Opinion
B229630 Super. Ct. No. CK78738
08-11-2011
In re ALEJANDRA A. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GABRIELA A., Defendant and Appellant.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K. Martinez, Juvenile Court Referee. Affirmed.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Gabriela A. (Mother) appeals from an order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. She contends the juvenile court failed to facilitate visitation, erred in terminating her parental rights and should have provided preferential consideration for placement with their maternal grandmother. We affirm.
All further section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 2009, Mother and Jesse F. were arrested for armed robbery, which allegedly took place in their motel room while Mother's two children, 20-month-old Alejandra and 7-month-old Alicia, were present. The children were detained. On August 31, the Department of Children and Family Services (DCFS) filed a petition under section 300, subdivision (b), alleging a failure to protect which placed the children at risk of serious physical and emotional harm.
Alejandra is also identified in the record as Alexandra.
Jesse F. was named as an alleged father in the petition. He is not a party to this appeal.
A children's social worker (CSW) spoke to Mother, who requested that the children be placed with their maternal uncle, Felipe A., or maternal aunt, Magdalena H.The CSW spoke to Felipe A., who wanted to take the children but was unable to do so, because he had no income. The CSW called Magdalena H. several times but was unable to reach her.
Magdalena H. is also identified as a maternal great aunt.
At the August 31 detention hearing, the children were ordered detained and DCFS was ordered to investigate placement with Magdalena H. At the next hearing on September 10, DCFS reported that Magdalena H. lived in a one-room bachelor apartment with no kitchen facilities. She did not believe her home could accommodate the children and she had not asked her landlord if the children could live with her. Additionally, she worked five days a week and was gone from 4:00 a.m. to about 4:00 p.m.
A maternal cousin, Lucia T., expressed an interest in caring for the children. She stated that she lived in a two-bedroom apartment with her husband and three children. She, her husband, and her five-month old twins occupied one bedroom, while her 11-year-old son occupied the second. She worked two part-time jobs while her husband, who had been unemployed for six months, took care of the children. She had submitted to a Live Scan criminal records check but her husband, who was in this country illegally and had no identification, had not. She said she was trying to move into a larger apartment, and her husband would attempt to obtain identification from the Mexican Consulate. When the CSW contacted Lucia T. about a week later, Lucia had not yet looked for a larger apartment or attempted to get identification for her husband. The CSW called back on the day before the hearing, but there was no answer on either the home phone or Lucia's cell phone.
At the September 10 hearing, the court granted Mother monitored visitation upon her release from custody. It added that it would reconsider the issue of visitation if she was still in custody at the time of the disposition hearing.
Lucia T. subsequently contacted the CSW to report that she was now living in a one-bedroom apartment with her twins and was employed full time. Her husband had moved out since he could not have a Live Scan. Her mother or sister would care for the children while she was at work. DCFS could not approve her home because she would have four children under two years old living with her.
On November 5, the juvenile court sustained the section 300 petition. Mother requested that the court order DCFS to facilitate visitation with her where she was incarcerated. The court denied this request, finding a risk of harm to the children due to mother's "failure to take any responsibility whatsoever for what it is [she] subjected these young children to."
On December 29, DCFS reported that Mother had been convicted and would be serving four years in state prison. It recommended that reunification services be denied under section 361.5, subdivision (e)(1). At Mother's request, a contested disposition hearing was set for January 8, 2010.
Section 361.5, subdivision (e)(1), allows the juvenile court to deny reunification services to an incarcerated parent if the court determines, by clear and convincing evidence, that such services would be detrimental to the child.
At the disposition hearing, Mother testified that she would probably serve another two years and eight months in prison. The juvenile court denied reunification services under section 361.5, subdivision (e)(1). In doing so, it relied on the length of Mother's sentence, the children's young ages, and the lack of a reasonable likelihood that Mother could complete treatment goals in six or even 12 months. The court also granted Mother monitored visitation "consistent with facility rules with relatives to transport" the children.
The court set a section 366.26 permanent plan hearing. It informed Mother that if she wanted to challenge this order, she needed to file a petition for an extraordinary writ, and it provided her with the forms to do so.
At the permanent plan hearing on April 15, 2010, the maternal grandmother was present. She stated that the maternal grandfather had arrived in California from Atlanta, Georgia, and "[h]e wants to know if the judge is willing to give him the children. He is interested." The maternal grandmother also wanted to be assessed so she could visit the girls. The court told her that the maternal grandfather could speak to the social worker about custody, and it checked to see if there were any objections to the maternal grandmother having monitored visitation with the children. The hearing was continued to August 12, 2010.
On August 3, Mother filed a section 388 request to change order. She requested that the court order legal guardianship rather than adoption. She explained she had completed group counseling, the only program available to her, and the only hindrance to reunification was her incarceration. She believed the children would benefit from maintaining a relationship with her.
At the hearing on August 12, the court denied Mother's request. The maternal grandmother, Guadalupe H., and maternal aunt, Felicia A., were present. Mother's counsel requested that the maternal grandmother be evaluated for placement of the children. The court asked whether the prospective adoptive parents were willing to allow visitation with maternal relatives after adoption; the social worker said they were not. The court continued the hearing and ordered DCFS to evaluate the maternal grandmother's home. It added, "[h]owever, just to be clear, at this time there is no intention to move the children to a different home. They are not in need of a replacement and they are well cared for where they are, but in an abundance of caution, I am ordering this completed evaluation."
Felicia A. explained she is transgender and formerly was known as Felipe A.
On November 12, DCFS reported Guadalupe H.'s evaluation was proceeding, but there were some problems. Her children, who were her providers, had not completed Live Scans. Felicia A. had prior convictions and might have an outstanding warrant. Two other children were unwilling to Live Scan, although DCFS indicated they would not have significant contact with Alejandra and Alicia. Also, Guadalupe H.'s home had bars on the bedroom windows that could not be opened from the inside in an emergency and thus could not be approved. The case was continued to December 2 for a contested hearing.
At the December 2 hearing, Mother testified that she wanted the children to grow up with Guadalupe H. The juvenile court then stated that it would be terminating her parental rights. It explained that "[a]t this juncture the prefer[ence] for relative placement does not exist. There is no need to replace these children. These children are very well cared for by their current caretakers. . . . Their home study has been approved. They have a strong attachment to their current caretakers. The children are described to be thriving; and, therefore, I order the parental rights of these children to be permanently terminated."
DISCUSSION
A. Reunification Services
Mother first contends that the juvenile court erred in failing to facilitate visitation between her and the children. DCFS asserts, and we agree, that Mother has forfeited this claim by failing to raise it in a petition for extraordinary writ.
The right to appeal "'is completely a creature of statute.'" (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1152.) In dependency proceedings, a dispositional order is an appealable judgment. (Id. at pp. 1152-1153; see § 395.) Subsequent orders also "are directly appealable, with the exception of an order setting a selection and implementation hearing under section 366.26, which is reviewable only by petition for extraordinary writ. [Citations.]" (Melinda K., supra, at p. 1153; see §§ 366.26, subd. (l), 395.)
Claims relating to the adequacy of reunification services offered must be raised by a petition for extraordinary writ or they are forfeited. They cannot be raised on appeal from an order under section 366.26 terminating parental rights. (Melinda K. v. Superior Court, supra, 116 Cal.App.4th at pp. 1156-1157; In re Janee J. (1999) 74 Cal.App.4th 198, 210.)
There is an exception to the forfeiture rule when the issue is purely one of law. (In re S.B. (2004) 32 Cal.4th 1287, 1293; Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) Mother's assertion the issue of visitation is one of law is belied by her extensive discussion of the facts of this case in connection with the issue. Whether the juvenile court should have ordered visitation while Mother was incarcerated was a factual question, not a legal one. Mother therefore has forfeited her contention by failing to file a petition for extraordinary writ for review of the order setting the selection and implementation hearing. B. Termination of Parental Rights
Mother contends the juvenile court erred in terminating her parental rights without considering whether she had maintained contact with the children and whether they would benefit from continuing their relationship. We disagree.
On appeal from an order pursuant to section 366.26 terminating parental rights, the question is whether the juvenile court's decision is supported by substantial evidence. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 575; Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250.)
Once the proceedings reach a selection and implementation hearing, the legislative preference for adoption over legal guardianship or long-term foster care must be heeded unless, under one of the enumerated statutory exceptions, termination of parental rights would be detrimental to the child. (§ 366.26, subds. (c)(1), (c)(4).) The first exception arises when the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
At this point in the proceedings, "'. . . the goal of the proceedings changes from reunifying the family to locating a permanent home for the child apart from the parent.' [Citation.] The permanency planning hearing aims 'to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker.' [Citation.] The abiding principle at the permanency planning hearing is the welfare and best interests of the child. [Citation.]" (In re Jason E. (1997) 53 Cal.App.4th 1540, 1548.) As a consequence, regular visitation alone does not meet the requirements of the parental relationship exception to the preference for adoption. What is necessary is a strong and substantial relationship.
The parent seeking to avoid adoption bears the burden of demonstrating "that there exists 'a significant, positive, emotional attachment from child to parent.'" (In re Jason E., supra, 53 Cal.App.4th at p. 1548.) In other words, the parent must show that "severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . .
Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]" (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) Among the factors the court examines in determining whether the exception applies are "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (Autumn H., supra, at pp. 575-576.)
Mother complains that the juvenile court first denied her visitation then failed to consider her relationship with the children and whether they would benefit from continuing their relationship with her. However, Mother failed to present evidence of "'a significant, positive, emotional attachment'" between the children and herself. (In re Jason E., supra, 53 Cal.App.4th at p. 1548.) She failed to present evidence that severing their relationship would cause great harm to the children. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother simply testified that she sent letters and drawings to the children and wanted the children to grow up with Guadalupe H.
Mother failed to overcome the presumption that the children, who were babies when removed from her custody and who had spent more than half their lives away from her, were better served by adoption into a permanent home. Accordingly, substantial evidence supports the juvenile court's decision to terminate Mother's parental rights. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) C. Failure to Place with Maternal Grandmother
Mother complains that the juvenile court did not give preferential consideration to placement of the children with the maternal grandmother, Guadalupe H. Her complaint is not well taken.
Although neither party raises the issue of standing, it is well established that a parent has a standing to challenge the juvenile court's refusal to place dependent children with a relative. (In re K.C. (2011) ___ Cal.4th ___, ___ ; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.) Rather, the relative who has sought but been denied placement is the aggrieved party who has standing to challenge the court's order. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838.) In any event, the juvenile court did not err.
Section 361.3, subdivision (a), provides that "[i]n 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. . . ."
As Mother acknowledges, however, section 366.26, subdivision (k), provides that "[n]otwithstanding 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 . . . ."
Mother attempts to get around section 366.26, subdivision (k), by arguing that Guadalupe H. requested that the children be placed with her on August 12, and the children were freed for adoption on December 2, 2010. However, August 12 was the date originally set for the section 366.26 hearing; the hearing was continued to December 2.
Guadalupe H. did not request that the children be placed with her at the time they were removed from Mother's custody pursuant to section 361, at which time she would have had preference over an unrelated foster family. Moreover, the court did examine placement with other relatives at that time and thereafter, and when Guadalupe H. came forward to request the children, the court ordered DCFS to evaluate her home. None of the relatives were able to pass a criminal background check and/or provide the children with a safe and appropriate home. The trial court did not err in refusing to give preferential consideration to Guadalupe H. at the time she finally came forward to request that the children be placed with her.
DISPOSITION
The order is affirmed.
JACKSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.