In re Gabriel S. CA4/1 ( 2014 )

Filed 8/19/14 In re Gabriel S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re GABRIEL S., a Person Coming
Under the Juvenile Court Law.
D065332
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14316)
Plaintiff and Respondent,
v.
RICHARD R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carol
Isackson, Judge. Dismissed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Richard R. appeals the juvenile court order terminating parental rights to his
biological son, Gabriel S. Richard contends Gabriel's relationship with his mother,
Carolyn S., precluded the termination of Carolyn's parental rights and by extension his
own. We conclude Richard does not have standing to appeal this issue. Accordingly, we
dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Gabriel, now nine, was first taken into protective custody at age two when he and
Carolyn were dropped off at an Orange County hospital. Carolyn was severely
intoxicated and Gabriel appeared neglected. Gabriel was filthy and wearing only pants
and a soiled diaper. The Orange County social services agency filed a petition in the
juvenile court on Gabriel's behalf and the court took jurisdiction over Gabriel. Carolyn
told social workers either Richard or another man could be Gabriel's father; neither was
listed on Gabriel's birth certificate. Richard submitted to paternity testing confirming he
was Gabriel's biological father, but did not maintain contact with the Orange County
agency or participate in the dependency proceedings. Carolyn engaged in drug and
alcohol treatment and other services and was reunified with Gabriel after 18 months.
Less than two years after the termination of the dependency, Gabriel was taken
into protective custody again, this time in San Diego County. The San Diego County
Health and Human Services Agency (Agency) filed a Welfare and Institutions Code
section 300, subdivision (b)1 petition on Gabriel's behalf. The petition alleged Carolyn
1 All further statutory references are to the Welfare and Institutions Code.
2
used narcotics and alcohol to excess and was discovered lying in her bed "in a zombie
like state" unable to care for Gabriel. Richard's whereabouts were initially unknown, but
before the jurisdiction and disposition hearing he was located in an Oklahoma prison on a
California conviction. At the time the petition was filed in March 2012, a criminal
protective order prohibited Richard from any contact with Gabriel. The order was set to
expire in December 2019. Carolyn told the Agency's social worker Richard had been
arrested after severely beating her in front of Gabriel and that he was sentenced to eight
years in prison for that assault.
The juvenile court removed Gabriel from Carolyn's custody and placed him in a
licensed foster home. At the jurisdictional and dispositional hearing, the court ordered
reunification services for Carolyn, but not Richard. The juvenile court also issued an
order prohibiting Richard from having any contact with Gabriel based on the existing
restraining order. Gabriel did not know Richard and believed another man was his father.
Carolyn was initially successful in her reunification plan. In May 2013, the juvenile
court placed Gabriel in her care and ordered family maintenance services.
Six weeks later though, Carolyn faltered. The Agency received a referral alleging
she was drinking and suicidal. Carolyn contacted the Agency's social worker admitting
she had relapsed and that she planned to take Gabriel to his former foster parents' home.
Shortly thereafter, Carolyn's landlord found her unresponsive and she was taken to the
hospital in an ambulance. As a result, the Agency placed Gabriel with his former foster
parents and filed a supplemental petition under section 387 alleging Carolyn was no
longer able to provide Gabriel with adequate care and supervision.
3
In advance of the jurisdiction and disposition hearing on the petition, Carolyn told
the Agency's social worker she wanted Gabriel's foster parents to take guardianship of
him. At the August 12, 2013, hearing, the court found Gabriel's placement with Carolyn
was no longer appropriate, removed him from Carolyn and, finding Carolyn had not
made substantive progress with the case plan, terminated her reunification services and
set a permanency planning hearing.
After Gabriel was removed from Carolyn's care, she initially visited him regularly
and talked with him on the phone frequently.2 As time went on, however, Carolyn began
to miss visits and during at least one visit appeared intoxicated. As a result, her visitation
was terminated. Gabriel's foster family also reported his behavior seemed to worsen after
contact with Carolyn.
The contested permanency planning hearing occurred on January 24, 2014. At its
conclusion, the juvenile court issued its order terminating Carolyn's and Richard's
parental rights. The court found it was likely Gabriel would be adopted, that adoption
was in Gabriel's best interests and that Carolyn had not shown the beneficial parental
relationship exception applied. Both Carolyn and Richard filed notices of appeal.
Shortly after briefing was completed, Carolyn filed a notice of abandonment of appeal
2 Before the permanency planning hearing, Gabriel's foster parents decided they
were no longer able to care for Gabriel. As a result, the Agency filed a second section
387 petition seeking the juvenile court's approval of Gabriel's placement with new foster
parents. Gabriel was placed with a new foster family and by the time of the hearing was
thriving in his new home and the foster family wanted to adopt Gabriel.
4
and request for dismissal. We dismissed Carolyn's appeal pursuant to California Rules of
Court, rule 8.316 and only Richard's appeal proceeds.
DISCUSSION
Richard does not contend his own parental rights were wrongly terminated.
Rather, he argues only that the juvenile court should have found the beneficial parent-
child relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(i)
applied to preclude termination of Carolyn's parental rights. He asserts that if this court
agrees the exception applies, his own parental rights must also be reinstated.
"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." (In re K.C. (2011) 52 Cal.4th 231, 236.)
"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. [Citations.] These rules apply with full force to
appeals from dependency proceedings." (Ibid.) "To determine whether father is
aggrieved by the juvenile court's order . . . , we must therefore precisely identify father's
interest in the matter." (Ibid.)
Richard is a biological father only. His rights in Gabriel's dependency proceeding
were "limited to establishing his right to presumed father status . . . ." (In re A.S. (2009)
180 Cal.App.4th 351, 362.) Richard did not have an absolute right to seek custody of
Gabriel or to reunification services. And, unlike Carolyn, because Richard "did not
demonstrate a willingness to accept full parental responsibilities . . . , the court was not
5
required to make a particularized finding of unfitness or detriment before terminating his
parental rights. . . ." (Ibid.)
Richard asserts the juvenile court's order terminating Carolyn's parental rights
supports his standing to appeal that order. We disagree. Richard's rights in this case
were limited to elevating his parental status. Richard never asserted this right and does
not contend he would pursue his rights even if the juvenile court's order is reversed. In
fact, a restraining order prohibiting Richard from contacting Gabriel is in place until
2019, and Richard is not scheduled to be released from custody until 2017. Richard's
limited interests do not interweave with the interests of Carolyn in this proceeding, with
whom Richard has no continuing relationship.
Richard cites In re DeJohn B. (2000) 84 Cal.App.4th 100 in support of his
argument that he has standing to press Carolyn's rights. He argues under In re DeJohn B.
if we reverse the court's order based on Carolyn's beneficial relationship with Gabriel, we
must also reverse the termination of parental rights as to him, therefore he has standing to
pursue that issue. We reject this circular argument. In In re DeJohn B. the court of
appeal reversed the termination of mother's parental rights on her direct appeal on the
social service agency's failure to provide her with notice of the proceedings. (Id. at
p. 102.) The court concluded it was in the best interests of the children to also reverse the
order as to the father since the possibility remained the children could be reunited with
mother. (Id. at p. 110.) The court saw no reason to leave the children without the
benefits of a father at that point in the case. (Ibid.) Here, by dismissing her appeal
6
Carolyn has accepted the trial court's termination of her parental rights and there is no
possibility she will reunify with Gabriel.
Richard also cites In re L.Y.L. (2002) 101 Cal.App.4th 942. That case, however,
addresses a parent's standing to raise the beneficial sibling relationship exception of
section 366.26, subdivision (c)(1)(B)(iv). A parent has standing to raise that issue
because it is the parent that has the burden of proving the exception applies. (In re L.Y.L.,
at pp. 948-950.) In this regard, the parent's rights and interests are statutorily interwoven
with the rights and interests of the child in having a sibling relationship. Richard's
limited rights as a biological father are not similarly intertwined with Carolyn's interest in
preventing termination of her parental rights.
In sum, Richard was not directly and injuriously affected by the court's ruling that
Carolyn did not establish the beneficial parent-child relationship exception to adoption
applied. Richard does not have standing to appeal this issue, which affects only
Carolyn's interests.
7
DISPOSITION
The appeal is dismissed.
O'ROURKE, J.
WE CONCUR:
MCINTYRE, Acting P. J.
IRION, J.
8