Opinion
E072082
11-12-2019
IN RE K.T., a Person Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. J.F. et al., Defendants; J.B. et al., Interveners and Appellants.
William D. Caldwell, Venice, by appointment of the Court of Appeal, for Interveners and Appellants. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Outside Counsel, for Plaintiff and Respondent.
Certified for Partial Publication
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I-III and V-VIII.
William D. Caldwell, Venice, by appointment of the Court of Appeal, for Interveners and Appellants.
Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Outside Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J. San Bernardino County Children and Family Services (CFS) removed K.T. (K. or child) from his mother when he was about nine months old. At that time, a nurse noticed that he had an enlarged head. He was placed with distant relatives, Mr. and Ms. B., who were already caring for his older half-brother.
Further testing showed that K. had a subdural hematoma. Meanwhile, the B.'s began refusing to communicate with K.'s social worker or her "friends" in the same office, claiming that she had discriminated against them and insulted them. CFS detained K., placed him in a special health care needs foster home, and filed a petition asking the trial court to remove him from the B.'s custody under section 387. The B.'s, in turn, filed a "changed circumstances" petition under section 388, asking the trial court to return K. to them.
This and all further statutory citations are to the Welfare and Institutions Code.
The trial court denied the section 388 petition, finding that the B.'s had not shown that they were qualified as a special health care needs foster home. It then granted the section 387 petition, finding that communication between the B.'s and CFS had broken down.
CFS contends that the B.'s lack standing to appeal from these orders, citing In re Miguel E. (2004) 120 Cal.App.4th 521, 15 Cal.Rptr.3d 530. We agree with Miguel E. that, in general, a person from whom a child has been removed under section 387 lacks standing to challenge the removal. However, when that person is a relative, we disagree with Miguel E. , because under section 361.3, a relative has standing to appeal from a refusal to place a child with him or her (an argument that Miguel E. did not consider).
In the unpublished portion of this opinion, however, we reject the B.'s contentions. Hence, we will affirm.
I-III [NOT CERTIFIED FOR PUBLICATION] IV
See footnote *, ante , page 15.
THE B.'S APPELLATE STANDING
CFS contends that the B.'s lack standing to bring this appeal.
In re Miguel E. , supra , 120 Cal.App.4th 521, 15 Cal.Rptr.3d 530 supports this contention. It held that grandparents lacked standing to appeal from an order removing the children from the grandparents' custody under section 387. ( Id. at pp. 538-540, 15 Cal.Rptr.3d 530.) It explained: "Grandparents were present in court for the ... detention hearing ... and Grandmother was present for the ... hearing [on the section 387 petition]. They did not ask to address the court. At the time of the ... hearing, Grandparents had not applied for or achieved de facto parent status. Thus, they were merely relatives, not parties. ‘[O]nly parties of record may appeal. [Citation.] A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings.’ [Citation.]" ( Id. at p. 539, 15 Cal.Rptr.3d 530 fn. omitted.)
In their reply brief, the B.'s assert that Miguel E. is distinguishable because they did "address the court" and, more generally, they did participate in the proceedings below. However, they participated only in the hearing on their section 388 petition and in a discussion of sibling visitation issues; they did not participate in the hearing on the section 387 petition. Indeed, in their opening brief, they conceded this, stating: "[T]he record indicates [the B.'s] were not permitted to participate in the section 387 proceedings."
The B.'s were not entitled to notice of the section 387 hearing. (§§ 297, subd. (b)(1), 387, subd. (d), incorporating §§ 290.1, 290.2, 291.) They did not seek de facto parent status. As relatives, they had the right to submit information about the child to the court. ( Cal. Rules of Court, rule 5.534(b)(2).) With the trial court's permission, for good cause shown, they could be present at the hearing and address the court. ( Id. , rule 5.534(b)(1).) Nevertheless, they were not parties to the section 387 petition. Under Miguel E. , then, it would seem that they lack standing.
However, the B.'s also assert that they have standing because this is, in effect, an appeal from "the denial of their request for placement under section 361.3."
The grandmother in Miguel E. could have made the same argument. However, she did not. Miguel E. is authority for rejecting the arguments that were made in that case, but not for rejecting this particular argument. "It is axiomatic that cases are not authority for propositions that are not considered. [Citation.]" ( California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043, 232 Cal.Rptr.3d 64, 416 P.3d 53.)
Section 361.3 provides: "In any case in which a child is removed from the physical custody of his or her parents ..., 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).) It further provides that, "[i]n determining whether placement with a relative is appropriate, the county social worker and court shall consider" certain specified factors. (Ibid. ) Finally, it provides that "whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements." ( § 361.3, subd. (d).)
The parties agree that the B.'s were K.'s great-great-aunt and -uncle. Hence, they were "relatives" within the meaning of section 361.3. It defines "relative" as "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words ‘great,’ ‘great-great ,’ or ‘grand,’ or the spouse of any of these persons ...." ( § 361.3, subd. (c)(2), italics added.)
Hence, if the B.'s were K.'s great-great-great -aunt and -uncle — as Ms. B. once said they were — they would not have any rights under section 361.3.
Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 111 Cal.Rptr.2d 243 held that the child's grandmother — even though not a party — had standing to appeal from an order denying her request for placement under section 361.3. ( Cesar V. , supra , at pp. 1034-1035, 111 Cal.Rptr.2d 243.) It stated: "[The grandmother]'s separate interest in her relationship with ... her grandson[ ] is legally protected in section 361.3, which confers upon a grandparent the right to preferential consideration for placement. ‘[A]ny person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment’ is considered a ‘party aggrieved’ for purposes of appellate standing. [Citation.]" ( Ibid. )
Section 387, as relevant here, provides:
"(a) An order changing or modifying a previous order by removing a child from the physical custody of a ... relative[ ] or friend and directing placement in a foster home ... shall be made only after noticed hearing upon a supplemental petition. "(b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." ( § 387, subds. (a), (b).)
Thus, the test for granting a section 387 petition has two alternative prongs — (1) the previous disposition has not been effective, or (2) a placement with a relative is not appropriate under section 361.3. If the trial court sustains the petition based on the second prong, then it is effectively denying the relative's request for placement under section 361.3. However, even if it sustains the petition based on the first prong, it is making a "new placement," and therefore it is required under section 361.3 to "consider[ ]" the relative for placement and to evaluate the factors listed in section 361.3. Accordingly, once again, it is effectively denying the relative's request for placement under section 361.3. To put it another way, we cannot honestly distinguish a decision not to place a child with a relative from a decision to remove a child from a relative.
We therefore conclude that, under Cesar V. , when a child is removed from a placement with a relative under section 387, the relative has standing to appeal.
We also note (though it should be obvious) that, with respect to their section 388 petition, the B.'s were parties. Any "person having an interest in [the] child" can file a section 388 petition. ( § 388, subd. (a)(1) ; see In re Hirenia C. (1993) 18 Cal.App.4th 504, 513, 515-516, 22 Cal.Rptr.2d 443 [even if former foster parent was not de facto parent, "the statutory grant of standing contained in section 388 is sufficiently broad to include [her] within its coverage."].) When their petition was denied, the B's were aggrieved. (See generally In re Lauren P. (1996) 44 Cal.App.4th 763, 768, 52 Cal.Rptr.2d 170.) Hence, they also have standing to appeal the denial of their section 388 petition.
V-VIII [NOT CERTIFIED FOR PUBLICATION] IX
See footnote *, ante , page 15.
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DISPOSITION
The orders appealed from are affirmed.
Miller, J., and Fields, J., concurred.
A petition for a rehearing was denied November 25, 2019.