Opinion
E067282
07-07-2017
In re M.H. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.H. et al., Defendants and Appellants.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant M.N. Niti Gupta, under appointment by the Court of Appeal, for Defendant and Appellant M.H. Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant M.H., Sr. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1500710) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed in part; dismissed in part. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant M.N. Niti Gupta, under appointment by the Court of Appeal, for Defendant and Appellant M.H. Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant M.H., Sr. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants and appellants, M.H. (mother), M.H., Sr. (father), and M.N. (maternal grandmother), appeal from the juvenile court's judgment terminating parental rights (Welf. & Inst. Code, § 366.26, subd. (c)) and designating the foster parents as the prospective adoptive parents for the children, A.H. and M.H., Jr. The parents join in maternal grandmother's arguments but do not independently raise any contentions. Maternal grandmother argues solely that the court erred in designating the foster parents as the prospective adoptive parents. DPSS contends none of the parties have standing to appeal and we must dismiss the appeal. We assume without deciding that maternal grandmother has standing and consider the merits of her appeal. We find no error and affirm the judgment. We conclude the parents have no standing to appeal and dismiss their appeals.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), in July 2015, when mother took two-month-old A.H. to the pediatrician for her vaccinations. The doctor noted A.H. had a swollen right leg and determined she had a fracture in her right femur and required a harness for four to six weeks. A complete bone survey revealed A.H. had multiple fractures in various stages of healing in both legs, her arm, and her rib. These injuries were frequently associated with nonaccidental trauma. A CT head scan also revealed "'possible acute on chronic subdural hematoma.'" A.H. was admitted to the hospital.
Mother reported that only she and father cared for A.H. Neither mother nor father could explain A.H.'s injuries, other than suggesting the injuries occurred when the baby was wrapped tightly in a blanket. The doctor opined A.H.'s injuries were not consistent with this explanation. Father said he occasionally spanked the children with an open hand but had never left marks or bruises. He denied injuring A.H. or M.H., Jr. Although 14-month-old M.H., Jr. had no marks or bruises indicating child abuse, DPSS removed him from the family home and placed him in a foster home.
DPSS filed a petition based on the foregoing facts, alleging a substantial risk of serious physical harm (§ 300, subd. (a)), a failure to protect (§ 300, subd. (b)), severe physical abuse of a child under five (§ 300, subd. (e)), and abuse of a sibling (§ 300, subd. (j)). On July 8, 2015, the court found DPSS had made the required prima facie showing and detained the children.
Further medical examination and testing indicated A.H. also had fluid collecting behind both eyes and retinal hemorrhaging behind her right eye, which would require surgery. She was at risk of losing her vision in her right eye and was required to wear an eye patch on her left eye for one hour a day. A.H. was hospitalized for 15 days. After her release from the hospital, DPSS placed A.H. in a different foster home than M.H., Jr., one licensed to care for medically fragile children.
In July 2015, mother and father identified R.H. (paternal aunt) as a relative who could possibly care for the children. DPSS began assessing paternal aunt, who lives in Riverside, California, for placement. In August 2015, DPSS also submitted a referral to the International Liaison Unit (ILU) for maternal grandmother to be considered for placement in Ensenada, Mexico.
In DPSS's July 2015 jurisdiction/disposition report, it recommended mother and father not receive reunification services under section 361.5, subdivision (b)(5) and (b)(6).
Section 361.5, subdivision (b)(5) permits the court to deny reunification services when it finds clear and convincing evidence the child is under five and has suffered severe physical abuse by a parent or any person known by the parent, and the parent knew or reasonably should have known of the physical abuse. Section 361.5, subdivision (b)(6) permits the court to deny reunification services when it finds clear and convincing evidence a parent has inflicted severe physical harm to a child or sibling of the child, and it would not benefit the child to pursue reunification services with the offending parent.
In August 2015, Dr. Amy Young conducted forensic interviews with the parents. Mother exhibited a "'complete lack of emotion.'" Dr. Young described mother as "'meek, mild, [and] guarded.'" Mother stated she had never seen A.H.'s injuries and had "'nothing to say.'" She directed Dr. Young to talk to father about the situation. Father became tearful when shown images of A.H.'s injuries but had no explanation. Dr. Young opined A.H. was a battered infant and had suffered multiple traumatic events over time. A prudent caretaker would have noticed the symptoms accompanying her injuries. The doctor's findings were consistent with child abuse and neglect.
The jurisdictional hearing occurred in September 2015. The court found the allegations of the petition to be true and adjudged both children dependents of the court. It denied both parents reunification services under section 361.5, subdivision (b)(5) and (b)(6) and set the matter for a permanency planning hearing (§ 366.26) in January 2016. The children were in foster homes, but the court ordered DPSS to continue to assess relatives for placement, particularly paternal aunt. The court scheduled an interim hearing for October 2015 to obtain an update on relative placement.
In early October 2015, paternal aunt reported to the social worker that she was "overwhelmed" with the process and busy with work and her own children, but she still wanted to proceed. At the same time, she had asked father to provide DPSS with another aunt's information, so that DPSS could consider the second aunt for placement. The social worker expressed concern that paternal aunt was reluctant to assume the responsibility of caring for A.H. and M.H., Jr.
Also in early October 2015, the social worker attempted to contact maternal grandmother in Ensenada and was unable to reach her. The social worker consulted with the ILU, which then forwarded a home study request for maternal grandmother to the Mexican Consulate. Later that month, DPSS also began assessing A.V. (paternal great-aunt) for placement.
At the interim hearing on relative placement, the court had reviewed DPSS's report on the October 2015 developments, and ordered DPSS to "continue assessing any and all relatives for placement."
DPSS filed a report in December 2015 for the permanency planning hearing. It was continuing to assess maternal grandmother and paternal great-aunt for placement. The Mexican Consulate had contacted the ILU in December to report that maternal grandmother lived two hours outside of Ensenada, and the consulate had to locate an agency closer to her residence to conduct the home study. Meanwhile, DPSS had completed the assessment of paternal great-aunt's home and was awaiting her live scan results before approving her home for placement. Because DPSS was still assessing the relatives and had not identified "a prospective adoptive parent," it requested a continuance of the permanency planning hearing.
In January 2016, A.H. was no longer deemed medically fragile, and she was placed in the same foster home as M.H., Jr.
At the scheduled permanency planning hearing in January 2016, the court asked DPSS whether it was looking only at relatives for placement or also "making . . . other efforts to find an adoptive home." DPSS indicated it was only assessing relatives at that point, to which the court responded: "It seems like a waste of time to keep going on and on. I mean, if it looks like the relatives are going to be the placement, then fine. But just to close off all other possibilities for some very young children, it doesn't seem to make a lot of sense to me." The court agreed to continue the matter to further assess relatives for placement.
By May 2016, paternal great-aunt had changed her residence and DPSS had approved her new home for placement, but her new housemates had not yet submitted to a live scan. Paternal great-aunt was willing to adopt the children. The children's foster mother had also expressed her willingness to adopt the children. Maternal grandmother had been in the United States and visited with the children on two dates in April. DPSS was still waiting to hear from the Mexican Consulate regarding the status of maternal grandmother's home study. DPSS requested a second continuance of the permanency planning hearing to "allow additional time to assess the relatives/prospective adoptive parents." The court granted a continuance of 30 days, saying: "And the Court indicated at calendar call that it really thought this case was going on too long. And it has been almost a year since the children were placed out of [the] home and we still don't have a status on a permanent placement. So I'm not inclined to continue the matter for 120 days. I'm inclined to go out for about 30 days. [¶] The Department is to proceed forthwith with the assessment of the relatives. If that doesn't pan out, we're going to have to assess the current caretaker for adoption because the current caretaker has indicated a willingness to establish permanency. So we need to get on the ball with the relatives and get it going."
In May 2016, paternal great-aunt had informed DPSS that it could no longer consider her for placement. As to maternal grandmother, the Mexican Consulate had informed DPSS that a local office in Ensenada had initiated a home study in late May 2016. The Mexican Consulate warned DPSS that the process "may take longer than a domestic home study." DPSS had started the process of assessing the foster mother for adoption. It expressed "reservations as to [maternal grandmother]'s capability in protecting the children from their parents." Because neither parent had taken responsibility for A.H.'s severe injuries, DPSS felt that it should closely monitor placement with any relatives, and a placement in Mexico would not allow for this. DPSS knew maternal grandmother was in contact with the parents and was concerned with maternal grandmother's ability "to set strict boundaries with the parents." It was thus moving forward with assessing nonrelatives for permanency, in addition to maternal grandmother.
At the June 2016 hearing, DPSS requested a 120-day continuance. Mother's counsel indicated the local Ensenada agency had verified maternal grandmother's employment, and she had also passed a criminal background check. The court found good cause for a 120-day continuance.
By September 2016, DPSS had preliminarily assessed the children's foster parents. It recommended that the foster parents continue with the process of adopting the children. M.H., Jr. had been in their home for 14 months, and A.H. had been there for nine months. Both children were healthy and developmentally on track. M.H., Jr. and A.H. "ha[d] an amazing connection and attachment" with the foster parents and other children in the home. They appeared to be genuinely happy in the home. The prospective adoptive parents appeared to be "caring, dedicated, hardworking and supportive." They "could not see their lives without" M.H., Jr. and A.H.
By October 2016, DPSS had received the "socioeconomic study" of maternal grandmother from the Mexican authorities. The study had a date of June 13, 2016. It indicated maternal grandmother was employed as a nurse but would quit her job to care for the children. She and her husband were socially and economically stable and were "considered viable to have the minors in question." But DPSS continued to express reservations about placement with maternal grandmother based on her ability to protect the children. Maternal grandmother knew two-month-old A.H. had an unexplained fracture and the parents were being investigated for physical abuse. DPSS reported: "In conversation with the maternal grandmother[,] it is evident that she does not understand the severity of the injuries or the role the parents had in them." Also, she believed the parents had done everything asked of them and did not understand why DPSS had failed to return the children to them. Because DPSS had not responded to the parents' request to return the children, she was seeking their placement with her. DPSS felt it was "clear" maternal grandmother did not understand the risk the parents posed to the children and would therefore not be protective regarding their contact with the children.
At the continued permanency planning hearing in October 2016, father and mother requested that the matter be set for a contested hearing. The court granted the request and continued the matter one last time. Maternal grandmother was present and requested a supervised visit, which the court ordered. On that same date, mother and father filed petitions under section 388 asking the court to return the children to their care. They argued circumstances had changed in that they had completed anger management and parenting courses, and father had found employment. The court set an evidentiary hearing on the section 388 petitions for the same date as the permanency planning hearing.
Maternal grandmother did not appear for the visit four days later because she had returned to Mexico.
Section 388 provides, in pertinent part: "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 . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a)(1).) A petitioner must show the proposed change promotes the best interests of the dependent child. (§ 388, subds. (a)(2), (d).)
By November 2016, DPSS reported that the children had "two prospective adoptive homes," the foster parents' home and maternal grandmother's home, both of which had been approved for adoption. DPSS opposed the parents' request to return the children to their care, noting they had still not explained how A.H. had sustained her serious injuries.
The combined hearing on the section 388 petitions and permanency planning occurred in November 2016. Maternal grandmother attended along with the parents. The court denied the section 388 petitions because the parents had not shown changed circumstances that would justify returning the children to them, nor was it in the children's best interests to grant the petitions. The parties then moved on to the permanent plan. DPSS asserted the court should terminate parental rights and designate the foster parents as the prospective adoptive parents. County counsel argued: "There were very severe injuries to this child that neither parent has taken responsibility for. And if the children are placed outside of the United States in Mexico, we would be unable to determine the safety of the child. [¶] There is no indication in the report from Mexico that the maternal grandmother is aware of the severity of the injuries. In fact, she seems to be unaware. And she seems to be unaware of why the parents don't have the children returned to their custody. Part of the analysis under [section] 361.3, when considering a relative for placement, the Court has to consider the child's best interest as well as the relative's ability to provide a secure and stable environment and protect the child from his or her parents. I don't think that has been demonstrated, that maternal grandmother has the ability to do that." Mother and father, on the other hand, argued the court should designate maternal grandmother as the prospective adoptive parent and place the children with her. They argued the Mexican equivalent of DPSS could monitor the safety of the children.
The court terminated parental rights, designated the foster parents as the prospective adoptive parents, and ordered the foster parents' application for adoption to be given preference over any other application. It found that these orders were in the best interests of the children. It noted "a real concern for the safety of these children," and a "great concern regarding the [maternal] grandmother's understanding of what actually occurred and her ability to be protective." The court also noted the foster parents were essentially the only parents the very young children had ever known.
Mother and father filed notices of appeal from the denial of their section 388 petitions, the judgment terminating parental rights, and the "designation of prospective adoptive parent status to [a] non-relative instead of maternal grandmother." Maternal grandmother also filed a notice of appeal through counsel for mother. She stated that she was challenging the order "at the contested [section] 366.26 hearing . . . den[ying] relative placement with the maternal grandmother after an approved home study."
III. DISCUSSION
On appeal, mother and father join in each other's arguments and the arguments of maternal grandmother, but they do not raise any of their own contentions. Maternal grandmother raises only one argument—that the court erroneously applied section 361.3, the relative placement statute, and as a result, improperly designated the foster parents as the prospective adoptive parents. Maternal grandmother contends DPSS improperly considered her residence in Mexico, failed to adequately investigate placement with her, and never gave her a good faith chance at placement. DPSS contends none of the parties have standing.
We assume without deciding that maternal grandmother has standing and consider the merits of her appeal. We conclude the court did not err in designating the foster parents as prospective adoptive parents. Maternal grandmother incorrectly relies on section 361.3, which has no bearing on the court's designation of prospective adoptive parents. Moreover, even if section 361.3 applied, we would find no error. We further conclude the parents lack standing and therefore dismiss their appeals. A. Maternal Grandmother Fails to Show Error in Designating the Prospective Adoptive Parents Because Section 361 .3 Does Not Apply to That Determination
We begin with maternal grandmother's misplaced reliance on section 361.3. Section 361.3, subdivision (a), states, in pertinent part: "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, regardless of the relative's immigration status." "'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) The statute "expresse[s] a command that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 320.) Section 361.3 "assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application." (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.)
"By its own terms, therefore, section 361.3 applies when 'a child is removed from the physical custody of his or her parents' and thus must be 'placed' in a temporary home, not when reunification efforts have failed and a permanent plan for adoption has been approved (or when a child has otherwise been freed for adoption)." (In re Sarah S., supra, 43 Cal.App.4th at p. 284.) The relative placement preference "applies at the dispositional hearing and thereafter 'whenever a new placement of the child must be made . . . .' (§ 361.3, subd. (d).)" (In re Lauren R. (2007) 148 Cal.App.4th 841, 854, fn. omitted.)
But "[i]t is well established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption." (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031.) "There is no relative placement preference for adoption." (In re Lauren R., supra, 148 Cal.App.4th at p. 855.) Rather, when reunification services have failed or been denied, "and the juvenile court has before it a proposed permanent plan for adoption, the only relative with a preference is a 'relative caretaker' (if there is one seeking to adopt) and the only preference is that defined by subdivision (k) of section 366.26 (that is, a preference to be first in line in the application process)." (In re Sarah S., supra, 43 Cal.App.4th at pp. 285-286, italics added.)
Specifically, under section 366.26, subdivision (k), "[n]otwithstanding any other 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 was 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." Thus, section 366.26, subdivision (k) assures a relative who has already been caring for the children that his or her application for adoption will receive preference. (In re Sarah S., supra, 43 Cal.App.4th at p. 285.) It does not give preferential consideration to relatives who have never been caretakers of the dependent children.
Furthermore, section 366.26, subdivision (n) relates to the designation of prospective adoptive parents, and nowhere does it set forth preferential consideration for noncaretaker relatives. Instead, it provides that, notwithstanding any other law, the court "may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process." (§ 366.26, subd. (n)(1), italics added; accord, Cal. Rules of Court, rule 5.726(a) ["A dependent child's caregiver may be designated as a prospective adoptive parent."].) The court may also consider DPSS's recommendation. (§ 366.26, subd. (n)(1).) Given that the statute speaks in permissive terms ("the court . . . may designate a current caretaker as a prospective adoptive parent"), the court's designation is a discretionary matter that we review for abuse of discretion. (Ibid.; accord, Seiser & Kumli, Cal. Juvenile Courts Practice & Procedure (2017 ed.), § 2.171[5][i] ["The decision to designate the current caregiver as a prospective adoptive parent is one committed to the discretion of the court."].)
Here, maternal grandmother appeals from the order at the section 366.26 hearing. "[T]he sole purpose of the section 366.26 hearing is to select and implement one of the listed permanent plans." (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) The court selected adoption as the permanent plan for the children and terminated parental rights. The only "placement" decision the court made at this section 366.26 hearing was the designation of the prospective adoptive parents, which it did only after terminating parental rights and selecting adoption. The relative placement preference of section 361.3 does not apply to this decision. Moreover, maternal grandmother was not entitled to any preference under section 366.26, given that she was not a current caretaker. In this respect, maternal grandmother's arguments that the court did not properly apply section 361.3 are irrelevant. She has not shown that, under section 366.26, the court abused its discretion in designating the foster parents as the prospective adoptive parents. The section 361.3 relative placement preference does not apply where the court has selected adoption as the permanent plan and adoptive placement is the question. (In re K.L. (2016) 248 Cal.App.4th 52, 66.) B. Even if Section 361 .3 Applied, the Court Did Not Err
At the permanency planning hearing, both the parents and DPSS framed their arguments in terms of who should be the prospective adoptive parents, while referencing section 361.3 and factors for consideration under that section. The court, as well, after designating the prospective adoptive parents, cited factors relevant under section 361.3. In other words, the parties conflated the two issues—pretermination placement on the one hand, and prospective adoptive parent status on the other.
On appeal, maternal grandmother assumes the court rendered an order denying relative placement under section 361.3, even though the court made no such express order and only designated prospective adoptive parents. Given the conflation of the issues below, however, we will assume for the sake of argument that the court impliedly considered maternal grandmother to be making a request for placement under section 361.3, not a request for prospective adoptive parent status. Even if we consider section 361.3 to be controlling, the court did not err in denying placement under that section.
"The relative placement preference established by section 361.3 does not constitute 'a relative placement guarantee.'" (In re K.L., supra, 248 Cal.App.4th at p. 66, fn. 4.) Nor does it supply a presumption that the children will be placed with the relative. (In re Stephanie M., supra, 7 Cal.4th at pp. 320-321.) The court must still determine whether placement with the relative is appropriate, taking into account a host of factors. (Id. at p. 321.) These factors include: (1) the best interests of the children; (2) the wishes of the parents, relative, and children; (3) the placement of siblings in the same home; (4) the good moral character of the relative and other adults in the relative's home; (5) the nature and duration of the relationship between the children and the relative; (6) the relative's desire and ability to provide legal permanency; (7) the relative's ability to provide a safe, secure, and stable environment; (8) the relative's ability to provide proper and effective care and control of the children; (9) the relative's ability to provide a home and the necessities of life; (10) the relative's ability to protect the children from their parents; (11) the relative's ability to facilitate court-ordered reunification; (12) the relative's ability to facilitate visitation with other relatives; (13) the relative's ability to facilitate implementation of the case plan; and (14) the relative's ability to arrange for appropriate and safe child care, if necessary. (§ 361.3, subd. (a).)
An agency study concluding the relative's home is suitable is not dispositive. (In re Stephanie M., supra, 7 Cal.4th at p. 321.) The juvenile court must exercise its own judgment regarding a change in placement. (Ibid. [holding the juvenile court did not abuse its discretion in denying the relative's request for placement, despite a positive home study by a Mexican social services agency].)
"[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M., supra, 7 Cal.4th at p. 321.) "In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity." (Id. at p. 317.)
We review the juvenile court's determination regarding relative placement for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; see also In re M.M. (2015) 235 Cal.App.4th 54, 64 [applying the abuse of discretion standard to the juvenile court's order changing the child's placement at the § 366.26 hearing].) We will not disturb the court's determination "'"unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."'" (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Maternal grandmother asserts we must apply the de novo standard of review because we are determining "whether the juvenile court properly applied statutory provisions." The cases she cites do not mandate de novo review when a juvenile court applies statutory factors to the facts before it. In In re Adrianna P., the court independently reviewed which of two statutes governed the pertinent issue. (In re Adrianna P. (2008) 166 Cal.App.4th 44, 53 [determining whether § 361.2 or 361.5 controlled the provision of reunification services to a noncustodial parent].) In In re Isabella G., the court applied de novo review to construe the language of section 361.3 and determine the statute applied to placement decisions after the court had terminated reunification services (but before the court had terminated parental rights). (In re Isabella G. (2016) 246 Cal.App.4th 708, 718-723.) In Los Angeles County Dept. of Children & Family Services v. Superior Court, the court applied de novo review to construe various sections of the Welfare and Institutions Code and determine whether they authorized the juvenile court to dismiss a dependency petition. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2008) 162 Cal.App.4th 1408, 1414-1421.) These cases presented pure questions of law, much like the question of whether the court should have applied section 361.3 or 366.26 to the designation of prospective adoptive parents. But a court's application of the section 361.3 factors to the facts before it is not a pure question of law. --------
Here, maternal grandmother fails to show the court abused its discretion. She contends DPSS improperly considered her residence in Mexico when it made its recommendation, since the statute requires preferential consideration for relatives "regardless of the relative's immigration status." (§ 361.3, subd. (a).) First, there is no indication that maternal grandmother is an immigrant. To immigrate means "to enter and usually become established; especially[,] . . . to come into a country of which one is not a native for permanent residence." (Merriam-Webster <https://www.merriam-webster.com/dictionary/immigrate>[as of July 7, 2017].) There was no evidence that maternal grandmother immigrated to the United States or any other country. Thus, her only "immigration status" appears to be "nonimmigrant."
Second, assuming the statute prohibited DPSS from considering maternal grandmother's place of residence—which is distinct from her immigration status—we do not understand the court to have based its decision on the fact that she resided in Mexico. In explaining its decision, the court expressed great concerns about the safety of the children, maternal grandmother's understanding of what had occurred, and her ability to protect against the parents. The court did not indicate that her Mexican residence was a factor. It also expressed a concern for stability and continuity when it cited how long each child had been in the current placement and explained that the very young children were in the only home they had ever known. (In re Lauren R., supra, 148 Cal.App.4th at p. 855 ["The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of her best interests."].) This stood in contrast to maternal grandmother's relationship with the children, whom she had visited only twice from July 2015 to November 2016. The court determined overall that the current placement was in the best interests of the children. Regardless of what DPSS argued about maternal grandmother's foreign residence, these factors cited by the court—the ability of the relative to provide a safe environment and protect the children from the parents, continuity and stability, and the best interests of the children—were appropriate considerations. (§ 361.3, subd. (a)(1), (a)(7)(A), (D); In re Stephanie M., supra, 7 Cal.4th at pp. 317, 321.)
Maternal grandmother also contends we must reverse because DPSS did not investigate placement with her fairly and in good faith, due to its improper consideration of her Mexican residence. She asserts DPSS did not sincerely investigate placement with her because it began assessing the foster parents for permanent placement before her assessment was complete, and it did not interview her to resolve the concerns it had over her ability to be protective.
On this record, we cannot agree with maternal grandmother that DPSS failed to proceed in good faith. The children were detained in July 2015. DPSS referred maternal grandmother for assessment shortly thereafter, in August 2015. DPSS continued to check in with the ILU and the Mexican Consulate throughout these proceedings. There was no showing that DPSS was responsible for the Mexican agency's delay in conducting the socioeconomic study. Also, while maternal grandmother's assessment was pending, DPSS was assessing other relatives for placement. DPSS began assessing the nonrelative foster parents for permanency after maternal grandmother's assessment had been pending for 10 months and DPSS began to have concerns about her ability to protect the children. Further, nine months had passed since the court had denied the parents reunification services and set the matter for a permanency planning hearing. DPSS sought continuances of the permanency planning hearing several times so that the assessment of maternal grandmother and other relatives could proceed. Given the length of time that had passed and the children's need for permanence, we do not see DPSS's simultaneous assessment of the foster parents as a sign of bad faith requiring reversal.
Nor do we find a failure to adequately investigate because DPSS did not give maternal grandmother a chance to allay its concerns, after she expressed her belief that the parents had done everything necessary to resume care of the children. Maternal grandmother relies heavily on In re R.T. (2015) 232 Cal.App.4th 1284, in which the court concluded the "relative's home was never given good faith consideration." (Id. at p. 1297.)
This case, however, is readily distinguishable from In re R.T. There, the social services agency removed R.T. from his parents' home and placed him with nonrelatives. (In re R.T., supra, 232 Cal.App.4th at p. 1292.) That same day or shortly thereafter, the father identified two paternal aunts to assess for placement. (Id. at p. 1293.) Although the agency initiated home safety inspections, it told the paternal aunts it wanted to keep R.T. in his current placement. (Ibid.) The agency completed the paternal aunts' home studies two months after the jurisdictional and dispositional hearing. (Ibid.) Still, the agency refused to consider moving R.T., and there was "no indication in the record that the agency ever evaluated the relatives for placement under the relevant statutory criteria. (§ 361.3, subd. (a).)" (Ibid.) Before the permanency planning hearing, one paternal aunt and her husband filed a petition seeking placement of R.T. (Id. at pp. 1293-1294.) At a hearing on the petition, R.T.'s case worker testified the agency "never considered the paternal aunts for placement," and the "'plan from day one has only been to consider adoption of this child'" by the nonrelative caregivers. (Id. at pp. 1294, 1297.) The caseworker's supervisor testified "relative placements do not receive preference." (Id. at p. 1294.) The juvenile court ultimately denied the paternal aunt's petition and later placed R.T. for adoption. (Id. at pp. 1294-1295.) On these facts, the appellate court found the agency had not considered the relatives in good faith. (Id. at p. 1297.) The agency had assessed their homes for safety without any intention of fully assessing whether placement was appropriate under the factors set forth in section 361.3. (In re R.T., supra, at pp. 1297, 1299.) "The agency simply decided, without reference to or consideration of statutory standards, that R.T. was in a good placement and would not move him." (Id. at p. 1299.)
Preferential consideration means relatives are the first to be investigated and considered. (§ 361.3, subd. (c)(1).) The agency in In re R.T. violated this mandate by failing to actually consider the paternal aunts. This case, in contrast, lacks evidence of an open disregard for the relative placement preference of section 361.3. There are no explicit statements from the social workers that DPSS never intended to evaluate maternal grandmother for placement. No social worker expressed the erroneous belief that relatives do not receive preferential consideration. DPSS and the court did not completely ignore the factors set forth in section 361.3. To the contrary, DPSS wanted to await the completion of maternal grandmother's assessment, and it and the court each cited factors relevant under section 361.3 in expressing their recommendation or decision. In re R.T. does not compel us to find a lack of good faith consideration here.
In sum, the relative placement preference is no guarantee of placement—it is only a guarantee of preferential consideration. (In re Stephanie M., supra, 7 Cal.4th at p. 321.) The Mexican agency's socioeconomic study concluding maternal grandmother's home was suitable was not dispositive, as the juvenile court was bound to exercise its own considered judgment. (Ibid.) Maternal grandmother has not shown the court abused its discretion in exercising that judgment, assuming section 361.3 applied to the determination here. C. While We Assume Without Deciding That Maternal Grandmother Has Standing to Appeal, the Parents Do Not Have Standing
DPSS contends none of the parties have standing to appeal. Whether a person has rights that may suffer some injury, actual or threatened, generally determines whether that person has standing in a case. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838.) Section 361.3 confers standing to seek appellate review on a relative who has requested and been denied placement. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at pp. 1034-1035; In re Harmony B., supra, at p. 838.) This is because the relative has a "separate interest in [his or] her relationship" with the dependent child that "is legally protected in section 361.3." (Cesar V. v. Superior Court, supra, at pp. 1034-1035.) But when a relative appeals from the termination of parental rights and an order giving nonrelative caregivers preference for adoption, section 361.3 is not at issue, and the relative's legally protected interest in that section does not confer standing. (In re Harmony B., supra, at pp. 837-838.)
DPSS acknowledges section 361.3 confers standing on relatives seeking placement, but argues that maternal grandmother appeals from the orders at the section 366.26 hearing, when section 361.3 did not apply, even though the parties and the court relied on section 361.3 at the hearing. We have assumed for the sake of argument that maternal grandmother has standing to appeal based on section 361.3's relative preference.
The parents' standing is a different matter. "A parent cannot raise issues on appeal which do not affect his or her own rights." (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541.) While a relative's legally protected interest in preferential consideration (§ 361.3) confers standing on the relative, "[o]nce a parent's reunification services have been terminated, the parent has no standing to appeal relative placement preference issues." (In re Jayden M. (2014) 228 Cal.App.4th 1452, 1460; accord, Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1035.) "A parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights." (In re K.C. (2011) 52 Cal.4th 231, 238, italics added.) When the parents do not contest the termination of parental rights, they relinquish the only interest in the dependent child that could render them aggrieved by the juvenile court's placement order. (Ibid.)
In this case, the parents advance no argument whatsoever against terminating parental rights. They simply join in maternal grandmother's arguments that the court erred in denying placement with her. They therefore have no standing to appeal the court's order designating prospective adoptive parents. They have not shown they are aggrieved by the order and thus lack appellate standing. (In re K.C., supra, 52 Cal.4th at p. 239 ["[F]ather has not shown that he is aggrieved by the juvenile court's order denying grandparents' motion concerning placement. That the Court of Appeal properly dismissed his appeal for want of standing necessarily follows."].)
The parents rely on Cesar V. for the proposition that we should not dismiss their appeals for lack of standing. The court in that case expressly held the father "ha[d] no standing to appeal the relative placement preference issue." (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1035.) It nevertheless did not dismiss his appeal and permitted him to offer arguments in support of the relative, who did have standing. (Ibid.) As our Supreme Court characterized it, "[w]hat the father in Cesar V. appears to have won was not standing to appeal, but a status loosely akin to that of amicus curiae." (In re K.C., supra, 52 Cal.4th at p. 239.) But the parents here have not made any supporting arguments along the lines of amici curiae. The argument sections of their briefs are simple statements of joinder in each other's and maternal grandmother's arguments. Cesar V. is not analogous.
IV. DISPOSITION
The judgment is affirmed. The appeals of mother and father are dismissed for lack of standing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.