In re J.H. CA2/8 ( 2015 )

Filed 10/29/15 In re J.H. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.H., a Person Coming Under the B263807
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK95805)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.H.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Los Angeles County. Stephen
Marpet, Juvenile Court Referee. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and
Respondent.
******
A.H. (mother) appeals from the March 24, 2015 orders of the juvenile court
denying her petition pursuant to Welfare and Institutions Code section 3881 and
terminating parental rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother’s 11-month-old daughter J.H. came to the attention of the Los Angeles
County Department of Children and Family Services (Department) in September 2012.
Mother had a history of substance abuse, including methamphetamine use since the age
of 11. Mother was also allegedly the victim of physical and sexual abuse by her live-in
boyfriend. The Department filed a petition pursuant to section 300, subdivision (b)
alleging mother’s history of substance abuse and failure to protect and care for J.H.
J.H. was detained with maternal grandmother.
Before the jurisdiction and disposition hearing in March 2013, the Department
reported it had been unable to obtain ASFA2 approval for maternal grandmother’s home.
Maternal grandmother’s current spouse had a September 2007 conviction for spousal
battery and driving under the influence from a prior marriage, and had apparently not
completed a domestic violence program or substance abuse program. At the hearing, the
juvenile court sustained the petition, and over the Department’s objection, ordered that
J.H. remain placed in maternal grandmother’s home (maternal stepgrandfather was
ordered to not live in the home). The court ordered the Department to continue to
investigate and work with maternal grandmother to get “AFSA cleared,” and to consider
other possible family relatives as caregivers. The court also ordered reunification
services for mother and monitored visitation.
1 All further undesignated section references are to the Welfare and Institutions
Code.
2 ASFA is the acronym for Adoption and Safe Families Act of 1997, which
establishes the federal guidelines for foster care and relative care placements. (In re
Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.)
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Placement was thereafter attempted in the home of a maternal great-uncle and his
wife, as well as a family friend, but both caregivers determined they could not
permanently provide a home for J.H. and requested the Department to find an alternative.
Maternal grandmother continued to express interest in adopting J.H. The Department
noted that the County denied a criminal waiver request for maternal stepgrandfather in
May 2014.
On May 27, 2014, the court terminated mother’s reunification services, finding
only partial compliance despite the Department having provided mother with 18 months
of services. Mother apparently argued against termination of her services at the hearing,
but she concedes in her opening brief that she did not challenge the juvenile court’s
May 27, 2014 order.
The Department located a nonfamily member for J.H.’s placement and the
caregiver expressed an interest in adoption. The prospective adoptive parents’ home was
approved by the Department. The permanency planning hearing was continued to allow
the Department to again discuss with maternal grandmother any options she may have to
be approved for adoption.
On March 24, 2015, mother filed a petition pursuant to section 388, requesting that
the court “stay the adoption proceedings and extend her time to demonstrate to the court
that she is now fit to care for her child.” Mother requested that the court consider
returning J.H. to her care and custody. The petition sought no other relief.
At the hearing, the juvenile court denied mother’s section 388 petition, finding no
“change of circumstance” and that the requested change would not be in the best interest
of J.H. The court proceeded with the section 366.26 hearing. Mother’s only contention
at the section 366.26 hearing was that once J.H. was moved from the home of the family
friend and placed with the nonfamily prospective adoptive parents, the juvenile court was
statutorily required to reconsider maternal grandmother as a preferred relative caregiver
under section 361.3. Mother made no other argument. Specifically, mother made no
argument there was any applicable exception to the termination of parental rights, such as
the existence of a beneficial parent-child relationship. (§ 366.26, subd. (c)(1)(B)(1).)
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Counsel for J.H. advised the court she was waiving any reconsideration of the
statutory relative placement preference, because “maternal grandmother had been
thoroughly investigated. There were other risk factors that could not gain AFSA
approval.” The current non-family caregiver was willing to adopt. And, it was in J.H.’s
“best interest to be in this placement.” The court found by clear and convincing evidence
that J.H. was adoptable and terminated parental rights. At mother’s request, the court
ordered the Department to arrange a final visit for mother.
This appeal followed.
DISCUSSION
It is not disputed that an order denying a section 388 petition or an order
terminating parental rights is appealable. But, “[n]ot 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.) Mother contends she is aggrieved by the court’s March 24,
2015 orders because if the court had exercised its authority to consider maternal
grandmother for placement as an alternative to the prospective adoptive parents, it would
have then likely found legal guardianship with maternal grandmother to be the
appropriate permanent plan, and mother’s parental rights need not have been terminated.
The Supreme Court in In re K.C. concluded that 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.” (In re K.C., supra, 52 Cal.4th at p. 238,
italics added.) The father in In re K.C. did not contend the order terminating his parental
rights was infirm. He only argued that the court should have placed his son with the
paternal grandparents. (Id. at p. 235.) The Supreme Court concluded the father lacked
standing to appeal because he had not raised any argument against the termination of his
parental rights. Because the father “did not contest the termination of his parental rights
in the juvenile court” and “acquiesc[ed] in the termination of his rights, he relinquished
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the only interest in [his son] that could render him aggrieved by the juvenile court’s order
declining to place the child with grandparents.” (Id. at p. 238.)
Mother made no argument in the juvenile court that it would be improper to
terminate her parental rights. But on appeal, she contends that if the juvenile court had
reconsidered maternal grandmother for placement again, before J.H. was placed in the
custody of a nonfamily caregiver, the court would have likely decided at the
section 366.26 hearing that legal guardianship was the best option for J.H., not adoption,
and therefore would not have terminated parental rights. Nothing in the record supports
mother’s argument. Maternal grandmother had not been approved because of the
criminal record of her husband, legal guardianship was never under consideration, and an
approved prospective adoptive home had been located in which J.H. was doing well.
Thus, even if mother has standing to appeal the placement decision, she has not
demonstrated reversible error because the only argument she raises on appeal is based on
speculation with no evidentiary support.
DISPOSITION
The juvenile court’s orders of March 24, 2015 denying mother’s petition pursuant
to Welfare and Institutions Code section 388 and terminating parental rights are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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