Opinion
C086277
06-12-2018
In re D. P., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. R. P., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD238125)
R. P. (father) appeals from the juvenile court's orders denying placement with a nonrelated extended family member and terminating parental rights for his child D. P. (minor). (Welf. & Inst. Code, § 366.26.) We will affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, mother's parental rights for her three other children were terminated. In August 2016 and March 2017, while mother was pregnant with the minor, mother tested positive for methamphetamine and marijuana. In April 2017, the minor was born and showed signs of substance withdrawal. Mother told the social worker that she tested positive because she took Adderall, and father said he was not aware mother used drugs. Father, who tested negative for drugs, denied having any substance abuse issues.
Mother is not a party to this appeal.
The Sacramento County Department of Health and Human Services (the Department) took the minor into protective custody on April 26, 2017, and subsequently filed a petition under section 300, subdivisions (b) and (j).
The petition was amended in June 2017 and continued to allege failure to protect (§ 300, subd. (b)) and abuse of sibling (§ 300, subd. (j)).
On May 1, 2017, the juvenile court ordered the minor detained. The trial court also ordered supervised visitation for mother and father, a minimum of twice a week.
In the May 2017 jurisdiction/disposition report, the Department recommended against reunification services because mother had previously had parental rights terminated and had a history of substance abuse. In addition, father had previously been provided substance abuse services through the criminal and juvenile courts, but had failed to rehabilitate. Still, mother and father's home appeared prepared for the minor, with numerous baby items and essentials.
In June 2017, father was arrested and released. The next day, father visited with the minor and, after the visit, tested positive for alcohol. A July 2017 addendum report indicated father was "inconsistent" with his substance abuse recovery program and mother was "out of compliance" with her substance abuse program.
During the August 11, 2017 jurisdiction and disposition hearing, the juvenile court sustained the petition, adjudged the minor a dependent of the court, and denied reunification services for mother and father pursuant to section 361.5, subdivisions (b)(10), (11), (13), and (c) because they would not benefit the minor. Visitation was ordered and the juvenile court scheduled a section 366.26 hearing for December 2017. The juvenile court also ordered a permanent plan of adoption.
The minor was placed in his current foster home on August 13, 2017. On August 25, 2017, S. H., who was a licensed foster parent and had known father since he was seven years old, requested the minor be placed in her care. In addition, her brother was married to the minor's paternal aunt. S. H. wanted to visit the minor and was open to adopting him. She wanted to maintain connections between the minor and his family and was willing to supervise visits between the minor, mother, and father. Mother and father each wanted the minor placed with S. H. In an October 2017 relative placement hearing report, the Department recommended against placing the minor in S. H.'s home. Although S. H. had shown commitment by going through the approval process, she had not come forward until after the court had approved a permanent plan of adoption and the minor had been in foster care for three months. Relative preference did not apply. (§ 361.3.) Moreover, removal was not in the minor's best interest. He was doing well in his current adoptive placement, and a "stable, nurturing placement is crucial to his development and his ability to form an attachment."
According to the December 2017 selection and implementation report, the minor was "adjusting well" to his current placement. The family had an approved adoption home study and were "committed" to adoption. The minor had made "great strides" in his foster home and was meeting his developmental milestones. His caregivers reported no concerns regarding his behavior or emotional status. The department recommended it was in the minor's best interest to remain in his current placement and terminate parental rights of mother and father. The minor was adoptable and was "stable" with his current placement, with the family "able to meet his needs."
The report also noted mother and father regularly had supervised visits with the minor twice a week for two hours each time. The parents were appropriate and played with the minor, read to him, fed him, and changed his diaper. Both parents were "affectionate" with the minor and "gave him a lot of attention." During one visit, the parents successfully got the minor to relax and go to sleep. However, the minor "does not have any distress when he returns [from visits with mother and father] to placement." The report stated there was no evidence mother or father had resolved the issues leading to the minor's detention. According to the report, the social worker had difficulty reaching S. H. to schedule visitation with the minor.
At the combined placement and section 366.26 hearing on December 12 and 14, 2017, S. H. testified she had been friends with the paternal grandmother and stepped into a mother-figure role for father when the paternal grandmother passed away in 1995. She was close with father's extended family and saw them during holidays. S. H. only found out that the minor was under the Department's care in August 2017, and asked for visitation as soon as she found out. S. H. testified she had only one supervised, two-hour visit with the minor in October, but a second visit was scheduled for December, after the hearing. She was unable to visit in November due to illness. S. H. testified she wanted the minor to be placed with her so minor could maintain a relationship with his family. S. H. testified that if the minor was placed with her, father would need to get permission before visiting and would need to follow her rules. S. H. was willing to get a restraining order against father if necessary to protect the minor.
Mother and father each testified they objected to terminating their parental rights. Father testified that, if parental rights were terminated, he wanted S. H. to raise the minor so that the minor could have a relationship with his family. Father promised to abide by S. H.'s rules if she were to adopt the minor. He currently had two supervised, two-hour visits per week with the minor. During the visits, father read to the minor, fed him, changed his diaper, and played with him. Father testified the minor smiled and wiggled when he saw father, as though he wanted father to pick him up.
Mother testified she also wanted the minor placed with S. H. if he could not be with her. Mother participated in the same supervised twice-weekly visits with the minor as father, and she believed the minor had bonded with her.
The juvenile court found S. H. was a nonrelated extended family member under section 362.7 but declined to place the minor with her. The court reasoned the Department had not abused its discretion in leaving the minor with his current foster family, especially since S. H. had not requested placement until after the court ordered adoption as the permanent plan. In addition, there was no need to move him since he was "thriving in his current placement" and was "bonded with his caretakers." The court was concerned moving the minor would traumatize him since he was already attached to his current family.
The court found by clear and convincing evidence that the minor was adoptable and the beneficial parental relationship exception did not apply. The court acknowledged mother and father had maintained regular and consistent contact with the minor and visited him "every chance and opportunity that they [were given]." The parents also loved the minor and felt bonded with him. Still, the court found it would not be detrimental to terminate mother's and fathers' parental rights. Although the minor might recognize his parents, he had been removed from their care since birth. Having never lived with them, the minor "doesn't look to them to meet [his] every-day needs as parents." Although mother and father loved the minor, this was outweighed by the permanence and stability of adoption. The juvenile court terminated parental rights and freed the minor for adoption. Adoption was ordered as the permanent plan.
Father filed a timely appeal.
DISCUSSION
I
Denial Of Placement With S. H.
Father contends the juvenile court erred in denying his request to place the minor with S. H. According to father, neither the Department nor the juvenile court timely considered S. H.'s request for placement, since the hearing was not held until December 2017, over three months after she was approved for placement. The Department contends father does not have standing to raise this issue on appeal. We hold father lacks standing to challenge the court's placement of the minor. Regardless, there was no error.
Father points to a statement in the October 2017 relative placement hearing report that a social worker completed an in-home evaluation on July 27, 2017, and approved S. H. for placement on September 1, 2017. The July notation must have been a clerical error, since the report otherwise describes S. H. as requesting placement on August 25, 2017, or two weeks after the August 11, 2017, jurisdiction/disposition hearing wherein the juvenile court denied reunification services for mother and father. During the December 2017 hearing, S. H. testified she did not request placement until August 2017. --------
If a minor has been removed from a parent's care under section 361 and the minor is not placed with a noncustodial parent or relative, he or she may be placed in the approved home of a nonrelated extended family member. (Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108; In re R.T. (2015) 232 Cal.App.4th 1284, 1298-1299.) Even if the home of this person meets the foster care standards for approval, any placement under section 362.7 must be in the minor's best interests. (Samantha T., at p. 108.)
A parent only has standing to appeal a juvenile court's order if he is aggrieved, that is if his "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." (In re K.C. (2011) 52 Cal.4th 231, 236.) Although parents have "an interest in their children's 'companionship, care, custody, and management,' . . . after reunification services are terminated or bypassed . . . , 'the parents' interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point "the focus shifts to the needs of the child for permanency and stability." ' " (Ibid.) For this reason, "[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." (Id. at p. 238; see also In re A.K. (2017) 12 Cal.App.5th 492, 499 [a parent whose reunification services have been terminated lacks standing to challenge relative placement issues on appeal, because "decisions concerning placement of the child do not affect the parent's interest in reunification, where the parent is no longer able to reunify with the child"].)
Father has failed to demonstrate how the reversal of the court's decision regarding placement of the minor would advance his argument against termination of parental rights. The juvenile court denied reunification services for father and ordered a permanent plan of adoption for the minor on August 11, 2017, or two weeks before S. H. even requested placement. As such, father has failed to demonstrate that placement with S. H. would have facilitated reunification and he has no standing to challenge the court's failure to pursue placement with her.
Even if father had standing, his contentions fail. S. H.'s request was thoroughly investigated and considered by the Department and the juvenile court, including a home study, a relative placement hearing report in October 2017, and a full hearing in December 2017. The minor, who was only seven months old at the time of the December 2017 hearing, was "thriving" in his adoptive placement and had "bonded with his caretakers." Moving him would have been disruptive and not in his best interest. There was no abuse of discretion. (See Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863 [we review a juvenile court's custody placement order for abuse of discretion].)
II
Applicability Of The Beneficial Parental Relationship Exception
Father contends the juvenile court erred in failing to find the beneficial parental relationship exception applied to the minor. (§ 366.26, subd. (c)(1)(B)(i).) According to father, he visited with the minor regularly and performed parental tasks during these visits, such as changing the minor's diapers.
Termination of parental rights may be detrimental to the minor when: "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We review with deference a juvenile court's rejection of an exception to adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether the standard of review is deemed substantial evidence or abuse of discretion, broad deference to the lower court is required]; In re Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)
To prove the beneficial parental relationship exception applies, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits--the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) "[T]he 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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Here, father can show neither substantial attachment nor great harm. Although father had visited regularly with the minor, he failed to show the minor had a significant, positive, emotional attachment to him that would outweigh the well-being the minor would gain in a permanent home with adoptive parents. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, In re Jasmine D., supra, 78 Cal.App.4th at p. 1345.) The minor was detained at birth and was "thriving" with his foster family. He had "bonded with his caretakers" and looked to them for his day-to-day needs. The juvenile court did not err in finding that the beneficial parental relationship exception did not apply in this case.
DISPOSITION
The orders are affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.