Filed 8/19/14 In re Gabriel S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re GABRIEL S., a Person Coming Under the Juvenile Court Law.

D065332

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

(Super. Ct. No. NJ14316) Plaintiff and Respondent,

v.

RICHARD R.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Carol

Isackson, Judge. Dismissed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant

and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent. Richard R. appeals the juvenile court order terminating parental rights to his

biological son, Gabriel S. Richard contends Gabriel's relationship with his mother,

Carolyn S., precluded the termination of Carolyn's parental rights and by extension his

own. We conclude Richard does not have standing to appeal this issue. Accordingly, we

dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Gabriel, now nine, was first taken into protective custody at age two when he and

Carolyn were dropped off at an Orange County hospital. Carolyn was severely

intoxicated and Gabriel appeared neglected. Gabriel was filthy and wearing only pants

and a soiled diaper. The Orange County social services agency filed a petition in the

juvenile court on Gabriel's behalf and the court took jurisdiction over Gabriel. Carolyn

told social workers either Richard or another man could be Gabriel's father; neither was

listed on Gabriel's birth certificate. Richard submitted to paternity testing confirming he

was Gabriel's biological father, but did not maintain contact with the Orange County

agency or participate in the dependency proceedings. Carolyn engaged in drug and

alcohol treatment and other services and was reunified with Gabriel after 18 months.

Less than two years after the termination of the dependency, Gabriel was taken

into protective custody again, this time in San Diego County. The San Diego County

Health and Human Services Agency (Agency) filed a Welfare and Institutions Code

section 300, subdivision (b)1 petition on Gabriel's behalf. The petition alleged Carolyn

1 All further statutory references are to the Welfare and Institutions Code. 2 used narcotics and alcohol to excess and was discovered lying in her bed "in a zombie

like state" unable to care for Gabriel. Richard's whereabouts were initially unknown, but

before the jurisdiction and disposition hearing he was located in an Oklahoma prison on a

California conviction. At the time the petition was filed in March 2012, a criminal

protective order prohibited Richard from any contact with Gabriel. The order was set to

expire in December 2019. Carolyn told the Agency's social worker Richard had been

arrested after severely beating her in front of Gabriel and that he was sentenced to eight

years in prison for that assault.

The juvenile court removed Gabriel from Carolyn's custody and placed him in a

licensed foster home. At the jurisdictional and dispositional hearing, the court ordered

reunification services for Carolyn, but not Richard. The juvenile court also issued an

order prohibiting Richard from having any contact with Gabriel based on the existing

restraining order. Gabriel did not know Richard and believed another man was his father.

Carolyn was initially successful in her reunification plan. In May 2013, the juvenile

court placed Gabriel in her care and ordered family maintenance services.

Six weeks later though, Carolyn faltered. The Agency received a referral alleging

she was drinking and suicidal. Carolyn contacted the Agency's social worker admitting

she had relapsed and that she planned to take Gabriel to his former foster parents' home.

Shortly thereafter, Carolyn's landlord found her unresponsive and she was taken to the

hospital in an ambulance. As a result, the Agency placed Gabriel with his former foster

parents and filed a supplemental petition under section 387 alleging Carolyn was no

longer able to provide Gabriel with adequate care and supervision.

3 In advance of the jurisdiction and disposition hearing on the petition, Carolyn told

the Agency's social worker she wanted Gabriel's foster parents to take guardianship of

him. At the August 12, 2013, hearing, the court found Gabriel's placement with Carolyn

was no longer appropriate, removed him from Carolyn and, finding Carolyn had not

made substantive progress with the case plan, terminated her reunification services and

set a permanency planning hearing.

After Gabriel was removed from Carolyn's care, she initially visited him regularly

and talked with him on the phone frequently.2 As time went on, however, Carolyn began

to miss visits and during at least one visit appeared intoxicated. As a result, her visitation

was terminated. Gabriel's foster family also reported his behavior seemed to worsen after

contact with Carolyn.

The contested permanency planning hearing occurred on January 24, 2014. At its

conclusion, the juvenile court issued its order terminating Carolyn's and Richard's

parental rights. The court found it was likely Gabriel would be adopted, that adoption

was in Gabriel's best interests and that Carolyn had not shown the beneficial parental

relationship exception applied. Both Carolyn and Richard filed notices of appeal.

Shortly after briefing was completed, Carolyn filed a notice of abandonment of appeal

2 Before the permanency planning hearing, Gabriel's foster parents decided they were no longer able to care for Gabriel. As a result, the Agency filed a second section 387 petition seeking the juvenile court's approval of Gabriel's placement with new foster parents. Gabriel was placed with a new foster family and by the time of the hearing was thriving in his new home and the foster family wanted to adopt Gabriel. 4 and request for dismissal. We dismissed Carolyn's appeal pursuant to California Rules of

Court, rule 8.316 and only Richard's appeal proceeds.

DISCUSSION

Richard does not contend his own parental rights were wrongly terminated.

Rather, he argues only that the juvenile court should have found the beneficial parent-

child relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(i)

applied to preclude termination of Carolyn's parental rights. He asserts that if this court

agrees the exception applies, his own parental rights must also be reinstated.

"Not 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.)

"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. [Citations.] These rules apply with full force to

appeals from dependency proceedings." (Ibid.) "To determine whether father is

aggrieved by the juvenile court's order . . . , we must therefore precisely identify father's

interest in the matter." (Ibid.)

Richard is a biological father only. His rights in Gabriel's dependency proceeding

were "limited to establishing his right to presumed father status . . . ." (In re A.S. (2009)

180 Cal.App.4th 351, 362.) Richard did not have an absolute right to seek custody of

Gabriel or to reunification services. And, unlike Carolyn, because Richard "did not

demonstrate a willingness to accept full parental responsibilities . . . , the court was not

5 required to make a particularized finding of unfitness or detriment before terminating his

parental rights. . . ." (Ibid.)

Richard asserts the juvenile court's order terminating Carolyn's parental rights

supports his standing to appeal that order. We disagree. Richard's rights in this case

were limited to elevating his parental status. Richard never asserted this right and does

not contend he would pursue his rights even if the juvenile court's order is reversed. In

fact, a restraining order prohibiting Richard from contacting Gabriel is in place until

2019, and Richard is not scheduled to be released from custody until 2017. Richard's

limited interests do not interweave with the interests of Carolyn in this proceeding, with

whom Richard has no continuing relationship.

Richard cites In re DeJohn B. (2000) 84 Cal.App.4th 100 in support of his

argument that he has standing to press Carolyn's rights. He argues under In re DeJohn B.

if we reverse the court's order based on Carolyn's beneficial relationship with Gabriel, we

must also reverse the termination of parental rights as to him, therefore he has standing to

pursue that issue. We reject this circular argument. In In re DeJohn B. the court of

appeal reversed the termination of mother's parental rights on her direct appeal on the

social service agency's failure to provide her with notice of the proceedings. (Id. at

p. 102.) The court concluded it was in the best interests of the children to also reverse the

order as to the father since the possibility remained the children could be reunited with

mother. (Id. at p. 110.) The court saw no reason to leave the children without the

benefits of a father at that point in the case. (Ibid.) Here, by dismissing her appeal

6 Carolyn has accepted the trial court's termination of her parental rights and there is no

possibility she will reunify with Gabriel.

Richard also cites In re L.Y.L. (2002) 101 Cal.App.4th 942. That case, however,

addresses a parent's standing to raise the beneficial sibling relationship exception of

section 366.26, subdivision (c)(1)(B)(iv). A parent has standing to raise that issue

because it is the parent that has the burden of proving the exception applies. (In re L.Y.L.,

at pp. 948-950.) In this regard, the parent's rights and interests are statutorily interwoven

with the rights and interests of the child in having a sibling relationship. Richard's

limited rights as a biological father are not similarly intertwined with Carolyn's interest in

preventing termination of her parental rights.

In sum, Richard was not directly and injuriously affected by the court's ruling that

Carolyn did not establish the beneficial parent-child relationship exception to adoption

applied. Richard does not have standing to appeal this issue, which affects only

Carolyn's interests.

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DISPOSITION

The appeal is dismissed.

O'ROURKE, J.

WE CONCUR:

MCINTYRE, Acting P. J.

IRION, J.

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