petition alleged that mother was arrested on November 3, 2003 for being under the influence of methamphetamine. The petition also alleged that the whereabouts of minor’s father were unknown. The minor was ordered detained.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Following mediation, the Bureau deleted allegations in the dependency petition regarding mother’s alleged assault of a staff member at a homeless shelter. Roosevelt G., mother’s husband and father of the minor’s half-sister, was listed as “Father” on the mediation agreement with the Bureau. Mother entered a no contest plea, and the juvenile court sustained the amended petition after accepting the mediation agreement on December 4, 2003.
Mother and Roosevelt, who had been separated for several years when dependency proceedings were initiated, have a daughter who also was the subject of dependency proceedings below, but who is not the subject of this appeal. Roosevelt likewise is not a party to this appeal.
In a disposition report dated December 22, 2003, the Bureau referred to father as the minor’s alleged father and listed an Antioch address as his last known address. The report stated that father was listed on the minor’s birth certificate, but that Roosevelt would be considered the minor’s presumed father because he and mother were legally married at the time of the minor’s birth. The report stated that the relationship between mother and father was “off and on,” but that they were “currently involved in a relationship,” which involved incidents of domestic violence. The family had been referred to the Bureau in February 2002, when it was alleged that the minor’s half-sister was being exposed to domestic violence by mother’s boyfriend (father). That referral was substantiated; however, father was in jail at the time, and mother received resources to help protect her and her child’s safety.
At the time of the Bureau’s December 2003 report, father was reportedly living in a residential recovery program, and mother was waiting to be admitted to one. Mother had visited the minor, and father had accompanied her on one visit. The Bureau recommended that father be allowed a minimum of one hour of supervised visitation each month, but that he not receive reunification services because he was “alleged and not requesting services.” It reported that mother understood her need to complete a treatment program, and recommended that she receive reunification services.
According to testimony by the social worker at the hearing on father’s motion that is the subject of this appeal, the visit took place on December 1, 2003.
At a disposition hearing on December 22, 2003, the juvenile court adjudged the minor a dependent child, and adopted the Bureau’s recommendation that mother receive family reunification services. Father was provided with notice by mail at his last known address, but he did not appear at the hearing. As to father, the order stated: “Sean M[.] is an alleged father & no [family reunification] services will be provided per [section] 361.5(a).”
The minor began staying overnight with mother at mother’s residential treatment program in February 2004, and the Bureau reported that they were doing well together. On April 22, 2004, the juvenile court ordered that the minor be returned to mother’s custody; the Bureau was ordered to provide family maintenance services. The court’s order returning the minor to mother’s care stated, “Father not to live in child’s home.” The order also provided, “No visitation/contact between child & Alleged father (detrimental).” Father testified, however, that he visited with the minor about 11 or 12 times at a park in Richmond before he was incarcerated in June 2004. He testified that the minor was not in foster care at the time of their last visit in June 2004, that he knew mother “was in a program,” and that he was not aware of any pending court hearings involving the minor. Father was arrested a short time later for robbery and child endangerment (not involving the minor), and remained in custody for the duration of the proceedings in the juvenile court. As of January 2007, he had not seen the minor since the June 2004 visit with her.
The Bureau’s status review report dated October 14, 2004, stated that father was hospitalized in a mental health facility, that he was not involved in the minor’s case plan, and that he was not in contact with the Bureau or his daughter. The report also stated that the Bureau was unable to notice father about the upcoming status review hearing, because his whereabouts were unknown. As for mother, she had been discharged from the residential treatment facility two weeks before she was to complete the program because she had made “angry threats” to another resident. Mother entered a mentorship program, and then moved to transitional housing. She suffered a relapse when she smoked methamphetamine in August 2004. The Bureau reported that the relapse was handled appropriately, and that mother was still “proceeding in her recovery.”
The Bureau filed a supplemental memorandum on November 10, 2004, reporting that mother was suspended from her substance abuse program and asked to leave her halfway house after she reported consuming alcohol. Mother received support from church members, and the Bureau reported that mother continued to be “committed to her recovery.” The Bureau stood by its recommendations in its October 22, 2004 status report. At the December 6, 2004 review hearing, the juvenile court adopted the Bureau’s recommendation that family maintenance services be continued for the minor and mother, who retained physical custody of the minor. The juvenile court also adopted the Bureau’s recommendation that there be no contact or visitation between father (specifically identified in the order as Sean M.) and the minor, because contact or visitation would be detrimental to the minor.
The Bureau recommended in its status review report dated April 28, 2005, that the petition as to the minor be vacated. At that time, mother was in good standing at a substance abuse program and was expected to graduate in June 2005. In June 2005, the Bureau submitted an amended recommendation that the minor and mother continue to receive family maintenance services, a recommendation that the juvenile court adopted at a review hearing on July 11, 2005.
On October 13, 2005, the minor was removed from mother and placed in an emergency foster home because of mother’s failure to abide by her case plan. The Bureau reported that mother had recently tested positive for cocaine, methamphetamine, and marijuana; had failed to test on several scheduled dates; and had not scheduled or attended therapy as previously ordered by the juvenile court. The Bureau filed a supplemental petition on October 14, 2005. Father was listed as an alleged father, his whereabouts unknown. The minor was again ordered detained. Following a jurisdiction hearing on December 21, 2005, the juvenile court sustained an allegation that mother was not complying with her family maintenance plan, because she recently used illegal substances and had not attended court-ordered therapy. Neither mother nor father attended the hearing.
Although mother was in telephone contact with the Bureau in January and February 2006, she did not request any visits with the minor, and none was scheduled. Services to mother were suspended in March 2006. Also in March 2006, the Bureau reported that the minor “had been acting-out alarmingly at her foster home.” The Bureau also reported that “[s]uspicions of [the minor] having been sexually abused continue to be explored.” The minor was scheduled to begin specialized therapeutic mental health services on March 20.
At a contested disposition hearing on April 19, 2006, the juvenile court ordered that no services be provided to mother, and set a selection and implementation hearing pursuant to section 366.26 (.26 hearing). Mother was not present at the disposition hearing. The minute order from the April 19 hearing stated that “Father” was present; however, this is an apparent reference to Roosevelt. The minor was moved into the home of a prospective adoptive parent on June 29, 2006.
In its section 366.26 report dated August 15, 2006, the Bureau recommended that the juvenile court terminate the parental rights of mother and father, and that adoption be the appropriate permanent plan for the minor. The Bureau reported that the minor was making “steady progress” under the care of her prospective adoptive parent, a retired grocery store worker. The minor reportedly told her care provider that mother was “ ‘dead,’ ” even after being reassured that she was not.
In August 2006, father was personally served with notice of the .26 hearing at the California Men’s Colony in San Luis Obispo, where he had recently been located. He wrote to the Bureau after receiving notice of the proceedings, stating that he was concerned about the permanent plans for the minor and asking whether she could be placed with his sister. He was scheduled to be released in May 2007.
Also in August 2006, the minor’s great-aunt Lisa C., who did not have a prior relationship with the minor, contacted the Bureau stating that she was interested in possibly gaining custody of the minor. Lisa was told that the minor had been placed in an adoptive home, but that the Bureau was open to assessing her “as a potential backup should difficulty arise with [the minor’s placement].” She completed a relative assessment application, which was approved in August 2006. In December 2006, Lisa filed a petition pursuant to section 388 requesting that the minor be placed with her. The Bureau recommended that the request for placement be denied.
Also in December 2006, mother filed a petition pursuant to section 388 requesting that the juvenile court order extended visits with the minor, as well as additional family reunification services. Mother reported that she had enrolled in a residential drug and alcohol treatment program on October 1, 2006. The Bureau opposed mother’s request, stating that mother’s changed circumstances were insufficient to address the issues which had led to dependency, and that mother had not demonstrated the ability to maintain a clean and sober lifestyle.
Father appeared for the first time in these proceedings on January 8, 2007, and requested counsel. His status was raised to that of presumed father on January 16, 2007. A few days later, he filed a motion to set aside the disposition orders. The motion acknowledged that father was given a supervised visit of the minor in December 2003, but stated that he did not receive notice of the dependency proceedings until August 2006. The juvenile court set a hearing for January 30, 2007, to consider the motions of mother, father, and Lisa, as well as the .26 hearing. We address the evidence considered as to each issue below in connection with the various arguments raised on appeal.
Father was personally served by the Bureau with notice of the proceedings while he was incarcerated in state prison. He was transported to court in order to appear on January 8, 2007.
The juvenile court denied father’s request to receive family reunification services. It also denied the section 388 petitions filed by mother and Lisa. The juvenile court terminated the parental rights of mother and father on February 14, 2007. Mother and father timely appealed.
II. DISCUSSION
A. No Error To Deny Father’s Motion To Set Aside Disposition Orders.
1. Background.
The juvenile court heard testimony that father attended a visit with the minor and mother at the Bureau’s office in December 2003, that he was aware that the minor was in foster care at the time, and that he had experience with dependency proceedings involving two of his other children. Father testified that mother wrote to him when he was incarcerated, informing him that the minor had again been taken from her, that he knew “from common sense” that the minor was in child protective custody, and that he also knew that there were probably court proceedings involving the minor. He testified that he felt it was the social worker’s responsibility to get in touch with him regarding any court proceedings, and that he did not contact the Bureau when he was in custody because he did not know how to do so. The social worker testified that there was no indication that father was sent notice of the dependency proceedings, other than a notation in the December 22, 2003 disposition report that notice was sent to father’s last known address.
The juvenile court took judicial notice of the case files in the dependency proceedings regarding father’s two other children.
The juvenile court stated that it considered it “absolutely ludicrous” that father was claiming he did not receive notice of dependency proceedings, because he “knew exactly what was going on the entire time of this case and just chose to not participate.” However, the court “very reluctantly” permitted a partial disposition hearing on whether the minor could be placed with father, and on whether father should receive services. Father’s counsel acknowledged that because father was incarcerated, he was not capable of assuming custody of the minor.
As to whether father should receive reunification services, father testified that he wanted to receive services when he was released from prison in May 2007. He testified that his sister and brother could help him secure an apartment. Father acknowledged that he was convicted of second-degree robbery in connection with a purse snatching. The victim was carrying a six-month-old baby at the time of the crime, and the baby was scratched during the robbery. According to county counsel, a criminal background check showed that father was convicted of willful cruelty to a child in connection with the same incident. Father also testified that he had been diagnosed as a paranoid schizophrenic, but that he was able to function normally when he took medication. The social worker testified that she did not believe it would be in the minor’s best interest for father to receive reunification services, because the minor did not have a relationship with father, and “it would not be a benefit to her at this point to bring a bunch of people that she does not know into her life.”
The juvenile court found by clear and convincing evidence that it was not in the minor’s best interest for father to receive reunification services, and that father was not in a position to care for the minor. In denying reunification services to father, the juvenile court stressed that father had never been a custodial parent, that he committed a serious robbery of a mother with her child, and that the court was concerned about father’s diagnosis of paranoid schizophrenia, “which is very serious and dangerous and of concern, and, evidently, can’t be maintained if one chooses not to take the medication.” The court also stated that “I think any delay would be very harmful for this child.”
2. Analysis.
Father argues that the juvenile court abused its discretion in denying his motion for reunification services and temporary relative placement. Mother joins in his argument. As for reunification services, the statutory authority upon which he first relies is misplaced. He cites section 361.2, subdivision (a), which provides that a minor may be placed with a noncustodial parent when the minor is removed from the custody of the custodial parent, unless the juvenile court finds that placement with the noncustodial parent would be detrimental to the minor. Father acknowledges, however, that he was unable to care for the minor at the time he filed his motion, because he was incarcerated. Placement with father was therefore “a non-issue,” as father’s counsel conceded below.
Father stresses that a parent may petition the juvenile court pursuant to section 388, subdivision (a), to change, modify, or set aside any previous order made in dependency proceedings based on changed circumstances. It is well settled that the parent must show that the modification or setting aside of the prior order would be in the best interest of the minor at the time the request is made. (§ 388, subd. (c); In re Stephanie M. (1994) 7 Cal.4th 295, 317-318; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Here, the juvenile court specifically found by clear and convincing evidence that it was not in the minor’s best interest for father to receive reunification services, and that any delay would be “very harmful for this child.” Father claims that the juvenile court focused on whether “the presumed stability” of the minor remaining in her current placement was in her best interest. In fact, the juvenile court also focused on the fact that father had not seen the minor since she was one year old, the fact he had been diagnosed as a paranoid schizophrenic, and the fact that he had committed a serious robbery of a mother with her child—findings that father all but ignores on appeal. Father argues generally that “a parent may be able to overcome his deficiencies and learn to adequately care for and protect his child in the future,” without directing the court to specific evidence suggesting that father would be able to do so here.
Other possible statutory grounds for providing father with reunification services likewise focus on the interests of the minor. (§ 361.5, subds. (a) [court may order reunification services to minor and father if it finds services “will benefit the child”] and (e)(1) [court shall order reunification services to an incarcerated parent unless it finds by clear and convincing evidence that services “would be detrimental to the child”].)
Father’s argument that the juvenile court abused its discretion in denying his request that the minor be placed with his sister is easily disposed of. Father notes that when he learned that his daughter was the subject of dependency proceedings, he asked that the minor be placed with his sister, who “promptly came forward and met with the social worker.” Although a social worker testified that she had met with father’s sister, father’s counsel did not ask any questions about whether the social worker considered the sister an appropriate placement. Father likewise did not offer any testimony from his sister, or provide any evidence whatsoever that she would be an appropriate placement for the minor, other than his testimony that his sister had indicated a willingness to care for the minor until he was released from custody. In fact, during an exchange with the juvenile court, father’s counsel stated, “The Department of Social Services, I know, has given papers to [father’s] sister. I don’t know what is currently the status, whether she’s returned those papers to [the social worker]—I’m seeing a shaking of the head ‘no’—yet.” (Italics added.) It is therefore not correct, as father argues, that he presented “a plan [that] the court should have directed respondent to assess,” as there is simply no evidence in the record that his sister was able to accept custody of the minor.
Father cites section 300, subdivision (g), which provides that the juvenile court may assume jurisdiction where a parent is incarcerated and cannot arrange for the care of a child. His reliance on this statute is misplaced. First, he does not challenge the jurisdictional findings of the juvenile court, which never found that the minor was a child described by section 300, subdivision (g). Even if the juvenile court had assumed jurisdiction pursuant to section 300, subdivision (g), father has presented no evidence that he could arrange for the minor’s care.
Father’s focus on his due process rights, requiring that he be provided with notice and an opportunity to be heard in these proceedings, is also misplaced. He cites In re B.G. (1974) 11 Cal.3d 679, 689, where no efforts were made to find the mother of two children before the juvenile court assumed jurisdiction over them, and In re Julia U. (1998) 64 Cal.App.4th 532, 543, where the juvenile court terminated all reunification services one week after appellant first appeared in court and paternity testing was ordered, without waiting to determine whether appellant was the minor’s biological father. Here, the juvenile court in fact provided father the opportunity to present testimony at a limited disposition hearing, even though the juvenile court considered it “absolutely ludicrous” that father claimed he did not have notice of the proceedings. After the court provided father with the opportunity to be heard, it denied father reunification services, focusing on father’s commission in June 2004 of “a serious robbery of a mother with a child,” the fact that father was never a custodial parent, and father’s diagnosis as a paranoid schizophrenic. These factors were not affected by any delay by the Bureau in providing formal notice to father. We conclude it was within the juvenile court’s discretion to deny reunification services to father, notwithstanding the supposed delay in notice to him.
B. No Error to Deny Mother’s Section 388 Petition and Terminate Her Parental Rights.
1. Background.
Mother filed a section 388 petition seeking to have the minor returned to her care. She also sought additional family reunification services. She testified at the hearing on her motion on February 14, 2007, that she had entered a residential program called Healthy Babies five months earlier. Mother was referred to the program when she suffered a relapse. She first testified that she suffered a relapse because of methamphetamine use; she later testified that she was “[p]ositive” her relapse was for alcohol use. Mother testified that she attended classes on parenting, relapse prevention, anger management, and domestic violence issues, and that she attended college part time. She also testified that she had consistently tested negative for drugs after starting the program.
Section 388, subdivision (a) allows a parent “upon grounds of change of circumstance or new evidence, [to] petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
After mother entered Healthy Babies, she contacted the minor’s social worker and began monthly visits with the minor starting in October 2006. According to mother, the minor recognized mother when they visited. They played with each other during visits, and the minor called her “Mom.” The minor opened up during visits and appeared happy.
Healthy Babies is a program that can accommodate patients’ children, and there was “an extra bed” for the minor there. Mother thought it would be beneficial for the minor to be placed with her at the program, because she would attend school, receive therapy, interact with children her own age, and be with her mother. Mother planned to stay at Healthy Babies for a total of 18 months.
Although she had been in residential treatment programs before, mother found Healthy Babies to be more structured and “more intense,” and it offered a longer program and provided an opportunity for her to attend school. She considered the staff “very very supportive,” and the program “offer[ed] so much more than any program [she had] been to.” Once she graduated, her plan was to secure housing and employment, participate in outpatient treatment, and continue to attend college. As for her addiction issues, mother testified, “I don’t have a problem now with [drugs or alcohol] at all. I don’t think I’ll ever use again. I know I won’t.” She admitted, however, that she used alcohol once, methamphetamine once, and marijuana once while she was pregnant, apparently in the months before she entered the Healthy Babies program.
The juvenile court apparently took issue with mother’s demeanor during her testimony. The juvenile court commented that mother “seem[ed] really a little nasty.” After calling a short break, the court told mother that “your attitude has been really pretty poor throughout the morning testimony,” as mother had been smirking and laughing. Mother explained that she was in pain, because she had given birth within the previous two weeks and had had “a tubal” (presumably, a tubal ligation). The court commented, “I’m sorry she’s in pain, but I did not think pain required somebody to smirk and to smile inappropriately and to be hostile, and that’s the reaction I found from her.” The juvenile court denied mother’s section 388 petition.
The juvenile court held a .26 hearing the same day. Mother’s and father’s attorneys argued that termination of mother’s parental rights would be detrimental to the minor because mother had maintained a positive relationship with the minor over a long period of time (§ 366.26, subd. (c)(1)(A)). No additional witnesses were called in connection with that argument.
The juvenile court briefly heard testimony from a social worker regarding the minor’s relationship with her half-sister. The testimony was apparently presented in connection with mother’s argument that termination of parental rights would significantly interfere with the minor’s sibling relationship (§ 366.26, subd. (c)(1)(E)), an argument that has not been raised on appeal.
The juvenile court found by clear and convincing evidence that it was likely the minor would be adopted, that continuation of parental rights would be detrimental to her, and that it would be detrimental to return the minor to the custody of mother or father. The court concluded that “the significant attachment from a child to a parent is not here.” The juvenile court terminated the parental rights of mother and father.
2. Analysis.
a. Denial of mother’s request for further reunification services.
Father argues that the juvenile court abused its discretion when it denied mother’s request for further reunification services; mother joins in this argument. As the court explained in In re Kimberly F., supra, 56 Cal.App.4th 519, however, “we doubt that a parent . . . could ever show a sufficient change of circumstances to warrant granting a section 388 motion [where the parent] loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period.” (Id. at p. 531, fn. 9.) Mother has not done so here.
Although any efforts by mother to improve her life are commendable, her “circumstances were changing, rather than changed.” (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Mother had been in this latest residential treatment program for only about five months at the time of the hearing. She acknowledged that she had previously relapsed after being discharged from other treatment programs. Additionally, the juvenile court found that she was “not credible.” Father focuses on the portions of mother’s testimony favorable to her and concludes that mother’s circumstances “[c]learly” had changed. As an appellate court, “we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.” (Id. at p. 53.) “We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” (Id. at pp. 52-53.) “[Father’s] argument effectively asks us to reweigh the evidence. We decline to do so.” (In re Zachery G. (1999) 77 Cal.App.4th 799, 812.)
b. Termination of parental rights.
Mother and father argue that the juvenile court erred in terminating mother’s parental rights because it should have found that termination would be detrimental to the minor pursuant to section 366.26, subdivision (c)(1)(A). At a hearing under section 366.26, after reunification services have been terminated, the court must order adoption and termination of parental rights, unless one of the exceptions set forth in the statute (§ 366.26, subd. (c)(1)) provides a compelling reason for finding that termination of parental rights would be detrimental to the child. Mother and father argue that the relevant exception here is section 366.26, subdivision (c)(1)(A), which provides an exception where the juvenile court determines that termination of parental rights would be detrimental to the minor because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” We will not disturb the juvenile court’s ruling unless there is a clear abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We find no abuse of discretion.
Father does not specifically argue that the juvenile court erred in terminating his parental rights, and our review reveals no error.
Mother states that this court reviews the order for substantial evidence. We agree with Division Three of this court that a finding as to whether there is a “compelling reason” not to terminate parental rights under one of the statutory exceptions to section 366.26, subdivision (c), is a “quintessentially discretionary determination” subject to review for abuse of that discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In any event, the abuse of discretion standard is very similar to the substantial evidence standard when, as here, the reviewing court examines a factual determination based on the lower court’s evaluation of evidence presented by opposing parties. (Ibid.) In the present case, our conclusion under the substantial evidence standard of review would be the same.
In considering the “ ‘benefit from continuing the [parent/child] relationship exception,’ . . . the court balances 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Ibid.)
As with the argument that the juvenile court erred in denying mother’s section 388 petition, mother and father focus solely on the evidence that is favorable to mother. However, “[t]he juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We conclude that this is not the “extraordinary case” where the exception provided in section 366.26, subdivision (c)(1)(A) should foreclose an adoption. (Id. at p. 1352.) The juvenile court heard testimony from a social worker that the minor was in a stable home where she was well cared for. The Bureau reported in a memorandum to the court that the minor told her care provider that mother was “ ‘dead,’ ” which was the minor’s “way of dealing with her feelings of abandonment.” Mother testified that she did not visit her daughter between January and October 2006. She suggests on appeal, as she did below, that she was somehow precluded from seeing the minor more frequently; but the juvenile court had found the mother “not credible.” The juvenile court did not abuse its discretion in terminating mother’s parental rights.
C. No Error To Deny Great-Aunt’s Request For Placement.
1. Background.
The juvenile court heard testimony from the minor’s great-aunt Lisa and two social workers in connection with Lisa’s request that the minor be placed with her. Lisa testified that she was working as a San Francisco police officer as a school resource officer. She first visited with the minor in August 2006. Starting in October 2006, Lisa visited with the minor every other weekend. She took the minor to Disneyland in December 2006. She described her visits with the minor as “a breath of fresh air.” Lisa testified that she had an approved adoptive home study for the minor, which was confirmed by the minor’s adoption worker.
The adoption worker testified that the Bureau evaluated Lisa’s home in the event that the minor was not able to stay in her prospective adoptive home. The Bureau did not intend to move the minor from her current placement. The adoption worker testified that although the minor benefited from having some contact with her biological family, she (the social worker) was concerned about at least one of the visits with Lisa. She testified that the minor was asked to sit on her grandfather’s lap, and that “he whispered into her ear and . . . nibbled on her ear, and it made [the minor] very uncomfortable.” The minor’s social worker testified that the minor’s teacher and therapist reported that the minor acted out after the visit, and that “they felt there was too much anxiety around visits.”
The juvenile court stated that Lisa was “a lovely lady, just a lovely lady with nothing but good intentions toward the child.” Although the court considered it “a very hard decision,” it concluded that it was not in the best interest of the minor to place her with Lisa, because the minor had “developed really strong roots” with her prospective adoptive parent. The court denied her request that the minor be placed with her.
2. Analysis.
Father argues that the juvenile court abused its discretion, because placing the minor with Lisa would enable her to maintain ties with her birth family. Mother joins in father’s argument.
First, we seriously question whether mother and father have standing to raise this issue. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034 [father lacked standing to appeal relative placement preference issue]; In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261 [father lacked standing to challenge denial of de facto parent status as to three relatives]; In re Joel H. (1993) 19 Cal.App.4th 1185, 1195-1196 [“The case law has interpreted a ‘party aggrieved’ as any person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment.”].) Lisa is the party who was aggrieved by the juvenile court’s order denying her request to have the minor placed with her, and there is no question that she had standing to appeal the court’s order. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1034 [grandmother had standing to challenge denial of her request for relative placement].) Lisa is not, however, a party to this appeal, and there is nothing in the record that indicates that she sought appellate review.
The Bureau does not argue mother’s and father’s lack of standing.
Even assuming arguendo that mother and father have standing to raise the issue, we conclude that the juvenile court did not abuse its discretion when it denied Lisa’s section 388 petition. Again, to prevail on a section 388 petition, a party must show that the modification or setting aside of the prior order would be in the best interest of the minor at the time the request is made. (§ 388, subd. (c); In re Stephanie M., supra, 7 Cal.4th at pp. 317-318; In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) The juvenile court specifically found here that the minor had “developed really strong roots with the current caretaker. And it appears very important to this child to keep that, to keep those roots, and that it would be damaging to the child to remove her from that. And after all at this juncture that’s what the Court has to look at, the best interests of the child.” We acknowledge that there was testimony presented at the hearing on Lisa’s section 388 petition, highlighted by father on appeal, that was favorable to her position. Again, however, we review the juvenile court’s order for abuse of discretion. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) The court acted within this vast discretion when it denied Lisa’s section 388 petition after hearing testimony that the minor was doing well in her current placement, and that there were some concerns over at least one of the minor’s visits with her great-aunt.
We reject father’s broad statement that “[i]t is contrary to the policy of the juvenile dependency law to deprive a child of a good home with a family member instead of a stranger.” He relies on section 361.3, which gives “preferential consideration” to a request by a relative of a minor who has been removed from parental custody for placement of that minor. First, the statute does not create an evidentiary presumption that relative placement is in a child’s best interest. (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) Second, the statute provides that a great-aunt is not one of the relatives who shall receive preferential consideration for the placement of a child. (§ 361.3, subd. (c)(2).) Third, “[t]he preference applies at the dispositional hearing and thereafter ‘whenever a new placement of the child must be made . . . .” (In re Lauren R., supra, 148 Cal.App.4th at p. 854, italics added, citing § 361.3, subd. (d).) Here, no new placement was necessary, as the Bureau considered the minor’s current placement appropriate. The only dispute was over whether the juvenile court should grant Lisa’s request to place the minor with her, a request that the juvenile court concluded was not in the minor’s best interest. The court did not abuse its discretion in denying Lisa’s section 388 petition.
Father notes that he did not receive notice of these proceedings until after the minor was placed with a non-relative prospective adoptive parent. There is no evidence, however, that the minor would have been placed with Lisa had father received notice sooner, because he is not related to Lisa, and there is no evidence that she had a relationship with him.
D. No Error To Preclude Questions About “Financial Motive.”
The minor’s court adoption worker testified in connection with Lisa’s request that the minor be placed with her. During cross-examination, father’s counsel asked whether the adoption worker had had much contact with the minor’s prospective adoptive parent. The juvenile court sustained a relevance objection to counsel’s question about whether any of their conversations “concerned post adoption monetary benefits.” The court rejected the argument of father’s counsel that the question went to the state of mind of the prospective adoptive parent. Citing Evidence Code section 780, subdivision (f), father claims on appeal that the juvenile court erred because “evidence is admissible to attack the reliability of [a] witness if it tends to reasonably establish that the witness has a financial interest in the outcome of the action.” He argues that “[c]learly the county and possibly the prospective adoptive parent had financial motives in selecting adoption as the child’s permanent plan and hence a bias which went to their credibility.” Mother joins in his argument. The argument lacks merit.
The prospective adoptive parent did not testify, so the juvenile court was therefore not being asked to evaluate her credibility. (Cf. Evid. Code, § 780 [court may consider matter which may prove or disprove the credibility of a witness].) Father’s argument, raised for the first time on appeal, that the county may have had an interest in selecting adoption as the minor’s permanent plan because it could secure funding for adoption is speculative at best and may be rejected out of hand.
III. DISPOSITION
The juvenile court’s orders terminating the parental rights of mother and father, denying the section 388 petitions of mother and great-aunt Lisa, and denying father’s request to set aside disposition orders are affirmed.
We concur: Reardon, Acting P.J., Rivera, J.