APPEAL from the Superior Court of Riverside County. Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super.Ct.No. RIJ115877)
The opinion of the court was delivered by: Ramirez P.J.
CERTIFIED FOR PUBLICATION
A.A., the minor, was removed from mother's custody in 2008 when she was arrested on a federal warrant and was placed in his father's custody, with reunification services for mother. While mother was still imprisoned, the court terminated dependency jurisdiction, awarding custody to father. However, a month later, the dependency was reactivated based on new allegations that the minor was physically abused by father, while mother was still serving her federal sentence. This time the court authorized services for father, but not mother. When father failed to reunify, services were terminated and the matter was set for a hearing to select and implement a permanent plan of adoption. (Welf. & Inst. Code,*fn1 § 366.26.) Mother filed a request to modify the order denying her services (§ 388), which was heard and denied at the section 366.26 hearing, and the juvenile court proceeded to terminate parental rights. Mother appealed.
On appeal, mother asserts (1) her constitutional rights were violated when the court did not consider placing A.A. in her custody at the disposition hearing on the subsequent petition pursuant to section 361.2, and (2) because of this failure, the order denying her section 388 petition was erroneous. We affirm.
A.A. originally came to the attention of Riverside County Department of Public Social Services (DPSS) in 2008 when he was four years old, along with his then 10-year-old sister, J.R.*fn2 , when mother was arrested on a federal warrant for drug charges following a "sweep" by law enforcement. A dependency petition was filed alleging neglect and failure to protect due to mother's incarceration, along with her history of drug use and mental illness (§ 300, subd. (b)), as well as alleging her inability to provide for the children due to her incarceration, and the unknown whereabouts of the fathers of the children.*fn3 After locating and assessing the home of A.A.'s father, N.A., the minor was detained in that home on May 23, 2008. On June 19, 2008, at the jurisdiction hearing, A.A. was declared a dependent on all the allegations pertaining to mother and was placed with his father with maintenance services. (§ 364.) Reunification services were ordered for mother.
At the six-month status review hearing held on April 1, 2009 (§ 366.21, subd. (e)), the court awarded sole legal and physical custody of A.A. to his father, N.A., with directions to dismiss the dependency upon the filing of family law orders. However, the following month, DPSS filed a "reactivated petition" when it was learned A.A. had been beaten by his father with a belt, leaving welts. The reactivated petition alleged physical abuse by father (§ 300, subd. (a)), as well as neglect and failure to protect or provide necessities by both mother and father (§ 300, subd. (b)), and an allegation that mother had left the minor without any provision for support. (§ 300, subd. (g).) The petition also included an allegation under section 300, subdivision (b) that the parents have a history with child protective services but failed to benefit from services.
The minor was detained in the home where his older sister was placed. Mother informed the social worker that she wanted her aunt considered for relative placement, and indicated that there were no other relatives to consider. However, that aunt had been assessed previously by the Relative Assessment Unit, and her home had been found to be inappropriate for placement.*fn4
On September 22, 2009, the juvenile court conducted the combined jurisdiction and disposition hearing. As to the allegations against both parents, the court made true findings that A.A. was a child who came within the provisions of section 300, subdivisions (a), (b), and (g).*fn5 The court then made findings under section 361, subdivision (c)(1) and (5) as to mother, and made findings under section 361, subdivision (c)(1) as to N.A., before removing custody from both parents. As to mother, no services were ordered because she was in prison for five years. (§ 361.5, subd. (e)(1).)
On September 23, 2010, the court conducted the 12-month status review hearing. (§ 366.21, subd. (f).*fn6 ) The court terminated father's reunification services and scheduled a hearing pursuant to section 366.26. At the hearing, mother's counsel informed the court that A.A. was with someone mother approved of, and that she was submitting on the matter being set (for a hearing pursuant to section 366.26). Nevertheless, after the hearing, mother filed a notice of intent to file a writ petition on October 12, 2010. The petition was dismissed on December 8, 2010, for failing to file a writ petition. (Cal. Rules of Court, rule 8.452(c)(1).)
On January 21, 2011, mother filed a petition to modify a prior order (§ 388) by way of a JV-180 form for a request to change court order. In support of the petition, mother asserted the existence of changed circumstances, referring to several programs mother had completed while incarcerated. On January 24, 2011, the court continued the section 366.26 hearing, and conducted a post-permanency review hearing. (§ 366.3.) In connection with that hearing, mother's counsel signed a stipulation re: post permanency planning hearing and order on her behalf. Among other matters, the stipulation agreed that the extent of mother's progress towards alleviating or mitigating the causes necessitating placement has been "none."
On April 11, 2011, the court denied mother's 388 petition for modification. The court then conducted the section 366.26 hearing to select and implement the permanent plan of adoption. The mother was present at the hearing, and objected to the proposed termination of parental rights, but did not testify. Mother's counsel argued in support of mother's request for selection of a permanent plan of guardianship. Specifically, mother relied on the beneficial parent-child relationship (§ 366.26, subd. (c)(B)(ii)), and the sibling relationship (§ 366.26, subd. (c)(B)(v)) exceptions to adoptability. The court found the minor was adoptable and that termination of parental rights would not be detrimental to him. The court then terminated parental rights of both parents. On June 3, 2011, mother appealed from the judgment terminating parental rights.
1. The Juvenile Court Was Not Required to Consider Placing A.A. With Mother Where She Was Not a Nonoffending Parent Pursuant to Section 361, Subdivision (c), and Where Custody Had Previously Been Removed Upon a Finding of Risk Which Had Not Been Alleviated.
Mother asserts that when A.A. was initially removed from his father's custody at the proceedings on the reactivated dependency petition, she became the nonoffending non-custodial parent entitled to custody, who was able to arrange for care of the minor by family members. She thus asserts that the court's failure to consider placement of A.A. in her custody, pursuant to section 361.2, violated her constitutional rights. She asserts the error is a pure issue of law which may be raised for the first time on appeal despite the failure to challenge the error following the disposition order respecting the reactivated petition. We disagree.
There are three problems with mother's argument. First, mother forfeited the issue because she did not request custody at the disposition hearing on the reactivated petition. Second, mother was neither a nonoffending nor non-custodial parent where allegations of neglect and failure to protect were made against mother in the reactivated petition (§ 361, subd. (c)), and the juvenile court had previously removed custody from her based on a finding of detriment, precluding any consideration for placement pursuant to section 361.2. Third, because DPSS had investigated the only relative suggested by the incarcerated mother (whose sentence was then calculated to expire in ...