Opinion
E066626
02-15-2017
In re H.C., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.C., Defendant and Appellant.
Richard D. Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Dawn Messer, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J258912) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Dismissed. Richard D. Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Dawn Messer, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant B.C. (Father) appeals after the termination of his parental rights to H.C. (Minor) at a Welfare and Institutions Code section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father contends on appeal that the juvenile court erred when it failed to exercise its independent judgment and consider the paternal grandmother (PGM) for relative placement pursuant to section 361.3 and failed to review the relevant factors of relative placement preference. He further contends plaintiff and respondent San Bernardino County Children and Family Services (Department) failed to evaluate PGM for placement within a reasonable time.
We find that Father has forfeited these issues on appeal, and finding no arguable issues, dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Minor was born in April 2012, and was two years old at the time he was detained from Father and G.B. (Mother, collectively Parents) on February 22, 2015. On February 22, the Department received an immediate response referral regarding domestic violence between Parents. The social worker met with a police officer at the apartment occupied by Parents and Minor. The apartment was in deplorable condition. The foul smell emanating from the apartment was "unbearable" and there were flies and maggots throughout the apartment. The social worker was unable to enter the kitchen due to the foul smell. Minor's room was filled with clutter, debris and rotting trash. The social worker was only able to stay in the apartment for a few moments. There was a knife in Parents' bedroom, accessible to Minor.
Mother is not a party to the instant appeal. --------
Minor's hair was matted and appeared to be filled with dried feces. Minor's clothing was soiled and he had a pungent smell. Parents were arrested for child endangerment.
Minor was placed in a foster home. Parents did not disclose any relatives who could take placement of Minor.
On February 24, 2015, the Department filed a section 300 petition against Parents for Minor. It was alleged under section 300, subdivision (b), that Parents failed to adequately care for Minor due to their history of substance abuse problems, domestic violence, and the terrible conditions in the apartment. Further, it was alleged as to section 300, subdivision (g) that they had no provision for support as they were both incarcerated.
The detention hearing was held on February 25, 2015. Parents were present. Parents requested that PGM be assessed for placement and her telephone number was disclosed in court. The juvenile court found a prima facie case and ordered that Minor be detained.
B. JURISDICTIONAL/DISPOSITIONAL REPORT AND HEARING
A jurisdiction/disposition report was filed on March 13, 2015. It was recommended Minor remain in the foster home and that Parents be granted reunification services.
The Department referred to the police report from the day of Minor's detention. The security officer who called the police officers and a neighbor both reported hearing a loud verbal altercation coming from the apartment and loud banging noises. Officers had to force entry into the apartment. They discovered trash piled up three feet from the floor and decaying. Minor's crib contained moldy food, trash and insects. All of the food in the refrigerator was covered in dirt and was inedible. A large knife was found in Parents' room.
Mother reported to the police she and Father had been in a verbal altercation and Father had pushed her. She removed a can of pepper spray from her purse and she sprayed it toward Father intending to scare him. Father reported he was frustrated that Mother did not help him clean the apartment. They got into a fight and he threw things at the wall. Father reported suffering from depression.
Mother was interviewed by the Department on February 26, 2015. She denied the domestic violence allegations. Mother stated Minor's crib smelled because he was potty training, the kitchen sink did not function, and they had not taken out the trash for several days. She admitted to using methamphetamine several days before her arrest.
Father was also interviewed. He also denied the domestic violence allegations and blamed the smell in the apartment on Minor potty training. Clothes were around the apartment drying because they could not afford a dryer. He told Mother not to throw anything out because she may throw out something important. Father admitted to smoking marijuana and that he had used methamphetamine "3-4 months ago." Father had stopped taking his medications for his depression, which included Zoloft, Risperdal and Trazadone.
The social worker also spoke with PGM. She reported Father had been diagnosed with schizophrenia, was bipolar, and suffered from severe depression. PGM was concerned about Minor and his development; he was not talking. PGM had tried to get Parents to enroll him in preschool but they refused. PGM reported she had previously asked to take care of Minor but Mother got angry. She had not been allowed to see Minor for three months.
Minor had been examined when he was detained and appeared to be severely developmentally delayed. He was non-verbal, had an abnormal gait, and could not use utensils or drink from a cup. His weight was five percent of normal and his height was 25 percent of normal. In the few weeks he had been in the foster home he had showed marked improvement.
Both Father and Mother were released from jail on March 4, 2015, and had not contacted the Department. The Department reported, "Both parents identified [PGM] as the concurrent planning home. She is currently in the RAU process." Visitation between PGM and Minor was being arranged. Photographs of the condition of the apartment and refrigerator were submitted to the juvenile court.
The jurisdiction/dispositional hearing was held on March 18, 2015. PGM was present in court. Parents waived their rights to a hearing and admitted the allegations. The juvenile court found the allegations under section 300, subdivision (b) in the petition true; the allegations pursuant to section 300, subdivision (g) were dismissed. Father was named the presumed father. Parents were granted reunification services.
Parents asked that relative placement with PGM be considered by the Department. PGM stated she had spoken several times to social workers at the Department but she had not been interviewed or fingerprinted. Counsel for the Department noted that the social worker had marked the jurisdiction/disposition hearing form that stated a RAU was in progress, but that social worker was not in court. Parents requested an appearance review. PGM then acknowledged the social worker had asked her for her date of birth and other things. She was told the process would take several weeks. The juvenile court ordered that a RAU packet be completed by April 17, 2015, and if PGM was given RAU approval, the Department was to place Minor with PGM.
A non-appearance review hearing was held on April 21, 2015. Parents were notified by e-mail. According to the minute order, "On March 18, 2015, court requested that the social worker submit a packet with an update regarding the relative placement assessment. On April 7, 2015, the undersigned was informed by the relative approval unit that the relative assessment of [PGM] was discontinued . . . at [PGM]'s request."
C. SIX-MONTH REPORT AND REVIEW HEARING
The six-month review report was filed on September 16, 2015. The Department recommended that reunification services for Parents be terminated. On March 25, 2015, Parents both signed a case plan. However, they had only minimally participated in any services. They had attended only two visits with Minor. Father was not taking medication to help his mental health problems. Neither Parent had submitted to substance abuse testing. Further, Minor was going to need special care and Parents had not shown they would be able to provide that care. Parents had a total of four contacts with the Department during the reporting period.
Father had been incarcerated for failing to comply with court orders on the child endangerment arrest.
PGM had remained in contact with the Department and had helped to contact Parents. PGM was visiting monthly with Minor. Minor appeared to enjoy the visits.
Minor's walking had improved. He was only able to speak two words. He interacted well with other children and animals. He had been diagnosed with "Disorder of Infancy, Childhood, or Adolescence, Not Otherwise Specified."
Minor had been in the foster home since being detained but it was not a concurrent planning home in regards to adoption or guardianship. A concurrent home was being sought for Minor. The Department noted that the permanent plan was adoption but that he may be hard to place due to his developmental delays.
At the hearing conducted on September 25, 2015, reunification services for Parents were terminated. Father was present in custody. The matter was set for a section 366.26 hearing on January 25, 2016, with a permanent plan of adoption.
D. SECTION 366.26 REPORTS AND HEARING
The Department filed a section 366.26 report on January 21, 2016. They recommended the permanent plan of adoption be modified to guardianship with PGM pending RAU approval. Since the RAU was pending, the Department requested the section 366.26 hearing be set in 120 days.
PGM had been consistently visiting with Minor along with the paternal aunt. Minor appeared comfortable with PGM and aunt. PGM would allow visitation with Parents if it was in the best interest of Minor. PGM was hopeful that Father could resolve his problems in the future and take custody of Minor. PGM was not interested in adopting Minor.
Minor had been improving. He was walking and running with good balance. Minor was able to use utensils and color. He was able to use short words and phrases. Minor was participating in speech therapy and attending preschool. He had a mild intellectual disability.
The juvenile court continued the section 366.26 hearing until April 25, 2016. The permanent plan was modified to guardianship.
An addendum report to the section 366.26 hearing report was filed on April 25, 2016. The Department sought to return the permanent plan to adoption and requested additional time to find an adoptive home. The Department reported, "The previous Permanent Plan of Guardianship with [PGM] is no longer the appropriate plan as [PGM] was not approved by the Relative Assessment Unit (RAU) due to a significant criminal and child welfare history." The child welfare history and criminal record were not included with the addendum.
PGM had only come to one visit with Minor during the reporting period. Minor responded positively to the visits with PGM but did not seem to be affected by the minimal contact. The Department had recently matched Minor to a prospective adoptive family who was willing and able to care for Minor, including his special needs. A continuance was needed to develop the permanent plan of adoption. Minor and the prospective adoptive parents were scheduled to meet on April 20, 2016.
A hearing was held on April 25, 2016. Father was present at the hearing. The Department noted that since the addendum report was filed, Minor met with the prospective adoptive parents and the meeting went well. Minor would be placed in their home in a week. There was no objection to the placement by Father. The matter was continued to July 25, 2016. Minor was placed in the prospective adoptive home on May 2, 2016.
A second addendum report to the section 366.26 hearing report was filed on July 15, 2016. The Department recommended that the parental rights of Parents be terminated and that Minor be freed for adoption. Minor was bonding with the prospective adoptive parents; they intended to adopt Minor.
The section 366.26 hearing was held on July 25, 2016. Parents were not present but were represented by counsel. Mother's counsel stated she had spoken with PGM prior to the hearing. PGM believed the legal guardianship was still pending. PGM was unable to appear at the hearing. Parents had no affirmative evidence to present. Father objected "for the record" to the termination of his parental rights but had no evidence to present.
The juvenile court noted that the reports showed there was no legal guardianship pending. Counsel for the Department confirmed on the record that PGM did not pass the RAU. Mother's counsel indicated she was just passing on the information from the PGM to the juvenile court.
The social worker called the court during the proceeding and reported PGM was denied legal guardianship because of her criminal history. PGM was confused; she thought the legal guardianship was still in progress. The juvenile court determined that it was going to terminate parental rights and proceed with adoption as the permanent plan.
The parental rights of Father and Mother were terminated and Minor was freed for adoption. Father filed a timely notice of appeal.
DISCUSSION
Father claims the Department erred in proceeding with the termination of parental rights when relative placement and the proposed guardianship were unclear, the relative was not notified she had been rejected for placement, and the court failed to exercise its independent judgment regarding relative placement. Further, the Department failed to evaluate PGM for placement within a reasonable time. There are no arguable issues that can be raised on appeal as Father failed to file an extraordinary writ, a section 388 petition, and did not raise the arguments raised on appeal at the section 366.26 hearing.
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" and the section provides a list of the criteria to be considered when determining whether placement with a relative is appropriate.
Section 361.3 governs in two situations: (1) at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)); and (2) when "a new placement . . . must be made. . . ." (§ 361.3, subd. (d); see Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.).) The second situation is not just limited to when reunification services are being offered. The relative placement preference also applies when a new placement becomes necessary after reunification services are terminated, but before parental rights are terminated and adoptive placement becomes an issue. (Cesar V., at p. 1032.) However, the provision does not apply "after parental rights have been terminated and the child has been freed for adoption." (Id. at p. 1031.)
Here, Parents requested at the detention hearing that PGM be considered for placement. The relative assessment was initiated but on April 7, 2015, PGM advised the Department that she was not interested in placement of Minor. Thereafter, on September 25, 2015, Father's reunification services were terminated and the permanent plan was for adoption with a family willing to adopt Minor.
Father never filed a writ petition pursuant to California Rules of Court, rule 8.452, subdivision (a), contesting the denial of reunification services, and at that time, the court order for the permanent plan of adoption. Despite the prior discussions regarding placement with PGM, Father never contested the failure to give PGM relative preference pursuant to section 361.3. "[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Father cannot appeal the decision not to place Minor with PGM prior to the termination of his reunification services because such contest was not properly raised in an extraordinary writ.
Thereafter, PGM advised the Department she was willing to become Minor's legal guardian and a relative assessment was started anew for PGM. The permanent plan was modified to guardianship. However, in an addendum report to the section 366.26 report, filed on April 25, 2016, the Department advised the juvenile court that PGM had an extensive criminal history and history with the Department. She was not approved for placement and the Department recommended the permanent plan be modified to adoption. The Department filed a request for continuance to find an adoptive family.
A hearing was held on April 25, 2016. Father was present at the hearing. The juvenile court modified the permanent plan, returning to the original order of adoption. Father made no objection. Minor was placed in the prospective adoptive home on May 2, 2016. No section 388 petition or extraordinary writ was filed contesting the change in order or placement in the prospective adoptive home. (See In re K.C. (2011) 52 Cal.4th 231, 234, [father appealed denial of section 388 petition addressing relative placement preference under section 361.3]; In re R.T. (2015) 232 Cal.App.4th 1284, 1300-1301 [section 388 petition filed timely raised the issue of the failure to comply with relative placement preference pursuant to section 361.3]; In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1049-1050 [court could reconsider placement preference at the section 366.26 hearing when the parties filed a section 388 petition].) Father did not raise the issues below in a section 388 petition.
It 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., supra, 91 Cal.App.4th at p. 1031.) When the section 366.26 hearing was held, the trial did not make an appealable order concerning placement. Minor had already been placed with the prospective adoptive parents at the time of the section 366.26 hearing. Father did not object to the termination of parental rights except to state "for the record" that he was objecting to the termination. He did not argue there was an exception to the termination of parental rights. There is nothing for this court to review, as Father waited until after the section 366.26 hearing to appeal. (See Cesar V., supra, 91 Cal.App.4th at pp. 1026, 1036 [case on review to the appellate court regarding denial of relative placement based on an extraordinary writ filed prior to the section 366.26 hearing].)
On appeal, Father refers to section 366.26, subdivision (c)(1)(A), which provides an exception to the termination of parental rights if "[t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship." Father did not raise this issue in the juvenile court. Even if Father could have raised the issue of relative placement at the section 366.26 hearing, he forfeited his objection by failing to raise the issue at the section 366.26 hearing, and it cannot be raised for the first time on appeal as it is an "intensely factual issue." (In re Casey D. (1999) 70 Cal.App.4th 38, 53-54 [parents could not raise issue of relative placement on appeal when it was not addressed in their section 388 petition nor at the section 366.26 hearing].)
Here, Father never filed a writ petition raising the relative placement preference at the time his reunification services were terminated. Neither Father nor PGM filed a section 388 petition or extraordinary writ when the trial court modified the permanent plan from legal guardianship to adoption and placed Minor in the prospective adoptive home. The juvenile court made no new placement decision within the meaning of section 361.3 at the section 366.26 hearing, and Father raised no objection to the termination of his parental rights based on the failure to place Minor with PGM at the section 366.26 hearing. Moreover, Father never objected to termination of his parental rights at the section 366.26 hearing on any specific basis that would preserve any issue regarding placement of Minor with PGM on appeal. There are no arguable issues that can be raised on appeal.
DISPOSITION
The appeal is dismissed as Father has forfeited the issues raised in the appeal. (In re Phoenix H. (2009) 47 Cal.4th 835, 845-846 [court can dismiss appeal in dependency case when no arguable issue exists].)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.