Filed 4/14/15 In re R.W. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication
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                                                       COPY

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




In re R.W. et al., Persons Coming Under the Juvenile                                         C076100
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                                  (Super. Ct. Nos. JD232886,
HEALTH AND HUMAN SERVICES,                                                               JD234016)

                   Plaintiff and Respondent,

         v.

J.W. et al.,

                   Defendants and Appellants.




         Appellants E.C. (mother) and J.W. (father) appeal from the orders of the juvenile
court denying their requests to have minors R.W. and J.W. placed with their half brother,
Omar. Mother had filed a petition for modification (Welf. & Inst. Code, § 388; unless
otherwise stated, statutory section references that follow are to the Welfare and
Institutions Code) seeking to have minor R.W. placed with Omar. The parents also


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sought to have minor J.W. placed with Omar at a relative placement hearing, (§ 361.3)
which hearing coincided with the hearing on mother’s petition for modification. The
juvenile court denied mother’s petition for modification, assessed the relative placement
issue for J.W., and denied the request to place with Omar.
       Both parents purport to appeal from both orders. We will dismiss the appeal as to
R.W. and affirm the juvenile court’s orders as to J.W.

                                FACTS AND PROCEEDINGS

       On December 5, 2012, Sacramento County Department of Health and Human
Services (the Department) detained minor R.W. (then seven months old) due to her
parents’ drug abuse and history of domestic violence. The parents said they did not have
any relatives they wanted assessed for placement and no relatives came forward seeking
placement. R.W. was adjudged a dependent and placed with foster parents.
       In April 2013, the Department reported that it was considering a family friend,
Elizabeth, for placement of R.W. However, she was not yet ready to take placement so
no further action was taken at that time.
       On May 15, 2013, the paternal grandmother contacted the Department and
expressed an interest in placement. The Department did not pursue placement with the
paternal grandmother because, (1) R.W. was by then in a foster/adoptive placement, and
(2) the parents were seeking to live with the paternal grandmother so her home would not
be approved for placement.
       On June 5, 2013, the foster parents who had been caring for R.W. since
January 18, 2013, filed a request for de facto parent status. They also indicated they
wanted to pursue adoption should reunification efforts fail. R.W. was very bonded to
them and appeared comfortable in their home. The juvenile court granted their request
for de facto parent status.




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       In October 2013, R.W.’s 19-year-old half sibling, Omar, contacted the Department
and requested that R.W. be placed with him. The Department made a kinship referral and
began assisting with visits between R.W. and Omar. The Department also sought
waivers for criminal convictions for domestic violence for Omar’s father, who resided
with Omar.
       On November 5, 2013, J.W. was born to the parents. J.W. tested positive for
methamphetamine at birth and mother admitted to using methamphetamine in the days
prior to J.W.’s birth. Hospital employees reported that father smelled strongly of
marijuana and was stumbling and unsteady while holding J.W. Two days later, J.W. was
placed with R.W.’s foster/de facto parents.
       On February 7, 2014, J.W. was adjudged a dependent and ordered into out-of-
home placement. Parents were ordered to receive reunification services as to J.W., but
their services as to R.W. were terminated.
       The kinship approval for Omar’s home was still pending. The psycho-social
assessment indicated that Omar did not support reunification with the parents. It also
indicated that Omar would not be able to provide appropriate care and supervision
without the total support of his father and stepmother. His father and stepmother had
expressed a willingness to help and provide care for R.W. and J.W.
       Omar’s home was approved by kinship on January 30, 2014. In an addendum for
a March 7, 2014, relative placement hearing, the Department recommended placement of
both R.W. and J.W. with Omar. Mother also filed a section 388 petition for modification
requesting R.W.’s placement be changed to placement with Omar, which was opposed by
R.W.’s counsel.
       On March 11 and 12, 2014, the juvenile court heard testimony and argument
regarding mother’s section 388 petition for modification and relative placement for J.W.
The juvenile court denied mother’s petition, finding it was not in R.W.’s best interests to



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be moved to placement with Omar. The court also denied a request that J.W. be placed
with Omar.

                                        DISCUSSION

                                             I

                                           R.W.

       Both parents purport to appeal from the juvenile court’s denial of mother’s petition
for modification seeking to have R.W. placed with Omar. (Sacramento County case No.
JD232886.) The Department contends neither parent has standing to raise the issue on
appeal. We need not reach the disputed standing issue, however, because the appeal is
moot as to R.W.
       We take judicial notice of the record on appeal in case No. C077003. (Evid. Code,
§§ 452, 459.) We note that a reviewing court normally should give the parties to an
appeal an opportunity to comment on the propriety of judicial notice and the tenor of the
matter to be noticed on the reviewing court’s own motion, if the matter is of substantial
consequence to the appellate opinion. (Evid. Code, § 452, subd. (d) [judicial notice of
court records], § 459 [reviewing court may take judicial notice but must give parties
opportunity to comment under § 455 if the matter is of substantial consequence].) The
validity of taking judicial notice of our record on appeal in case No. C077003 appears
self-evident. However, if the parties are aggrieved by this judicial notice, we will
entertain a motion for rehearing in order to give them an opportunity to address the
matter before the decision becomes final. (Evid. Code, § 459(d).)
       The record in case No. C077003 reflects that parental rights were terminated as to
minor R.W. and that, thereafter, an appeal was filed but dismissed on November 17,
2014, for failure to file an opening brief. Remittitur issued on January 23, 2015.
Accordingly, the termination of parental rights as to minor R.W. is now final.



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       “It is well settled that an appellate court will decide only actual controversies.
Consistent therewith, it has been said that an action which originally was based upon a
justiciable controversy cannot be maintained on appeal if the questions raised therein
have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988)
199 Cal.App.3d 1, 10.) When subsequent events render it impossible for this court, if it
should decide the case in favor of appellant, to grant any effectual relief whatever, the
court will not proceed to a formal judgment, but will dismiss the appeal. (Consol. etc.
Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.)
       In this appeal, parents request that we reverse the order denying mother’s
modification petition, which requested the juvenile court place R.W. in the home with
Omar. Parents, however, abandoned their appeal from the order terminating parental
rights, and that order is now final and cannot be vacated. (In re Jessica K. (2000)
79 Cal.App.4th 1313, 1315.) Once parental rights are terminated, the “exclusive care and
control of the child” is placed with the Department for adoptive placement. (§ 366.26,
subd. (j).) Accordingly, we cannot provide any meaningful relief because R.W.’s
prospective adoptive family now has statutory preference for adoption, and the juvenile
court’s role is limited to reviewing the Department’s adoptive placement decision for
abuse of discretion. (§ 366.26, subd. (k); see In re Sarah S. (1996) 43 Cal.App.4th 274,
285-286.) Parents’ claim is, therefore, moot. (In re Jessica K., supra, at p. 1315.)

                                              II

                                            J.W.

       Parents also contend the juvenile court abused its discretion in denying Omar
placement of J.W. pursuant to section 361.3. (Sacramento County case No. JD234016.)

       Estoppel

       Initially, we address parents’ argument that the Department is estopped on appeal
from asserting the position that there was no juvenile court error in denying placement

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with Omar because that position is contrary to the position it asserted in the juvenile court
at the section 361.3 hearing.
       It has been held that “ ‘ “[a]lthough equitable estoppel may apply to government
actions where justice and right so require, ‘estoppel will not be applied against the
government if the result would be to nullify a strong rule of policy adopted for the benefit
of the public [citations] or to contravene directly any statutory or constitutional
limitations. [Citation.]’ [Citations.]” ’ [Citation.] The public policy here is the
protection of abused and neglected children (§ 300.2) and the children’s need for stability
and permanence [citation].” (In re Joshua G. (2005) 129 Cal.App.4th 189, 197.) The
juvenile court’s order furthers these policies and we see no reason why the policy
preventing the application of equitable estoppel to the Department under such
circumstances would not apply equally to judicial estoppel.
       Furthermore, setting aside the question of whether the doctrine of judicial estoppel
may be applied against the Department in a dependency hearing, where the focus is on
the protection and best interests of the child, one of the requirements for the application
of judicial estoppel is clearly not met here. Judicial estoppel applies when “(1) the same
party has taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position
(i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud,
or mistake. [Citations.]” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171,
183, italics added.) The third judicial estoppel factor of success is not satisfied here, as
the juvenile court’s order was contrary to the Department’s recommendation of
placement with Omar. (See Jogani v. Jogani (2006) 141 Cal.App.4th 158, 170-171
[“[t]he factor of success—whether the court in the earlier litigation adopted or accepted
the prior position as true—is of particular importance”].) Thus, the Department is not
estopped from asserting the position that there was no juvenile court error on appeal.

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       Finally, we point out that parents, as appellants, have the burden of establishing
juvenile court error, regardless of the Department’s position on appeal. Error is not
presumed. The judgment or order of the lower court is presumed correct and it is
incumbent on parents, as the appellants, to affirmatively establish error. (Rossiter v.
Benoit (1979) 88 Cal.App.3d 706, 712.) Thus, the doctrine of judicial estoppel, even if
applied to the Department’s position on appeal, would be of no substantive consequence.

       Application of Section 361.3

       “When a child is removed from his or her parents’ custody under section 361, the
juvenile court places the care, custody, control, and conduct of the child under the social
worker’s supervision. (§ 361.2, subd. (e).) The social worker may place the child in
several locations, including the approved home of a relative. (§ 361.2, subd. (e)(1)-(8).)
Relatives who request placement of a dependent child are given preferential
consideration. (§ 361.3, subd. (a).) In determining whether to place the child with the
requesting relative, the court and social worker consider the factors enumerated in section
361.3, subdivision (a). The linchpin of a section 361.3 analysis is whether placement
with a relative is in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th
295 [].)” (Alicia B. v. Superior Court of San Diego County (2004) 116 Cal.App.4th 856,
862-63, footnote omitted (Alicia B.).)
       Parents argue the juvenile court misapplied section 361.3 by failing to give
placement preference with Omar, as a relative caregiver. In making this argument,
however, father appears to rely on the false premise that the juvenile court gave
placement preference to the minor sibling, R.W., and then argues that only adult siblings
have placement preference. (See § 361.3, subd. (c)(2) [“the following relatives shall be
given preferential consideration for the placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling”].) The juvenile court did not, of course, place J.W.




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with R.W. -- it placed J.W. with R.W.’s caretakers. Thus, the juvenile court did not
misapply section 361.3 by giving placement preference to a minor sibling.
       Father also repeatedly asserts that “[t]he juvenile court’s decision to overrule the
[Department’s] exercise of its placement discretion, and substitute its own discretion in
place of the social agency’s expertise, . . ., constituted an abuse of discretion.” His
assertion is meritless. It is well-established that section 361.3 requires the juvenile
court’s independent judgment. “When section 361.3 applies to a relative placement
request, the juvenile court must exercise its independent judgment rather than merely
review [the Department’s] placement decision for an abuse of discretion. The statute
itself directs both the ‘county social worker and court’ to consider the propriety of
relative placement. (§ 361.3, subd. (a).) The cases, too, discuss the relative placement
preference in the context of an independent determination by the juvenile court. ‘The
statute expresse[s] a command 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.[, supra,] 7 Cal.4th [at p.] 320, []
italics omitted.)” (Cesar v. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.)
       The remainder of parents’ contentions regarding the juvenile court’s application of
section 361.3 are, in substance, contentions that the court abused its discretion.

       Abuse of Discretion

       “We review a juvenile court[’]s custody placement orders under the abuse of
discretion standard of review; the court is given wide discretion and its determination will
not be disturbed absent a manifest showing of abuse. [Citations.] ‘Broad deference must
be shown to the trial judge. The reviewing court 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.’ [Citations.]” [Citation.]’
[Citation.]” (Alicia B., supra, 116 Cal.App.4th at p. 863.)


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       The preferential consideration under section 361.3 “ ‘does not create an
evidentiary presumption in favor of a relative, but merely places the relative at the head
of the line when the court is determining which placement is in the child’s best interests.’
(In re Sarah S., supra, 43 Cal.App.4th at p. 286[].) In other words, when a child is taken
from his parents’ care and requires placement outside the home, section 361.3 assures an
interested relative that his or her application for placement will be considered before a
stranger’s request. ([Id. at p. 285]; see also § 361.3, subd. (c), which states: ‘For
purposes of this section . . . [¶] . . . “[p]referential consideration” means that the relative
seeking placement shall be the first placement to be considered and investigated.’)”
(Alicia B., supra, 116 Cal.App.4th at p. 863.)
       The juvenile court, however, must still consider the suitability of the relative’s
home and the best interests of the minor. The factors the court is to use in making the
determination are: “(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 . . . the child . . . . [¶] (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. [¶]

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(F) Facilitate visitation with the child’s other relatives. [¶] (G) Facilitate implementation
of all elements of the case plan. [¶] (H) Provide legal permanence for the child if
reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as
necessary. [¶] (8) The safety of the relative’s home . . . .” (§ 361.3, subd. (a).)
       Here, the juvenile court expressly considered the factors set forth in section 361.3,
subdivision (a), and determined placement with Omar was not in J.W.’s best interests.
First, the juvenile court noted that J.W. had been living with her foster parents since birth
-- four months. Removing her from the only home she has known would likely result in
some negative impact. With regard to the second factor in section 361.3, subdivision (a),
although the parents were clear that they wanted J.W. placed with Omar, they were also
clear they wanted J.W. placed with R.W. Since R.W. would not be placed with Omar, it
was unclear to the court what the parents’ wishes would be since they were not
approached about the current contingency. The court noted that the third factor expressed
the public policy favoring placement with relatives and further noted that Omar intended
to share their family rituals and culture, as well as familial relationships with J.W.
       The juvenile court placed significant emphasis on the fourth factor, finding that
J.W.’s placement in the same home as her sister, R.W. with whom she was close in age,
would provide J.W. an opportunity to enjoy the “closeness, friendship and love that
sisters can have.” This factor alone weighed heavily in favor of placing J.W. in R.W.’s
home and weighed heavily against placement with Omar. The court found the ability to
continue to form that bond with her sister was in J.W.’s interest and that her sibling bond
with R.W. would be more of a close sibling-type bond than the type of bond she would
likely develop with her adult half sibling who would be responsible for parenting her.
       We should note that we reject mother’s assertion that the juvenile court could have
also placed R.W. with Omar in order to keep the siblings together. The juvenile court
had already found that placement of R.W. with Omar was not in R.W.’s best interests and
ordered R.W. was to remain with her caretakers, the de facto mother and father. Parents

                                              10
are essentially suggesting the juvenile court should have entered orders against R.W.’s
best interests in order to effectuate placement of J.W. with Omar. This, of course, would
be contrary to the juvenile court’s duties. And, in any event, the propriety of the court’s
decision regarding placement of R.W. is not before us. (See Discussion, supra.)
       In any event, the court recognized that there was no question that Omar and his
parents had good moral character. They had had four supervised visits with J.W. and
three unsupervised overnight visits. The visits were significant but J.W. was forming
deep attachments with her foster parents. And while Omar wanted to care for J.W., and
the court found he could do so with his parents’ assistance, it was unknown whether he
could provide legal permanency if reunification was unsuccessful because the
Department could not say whether he would qualify to adopt J.W.
       The court also found that, with respect to the seventh factor in section 361.3,
subdivision (a), Omar did not favor reunification with the parents and, more importantly,
lived two hours away from J.W.’s parents. In addition to this physical distance from
J.W.’s parents, Omar was a full-time student and had a job, and both of his parents
worked. Thus, Omar’s ability to facilitate visitation and reunification was problematic
even though Omar’s parents apparently agreed to take J.W. to visit with her parents twice
a week.
       Considering these factors, on balance, the juvenile court concluded that placement
with Omar was not in J.W.’s best interests.
       Omar was assessed and considered by the court as a possible placement for J.W.
Placement with Omar, however, would have made reunification and regular visitation
difficult, which was the goal for parents at that time. It would also have required J.W.
being removed from her close-in-age sister, and the foster parents with whom she had
been living since birth. Finally, if reunification failed, it was uncertain whether Omar
could provide permanency for J.W. or whether the young minor would need to be moved
yet again. Under these circumstances, the juvenile court’s determination, considering the

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statutory factors, that such a placement was not in J.W.’s best interests, was not an abuse
of discretion.

                                       DISPOSITION

       The appeal is dismissed as to minor R.W. (Sacramento County case No.
JD232886.) The orders of the juvenile court are affirmed as to minor J.W. (Sacramento
County case No. JD234016.)



                                                        HULL                  , Acting P. J.



We concur:



      BUTZ                  , J.



      HOCH                  , J.




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