Opinion
E065610
01-10-2017
In re G.B., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. K.B. et al., Defendants and Appellants.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant and Appellant K.B. Lesley A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant D.M. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carol A. Nunes Fong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INJ1300207) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Michele Anne Cella, under appointment by the Court of Appeal, for Defendant and Appellant K.B. Lesley A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant D.M. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carol A. Nunes Fong, Deputy County Counsel for Plaintiff and Respondent.
Defendant and appellant K.B. (Mother) appeals after the termination of her parental rights to G.B. (minor) at a Welfare and Institutions Code section 366.26 hearing. In addition, D.M., a nonrelated extended family member (NREFM) appeals the denial of her section 388 petition. D.M. had adopted two of minor's half siblings in prior proceedings. At the time minor was born, D.M. sought custody of minor but was denied placement by plaintiff and respondent Riverside County Department of Public Social Services (the Department). After requesting that the Department reconsider its position, and after the matter was set for the section 366.26 hearing, D.M. filed a section 388 petition. Following a contested hearing, the trial court denied placement of minor with D.M. finding it was in minor's best interest to stay with the foster parents, who were also the de facto / prospective adoptive parents (G Family or Mr. & Mrs. G).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. --------
D.M. contends on appeal that the juvenile court abused its discretion when it denied her section 388 petition as it was in minor's best interest to grant the petition. Mother joins in D.M.'s brief and contends that if this court finds the section 388 petition should have been granted, the order terminating Mother's parental rights must also be reversed.
We conclude D.M. does not have standing to appeal the denial of her section 388 petition, and Mother does not have standing to raise the claim. Moreover, even if D.M. and Mother had standing to raise the claim, the trial court did not abuse its discretion by finding it was in minor's best interest to remain with the G Family.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Minor was born in June 2015. He was immediately detained by the Department from Mother and alleged father, S.A. (Father). Minor and Mother tested positive for methamphetamine and amphetamine at the time of minor's birth. Minor was transferred to the Neonatal Intensive Care Unit due to infection and possible withdrawal. Mother admitted using methamphetamine throughout her pregnancy. She also reported that Father was a chronic substance abuser. Mother had checked out of the hospital against medical advice only three hours after minor's birth.
Mother had a prior history with the Department. On July 28, 2014, her parental rights to minor's half sibling, D.B., were terminated. On March 12, 2015, her parental rights to minor's half sibling, M.V., were terminated. It was reported in the detention report that D.M. had adopted D.B. and M.V. (collectively, the siblings), and wanted to adopt minor. Jeanette Austin was the social worker assigned to the case at the time of the detention hearing; she tried to contact D.M. but was unsuccessful.
On June 23, 2015, the Department filed a section 300 petition against Father and Mother for minor. It was alleged under section 300, subdivision (b), that Mother and Father failed to adequately care for minor due to their substance abuse problems and both had criminal histories. In addition, as to Mother, she failed to reunify with the siblings. Further, it was alleged as to section 300, subdivision (g) that they had no provision for support.
The detention hearing was held on June 24, 2015. Mother and Father were not present. The juvenile court found a prima facie case and ordered that minor be detained. Minor was still in the hospital.
B. JURISDICTIONAL/DISPOSITIONAL REPORT AND HEARING
A jurisdiction/disposition report was filed on July 27, 2015. Minor had been placed with the G Family on June 29, 2015. The Department recommended family reunification services be denied to Mother pursuant to section 361.5, subdivisions (b)(1), (b)(10), (b)(11) and (b)(13), and subdivisions (a) and (b)(1) as to Father. Mother and Father had not returned any of the calls made by the Department.
Minor was still suffering from withdrawal symptoms but was improving. Mr. and Mrs. G were willing to adopt minor. Father and Mother had not attended visitation.
Family reunification services had been terminated for Mother for D.B. on January 22, 2015. Mother was granted no reunification services for M.V. Father, as an alleged father, was not entitled to services. Minor was Mother's third child in two years. All three children were exposed to illegal substances.
The jurisdiction/dispositional hearing was held on August 14, 2015. Father and Mother were not present. The juvenile court found the allegations in the petition true. Mother and Father were both denied reunification services. The matter was set for a section 366.26 hearing.
C. SECTION 388 PETITION
On November 18, 2015, D.M., through counsel, filed a section 388 petition. She described her relationship with minor as "Adoptive Mother of [half] siblings and NREFM BioMo." She requested a change in the order of placement of minor. She requested placement of minor because Mother was requesting D.M. take custody of minor and D.M. had adopted the siblings. The Department was aware that D.M. wanted placement of minor and she had gone through the Relative Assessment Process with a home approval. It was in minor's best interest to grow up with his siblings.
D.M. submitted information that she had spoken with Austin, the first social worker; D.M. told Austin she wanted placement of minor. D.M. also spoke with Amanda Graves, who was the social worker that worked with her on the adoption of the siblings. Graves told D.M. that she could not have custody of minor because her adoption assessment for M.V. was "rocky." However, D.M. stated, "this made no sense because I had an approved adoption assessment and adopted [M.V.]" Graves told D.M. that she should not push for the adoption of minor because they would open a case against her.
D.M. contacted Graves's supervisor. The supervisor informed D.M. that minor would not be placed with her because the siblings were young and D.M.'s two older children were against the adoption. D.M. disagreed. On October 1, 2015, D.M. was contacted by another social worker, Gloria Gutierrez, looking for information on Mother and the maternal grandmother. D.M. advised Gutierrez that she wanted custody of minor. Gutierrez knew nothing about her desire for custody. Gutierrez approved D.M. for an assessment and authorized visits with minor. On October 7, 2015, D.M. was advised by Gutierrez that visits were being put on hold.
On October 15, an assessment was completed at D.M.'s home. D.M. received several text messages from Gutierrez, which she attached to the section 388 petition, keeping D.M. updated on the progress of visits and having minor placed with her. On November 4, 2015, D.M. was contacted by Gutierrez's supervisor and advised she would not be approved because of her prior adoption study, even though she passed the home assessment. On November 5, 2015, Graves contacted D.M. and told her she was upset about D.M. pursuing custody of minor.
On November 18, 2015, the trial court ordered the Department to file a response to the section 388 petition. An addendum report was filed on January 14, 2016. The Department recommended that the juvenile court deny D.M.'s section 388 petition and continue with adoption by the G Family.
The Department reported it had investigated D.M.'s adoptions of the siblings when making an initial determination about placement. The adoptions of the siblings were completed on December 18, 2014, and June 16, 2015. When D.M. was contacted, she expressed to the social worker, Graves, that she had an interest in adopting minor but that her two biological children were concerned about her adopting another child; minor would be the third child placed with D.M. in two years.
The Department reported that during the home study process of the siblings, it was clear that there was dissention in the family regarding the adoptions. The biological sons were against another adoption. Graves spoke with D.M. on June 22, 2015, regarding minor. Graves informed D.M. she was not being recommended for placement of Mother's unborn child. It was suggested to D.M. that she "focus on meeting the needs of her current family members . . . includ[ing] two young children under the age of three" and making note of the fact D.M.'s significant other had left the home. D.M. indicated she "agreed and understood the reasons."
Graves indicated that D.M.'s biological sons were present at the court hearing finalizing the adoption of M.V. When D.M. mentioned to Graves that she was interested in adopting Mother's unborn child, the two sons shook their heads "no." The biological sons also appeared withdrawn.
Graves spoke with Austin and advised her she was not recommending that D.M. take custody of minor. The reasons were that D.M. had just adopted two other children under the age of two years and she had little support. Throughout the dependency proceeding, Graves informed the social workers assigned to minor's case that D.M. had already been considered and rejected for placement of minor.
Graves spoke with D.M. on the telephone on November 5, 2015, and reiterated minor would not be placed with her. Graves referred to D.M.'s two biological sons not wanting the adoption to take place. D.M. responded, "'It doesn't matter what they want! It's not their choice.'" Graves informed D.M. she needed to focus on the two children she had adopted. On November 11, 2015, two of Graves's supervisors met with D.M.
The Department recommended the section 388 petition be denied. Minor was bonded with Mr. and Mrs. G and the Department had properly placed minor with them. D.M. filed a trial brief contesting the Department's statements in their opposition to her section 388 petition. The Department also provided written notes about the meetings with D.M.
D. SECTION 366.26 REPORTS AND HEARING
The Department filed their section 366.26 report on November 23, 2015. They recommended minor remain in the home of the G Family and that the parental rights of Mother and Father be terminated. Father was not available for paternity testing. Mother had been contacted. She was living in a motel in Indio with Father. She wanted to stay away from the dependency proceedings because of her prior experiences with the siblings. She wanted minor to be placed with the siblings. Father had no contact with the Department.
Minor was developing normally. Minor was bonded to Mr. and Mrs. G; they wanted to adopt minor. Minor had no visits with Mother and Father. The Department recommended that minor be adopted by Mr. and Mrs. G.
Mr. and Mrs. G filed a request to be named the de facto parents. They had custody of minor since June 29, 2015, and took care of his needs full time. Minor was bonded with Mr. and Mrs. G and their son and daughter. The matter was heard on February 23, 2016. Mr. and Mrs. G were granted de facto parent status.
An addendum report was filed on March 11, 2016. The Department provided information regarding the process of the Relative Assessment Unit in approving a home for placement of a child. A relative assessment for D.M. was started on October 1, 2015. D.M. was sent notice that her home was certified as of November 17, 2015. In the letter, the relative assessment worker expressed concerns about the home based on the experiences with the family as relayed by Graves. As a result, the home was certified but it was decided placement was not in the best interest of minor. D.M. was notified by mail and by telephone. The two adoption home studies for the siblings were attached. The reports were positive.
An extensive hearing was conducted on the section 388 petition, as will be set forth in detail post. The petition was denied. The section 366.26 hearing was held on March 16, 2016. The parental rights of Father and Mother were terminated and minor was freed for adoption by the G Family. D.M. and Mother both filed timely notices of appeal.
DISCUSSION
A. SECTION 388 PETITION
D.M., joined by Mother, contends the juvenile court erred by denying D.M.'s section 388 petition. We conclude D.M. and Mother have no standing to appeal the denial of the 388 petition. Moreover, even if we were to consider the denial of the section 388 petition, the trial court did not abuse its discretion in denying the petition as it was in minor's best interest to remain with Mr. and Mrs. G.
1. ADDITIONAL FACTUAL BACKGROUND
At the hearing on the section 388 petition, D.M.'s children, Ja.M. and Ju.M. were present. Mother made her first appearance. At the time of the hearing, D.B. was a little over two years old and M.V. was just over one year old.
Mother testified at the hearing. She wanted D.M. to adopt minor and had told the social worker who came to the hospital, whom she believed was Austin, that she wanted D.M. to adopt minor. Mother had visited with the siblings two or three times since their adoption.
Ja.M. was 18 years old and in high school. Ja.M. did not know Graves. He did not recall anyone speaking with him during the adoption process of the siblings. Ja.M. never said anything at the adoption hearing for M.V. regarding D.M. adopting minor. He never shook his head; he never said no. He had never told anyone he was unhappy with the adoptions. He loved his adopted siblings. D.M.'s boyfriend, R.D., currently lived with them. D.M.'s mother always came and helped take care of the siblings when D.M. worked. Ja.M. wanted D.M. to adopt minor. R.D. had moved out for four months the prior year. Ja.M. indicated that his relationship with R.D. was "so-so."
Ju.M. was 15 years old. Ju.M. was happy that D.M. adopted the siblings because it made D.M. happy. He was okay with her adopting minor. Ju.M. was never interviewed by anyone at the Department. He had never spoken to Graves. Ju.M. had never indicated at the court hearing on M.V.'s adoption that he did not want D.M. to adopt minor. D.M.'s mother was excited to help care for another child. D.M. was now engaged to R.D. Ju.M. was "close" to R.D. but not attached to him.
D.M. testified. She had known Mother since Mother was a baby. She and Mother agreed that D.M. would adopt minor before he was born. D.M. spoke with Austin when minor was born. Austin told D.M. she would submit a referral for her. Graves told D.M. she was not recommending placement of minor with her. Graves told D.M. she was not recommending placement because Ju.M. and Ja.M. did not want her to adopt minor and because D.M. and R.D. were having trouble. D.M. had never seen Graves speak with her sons during the prior two adoptions.
At the time minor was born, R.D. had moved out of the house. Their disagreements had nothing to do with adopting another child. R.D. stayed in touch with the siblings even when he was not living in the home. R.D. moved back in August. Graves's supervisor told D.M. that the Department would not place a newborn in a home with two children under the age of two. D.M. always told Graves she disagreed with the decision not to place minor with her.
D.M. had no contact with the Department between the end of June and October 2015. She next heard from Gutierrez, who called her inquiring about the whereabouts of Mother. Gutierrez took all of her information and R.D.'s information and said she was referring them for approval. Another social worker came to her home and did an assessment. D.M. was told that Graves and other social workers met on November 3, 2015, and that it was decided not to place minor with her because the two sons did not want the baby in the home, and the trouble with R.D.
D.M. met with two of Graves's supervisors on November 10. She was told she would not get custody of minor. It was based on the assessment done during the adoption of M.V. She was denied visitation with minor.
D.M. later admitted that R.D. had left after she adopted M.V. She admitted he was upset about her adopting the second child because she did not discuss it with him. D.M. also acknowledged that Ju.M. did make a comment in court when she discussed adopting minor with Graves. She spoke with him at home about it and he said, "Mom, another baby?" D.M. explained to him that the siblings needed to be together and he said, "Okay." She also noted that Ja.M. did have some learning disabilities.
D.M. admitted she had been told at least three times since minor was born that she was not going to be given custody. It was clear from the letter received that although her home had been approved, it did not necessarily mean she would get custody. At the time of minor's birth, R.D. was not in the house and she would be taking care of five children, three of whom would be under the age of two, by herself.
Graves testified she had worked in adoptions for 10 years for the Department. Graves explained that at the beginning of the dependency proceeding, if it is clear the child would be going to adoption, the adoption unit is immediately contacted in order to seek out a preadoptive home for the child. Graves was contacted by Austin because of her involvement with D.M. and D.M.'s family. Graves advised Austin she was not recommending placement of minor with D.M.
Graves did not write down the problems in D.M.'s home in the prior adoption studies because those home studies were done prior to the problems arising in D.M.'s home. Graves indicated there was a staff meeting prior to minor being born where the placement of minor with D.M. was discussed, but nothing was written down. Graves advised two supervisors of the reasons not to place minor with D.M. and they approved.
Graves had interactions with D.M. and her two biological sons in which she formed the opinion that they did not want D.M. to adopt minor. Graves indicated that the family dynamics changed after M.V. was placed in the house. All of the problems arose when D.M. started discussing adopting minor. Graves observed that D.M.'s mother appeared overwhelmed caring for the siblings. Graves wrote notes on these issues with D.M. and her family on November 16, 2015, at the direction of her supervisor, but had not documented the problems in the family prior to that date. The juvenile court noted that at the time of the detention hearing, the information was not documented and it was all in Graves's "head." It was not until her supervisor asked her to document the reasons that she put it in the report. Graves insisted she interviewed Ja.M. and Ju.M. in February and March 2015.
D.M. had previously told Graves during the adoption of M.V. that Ju.M. and JA.M. stayed in their rooms and did not do anything including chores or homework. Graves had helped D.M. adopt M.V. and advocated for the siblings to be placed together. Graves changed her mind on minor based on changes in the household after D.M. adopted M.V.
Graves had met D.M.'s entire family. Graves saw one of the boys shake his head in disagreement when the adoption of minor was discussed. Graves went to the home at least five times during the adoptions of the siblings. Graves was concerned that D.M. could not maintain a healthy relationship with R.D. because D.M. said she did not care about R.D.'s feelings regarding the adoptions.
After hearing this evidence, the trial court noted that it had received into evidence the delivered service logs prepared by the Department and the two adoption studies prepared by Graves for the siblings. D.M.'s counsel argued that from the beginning of the case, Mother wanted minor placed with D.M. There was no dispute that D.M. was a NREFM. D.M. should have been evaluated for placement; section 361.3 had to be considered. It was not enough under section 361.3 that Graves stated D.M. would not be considered for placement. D.M.'s counsel argued it was in minor's best interest to be placed with D.M. Minor could be raised with his half siblings. Further, even though minor had been with the current caregivers since birth, that did not give them preference in the adoption of minor.
Minor's counsel was conflicted as to the best interest of minor. Minor was thriving in the home of Mr. and Mrs. G, but he should not be foreclosed from being placed with his siblings.
The juvenile court felt that the Department had done a "bad job" in the case. Graves made a unilateral decision. The juvenile court was concerned that this decision, rather than having it go through the regular process of assessment, created a potential legal problem. It would have been proper to have the assessment done earlier in the case. At that point, it could have been decided earlier if D.M. should be excluded because of the other children in the home.
The juvenile court called the Department's decision "arbitrary" in deciding at the beginning of the case it would not place minor with D.M. However, minor was in a loving home with the current caregivers and was bonded with the current caregivers. The juvenile court noted, "As we know, infant children, for me sibling contact or sibling relationship is less important when the child is an infant because it's not like the child knows they have a sibling that they will no longer be able to have contact with. So this is a very difficult decision because this decision will impact the rest of this child's life. And I can't go in favor of [D.M.] just because the [D]epartment messed up in its one employee or two that doesn't—they didn't do their job right. I can't ruin this child's life because they did something wrong." The trial court assumed that the Department did not follow the proper protocol in assessing placement with D.M. until late in the process. The section 388 petition was to be decided based on the best interest of minor.
The juvenile court noted minor was bonded to the children in the G Family home. The juvenile court felt that Graves had "messed up." The juvenile court criticized Graves for failing to write down or document any of the concerns with D.M. The juvenile court was very frustrated with the case.
The Department argued that if the juvenile court was finding changed circumstances, it was not in minor's best interest to be moved from the stability and permanency of Mr. and Mrs. G. The juvenile court noted that minor was placed with the G Family because of a mistake. However, the juvenile court was considering the bond with Mr. and Mrs. G as a factor. The Department's counsel argued that the Department knew about D.M. from the beginning of the dependency case and exercised its discretion not to place minor with her. Further, an assessment of D.M. was eventually performed. The Department considered D.M. but determined it was not best to place minor with her.
The Department further argued that placing minor with D.M., an NREFM, must still be in minor's best interest. It would be disruptive to minor to take him out of his foster parents' home. Removing him at nine months old from the only family he knew would be detrimental.
Mother's counsel argued that D.M. never got the chance to be assessed. Mother's counsel acknowledged it was a tough decision for the juvenile court.
The juvenile court noted there was some evidence of instability in the relationship between D.M. and R.D.; he moved out at the time of the adoptions.
The juvenile court found, "I have already stated for the record that the petitioner brought enough information regarding the case to talk about changed circumstances, meaning this court was not aware of all the arbitrary unilateral determinations made by Ms. Graves and her supervisor. And it's clear [D.M.] was not given a fair shake initially. It some regards it was remedied later on in October or November, but I think it's tainted by the original unilateral decision. But that's only one prong of the motion."
"The second prong of the motion that petitioner [D.M.] has to overcome or prove is, is it in the best interest of [minor]." The juvenile court stated it was struggling with the decision. It considered one of the factors was the stability in the current placement. The juvenile court noted that based on the records, "anyone would be really reluctant to shake up," the current environment. It noted, "Even if it was created because of legal errors or mistakes made along the way by certain particular social workers or not, the fact remains the child is in this environment."
The juvenile court did note there was some evidence that Ja.M. and Ju.M. were not happy with the third adoption. The juvenile court stated, "And I notice from the testimony of the children and observing them in court, it wasn't a resounding, you know, in favor." The juvenile court was concerned about all of the family members creating a loving environment for minor. The juvenile court was also concerned about the unstable relationship between D.M. and R.D. Even though it was clear that D.M. could be a single parent and still adopt, the juvenile court was concerned about exposing minor to an unstable relationship. The juvenile court was also concerned that R.D. never expressed his desire to be with the children even though he was D.M.'s fiancée. He never came to court.
Further, D.M. had four children in her home and worked. Although she had the assistance of her mother, there was some evidence that D.M.'s mother had some medical issues. The juvenile court was taking into account the sibling connection, but "it's not an overriding factor in this particular case because [minor] does not know about his siblings."
The juvenile court found, "And, of course, potentially we can always say hypothetically sibling relationship is important, could be important in the future, but I'm going to have to ultimately go with what I think in my heart is in the best interest of this child, and I don't think it's in the best interest of the child to remove the child from the current placement. So the JV-180 will be denied." The juvenile court further noted, "And I think the child's current placement is appropriate and he's thriving there, and I think it would be really bad to take him out at this point, do that to this child. And this family that he's in currently appears to be able to provide him with a good home and a good future. And only time will tell if this was the right decision, but that's the way this court is going."
2. ANALYSIS
a) Standing
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Although under the language of section 388, any interested party may file a section 388 petition, that does not necessarily entitle the party to appeal the decision. (§ 388.)
"Generally, an aggrieved party may appeal a judgment in a juvenile dependency matters. [Citation.] To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053.) "The right of appeal . . . extends by statute only to a 'party aggrieved' by the order appealed from." (In re Aaron R. (2005) 130 Cal.App.4th 697, 703.)
The California Supreme Court recently addressed the right to appeal in dependency proceedings. It held, "Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citation.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [Citation.] These rules apply with full force to appeals from dependency proceedings." (In re K.C. (2011) 52 Cal.4th 231, 236.) In K.C., the court found that the father did not have standing to appeal the denial of the grandmother's section 388 petition, in which she requested placement of the dependent child, because he could not show he was an aggrieved party. The grandmother had not filed a notice of appeal. The court concluded, "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." (K.C., at p. 238.)
D.M. stated in her opening brief that she was a NREFM, not a relative. D.M. has provided no authority that as a NREFM she was entitled to the same preference as a relative or that such NREFM status entitles her to appeal the denial of the section 388 petition. Section 361.3, subdivision (a) provides, "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." Factors included in section 361.3 include the best interests of the child, the wishes of the parent, whether there are siblings in the home, whether the home is suitable for taking care of the child and whether it will facilitate reunification of the family. (§ 361.3, subd. (a).) In In re R.T. (2015) 232 Cal.App.4th 1284 (R.T.) the aunt and uncle wanted custody of the child, who had been placed with a NREFM, who had helped raise the child's sibling. The juvenile court denied the parents reunification services, ordered placement remain with the NREFM, and set a section 366.26 hearing. The aunt and uncle filed a section 388 petition to attempt to get placement. (R.T., at pp. 1292-1293.) At the hearing on the section 388 petition, the social services agency indicated that it had never considered placement of the child with the aunt and uncle. The social services agency explained that the child was placed with the NREFM because the siblings were in the home, and stating that since there was a "'full-blooded relative sibling in the home'" it made sense to place the child there. The juvenile court denied the section 388 motion. (R.T., at pp. 1294-1295.)
The aunt and uncle filed an appeal from the denial of their section 388 petition. The appellate court reversed because the social services agency had failed to properly apply the preference for placing a dependent child with a relative at the time of detention. The court stated that despite the child's sibling being in the NREFM home, it did not "relieve the agency of the obligation to honor the statutory preference for relative placement." (R.T., supra, 232 Cal.App.4th at p. 1297.) The juvenile court stated that it was error to award placement of the child with the NREFM without first considering a relative for placement. (Id. at p. 1298.) Further, the appellate court found that the juvenile court erred by denying the section 388 petition because it had been filed early in the proceeding, had been delayed by the trial court, and had violated the law by not applying the relative preference. (R.T., at pp. 1300-1301.)
Here, D.M. was a NREFM. However, this does not make D.M. the equivalent of a relative. Even in R.T., supra, the court distinguished between the NREFM, who had custody of the child's sibling, and the relatives. As such, D.M. was not a party to the dependency proceeding as a relative. Moreover, she was not a de facto parent as that status was granted to Mr. and Mrs. G. D.M. has not shown that her legal rights to minor were affected in "an immediate and substantial way" as she had no right to immediate custody of minor. (K.C., supra, 52 Cal.4th at p. 236.)
At oral argument, D.M. relied on section 361.2 to support she has standing to appeal the denial of her section 388 petition. Section 361.2, subdivision (e) provides that "When the court orders removal pursuant to Section 361, the court shall order the care, custody, control, and conduct of the child to be under the supervision of the social worker who may place the child in any of the following: [¶] . . . [¶] (3) The approved home of a nonrelative extended family member as defined in Section 362.7." Section 361.2, subdivision (a) requires the juvenile court to first determine if there is a noncustodial parent with whom the minor can be placed. However, the remainder of the placements, such as in a foster home or with a NREFM, appears to be within the discretion of the social worker. We have found nothing in section 361.2 supporting that such language renders the NREFM injured in an immediate and substantial way if the minor is not placed with the NREFM. The statute is discretionary as to placement with a NREFM and the language provides no preference for placement, as opposed to the preferential placement language with a relative in section 361.3 and a noncustodial parent in 361.2, subdivision (a). (Italics added.)
For the first time in her reply brief, D.M. insists that she is the equivalent of a stepparent because she adopted minor's half siblings. "'For sound policy reasons, we disregard claims raised for the first time in an appellate reply brief where the appellant makes no attempt to show good cause for failing to raise the issue in the opening brief.'" (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.) In her opening brief, D.M. stated she was not a relative. We will not consider the argument raised for the first time in the reply brief.
Additionally, we note that only parties of record may appeal. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715; § 395.) "A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings. [Citation.] A person does not become a party of record merely because his or her name and interest appear in documents filed with the court or are referenced in the judgment." (Joseph G., at p. 715.) D.M. was not a party of record. There are no grounds on which to find standing for D.M. on appeal.
Moreover, Mother does not have standing to raise the denial of D.M.'s section 388 petition. This case is analogous to Jayden M. (2014) 228 Cal.App.4th 1452. In Jayden M., the appellate court concluded that the parents did not have the right to appeal the removal of the child from the aunt and uncle because the social services agency did not comply with the proper notice requirements for relatives once their reunification services were terminated. Only the relative who was requesting placement could contest the denial of the child's placement. (Id. at pp. 1459-1460.) The court concluded that, "[o]nce a parent's reunification services have been terminated, the parent has no standing to appeal relative placement preference issues." (Id. at p. 1460.) Mother was denied reunification services prior to the filing of the section 388 petition.
D.M. contended at oral argument that not allowing a NREFM to appeal the denial of a section 388 petition leaves the decision of the juvenile court without any checks or balances. However, this court has found no authority that a NREFM has standing to appeal a section 388 petition. We cannot create such a right that is not supported by legal or statutory authority.
D.M. and Mother have no standing to appeal the denial of the section 388 petition. However, in an abundance of caution, we will briefly address the issue as the juvenile court clearly did not abuse its discretion by denying the section 388 petition.
B. DENIAL OF SECTION 388 PETITION
Section 388, subdivision (a)(1), provides in 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 in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court . . . ." A section 388 petition may be filed "to change or set aside any order of the juvenile court in the action from the time the child is made a dependent child of the juvenile court." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
When a section 388 petition is brought after the termination of reunification services, to change an earlier placement order, "the predominant task of the court [is] to determine the child's best interests. . . ." (In re Stephanie M. (1994) 7 Cal.4th 295, 320.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Id. at p. 317.)
Moreover, "[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.)
A section 388 petition is addressed to the juvenile court's discretion, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at pp. 415-416.) "The denial of a section 388 [petition] rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Here, there is ample support in the record that it was in minor's best interest to stay with the G Family. Initially, D.M. had sought custody of minor at the time of his birth in June 2015. However, she waited until November to file her section 388 petition. Minor was already bonded to Mr. and Mrs. G at the time D.M. filed the section 388 petition. Further, the juvenile court properly found that Minor was bonded to Mr. and Mrs. G and the children in the prospective adoptive home.
Additionally, it was not an abuse of the juvenile court's discretion to determine there were potential problems in D.M.'s home. It could reasonably find, after viewing the testimony of Ja.M. and Ju.M., that they were not supportive of the adoption of minor. Further, it could reasonably conclude that D.M.'s mother, who was already taking care of two toddlers under the age of three, may not be able to handle the addition of minor. Finally, the trial court could certainly be concerned about the stability of D.M.'s relationship with R.D. and that it could have an impact on the children in the home.
The juvenile court properly focused on the best interest of minor in determining that it was in minor's best interest to stay with the G Family. (Stephanie M., supra, 7 Cal.4th at p. 323.) The juvenile court did not abuse its discretion in denying D.M.'s section 388 petition.
DISPOSITION
The juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting P. J. CODRINGTON
J.