Filed 11/26/13 In re C.C. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re C.C. et al., Persons Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E056952

         Plaintiff and Respondent,                                       (Super.Ct.No. JUV75222)

v.                                                                       OPINION

A.A.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Donna L. Crandall,

Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Dismissed.

         Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.
                                                             1
                                     I. INTRODUCTION

       After numerous failed placements, the juvenile court determined that minor C.C.,

born in 1999, was not a proper subject for adoption, and a planned permanent living

arrangement with a foster family with a goal of adoption was her appropriate permanent

plan. At the detention hearing on a supplemental petition under Welfare and Institutions

Code1 section 387, the juvenile court detained minor G.C., born in 2002, from father.2

Although appellant A.A. (mother) purports to appeal from those orders, her only

challenge is the failure of the court to order plaintiff Riverside County Department of

Public Social Services (Department) to fully evaluate and assess the relative placement

request of minors’ half sister, A.C.3 We conclude the issue is not yet ripe for appellate

review.

                     II. FACTS AND PROCEDURAL BACKGROUND

       In February 2011, the Department filed petitions alleging that G.C. (then nine

years old) and C.C. (then 11 years old) came within section 300, subdivisions (b) and (c).

The petition alleged as to mother that she neglected G.C.’s mental health issues; failed to

protect him from inappropriate discipline by a member of the household; abused

controlled substances, including marijuana and methamphetamines; neglected the health

and safety of the children; created a detrimental home environment because she suffered

       1   All further statutory references are to the Welfare and Institutions Code.

       2   The children’s father is not a party to this appeal.

       3   Mother refers to the half sister as A.H.; however, she is identified in the record
as A.C.

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from unresolved mental health issues; and had failed to reunify with other children

despite receiving reunification services. The petition further alleged that G.C. suffered

from serious emotional damage, displayed violent outbursts, and had multiple psychiatric

holds because of mother’s failure to provide him with adequate mental health services.

       The detention report stated that a Department social worker had responded to a

referral after G.C. was observed to have red marks and bruising around his wrists. G.C.

said his brother-in-law, J.C., who worked as a security guard, had handcuffed him at a

family gathering until he settled down. The social worker found no indication of bruises

on G.C.’s wrists, and G.C. said the bruises had disappeared. Red marks had been seen on

his wrists three weeks earlier, and G.C. said he had been “put in shackles” during a game,

but he did not elaborate.

       C.C. told the social worker that G.C. had become “cranky due to not having had

his medication yet,” and he kicked J.C. “‘where you’re not supposed to.’” C.C. and her

mother had been giving the children’s niece a bath when G.C. began running around and

screaming, and J.C. had put the handcuffs on him for about five minutes until he calmed

down. C.C. and mother stated the family had used handcuffs on G.C. about three times

in the past when they had to transport him to Riverside County Department of Mental

Health Emergency Treatment Services (ETS).

       G.C.’s teacher told the social worker that the children were often late to school,

and they said it was because mother did not “wake up in time.” The teacher reported that

G.C. had been getting counseling services but had been dropped from the program



                                             3
because of poor attendance. G.C. was on medications for ADHD, depression, and

oppositional defiant disorder.

       Mother told the social worker she had a hard time controlling G.C.; he had rages

and threatened to hurt himself and others. He was taking medication at night to help him

sleep and was also taking Depakote, but it was making him aggressive and violent, and

he had threatened to hurt himself and others. She had called the police several times for

help, and ETS would not take him because he was too young. The children’s father had

been out of the home since July 2010. Father had been abusive to mother and to G.C.,

and G.C.’s behavior had been getting better since father left. Mother reported she had

bipolar disorder, but she was not taking any medication. She admitted smoking

marijuana but denied using other drugs. A saliva drug test was positive for marijuana and

inconclusive for amphetamines.

       The social worker visited the family home and observed that it was dark and

smelled of mold and dampness. The living room ceiling was leaking, and the ceiling

panels were falling and appeared to be rotting. The children’s beds were in a family

room that had food and trash strewn about, and their beds had no sheets. In a follow-up

visit, the social worker observed that the rotting ceiling panels had been removed and

covered with plastic, and the children’s bedroom area was more organized. Mother

tested positive for marijuana and methamphetamine in a urine test.

       The social worker spoke with A.C., the children’s adult half sister and J.C.’s wife.

A.C. reported that J.C. put handcuffs on G.C. after trying to restrain him when he

“‘flip[ped] out,’” threw things, and punched J.C. and kicked him in the private area. The

                                             4
handcuffs had been left on for less than five minutes, during which time G.C. had calmed

down. J.C. had used the handcuffs to keep G.C. from hurting himself and others in the

home. J.C. gave the same version of the events.

       In a follow-up visit, mother became agitated and made comments about taking the

children to Arizona so Child Protective Services (CPS) would stay out of her life. She

said she did not trust CPS and did not want to work with the agency. In another follow-

up visit, the social worker observed that food and clothing were again strewn on the floor,

and there was a bucket in the living room to catch water leaking from the ceiling. Mother

acted angry and agitated, and she commented that the Department had “d[one] her

wrong” by removing two older children years earlier even though she had done

everything asked of her.

       The social worker took the children into protective custody. They reported there

had been no heat in the house and that mother did not get up in the morning. The family

had an extensive history of contacts with the Department. Mother requested that the

children be placed with A.C. and J.C., but J.C. was being investigated for suspected child

abuse of G.C. The juvenile court detained the children and ordered services for parents.

       The Department filed a jurisdiction/disposition report in March 2011. The report

stated that two of the children’s adult half siblings had been declared dependents in 1991.

Mother had failed to reunify with the two half siblings, and they had remained in

dependency until they reached the age of majority. A third half sibling had remained in

mother’s care until he reached the age of majority.



                                             5
       C.C. told the social worker that both she and G.C. had been diagnosed with

ADHD, but neither was on medication. C.C. stated she had frequent migraine headaches.

She had been in counseling in the past, but mother had “‘stopped it.’” C.C. denied

substance abuse in the home, although mother occasionally drank alcohol to celebrate

without becoming drunk. C.C. also denied physical discipline in the home.

       G.C. told the social worker he was not in counseling because mother did not want

people to come to the house. He had difficulty sitting still during the interview. He said

he had been diagnosed with ADHD and “had tried every kind of medication,” but now

took medication only to help him sleep.

       Mother again requested that the children be placed with their half sister, A.C., and

her husband, J.C. The social worker again reported that J.C. was being investigated for

suspected child abuse based on the handcuffing incident. A.C. visited the children with

mother and appeared parental and nurturing with them. The maternal grandmother in

Arizona and paternal grandmother in Minnesota also expressed interest in relative

placement.

       The Department filed an addendum report in April 2011. G.C. had been separated

from C.C. because of physical aggression toward her and had been placed in a different

foster home. The foster family also requested removal of C.C. from their home, and she

had been placed in a new foster home. The children were determined to be eligible for

membership with the White Earth Band of Chippewa, of which father was an enrolled

member. The tribe intervened in the case under the Indian Child Welfare Act (ICWA).



                                             6
       The Department reported that a home evaluation had been completed for A.C., and

“the assessment [wa]s still pending CLETS results.” A.C. continued to visit the children

with mother.

       At the jurisdiction hearing, the juvenile court found the allegations of the petition

true as amended. The court ordered the Department to commence proceedings under the

Interstate Compact on the Placement of Children (ICPC) with the states of Nebraska

(where father resided), Minnesota (where the paternal grandmother resided), and Arizona

(where the maternal grandmother resided).

       The Department filed a second addendum report in May 2011. The children

remained in separate placements. C.C.’s caregiver had declined placement of G.C.,

because G.C. had acted aggressively toward C.C. during supervised visits, and the

caregiver could not assure C.C.’s safety if the children were placed together. G.C.

continued to act disruptively in school and aggressively toward others, and his foster

family submitted notice to end the placement. C.C. had adjusted positively to her foster

family. The children had undergone psychological assessments. The psychologist

reported that G.C. hit C.C. and cut her lip when they were residing in the same foster

home. The psychologist concluded both children were experiencing depression and

anxiety and both needed long-term counseling; in addition, G.C. had symptoms of

ADHD. The psychologist recommended that the children be reunited.

       Although ICPC evaluations were pending as to father and both grandmothers in

other states, Mother stated she would prefer that the children remain in California in the

care of A.C. The Department did not report on the CLETS results as to A.C.; however,

                                              7
the social worker stated, “There are serious concerns regarding the safety of children in

[A.C.’s] home as her spouse [J.C.] handcuffed [G.C.] in order to manage his behavior.”

It does not appear that the incident ever resulted in any criminal charges against J.C.

       At the disposition hearing, the juvenile court found good cause to deviate from the

placement preferences under ICWA. The court explained, “First of all, it is the request of

the mother of the children, who has been the primary caretaker, that I do deviate from the

preference. And although I appreciate that one parent is an Indian parent and the other

parent is not, I believe that the non Indian parent does have some standing with this Court

to indicate her preference, and I am considering that preference. [¶] In addition, I have

heard from the Indian children, one of which is nine, the other of which is 11, both

indicating that they do not want to be placed with the grandparent that they do not know

at this particular time. [¶] Finally, there is no available Indian home for the children to

be placed with right now because we do not have a completed ICPC.” The tribal counsel

stated to the court, “Your Honor, I believe the law is clear that any relative is considered

a first-tier placement preference.” The juvenile court ordered reunification services for

parents.

       The Department filed a six-month review report in November 2011. The children

had been placed in a foster home together, but the foster parents had requested

termination in September because the children were aggressive toward each other and

toward other children in the home. A second foster family requested termination in

October because the children were physically aggressive, refused to attend school,

refused to help with chores, and constantly yelled and cursed. Both children had been in

                                              8
individual counseling, which had stopped when they switched foster families. ICPC

evaluations of the maternal grandmother in Arizona and of father in Nebraska had been

approved, and an ICPC evaluation of the paternal grandmother in Minnesota was

pending. The children told the social worker they would like to be placed with their

maternal grandmother. C.C. would also like to be placed with father, but G.C. did not

want to be placed with father.

       At the review hearing, the juvenile court continued reunification services and

authorized the Department to place the children with father in Nebraska.

       In April 2012, the Department filed a detention report under section 387. The

report stated C.C. had been removed from father’s home in Nebraska and had been

placed in a confidential foster home. Father had contacted the social worker and said he

was no longer able to care for the children because they were out of control, constantly

fighting, yelling, throwing things at each other, and being disrespectful toward him. C.C.

had put father’s girlfriend’s son in a chokehold when the son tried to separate G.C. and

C.C. during a physical altercation. Father said the children had several times put at risk

the safety of other children in the home. Father later agreed to keep G.C. in the home and

to get him appropriate services. Mother again requested placement of the children with

A.C. or the maternal grandmother.

       At the detention hearing on the section 387 petition, the juvenile court found a

prima facie case and detained C.C. as to father. The court found that an able, assessed,

and willing relative was not available for C.C.’s placement, but stated, “This is a

temporary finding and does not preclude later placement with a relative under W&IC

                                             9
361.3.” The court ordered ICPC proceedings as to the maternal grandmother in Arizona

and authorized placement with her once ICPC approved.

       On April 16, 2012, A.C. was referred to the relative assessment unit for placement

of C.C. However, on May 2, A.C. withdrew her referral for possible placement of C.C.

with her.

       The Department filed a jurisdiction/disposition report as to the section 387 petition

in May 2012. C.C. told the social worker that her problems in father’s home were

because father would not leave her alone and give her space. She did not want to return

to father’s care because he treated her “differently” than other children in the home.

       The Department filed a 12-month status report in May 2012. G.C. remained with

father in Nebraska, and C.C. was placed in a foster home. Father reported that G.C. was

no longer acting out and was getting along well with other children in the home. Mother

visited C.C. regularly since C.C.’s return to California, and A.C. supervised the visits.

C.C. stated she wished to be placed with her maternal grandmother in Arizona. An

expert witness for the children’s tribe filed a declaration on June 7, 2012, stating that

C.C.’s placement in a licensed foster family home did not meet placement preferences

under ICWA. The declaration further stated it was the witness’s understanding there

were relatives to consider for placement and recommended that “the [D]epartment

continue[] to search for relative placement and/or a Native American home to place

[C.C.]”

       The Department filed an addendum report in July 2012. The maternal

grandmother withdrew from the home study program in Arizona, and as a result, the

                                             10
ICPC referral was denied. G.C. remained with father in Nebraska, and C.C. remained in

foster care. A delivered service log attached to the report indicated that on June 19, A.C.

had again been referred to the relative assessment unit.

       At the review hearing on July 19, 2012, the juvenile court again found good cause

to deviate from the ICWA placement preferences. The court terminated reunification

services as to father for C.C. and continued G.C. in father’s custody under family

maintenance. The court terminated reunification services for mother as to both children.

The court found that C.C. was not a proper subject for adoption, and a planned permanent

living arrangement with a foster family with a goal of adoption was her appropriate

permanent plan. Mother filed a notice of appeal from that order.

       In August 2012, the Department filed a section 387 petition as to G.C. after father

informed the Department he was no longer able to care for G.C. because of G.C.’s

aggressive and uncontrollable behavior. The section 387 detention report stated father

did not wish to have any type of contact with G.C. The report stated that mother had

requested that G.C. be placed with A.C. but that J.C. “was investigated by the

Department for suspected child abuse” involving G.C.

       At the detention hearing on the section 387 petition, the juvenile court found a

prima facie case and detained G.C. from father.

                                    III. DISCUSSION

       A. Standing

       The Department contends mother lacks standing to appeal the denial of relative

placement.

                                            11
       “‘[T]o have standing to appeal, a person generally must be both a party of record

and sufficiently “aggrieved” by the judgment or order.’ [Citation.]” (In re Daniel M.

(2003) 110 Cal.App.4th 703, 709.) In In re Esperanza C. (2008) 165 Cal.App.4th 1042,

1053-1054, the court held that a mother had standing to challenge a juvenile court order

regarding placement decisions. The court explained: “Until parental rights are

terminated, a parent retains a fundamental interest in his or her child’s companionship,

custody, management and care. [Citations.] At the time of the proceedings at issue here,

[the mother’s] parental rights had not been terminated. This court has also recognized

that placement of a child with a relative has the potential to alter the juvenile court’s

determination of the child’s best interests and the appropriate permanency plan for that

child, and may affect a parent’s interest in his or her legal status with respect to the child.

[Citations.] While an alternative permanency plan to adoption may be unlikely on this

record, it remains a statutory option for the juvenile court. We resolve doubts in favor of

[the mother’s] right to appeal. [Citation.]” (See also In re H.G. (2006) 146 Cal.App.4th

1, 10 [parent had standing to challenge an order removing minor from relative

placement].)

       In the present case, mother’s parental rights have not been terminated; indeed, the

juvenile court has determined that C.C.4 is not a suitable candidate for adoption and




       4At the time of the July 19 hearing, G.C. was with father and not in need of a
new placement.


                                              12
therefore no hearing was set under section 366.26.5 Based on the cases cited above, we

conclude mother has standing to raise the issue of relative placement.

       B. Forfeiture

       The Department next contends mother has forfeited the relative placement issue

because she failed to raise the issue in the juvenile court. However, mother repeatedly

raised the issue with the social worker. We conclude the issue has not been forfeited.

       C. Relative Placement

       “(a) In any case in which a child is removed from the physical custody of his or

her parents pursuant to Section 351, 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).) “For a relative to be considered appropriate to receive placement of a child under

this section, the relative’s home shall first be approved pursuant to the process and

standards described in subdivision (d) of Section 309.” (§ 361.3, subd. (a)(8).) “If the

court does not place the child with a relative who has been considered for placement

pursuant to this section, the court shall state for the record the reasons placement with

that relative was denied.” (§ 361.3, subd. (e).) Relative placement is also given priority

in ICWA cases (§ 361.31, subd. (b)(1)) so long as it complies with “prevailing social and

cultural standards of the Indian community.” (§ 361.31, subd. (f).)


       5 A different rule applies after a parent’s rights have been terminated: “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. (2011)
52 Cal.4th 231, 238.) This is not such a case.

                                              13
       Here, although A.C. had earlier requested assessment as a caregiver for the

children, she withdrew her request in May 2012. She was again referred to the relative

assessment unit on June 19. The record does not indicate whether that referral, only one

month before the hearing on review, had yet been finalized. The orders appealed from do

not address that issue. Because the assessment was still pending at the time of the

hearing, we conclude the issue is not ripe for appellate review.

                                      IV. DISPOSITION

       Appeal dismissed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                                      J.
We concur:


       RAMIREZ
                              P.J.

       KING
                                 J.




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