Opinion
D073550
08-20-2018
In re N.J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ARMANDO R., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ14324D) APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
Armando R. (Father) appeals from an order denying his request for placement of his daughter N.J. with her paternal grandmother in Mexico under Welfare and Institutions Code section 361.3 which provides that when a child is removed from his or her parents' custody, "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . ." (§ 361.3, subd. (a).) He also appeals from an order denying his section 388 modification petition seeking placement of N.J. with her paternal grandmother. Father contends the juvenile court abused its discretion in denying a change in N.J.'s placement because it was in her best interest to live with her paternal grandmother, as well as near her extended family, and to develop her Mexican heritage by living with and interacting with her biological relatives. We affirm the orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for N.J. shortly after her birth because she and Mother tested positive for methamphetamine. Mother admitted using methamphetamine and alcohol during the entire duration of her pregnancy. Mother had lost parental rights to three children in the past due to substance abuse and had never participated in nor completed any substance abuse treatment program. The juvenile court did not offer her reunification services based on her history. (§ 361.5, subd. (b)(10), (11) & (13).) Father was arrested for possessing methamphetamine before N.J.'s birth.
The juvenile court ordered N.J. detained as a person described under section 300, subdivision (b) requiring protection. In February 2017, when N.J. was less than two weeks old, she was placed in the home of confidential caregivers who also cared for N.J.'s half-sister. In April 2017 the juvenile court amended the petition to reflect Father as the biological father, found the allegations true, and declared N.J. to be a person described by section 300, subdivision (b) requiring protection by the court. The court continued the disposition hearing and allowed the Agency to evaluate potential paternal relatives for placement. In April 2017 an international liaison reported to the Agency that it had insufficient information to complete a relative placement search for N.J.'s paternal grandparents. After exploring other possible relative placements, the Agency located the paternal great-aunt who indicated that she was willing to have N.J. placed with her in Mexico.
In June 2017 the paternal grandmother learned of N.J.'s birth and detention from the paternal great-aunt. The following month, the paternal grandmother contacted the Agency and asked for her home in Mexico City to be evaluated for possible placement. The Agency sent a request to the appropriate authority in Mexico for evaluation of the paternal grandmother's home. The evaluation was completed the same day that an earthquake struck Mexico City. The Agency did not receive the evaluation results, which were in Spanish, until early October 2017. The Agency concluded that the paternal grandmother's home was a viable option for N.J.'s placement.
In October 2017 the court terminated Father's services. In January 2018 the court held a hearing regarding relative placement under section 361.3 and an evidentiary hearing on Father's section 388 petition to place N.J. with the paternal grandmother. The court heard telephonic testimony from the paternal grandmother regarding her delayed notice of N.J.'s birth and detention and her efforts to obtain placement and seek visitation. The court also heard stipulated testimony from N.J.'s foster mother. The court found it was not in N.J.'s best interest under section 361.3 to be placed with her paternal grandmother. The court found changed circumstances, including the paternal grandmother's positive home evaluation. Nonetheless, it denied Father's section 388 petition, finding it would not be in N.J.'s best interest to disrupt, or possibly delay, her permanency.
Father timely appealed from the denial of his 388 petition seeking placement of N.J. with the paternal grandmother and the denial of relative placement under section 361.3.
DISCUSSION
I. FATHER'S STANDING TO APPEAL
The Agency contends that Father lacks standing to appeal the denial of relative placement under section 361.3 because his reunification services have been terminated. While the Agency concedes that Father had standing to file a section 388 petition seeking N.J.'s placement with the paternal grandmother, it asserts he lacks standing to appeal from the denial of that motion because he is not aggrieved by the denial.
"Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] 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." (In re K.C. (2011) 52 Cal.4th 231, 236.) "All parents, unless and until their parental rights are terminated, have an interest in their children's 'companionship, care, custody and management . . . .' " (Ibid.) However, after reunification services are terminated, the parents' interests are no longer paramount and the focus shifts to the needs of the child for permanency and stability. (Ibid.) Where, as here, a parent's reunification services have been terminated, the parent generally lacks standing to raise issues relating to the child's placement, because resolution of those issues will have no effect on reunification. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035; see also In re Jayden M. (2014) 228 Cal.App.4th 1452, 1460.) An exception to this general rule occurs when the placement decision could also affect the decision to terminate parental rights. (K.C., supra, 52 Cal.4th at pp. 237-238.)
Here, if N.J. were placed with the paternal grandmother under section 361.3, it could advance Father's argument against termination of his parental rights under section 366.26, subdivision (c)(1)(A), the relative caregiver exception to the termination of parental rights where the relative caregiver is not willing to adopt. As Father notes, while the paternal grandmother is willing to provide N.J. a home, there is nothing in the record suggesting she is willing to adopt N.J. Thus, placing N.J. with paternal grandmother advances a possible argument against future termination of Father's parental rights. Liberally construing the rules on standing, we conclude Father has standing to appeal.
II. DENIAL OF RELATIVE PLACEMENT AND MODIFICATION PETITION
Father contends the unfortunate events that prevented N.J. from developing a relationship with her paternal grandmother should not dictate the outcome of this matter given the legislative preference for relative placement under section 361.3. He claims that placing N.J. with her paternal grandmother was in her best interest because it would have allowed her to be surrounded by her paternal family, including grandparents, uncles, and cousins, and to cultivate her Mexican heritage by living in Mexico and learning to speak Spanish. Because N.J. is such a young child, he asserts that she can easily develop bonds with her paternal family and learn Spanish.
Thus, Father claims that the juvenile court abused its discretion in declining to change N.J.'s placement under section 361.3 based on its finding that placing her with the paternal grandmother was not in her best interest. Father also contends it was in N.J.'s best interest to be placed with her paternal grandmother and that the juvenile court abused its discretion in denying his section 388 petition. We conclude that the trial court did not err in denying relative placement or Father's section 388 petition because it reasonably concluded that changing N.J.'s placement was not in her best interest.
For the first time on appeal, the Agency submits this case is further complicated by section 361.2, subdivision (f) (section 361.2(f)). This statute provides that a child who is under the supervision of a social worker after removal from parental custody under section 361 "shall not be placed outside the United States prior to a judicial finding that the placement is in the best interest of the child, except as required by federal law or treaty." (§ 361.2(f)(1).) The party requesting placement of the child outside the United States "shall carry the burden of proof and shall show, by clear and convincing evidence, that placement outside the United States is in the best interest of the child." (§ 361.2(f)(2).) "In determining the best interest of the child, the court shall consider, but not be limited to, the following factors: [¶] (A) Placement with a relative. [¶] (B) Placement of siblings in the same home. [¶] (C) Amount and nature of any contact between the child and the potential guardian or caretaker. [¶] (D) Physical and medical needs of the dependent child. [¶] (E) Psychological and emotional needs of the dependent child. [¶] (F) Social, cultural, and educational needs of the dependent child. [¶] (G) Specific desires of any dependent child who is 12 years of age or older." (§ 361.2(f)(3)(A)-(G).)
The Agency contends that, should we exercise our discretion to reach this issue, the failure to address this statute below was harmless error because the juvenile court considered Father's arguments regarding placement under the lower preponderance of the evidence standard of proof. Father asserts the Agency forfeited the right to challenge any purported defect under this statute. We decline to address section 361.2(f) on its merits and deem the issue forfeited because it was not raised below. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [forfeiture doctrine applies in a wide variety of contexts in dependency proceedings].) In any event, even if we were to consider the issue on the merits, the analysis under section 361.2(f) turns on the best interest of the child, which we address post in connection with sections 361.3 and 388.
A. General Legal Principles
Preferential consideration under section 361.3 is not a guarantee of placement. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) The only requirement imposed by section 361.3 is 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 (Stephanie M.).) We have previously held that the relative placement preference applies when a relative seeks placement after the dispositional hearing, even if no new placement is required. (In re Isabella G. (2016) 246 Cal.App.4th 708, 721 (Isabella G.); cf. In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855 [relative placement preference applies after the disposition hearing only when a change in placement becomes necessary].)
Section 361.3 identifies the factors that the court and social worker must consider in determining whether the child should be placed with a relative. (§ 361.3, subd. (a)(1)- (8).) The juvenile court is required to consider the factors identified in section 361.3, subdivision (a), "in determining whether placement with a particular relative who requests such placement is appropriate." (In re Antonio G. (2007) 159 Cal.App.4th 369, 377.) Nonetheless, the "linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) We review the juvenile court's determination regarding relative placement under the abuse of discretion standard. (Id. at p. 863.) We "should interfere only ' "if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." ' " (Ibid.)
The relative placement statute lists a number of factors a court must consider when determining whether placement with a relative is appropriate. (§ 361.3, subd. (a).) These factors include the following: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home, unless that placement is found to be contrary to the safety and well-being of any of the siblings, as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) [¶] (i) Provide legal permanence for the child if reunification fails. [¶] (ii) However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) [¶] (A) The safety of the relative's home." (Ibid.) --------
To prevail on a section 388 petition the moving party must show: (1) new evidence or changed circumstances; and (2) the proposed change would promote the child's best interests. (In re D.B. (2013) 217 Cal.App.4th 1080, 1089.) If a relative uses a request to change a court order (§ 388) as the vehicle for obtaining placement of a child, then the juvenile court should apply the section 361.3 statutory criteria when deciding the issue of placement, rather than "the generalized best interest showing required under section 388." (Isabella G., supra, 246 Cal.App.4th at p. 722, fn. 11.) We review an order denying a section 388 petition for an abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-586.)
B. Analysis
The juvenile court reviewed the section 361.3 factors and determined that placement with the paternal grandmother should be denied as it was not in N.J.'s best interest. As a threshold matter, we reject Father's argument that the juvenile court allowed only one fact—N.J.'s lack of a relationship with the paternal grandmother—to "dictate" her continued separation from the paternal family in Mexico. The record reflects that the trial court considered all the section 361.3 factors and found that some of the factors supported Father's placement request, such as Father's wishes, the paternal grandmother's safe home and good moral character, and the paternal grandmother's ability to provide a safe, secure, and stable environment and a safe home. It concluded that N.J.'s relationship with her half-sibling did not apply and that, through no fault of the paternal grandmother, she did not have a relationship with N.J.
Rather, the record shows that the juvenile court placed primary emphasis on the best interest factor, presumably because the de facto parents, the Agency, Father, minor's counsel and the juvenile court all agreed that the analysis turned on whether changing N.J.'s placement was in her best interest. The juvenile court specifically noted that "everyone has acknowledged that as to the statutory criteria under 361.3" that the facts were not in dispute except for the first factor pertaining to the child's best interest. Father does not challenge this finding on appeal. Accordingly, we forgo review of all the section 361.3 factors and proceed directly to the best interest analysis. (Stephanie M., supra, 7 Cal.4th at p. 320 [even if the relative preference applies, it does not "overcome the juvenile court's duty to determine the best interests of the child"].)
We first examine the evidence pertaining to N.J.'s current placement. N.J. has been living with the de facto parents since February 2017, when N.J. was less than two weeks old. Also living in the home are the de facto parents' biological son and N.J.'s half-sister, whom the de facto parents adopted. N.J. is affectionate with the de facto parents, who have demonstrated that they are responsible and committed to meeting N.J.'s needs. They have also expressed a strong commitment to adopt N.J.
The de facto parents state that N.J. "enjoys interacting with her foster family. She recognizes and smiles at her foster parents and siblings. She has a strong attachment with each foster family member and they have a strong attachment with her too. She reciprocates with coos, smiles, and laughs when engaging with each member. She responds positively to our presence and touch. She has a significant relationship with us and us with her. We love her very much!" The de facto parents also plan on continuing contact with N.J.'s biological family as long as it is safe and appropriate.
In contrast, N.J. has never met her Father, and Father has never contacted the Agency. Although a social worker spoke with Father shortly after N.J.'s detention, he never contacted the paternal grandmother regarding N.J.'s birth, nor did he provide her contact information to the Agency because he believed that the paternal great-aunt or someone else in his family would get custody of N.J. Although the social worker attempted to obtain the paternal grandmother's contact information from the paternal great-aunt "early in the process," the paternal great-aunt denied having her contact information and did not tell the paternal grandmother about N.J. until June 2017, after the paternal great-aunt failed to complete a criminal background check.
It is undisputed that when informed about N.J. the paternal grandmother immediately attempted to contact the Agency and that a confluence of events prevented her from ever meeting N.J. It is also undisputed that an evaluation of the paternal grandmother's home shows that she is capable of caring for N.J. As the juvenile court noted, the paternal grandmother displayed "extraordinary dedication . . . in going through the steps in a foreign country of trying to find out what she needed to do to get placement of her granddaughter." Thus, the record shows that the paternal grandmother is willing and able to provide N.J. a home. As Father acknowledged, however, there is nothing in the record showing that the paternal grandmother is willing to adopt N.J. or undertake legal guardianship.
"[A] primary consideration in determining a child's best interests is the goal of assuring stability and continuity." (Stephanie M., supra, 7 Cal.4th at p. 317.) Where, as here, reunification services have been terminated, dependency law refocuses on the child's need for permanence and stability. (Ibid.) On this record, the juvenile court could reasonably conclude that it was in N.J.'s best interest to remain with the de facto parents, who wanted to adopt her, rather than subject N.J. to the uncertainty of moving her to the paternal grandmother who had not expressed an interest in adoption. Thus, we conclude that the juvenile court properly exercised its discretion in denying Father's request for relative placement under section 361.3, or changing N.J.'s placement under section 388.
DISPOSITION
The orders are affirmed.
NARES, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.