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Filed 8/1/14 In re Jayden M. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In re JAYDEN M., a Person Coming Under the 

Juvenile Court Law.

C075336

SACRAMENTO COUNTY DEPARTMENT OF 

HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

J.M. et al.,

Defendants and Appellants.

(Super. Ct. No. JD232775)

J.M. (mother) and C.M. (father), parents of the minor Jayden M., appeal from the 

juvenile court’s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; 

unless stated otherwise, statutory references that follow are to the Welfare and 

Institutions Code.) They contend (1) the Sacramento County Department of Health and 
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Human Services (Department) and the juvenile court erroneously removed Jayden from 

his prospective adoptive parents without complying with the statutory procedures set 

forth in sections 366.26, subdivision (n) and 361.3; (2) there is insufficient evidence 

Jayden was adoptable; and (3) the juvenile court violated parents’ rights to effective 

assistance of counsel and a fair hearing and abrogated its duty to make an independent 

decision when it denied mother’s request for a continuance of the section 366.26 hearing 

in light of the Department’s failure to provide an updated assessment of potential 

adoptive placements to the court. We disagree and affirm the juvenile court’s orders. 

FACTS AND PROCEEDINGS

A. Detention and Reunification Services

On October 19, 2012, after his father left Jayden with his paternal grandmother 

with an eye infection and no provision for support, the Department petitioned the juvenile 

court, pursuant to section 300, alleging that Jayden comes within the jurisdiction of the 

court because of the father’s untreated substance abuse problem and history of domestic 

violence, and the mother’s prostitution and substance abuse. The court sustained the 

petition and placed Jayden with his paternal aunt and uncle. 

Reunification services were offered to both parents, but father failed to use the 

offered services, and mother only partially engaged in services. After several months of 

services, in February 2013, both parents expressed a desire to waive reunification 

services. Their reunification services were terminated at the six-month review hearing in 

June 2013, based on the Department’s recommendation. Neither parent appealed this 

decision. 

B. Jayden’s Health and Behavior

When detained, Jayden was “in good health and on target developmentally in

terms of motor skills,” with “a possible developmental delay or hearing deficit given that 

[he was] not yet speaking.” Physical examinations revealed Jayden needed dental and 
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aural intervention, and he received all necessary treatment to address these concerns by 

June of 2013. Jayden began a course of speech therapy to address his delayed speech, 

and began speaking while in the care of his paternal aunt and uncle. 

His caregivers (paternal aunt and uncle) noted Jayden would act out by 

intentionally hitting his head on the floor, would scream in the middle of the night until 

his aunt would soothe him, and would curl into a ball and roll himself back and forth 

making unusual noises. Sometimes, to get attention, Jayden would “put his face in [his 

aunt’s] buttocks and sometimes try to put his face between her legs in her private area,” 

and occasionally he would grab women’s breasts and spank their buttocks. However, 

these behaviors decreased with time, and his caregivers noticed Jayden began listening 

and interacting more, and acting out in anger less. 

At the time the selection and implementation report was prepared, Jayden was still 

in the care of his paternal aunt and uncle, and was in good health aside from a diagnosis 

of eczema. He had made progress in speech therapy, and was described as having 

excellent motor skills. He was eating well and sleeping through the night. Jayden was 

noted to be “generally adoptable . . . due to his young age and general good health.” No 

behavioral issues were noted in the report, and he was instead described as a “happy, 

loving child.” 

C. Placement With Paternal Aunt and Uncle

When the minor was placed with his paternal aunt and uncle in October 2012, they 

expressed an interest in adopting Jayden. Several months later, in June 2013, based on an 

assessment that the paternal aunt and uncle were meeting Jayden’s needs and aiding him 

in his speech and motor skills development, a permanency plan suggested that Jayden 

remain with them to be adopted. They began a home study by an adoption agency, and 

again indicated their desire to adopt Jayden. 
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However, on October 21, 2013, the day of the scheduled selection and 

implementation hearing, Jayden’s counsel requested ex parte that the court change its 

order requiring a noticed petition to move Jayden from his placement with his paternal 

aunt and uncle because the Department had developed concerns about the caregivers and 

no longer believed the placement was in Jayden’s best interest. In a visit to the aunt and 

uncle’s residence, a Department investigator and intern observed Jayden’s uncle 

repeatedly refer to Jayden as “retarded” in Jayden’s presence; saw him pull Jayden from a 

crouched position to standing by the ear and then restrain him by the ear when he 

attempted to run away; and heard him state that Jayden had been living there “too long,” 

would grow up to ruin the uncle’s credit, and was a “home-wrecker.” The uncle also 

made Jayden sit next to him for hours while the uncle played games online, gave Jayden 

“extra punishment” to “toughen up the boy,” bragged that the money he and his wife 

were receiving for Jayden’s care had paid for a large flat screen television, and indicated 

that they could get even more money if they were able to have Jayden labeled as special 

needs. 

Prompted by the inquiry of father’s counsel, a social worker (based on her 

conversation with the investigator) informed the court that the paternal uncle admitted 

pulling Jayden’s ear, but said that it was not very hard and did not leave any marks, and 

he denied calling Jayden retarded but admitted saying that what Jayden was doing was 

retarded. The social worker was unsure whether there had been long-term emotional 

abuse. 

Over father’s objection, the court granted the minor’s request based on the change 

in circumstances, and changed Jayden’s placement from a specific to general. The court 

continued the selection and implementation hearing to investigate other potential relative 

placements to ensure that the Department could locate a suitable home for Jayden. 
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D. Continued Selection and Implementation Hearing 

At the continued selection and implementation hearing, counsel for the 

Department said Jayden was going to be placed in an adoptive home that same day. Prior 

to selecting that placement, the Department had assessed both the maternal and paternal 

grandmothers (the proposed relative placements), and determined they were unacceptable 

because of “psychosocial issues.” Jayden’s counsel was supportive of terminating 

parental rights and of removing him from his aunt and uncle’s home. Father’s counsel 

entered “general objections,” and specifically objected to the finding that the child was 

likely to be adopted and the recommendation that father’s parental rights be terminated. 

Mother’s counsel objected to the termination of mother’s parental rights and to the 

court’s finding of Jayden’s adoptability. 

Mother’s counsel sought a continuance to review the assessment with mother and 

to determine whether an update of the recommended findings and orders was required. 

The social worker reported that the paternal grandmother’s husband was incarcerated for 

80 years for molesting a foster child that was in their home, and that it was unclear 

whether the grandmother was still married to him. She also reported the maternal 

grandmother had her son, who had sexually abused Jayden’s mother previously, living 

with her. Therefore, the Department recommended Jayden be placed and adopted by 

another family with an approved adoption home study. The court denied mother’s 

request for a continuance, concluding no information or offer of proof had been provided 

to indicate Jayden was not adoptable, which was the issue before the court, and that 

neither of the grandmothers’ homes appeared appropriate for placement. 

The court found clear and convincing evidence Jayden was likely to be adopted 

and that termination of parental rights would not be detrimental to him. The court also 

selected a permanent plan of adoption and ordered the Department to submit a report of 
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kinship evaluations of the maternal and paternal grandparents and the reasons for denying 

placement with those individuals post-hearing. 

Both parents appeal the court’s order terminating parental rights. 

DISCUSSION

I

Relative Placement

Parents contend the court abused its discretion when it failed to comply with the 

procedural requirements relating to relative placement codified in sections 361.3 and 

366.26, subdivision (n). We conclude section 366.26, subdivision (n) is inapplicable to 

the instant matter, and, regardless, parents lack standing to raise this claim because they 

are not the aggrieved parties. 

1. Procedural Inapplicability of Section 366.26, Subdivision (n)

Section 366.26, subdivision (n) permits a court, under certain circumstances, to 

designate a current caretaker as a prospective adoptive parent at a hearing to terminate 

parental rights or thereafter. (§ 366.26, subd. (n)(1).) Subdivision (n) of section 366.26 

also requires that notice be given to caretakers who are or may be designated as 

prospective adoptive parents before a child is removed from their custody. (§ 366.26, 

subd. (n)(3).) 

We construe the statute within the context of the “ ‘overall statutory scheme.’ ” 

(People v. Elmore (2014) 59 Cal.4th 121, 140.) While section 366.26 relates to the 

procedures for terminating parental rights, other provisions in the statutory scheme 

mandate procedures that apply prior to the termination of parental rights. (See, e.g., 

§§ 319 [detention], 355-356 [jurisdiction], 358, 360 [disposition], 361.5 [denial of 

reunification services], 366.21, 366.22 [review hearings, including termination of 

reunification services], 366.26 [termination of parental rights].) 
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In the context of this statutory framework, section 366.26, subdivision (n)(3)’s 

notice requirements do not apply when a child is removed from potential prospective 

adoptive parents prior to the termination of parental rights. Here, though the record is 

not explicit, it appears the minor was removed from his paternal aunt and uncle’s custody 

prior to the continued hearing on the termination of parental rights. Thus, section 366.26, 

subdivision (n) is inapplicable to the instant facts. Furthermore, even if Jayden was 

removed from his paternal aunt and uncle concurrent with or subsequent to the selection 

and implementation hearing, as shown below, parents do not have standing to assert 

rights under section 366.26, subdivision (n).

2. Lack of Standing

“Although standing to appeal is construed liberally, and doubts are resolved in its 

favor, only a person aggrieved by a decision may appeal. [Citations.]” (In re K.C. 

(2011) 52 Cal.4th 231, 236.) Thus, “[a] parent cannot raise issues on appeal which do not 

affect his or her own rights.” (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541; see also 

In re Frank L. (2000) 81 Cal.App.4th 700, 703 [parent must be “party aggrieved” to have 

standing to appeal]; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 

(Cesar V.) [party’s interest must be “injuriously affected” to have standing].) “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., supra, 

52 Cal.4th at p. 238.) Here, whether the relative placement procedures were satisfied 

does not advance parents’ termination of parental rights arguments, which are premised 

instead on the court’s adoptability finding. 

“In enacting subdivision (n) of section 366.26, the Legislature provided standing 

to a designated adoptive parent to petition the court for a hearing on whether the child’s 

best interests would be served by removing the child from the caretaker’s home after 
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termination of parental rights and before the petition of adoption has been granted.” 

(R.H. v. Superior Court (2012) 209 Cal.App.4th 364, 372.) This statutory right belongs 

only to the prospective adoptive parents, and not to the biological parents, whose rights 

are not injuriously affected by a court’s failure to comply with the procedural notice 

requirements of section 366.26, subdivision (n). (See In re Desiree M. (2010) 

181 Cal.App.4th 329, 333-334 [mother lacked standing to contend the children were not 

properly notified of the continued section 366.26 hearing in their own case because her 

rights were not injuriously affected by the lack of notice].) 

Similarly, parents have no standing to appeal based on section 361.3. 

“Section 361.3 gives ‘preferential consideration’ to a relative request for placement, 

which means ‘that the relative seeking placement shall be the first placement to be 

considered and investigated.’ ” (Cesar V., supra, 91 Cal.App.4th at p. 1033, citing 

§ 361.3, subd. (c)(1).) Until parental rights are terminated, if the child requires a new 

placement, any relative who has not been found unsuitable must again receive 

preferential consideration. (§ 361.3, subd. (d); Cesar V., at p. 1031.) Once a parent’s 

reunification services have been terminated, the parent has no standing to appeal relative 

placement preference issues. (Cesar V., at pp. 1034-1035.) Here, the parents’ 

reunification services were terminated. Thereafter, the court heard evidence why the 

three proposed relative placements (paternal aunt and uncle, maternal grandmother, and 

paternal grandmother) were not suitable and denied placement with those relatives. Thus, 

only those relatives could contest the placement denials. (Ibid.) 

II

Substantial Evidence Jayden M. Was Adoptable

Parents contend there was insufficient evidence Jayden was adoptable because the 

Department’s assessment was not updated after Jayden was removed from placement 

with his paternal aunt and uncle, and because there was insufficient evidence he would be 
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adopted “in a reasonable time.” We conclude the initial assessment, in the absence of 

any evidence that Jayden’s health or behavior had deteriorated, was sufficient evidence of 

his adoptability, and that the presence of an identified prospective adoptive placement at

the time of the selection and implementation hearing supported the conclusion that 

Jayden would be adopted “in a reasonable time.” 

A court must find, by clear and convincing evidence, that a child is likely to be 

adopted before terminating parental rights and selecting adoption as the permanent plan 

for the child. (§ 366.26, subd. (c)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368; 

In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) We review this finding for 

substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) “[W]e 

presume in favor of the order, considering the evidence in the light most favorable to the 

prevailing party, giving the prevailing party the benefit of every reasonable inference and 

resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 

27 Cal.App.4th 567, 576.) 

“The issue of adoptability . . . focuses on the minor, e.g., whether the minor’s age, 

physical condition, and emotional state make it difficult to find a person willing to adopt 

the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that 

the minor already be in a potential adoptive home, or even that there be a prospective 

adoptive parent. (Ibid.; see also § 366.26, subd. (c)(1) [“The fact that the child is not yet 

placed in a preadoptive home . . . shall not constitute a basis for the court to conclude that 

it is not likely the child will be adopted”].) And the prospect that the minor may have 

some continuing behavioral problems does not foreclose a finding of adoptability. 

(See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) However, “[t]here must be 

convincing evidence of the likelihood that adoption will take place within a reasonable 

time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) 

Here, Jayden was three years old and was assessed as being in general good 

health. Jayden’s only noted health issue was a diagnosis of eczema; his previous dental 
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and hearing issues had been addressed prior to the section 366.26 hearing. Additionally, 

he had made significant progress in communication and educational development, his 

gross and fine motor skills were “excellent,” and his behavioral issues (tantrums and 

inappropriate touching) had apparently dissipated with time and instruction. Moreover, 

the Department had located a prospective adoptive placement for Jayden, where he was 

to be transferred immediately following the section 366.26 hearing. This is substantial 

evidence Jayden is likely to be adopted in a reasonable time (In re Lukas B., supra, 

79 Cal.App.4th at p. 1154) and that Jayden is adoptable. 

Parents’ contentions that the assessment was “stale” by the time the continued 

section 366.26 hearing took place and that the assessment failed to comply with the 

requirements of section 366.21, subdivision (i) are forfeited for failing to ask for an 

updated assessment or object on those bases in the juvenile court. (In re Dakota H. 

(2005) 132 Cal.App.4th 212, 221-222; In re Erik P. (2002) 104 Cal.App.4th 395, 399.) 

III

Denial of Request for Continuance

Mother contends the juvenile court’s allegedly erroneous denial of her request for 

a continuance of the section 366.26 hearing to memorialize the Department’s assessment 

of proposed relative placements (the grandmothers) and of Jayden’s adoptability 

following his removal from his aunt and uncle’s home violated her right to effective 

assistance of counsel and a fair hearing, and contends that by denying the requested 

continuance, the court abrogated its duty to make an independent decision. We note that 

father forfeited this contention by failing to seek a continuance or object to the denial of 

mother’s requested continuance in the juvenile court. (In re Dakota H., supra, 

132 Cal.App.4th at pp. 221-222.)

The only prejudice mother claims resulted from the court’s refusal to continue the 

hearing is mother’s alleged inability to “present[] testimony of [the] maternal 
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grandmother’s appropriateness to care for Jayden” and “to illustrate the bond Jayden 

shared with [the paternal grandmother].” Even if mother were to prevail on this claim, it 

would not impact the termination of her parental rights; thus, mother has not established 

good cause to continue the section 366.26 hearing. 

We review a juvenile court’s denial of a continuance for abuse of discretion. 

(In re B.C. (2011) 192 Cal.App.4th 129, 143-144.) We do not dispute mother’s 

contention that “[a] trial court may not exercise its discretion over continuances so as to 

deprive [a party] of fundamental rights, such as the right to prepare . . . , the right to 

counsel, and the right to effective assistance of counsel.” (See, e.g., People v. Snow 

(2003) 30 Cal.4th 43, 70 [cannot deprive defendant of reasonable opportunity to prepare 

through denial of continuance]; In re Julian L. (1998) 67 Cal.App.4th 204, 208 [court 

should have granted continuance for newly appointed parent’s counsel to ascertain 

parent’s wishes]; Hughes v. Superior Court (1980) 106 Cal.App.3d 1, 3-4 [error to force 

unprepared counsel to proceed with defense of criminal trial].) Nonetheless, mother has 

not shown in this instance that the juvenile court’s denial of her request impinged her 

fundamental rights. 

A court may grant a continuance only if it is in the best interest of the child. 

(§ 352, subd. (a).) Here, the requested continuance could not even potentially impact the 

court’s determination of Jayden’s adoptability, which is the court’s primary focus at a 

section 366.26 hearing. (See In re A.A. (2008) 167 Cal.App.4th 1292, 1325 [“[T]he 

court’s focus at a section 366.26 hearing is not upon who will adopt a dependent child but 

rather whether the child is likely to be adopted if rights are terminated. (§ 366.26, subd. 

(c)(1).)”].) Adoptability is determined by looking at the minor’s characteristics, not the 

characteristics of the potential adoptive placement. (Id. at pp. 1311-1312; see also 

§ 366.26, subd. (c)(1) [specific adoptive placement not prerequisite to adoptability 

finding].) Thus, the Department’s assessment of the suitability of the maternal and 

paternal grandmothers for placement was irrelevant to the juvenile court’s finding that 
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Jayden is generally adoptable. Accordingly, mother did not establish good cause to 

continue the hearing, and the trial court did not err in denying her request. 

DISPOSITION

The orders terminating parental rights are affirmed. 

 HULL , Acting P. J.

We concur:

 BUTZ , J.

 MURRAY , J.