In re R.C. CA2/8 ( 2021 )

Filed 9/29/21 In re R.C. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re R.C. et al., Persons Coming B310267
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos. 19CCJP02956A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.M. et al.,
Defendants and Appellants;
B.C. et al.,
Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Sabina A. Helton, Judge. Affirmed.
No appearance for Plaintiff and Respondent.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant S.M.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant L.C.
Estes Law Group and Polly J. Estes for Respondents B.C. and
E.C.
Melissa A. Chaitin, under appointment by the Court of
Appeal, for Minors.
**********
Mother S.M. and father L.C. appeal the order terminating
their parental rights, arguing the court erred when it denied their
request for a continuance of the Welfare and Institutions Code
section 366.26 hearing to select and implement a permanent plan
for their children R.C. and T.C. (All further statutory references
are to this code, unless otherwise indicated.) They argue a
continuance was in the best interest of the children, so that
paternal aunt could be assessed for placement. They do not argue
the juvenile court erred in terminating their parental rights, or that
the continuance would have any impact on their parental rights.
The children and their de facto parents argue mother and father
lack standing to challenge the order, since their parental rights are
not implicated by the order. We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the narrow issue on appeal, we will limit our
discussion of the facts.
This family came to the attention of the Los Angeles County
Department of Children and Family Services (Department) in April
2019, following a referral that mother and father abused heroin and
methamphetamine, putting the children at risk of harm. The
children were detained in May 2019. Maternal grandparents, who
live in Arizona, had legal guardianship over the children’s two older
half siblings, and wanted to be considered for placement of R.C. and
T.C.
The children were placed with E.C. and her husband B.C. (the
foster parents) in June 2019, and were well bonded to their
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caregivers. As of the July 2019 jurisdiction/disposition report,
mother and father had not identified paternal aunt or any other
family member besides the maternal grandparents to consider for
placement.
At the July 12, 2019 adjudication/dispositional hearing,
mother and father pled no contest to the petition, and the juvenile
court sustained allegations based on mother’s and father’s
substance abuse. The juvenile court ordered reunification services
for mother and father.
In September 2019, the juvenile court ordered that an ICPC
(Interstate Compact on the Placement of Children) be initiated for
maternal grandparents in Arizona. Initiation of the ICPC was
delayed when maternal grandparents wavered on their
commitment to care for the children, though they later changed
their minds and sought evaluation for placement.
The Department’s July 2020 status review report noted that
the children continued to thrive with their foster parents. The
children were having phone visits with mother and father, and with
maternal grandparents and their half siblings. The ICPC for
maternal grandparents had been conditionally approved, and would
receive final approval once maternal grandparents “completed the
tasks necessary to apply for licensure . . . .”
The children’s foster parents filed a request to be designated
as de facto parents. They also filed a section 388 petition seeking
an order formally placing the children in their custody, as they were
concerned the children were going to be placed with maternal
grandparents. Maternal grandparents responded with a relative
information form, indicating they no longer wanted to adopt the
children, as they believed the current foster parents would be
“better long term parents.” In September 2020, the juvenile court
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ordered a hearing on the foster parents’ request for de facto parent
status, and set the section 388 petition for hearing.
At the September 18, 2020 review hearing, the juvenile court
terminated the parents’ reunification services, and set a
section 366.26 hearing to select and implement a permanent plan.
In October 2020, the juvenile court granted foster parents’
status as de facto parents.
The Department filed a response to the de facto parents’
section 388 petition, noting that paternal aunt contacted the
Department in December 2019. She was interested in adopting the
children if they failed to reunify with their parents. In February
2020, paternal aunt again inquired about the children. The social
worker informed her that maternal grandparents were being
assessed for placement, and paternal aunt stated she was satisfied
if the children were placed with other family members. She
contacted the Department again in July and October 2020, saying
she was interested in having the children placed with her if they
were not placed with maternal grandparents. Paternal aunt also
resides in Arizona and said she had a close relationship with the
children until they were detained. However, the children told social
workers they did not remember paternal aunt. The Department
recommended the juvenile court initiate an ICPC for paternal aunt.
The juvenile court denied the section 388 petition. However,
the court ordered that the children were not to be removed from the
de facto parents without a court hearing. The juvenile court also
ordered that an ICPC be initiated as to paternal aunt and uncle in
Arizona.
Paternal aunt and uncle visited with the children in
December 2020. The children were shy at first, but eventually
warmed up to them. They were confused about why they had to
visit with paternal relatives, and experienced some regression in
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their behaviors after the visit. They also began having virtual
phone visits. According to the de facto parents, the children asked
to not have phone contact with paternal aunt and uncle.
The Department’s January 2021 section 366.26 report stated
the Department had initiated the ICPC for paternal aunt and uncle
in November 2020. The children continued to have weekly virtual
phone visitation with maternal grandparents and their half
siblings. Paternal aunt also was maintaining weekly FaceTime
visits with the children.
The Department recommended continuing the section 366.26
hearing 60 days to allow the ICPC for paternal aunt to be approved.
Paternal aunt and uncle lived close to maternal grandparents, and
would ensure that the children maintained contact with maternal
grandparents and their siblings.
At the January 14, 2021 section 366.26 hearing, the
Department, mother, and father requested a continuance, so that
the ICPC could be completed for paternal aunt. Counsel for the
children objected to continuing the hearing, arguing that paternal
aunt’s request for placement was “conditional” and would only delay
permanency for the children. Paternal aunt was present via
WebEx, and asked for an opportunity to “shed a little bit of light” on
what had happened, and explained that her request for placement
of the children was not conditional.
Children’s counsel objected to paternal aunt’s statements,
arguing she had not been sworn as a witness. Paternal aunt was
willing to be sworn and testify. The juvenile court did not allow her
to testify in support of the request for a continuance, but found her
testimony might be relevant to the termination of parental rights,
and asked for an offer of proof. Father argued her testimony was
relevant to prove the sibling relationship exception to the
termination of parental rights. The juvenile court found her
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testimony was irrelevant to the sibling bond exception because the
siblings were not placed with paternal aunt.
The juvenile court denied the request for a continuance,
finding it would further delay permanency for the children,
paternal aunt’s interest in the children had been equivocal, and she
was only interested in placement after maternal grandparents
elected to not proceed with placement. The juvenile court then
terminated parental rights. Mother and father timely appealed.
DISCUSSION
Mother and father contend the juvenile court erred when it
denied their request for a continuance to complete the ICPC for
paternal aunt and uncle, and by not allowing paternal aunt to
testify in support of the request for a continuance. The children
and de facto parents argue that mother and father lack standing to
challenge the order denying the request for a continuance,
reasoning it would have no impact on the termination of their
parental rights.1
“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.)
1 Mother argues the de facto parents lack standing to file a
respondent’s brief, and argue that the brief should be stricken.
Because this argument was raised in mother’s reply brief, instead of
by motion, affording the de facto parents no meaningful opportunity
to respond, we will not address it. (Reichardt v. Hoffman (1997)
52 Cal.App.4th 754, 766.)
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In In re K.C., the child was removed from the parents and
placed with a prospective adoptive family. The juvenile court
bypassed reunification services and set a section 366.26 hearing.
The child’s grandparents filed a section 388 petition, seeking
placement of the child in their home. At a combined hearing, the
juvenile court denied the section 388 petition, selected adoption as
the permanent plan, and terminated parental rights. Father’s
appeal was dismissed for lack of standing, and our Supreme Court
affirmed. (In re K.C., supra, 52 Cal.4th at pp. 234–235, 240.) The
court held father did not have standing to appeal the denial of the
grandparents’ section 388 petition because he did not contest
termination of his parental rights and thus “relinquished the only
interest in K.C. that could render him aggrieved by the juvenile
court’s order declining to place the child with the grandparents.”
(In re K.C., at p. 238.)
The court explained that until parental rights are terminated,
all parents have a compelling interest in the companionship, care,
custody, and management of their children. When dependency
proceedings begin, the priority is to preserve family relationships if
possible. (In re K.C., supra, 52 Cal.4th at p. 236.) However, “after
reunification services are terminated or bypassed . . . ‘the parents’
interest in the care, custody and companionship of the child [is] no
longer paramount [and] “the focus shifts to the needs of the child for
permanency and stability . . . .” ’ ” (Ibid.)
The statutory exceptions to adoption at the section 366.26
hearing “permit the juvenile court not to terminate parental rights
when compelling reasons show termination would be detrimental to
the child.” (In re K.C., supra, 52 Cal.4th at p. 237; see also § 366.26,
subd. (c)(1)(B).) Because the father in In re K.C. did not argue there
was any exception to the termination of parental rights, “he ha[d]
no remaining, legally cognizable interest in [the child’s] affairs,
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including his placement . . . .” (In re K.C., at p. 237.) “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.)
Here, although father asserted the sibling bond exception as a
reason to permit paternal aunt to testify, neither he nor mother
made any attempt to prove the exception. (In re Jacob S. (2002)
104 Cal.App.4th 1011, 1016–1017 [parents carry burden to
establish an exception to the termination of parental rights]; see
also § 366.26, subd. (c)(1)(B)(v).) Nor have they argued on appeal
that the exception applies, or that remanding for a continuance
would have any practical impact on their parental rights other than
affording them a new hearing. Consequently, they cannot show
they were aggrieved by the juvenile court’s orders, and they lack
standing to challenge them.
The juvenile court did not abuse its discretion in denying the
request to continue the hearing. Continuances may only be granted
for good cause, and must be in the best interests of the child.
(§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.)
“[W]hen a dependent child has been removed from his or her
home, the Legislature expresses a clear preference for placement
with a relative, if the home is appropriate and the placement is in
the child’s best interest. [Citation.] The relative placement
preference under section 361.3 applies throughout the reunification
period. [Citation.] In addition, section 361.3 applies after the
reunification period where the relative has made a timely request
for placement during the reunification period and the child welfare
agency has not met its statutory obligations to consider and
investigate the relative seeking placement.” (In re Maria Q. (2018)
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28 Cal.App.5th 577, 594–595.) It is axiomatic that the section 361.3
relative placement preference only applies if a relative requests
placement. (§ 361.3, subd. (a).)
Although paternal aunt had expressed interest in placement
of the children before reunification services were terminated, she
only requested placement if maternal grandparents were no longer
interested or could not be approved. Therefore, the juvenile court
reasonably concluded that the relative placement preference no
longer applied because paternal aunt had not unconditionally
requested placement of the children during the reunification period.
DISPOSITION
The orders are affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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