Opinion
E067889
03-07-2018
In re H.S. et al, Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.S. et al., Defendants and Appellants; V.L., Objector and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Liana Serobian, under appointment by the Court of Appeal, for Objector and Appellant V.L. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Carole Nunes Fong and Prabhath D. Shettigar, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1200938) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Liana Serobian, under appointment by the Court of Appeal, for Objector and Appellant V.L. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Carole Nunes Fong and Prabhath D. Shettigar, Deputy County Counsel for Plaintiff and Respondent.
J.S. (father of H.S.; hereinafter Father-S), J.R. (father of H.R.; hereinafter Father-R), and V.S. (sister of Father-S, aunt to H.S. & great-aunt to H.R.; hereinafter Aunt) appeal the denial of Aunt's Welfare and Institutions Code section 388 petitions and relative placement preference motion filed pursuant to section 361.3.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
A section 300 petition was filed against T.E. (Mother), Father-R and Father-S (collectively, Fathers) for H.S. and H.R. (collectively, the Children) for substance abuse and abandonment. Just prior to the section 366.26 hearing, Aunt filed section 388 petitions and a section 361.3 motion arguing that she was entitled to relative placement preference. Her section 388 petitions and motion pursuant to section 361.3 were denied and the Children remained in the care of their de facto parents who intended to adopt them. The parental rights of Fathers and Mother were terminated at the section 366.26 hearing and the Children were freed for adoption.
Mother died during the pendency of the dependency proceeding and Fathers were incarcerated.
Aunt contends the juvenile court committed a mistake of law when it determined that the Riverside County Department of Public Social Services (Department) properly assessed Aunt prior to placing the Children in their prospective adoptive home in April 2016. Under section 309, it was the Department's duty to seek out relatives for placement at the inception of the case in January 2015. The Department admitted it failed to contact Aunt by writing to her within 30 days of the Children's removal and also ignored her request for placement in January 2015. The juvenile court improperly denied her section 388 petitions and 361.3 motion. Further, the Department improperly advised her that her 25-year-old conviction would disqualify her from placement; and once the Children were placed in an adoptive home, it eliminated the relative placement preference. Reversal of the order denying Aunt's application for placement of the Children under section 361.3 is required and reversal of the judgment terminating parental rights should be reversed.
Father-S argues on appeal that the juvenile court erred by denying Aunt's section 388 petitions and 361.3 motion. In addition, Father-S joins in Aunt's arguments raised in her opening brief. Father-R joins in the brief filed by Father-S. Aunt joins in Father-S's arguments.
FACTUAL AND PROCEDURAL HISTORY
We need not provide a detailed summary of the facts surrounding the termination of parental rights as the only issue on appeal is the placement of the Children.
A. DETENTION
On January 5, 2015, the Department filed a section 300 petition against Father-S and Mother for five-year-old H.S. The section 300 petition was also filed against Father-R and Mother for three-year-old H.R. The Children were placed in a confidential foster home. It was alleged against Mother under section 300, subdivision (b), that she neglected the safety and well-being of the Children by leaving them in the care of individuals who were unable to provide for them. In addition, Mother had an extensive history of substance abuse and a criminal history. Against Father-S, it was alleged he was unable to provide for H.S. and that he had engaged in criminal activity for which he was currently incarcerated. Against Father-R, it was alleged he failed to provide for H.R. and he had engaged in criminal activity for which he was currently incarcerated. It was alleged against each father a failure to support pursuant to section 300, subdivision (g).
According to the detention report filed on January 5, 2015, Mother had her two older children removed from her legal custody in a prior family law case. A prior dependency case had been filed against Mother, Father-S and Father-R for the Children. On April 3, 2014, at the 12-month review hearing, the Children were returned to the care of Mother on family maintenance. The action was terminated on October 2, 2014, with full custody given to Mother.
On December 31, 2014, social worker Brianna Knight contacted E.R., who had been caring for the Children since December 20, 2014. Mother was reported to be using methamphetamine and left the Children in E.R.'s care. E.R. indicated although she wanted to care for the Children, she did not have the financial means to do so. E.R. also was concerned that Mother would come take the Children from her. Knight informed E.R. that her house would have to be assessed for placement. E.R. informed Knight she would need a criminal exemption for a member of the household. Knight determined that E.R.'s home could not be assessed for emergency placement.
The Children asked to be placed in their prior foster homes. They were placed in H.R.'s previous foster home (as they had been in separate homes in the prior case) and H.R. was very excited. Mother was contacted and argued it was not against the law to leave the Children with family during the holidays. She denied using methamphetamine.
Mother had a prior history with the Department for neglect of all four of her children in 2001, 2008, and 2012. Fathers and Mother all had criminal histories. Mother had been living in a four-bedroom home that had been approved by the Department when the prior proceeding was terminated. She had since been evicted and had an unstable living situation.
Fathers were serving prison terms and they would not complete their sentences prior to the allotted time for reunification. Under relative placement information it was indicated, "There are no relatives to consider for immediate placement." In the suggested orders, the Department listed, "The parents . . . must disclose to [the Department] the names, residency and any known identifying information of any maternal or paternal relatives of [the Children]."
At the detention hearing conducted on January 6, 2015, the juvenile court found a prima facie case and ordered the Children be detained. Father-R and Father-S were named presumed fathers. The juvenile court adopted the recommendations of the Department, including that Father-S, Father-R and Mother identify any possible relatives to the Department for placement of the Children. On January 9, 2015, a second section 300 petition was filed adding the two older siblings.
B. JURISDICTION/DISPOSITION
A jurisdiction/disposition report was filed on February 5, 2015. The Department recommended that reunification services be denied to Mother and Fathers. The Children were still in a confidential foster home. The Department noted in a previous proceeding that ICWA was found not to apply to the Children. The Department had been unable to contact Mother during the reporting period; she would not return calls and had no visits with the Children. Fathers had not been interviewed because they were both incarcerated.
The Department contended that all of the allegations in the section 300 petition were supported by the evidence. Mother had spoken with the Department in the prior dependency case stating she had been experimenting with marijuana and "crack" since she was 15 years old. The foster parents had recently requested a therapy referral for H.S. due to her acting out, exhibiting sexualized behaviors and urinating on herself. H.R. was thriving in the care of the foster parents.
The Department reported there were no known relatives for placement of H.R. The Department reported that for H.S., the Department "received information for potential relatives who wish to be assessed for placement and is in the process of assessing them." The Department concluded that the Children had already been removed from their parents and spent almost two years in a previous dependency case. Only two months after that case was closed, Mother was unable to provide a stable home and was believed to be using methamphetamine.
At a hearing on February 10, 2015, Father-R's counsel advised the court that Father-R had two relatives he wanted assessed for placement and would provide the names and addresses to the Department. Father-S's counsel advised the trial court that Father-S wanted relatives C.A. and R.B. assessed for placement. He also advised the juvenile court that Father-S wanted E.R. assessed. The matter was set for a contested jurisdiction/disposition hearing on March 18, 2015.
An addendum report was filed by the Department on March 13, 2015. As for consideration of relative placements, the Department had attempted to contact T.R., K.H. and D.R. but none of them had voicemail. D.R. was willing to take H.R. but could not take H.S. The Department reported, "The NREFM, [E.R.], has expressed the desire to have both children . . . placed in her care. However, [E.R.]'s home will require an exemption because of her adult daughter currently being on probation and residing in the home." Mother had no visitation during the reporting period.
On April 1, 2015, the Department received an emergency request from the foster home that the Children be moved due to one of them smearing feces on the walls. They were moved and referred to counseling.
The contested jurisdiction/disposition hearing was conducted on May 11, 2015. The Department sought to dismiss the older siblings who were added to the second section 300 petition; it filed an amended petition with the siblings excluded. The Department submitted on its reports. Counsel for Father-S acknowledged he would be incarcerated beyond the reunification period. Father-R only asked that the Department continue to assess relative placement. The juvenile court agreed that the Department was to continue assessing potential relatives of both Father-S and Father-R. The court noted it had read the reports and adopted the Department's recommendations. It was found that ICWA did not apply. It found the allegations in the second amended section 300 petition true. Reunification services were denied to Father-R, Father-S and Mother. The matter was set for a section 366.26 hearing. Writ notices were sent to Mother, Father-R and Father-S.
C. SECTION 366.26 REPORT
On October 26, 2015, the Department filed their section 366.26 report. Mother had passed away on May 24, 2015, from unknown causes. The Children were in a foster home. The Department sought a 120-day continuance to find an adoptive home.
H.S. was receiving weekly therapy to deal with Mother's death. She was developmentally on track. H.R. was toilet trained and developing normally. H.R. had been in therapy but had been discharged after having met her treatment goals.
Weekend visits between the Children and E.R. began on October 16, 2015, and continued every other weekend. The Children were excited to visit with E.R. They were also excited to see E.R.'s daughter, A.R. There were also visits with a cousin and an uncle.
During the reporting period, the Department had been in the process of assessing E.R. On July 21, 2015, the social worker for the Relative Assessment Unit (RAU) requested that E.R.'s home be approved under the condition that A.R., who resided in the home and was on probation, not be allowed to supervise the Children. E.R. needed to obtain beds for the Children. The Department sought 120 days to find a prospective adoptive family, including, but not limited to, E.R.
The Department had been in contact with E.R. three times during the reporting period. It planned to consider E.R. as the prospective adoptive caregiver but there were concerns her home would not pass an adoption home study. The matter was continued on November 10, 2015. The Department was to provide an update on Father-S's relatives.
An addendum report was filed. The Children had been visiting E.R. on the weekends but in December 2015 it was discovered they had been left at home with A.R., who was not authorized to supervise the Children. Further, after a weekend visit with E.R., H.R. returned to the foster home and defecated and urinated while she was sleeping. The Department was concerned that both A.R. and E.R.'s husband had criminal records. They reported, "it would not be in the Children's best interest to have this home as their primary residence or care provider even though [E.R.'s family] loved the girls." There was concern if the case was closed and they were placed with E.R. the safety rules would not be followed. The Department reported the Children had had a rough life and needed a fresh start.
In another addendum report, the Department detailed the unsuccessful attempts to complete assessments on three of Father-R's relatives. The Department stated that there had been "no response or interest" from extended family members in taking the two minors.
A review hearing was held on May 10, 2016. Father-S was not present, but his counsel requested an update from the Department regarding E.R. Father-S's counsel noted the report stated the Children were left to be supervised by A.R., but the only source of that information was the Children; counsel wanted further investigation. Counsel for the Children noted E.R. had already been vetted; since there were persons living in her home with criminal records she could not pass the home study. The Department was ordered to include efforts to find relatives of each father in the report they prepared for the section 366.26 hearing.
In the addendum to the section 366.26 report filed on July 16, 2016, the Department requested a 30 day continuance to allow it to complete the relative assessments for the potential relative caregivers; it recommended that adoption be the permanent plan. The Children had been placed in a prospective adoptive home on April 15, 2016.
The Department noted that on June 13, 2016, a referral was submitted to the RAU on behalf of Aunt. The Department noted that the referral was closed because the RAU was unable to complete the assessment as the adults in the home failed to complete a Live Scan. Several other relatives and E.R. continued to be assessed. The Children continued to thrive in the prospective adoptive home.
At a hearing on July 21, 2016, Father-S's counsel advised the trial court that Aunt had tried to contact the Department several times and had been told to wait for her RAU packet. She never received it. Father-S asked that the Department follow up with Aunt. The Department was ordered to contact Aunt to see if she was interested in placement.
In a report filed on August 26, 2016, the Department requested another continuance to continue to assess potential relatives. The Children remained in the prospective adoptive home. On July 25, 2016, a new RAU referral was submitted on behalf of Aunt as she reported that no other adults were residing in her residence. Aunt completed the Live Scan on August 4, 2016. On August 11, 2016, the results were received with two Department of Justice "hits." An exemption was pending. On August 15, 2016, Aunt's home was inspected and deemed appropriate. On August 11, 2016, Aunt reported that H.S. had Indian ancestry. An ICWA form was being generated. The Children continued to bond with their prospective adoptive family, who were committed to adopting the Children.
A continuance of the section 366.26 hearing was granted on August 31, 2016, in order for ICWA notice to be served. At that hearing, the Children's counsel expressed concern about the Children being moved for placement with Aunt; she previously had her brother living with her and he had an extensive criminal record. Father-S's counsel assured the juvenile court the brother would not move in with Aunt; he had married E.R. On September 23, 2016, the prospective adoptive parents filed a request to be named the de facto parents. The request was granted.
RAU approved Aunt for placement of the Children on September 16, 2016. Starting in October 2016, visitation was occurring between the Children and Aunt three times each month. It was reported by the Department that H.S. began to regress, engaging in self-harm and wetting incidents after visitation with Aunt. The Children wanted to be adopted by the de facto parents; H.S. had asked why the adoption was taking so long. The matter was continued for ICWA notice, which was given on September 20, 2016.
D. SECTION 388 PETITIONS AND SECTION 361.3 MOTION
Aunt filed section 388 petitions seeking placement of the Children. Aunt had been advised by an attorney that the social worker should not have excluded her from getting the Children at the beginning of the dependency.
Aunt submitted a declaration that she was Father-S's sister and Father-R was her nephew. She had known the Children since birth. She was willing to follow all orders of the Department. Fathers wanted the Children placed with her. She had her own home and wanted to adopt them.
Aunt had spoken with E.R. at the beginning of the case; she advised Aunt that the social worker in charge of the case was Knight. Aunt claimed to have left over 15 messages for Knight when the Children were first detained. When she finally spoke with Knight, she asked for placement of the Children. Knight asked her a few questions. Aunt advised Knight she had a criminal case 25 years before but no involvement with the Department. Knight advised her it was probably impossible to place the Children with her because of the criminal conviction.
Aunt's daughter became ill and she was busy with taking care of her but kept in contact with E.R. as to what was happening in the dependency proceedings. Aunt appeared in court on May 10, 2016, and realized that Knight may have been wrong about the conviction. She spoke with the social worker who replaced Knight and was told to submit a request for placement. After the hearing on May 10 she saw the Children outside the courtroom and they both hugged her.
It took several inquiries for Aunt to finally receive the RAU packet. Aunt's brother who had a criminal record had moved out of her home. Aunt saw both girls at a soccer game and they gave her hugs and told her they loved her. She included photographs of them together. She submitted numerous reference letters attesting to her being a good mother and a revered member of the community. She submitted photographs of the rooms she set up for the Children.
On November 14, 2016, Aunt filed a motion for relative standing and placement pursuant to Welfare and Institutions Code sections 388 and 361.3. She sought placement pursuant to Welfare and Institutions Code sections 361.3, 388 and Family code section 7950. Aunt immediately contacted the Department when the Children were detained in January 2015; she never received a return call. When she finally spoke with a social worker, she was told she did not qualify because of a 25-year-old conviction for drug sales. The Department failed to properly evaluate Aunt.
In May 2016 Aunt was finally told she would be sent an assessment packet. However, she did not receive it until the end of July 2016. She submitted the packet on August 1, 2016, and was approved for placement in September 2016. Aunt had known the Children since their birth. Aunt argued the Department abused its discretion under section 361.3 because it never seriously considered her for placement. Aunt insisted that the best interests of the Children would be met if they were placed with her. She had a close, loving and personal family relationship with the Children. She had a steady job, a home and had raised several children of her own. She would keep them safe.
On November 15, 2016, at a hearing set for a prima facie showing for the section 388 petitions, the juvenile court noted that Aunt had filed a section 361.3 motion one day prior to the hearing. The juvenile court would have to conduct a hearing on the proper placement of the Children. The court noted the case would turn on whether the Department appropriately discharged its duties early on in the case, and also whether it was appropriate to change placement. The court advised the de facto parents that the Children could be moved because the law recognized a preference to place children with relatives. The section 388 petitions and the 361.3 motion would be heard together.
The juvenile court ordered visitation between Aunt and the Children to see if there were any behavioral changes. This included an overnight visit. The Children's counsel objected to the overnight visit. She advised the juvenile court that both minors had expressed they "could care less" about visiting with Aunt. It would be uncomfortable for them to have overnight visits. The court approved at least eight hours of unsupervised visits.
On January 5, 2017, the Department filed an addendum report and a response to the section 388 petition. The current social worker, Kamyar Moghbeli, had been in charge of the case since June 22, 2016. The Department noted that since their removal on December 31, 2014, the Children had been in three different placements. On April 15, 2016, they were placed in the de facto parent's home when no additional relatives came forward who could pass the RAU assessment.
No contact was made with the Department by Aunt to seek placement of the Children. The first referral to the RAU for Aunt was on May 31, 2016, and that referral was closed on June 30, 2016, because other adults in her home would not complete Live Scans. Aunt had been sent formal notice on June 13, 2016, that if she wanted placement, all the adults living with her would have to submit to a Live Scan. It was not until July 25, 2016, that Aunt contacted the Department with notice that her brother had moved out of her home. A second referral was sent on July 25, 2016, and she was approved on September 1, 2016. The Department argued it made a diligent effort with assessing relatives who came forward seeking placement.
The Department did not recommend placing the Children with Aunt. H.S. was seven years old and had suffered from self-harm, violent tantrums and wetting herself. Her behavior had dramatically improved since she was placed with the de facto parents. After the visit with Aunt in October 2016 her behavior regressed. H.R. was five years old and had lacked a sense of boundaries. She had improved since being placed with the de facto parents. Her behavior regressed after visitation with Aunt. The Children both expressed wanting to stay with the de facto parents.
On the way to the first visit with Aunt, H.S. urinated in her pants. H.R. cried at bedtime and refused to go to bed alone. At the next visit, H.S. threw a rock at another child. After the visit, she urinated in her pants and refused to listen. At the next visit, they sat on their cousins' laps. In the days following, H.S. acted defiantly and threw things. H.S. asked several times if the de facto parents were still going to adopt her and why it was taking so long. H.R. displayed a greater need for affection after the visits.
The de facto parents reported the Children had these behaviors when they were first placed with them in March 2016 but had significantly improved in their home. The social worker supervised a visit with Aunt on December 19, 2016. The Children made crafts provided by Aunt and the visit was appropriate. The Children were indifferent about ending the visit.
The Department submitted several letters from a school counselor, soccer coaches and teachers who noted when H.S. first attended school in January 2015 she was shy and had many problems. After being placed with the de facto parents, she showed marked improvement. She regressed into her old behaviors when she was told a relative may adopt her. Another teacher noted the involvement of the de facto parents in school. H.S.'s kindergarten teacher expressed that H.S. was stable once she was placed with the de facto parents. Regression had been noted recently. Photographs of the girls with the de facto parents and their two boys were submitted.
On February 21, 2017, the Department filed an addendum report for the section 366.26 hearing recommending the parental rights of Mother, Father-S and Father-R be terminated and that the permanent plan of adoption be ordered. The Department also requested that the juvenile court find that ICWA did not apply. The de facto parents wanted to adopt the Children. They had a strong bond with the Children. A preliminary adoption assessment was included.
E. HEARING
Testimony was heard on February 24, 2017. Knight was involved initially as the social worker. She had reviewed the delivered service logs. She initially had no contact with Mother, Father-S or Father-R. She spoke with E.R. at the time of the detention but E.R. did not mention any other relatives. Knight was assigned to the case until November 2015. She never spoke with Aunt. The delivered service logs showed no contact. She never received any voicemails from Aunt. Knight had sent a letter to Father-S in January 2015 asking for him to contact her; the same letter was sent to Father-R on February 5, 2015. The Children had only told Knight that they wanted to see E.R. and A.R. during the dependency period. She did not recall they ever mentioned Aunt.
Knight was married by the time of the hearing but for ease of reference we will refer to her maiden name. --------
Moghbeli took over the case in July 2016. Aunt was referred for assessment in June 2016; it was closed due to the adults in the house not submitting to the Live Scan. The Children were placed with the de facto parents in April 2016. The first time Moghbeli spoke with Aunt was in July 2016 when Aunt advised her that no other adults lived in her home. A referral was submitted to the RAU and Aunt was approved.
Moghbeli visited the Children each month. It was in their best interests to stay with the de facto parents. Moghbeli had no doubt Aunt would care for the Children and that she was a good person. The Children were "high demand" and she was worried about Aunt not being in the home during the day because she worked. The Children barely knew Aunt. They both had mental health issues and were stabilized in the home of the de facto parents. Their behaviors regressed upon visitation with Aunt.
Moghbeli had supervised visits between Aunt and the Children, which were appropriate but the Children did not seem to be bonded to Aunt. The de facto parents were open to maintaining contact with the Children' family. Moghbeli was concerned another change in placement would cause the Children to regress; it was not in their best interests.
Cindy Moreau was a social services assistant. She observed a visit between Aunt and the Children. It was appropriate. They appeared to have a comfortable, relative relationship. The Children did not cry at the end of the visit.
Aunt testified. She had a home and was employed full time. She wanted to keep the Children in their big family. She called Knight in January 2015 and left messages. She called several times and finally talked to Knight the following week. Aunt told her she wanted the Children if E.R. was not approved. She told Knight about her criminal conviction and was advised by Knight that due to the conviction they should pursue placement with E.R. Aunt believed she did not have a chance at placement because of her conviction. She attended visits when E.R. had visits. The Children would always hug her. She continued to call Knight and leave messages but was never called back. She was more than capable of taking care of the Children. She wanted to adopt them. She had not been involved in the prior dependency case.
Minors' counsel offered that if the Children were to testify, they would advise the juvenile court that they called the de facto parents "mommy" and "daddy" and that they were happy living with them. They enjoyed their visits with Aunt, but if they could choose where to live, it would be with the de facto parents.
Counsel for Aunt requested relative placement preference and placement of the Children. Aunt had immediately requested that if the Children were not placed with E.R. they be placed with her. Once Aunt discovered E.R. was not being considered, she immediately contacted the Department and was assessed. Aunt should have been assessed early on. If it had been done, the Children would have been placed with her. The relative placement preference should apply. Every factor in section 361.3 applied to support placement with Aunt. Counsel for Father-S also argued that Aunt was not contacted when the Children were moved to the home of the de facto parents. Father-S wanted the Children placed with Aunt. Father-R's counsel argued there was no doubt that had Aunt been assessed earlier, she would have been given placement. The juvenile court could order a slow transition into Aunt's home.
Counsel for both the Children and the de facto parents requested the juvenile court deny placement with Aunt. The Children wanted to stay with the de facto parents. Further, in Aunt's testimony, it was not clear that she sought placement initially. The Department argued Aunt did not come forward until May 2016, and at that time, her RAU referral was closed due to the failure of adults in her home to Live Scan. She never came forward initially. She came forward after the Children were placed with the de facto parents.
F. COURT RULING
On March 2, 2017, the juvenile court issued its ruling on the motion for relative preference and the section 388 petitions. It also conducted the section 366.26 hearing. The court found that ICWA did not apply.
The juvenile court stated that Aunt had filed a motion pursuant to section 361.3 seeking relative placement preference. The court reviewed all of the evidence that was presented. The court felt that the delivered service logs were incomplete. As such, based on the differing testimonies of Aunt and Knight, it must determine from the evidence if the Department appropriately discharged its duties on relative placement.
The juvenile court first noted that Fathers received court documents advising them to contact the Department regarding any relatives for possible placement but they never provided any relative names. E.R. never notified the Department that Aunt wanted placement. The Children never mentioned Aunt. The court found no evidence the Department would refuse to go through the exemption process for Aunt's conviction. Aunt's assessment was closed initially because of the adults in her home not submitting to Live Scan. Based on the evidence presented by Aunt, she had no contact with the Department between January 2015 and May 2016. It was reasonable to assume she knew the Children were being moved. Although the service logs were inadequate, they did show the Department was actively referring relatives to the RAU. It was inconceivable the Department excluded Aunt.
This evidence showed that Aunt "never expressed an interest in placement or that, if she intimated that desire in a phone call to [Knight], it was so equivocal as to not convey an interest in placement that would put the Department on notice to reach out to her and inquire about a desire for placement." The preponderance of the evidence showed the Department properly conducted its relative preference placements. Moreover, it was not in the best interests of the Children to be placed with Aunt. The court ruled, "As the relative placement preference does not apply at this time and as no change of placement is necessary, there is no basis for the court make a directed placement order."
The juvenile court further held that in its own assessment of the relative placement preference in section 361.3, no change was required. The behaviors of the Children upon a change of placement would not bar placement as they had shown they could adjust. The bond between minors and Aunt was as relatives; there was nothing to show a parental role by Aunt. It was clear the de facto parents would maintain relationships with the family. Moreover, the Children had expressed their preference to remain with the de facto parents. They were bonded with the de facto parents and their children. It was clearly in their best interests to remain with the de facto parents.
The juvenile court terminated the parental rights of Mother, Father-R and Father-S. The Children were freed for adoption. The court encouraged continued visitation with Aunt.
DISCUSSION
Aunt, joined by Fathers, argues that the Department violated the provisions of section 309, subdivision (e)(1) by failing to notify Fathers and Aunt within 30 days of the detention that relatives were entitled to preferential placement. In addition, Aunt contends that this court must reverse the juvenile court's order denying her section 388 petitions and motion pursuant to section 361.3 because she was entitled to relative placement preference, and its finding that it was not in the best interests of the Children to be placed with her.
A. WAIVER AND STANDING
The Department contends Fathers have forfeited their arguments by not including in their notices of appeal the section 388 petitions and 361.3 motion. Father-S contends that his notice of appeal should be construed to include the denial of the section 388 petitions and the motion pursuant to section 361.3. While the notices of appeal stated that Fathers are appealing from the section 366.26 hearing, both notices also included that they are appealing from the orders issued on March 2, 2017. Specifically, Father-S filed an appeal from the "orders" of the juvenile court issued on "March 2, 2017." Father-R also appealed the order on March 2, 2017, wherein the juvenile court "terminated" his parental rights. The juvenile court issued its order on relative placement on March 2, 2017, so it is reasonably interpreted that Fathers were appealing these orders.
The Department additionally argues Fathers do not have standing to appeal because they were denied reunification services and therefore had no interest in reunification. Here, Aunt has standing to appeal as she had a separate interest in her relationship with the Children, which was legally protected under section 361.3 as the paternal aunt. (See Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 (Cesar V.).)
As to Fathers' standing, Fathers participated in the proceedings on the section 388 petitions and motion pursuant to section 361.3 below and were allowed to join in the arguments. In Cesar V., it was contended on appeal from the denial of a motion pursuant to section 361.3 that the father did not have standing to appeal; only the grandmother could appeal. The appellate court concluded that since the father had stipulated to the termination of reunification services, the denial of placement of the minor would not affect the father's interest in the reunification with his children. However, the Cesar V. court found on appeal, "But [the grandmother] has properly placed the issue before us, and [the father] has formally joined in her arguments; furthermore, by stipulation of the parties and with the juvenile court's acquiescence, [the father] extensively litigated the issue below. Under these circumstances, [the father] will be permitted to support [the grandmother]'s position with arguments of his own." (Cesar V., supra, 91 Cal.App.4th at pp. 934-935.)
We will allow Fathers to join in the arguments of Aunt on appeal.
B. WELFARE AND INSTITUTIONS CODE 309
For the first time on appeal, Aunt and Father-S, joined by Father-R, contend that under the provisions of section 309, subdivision (e)(1), the Department failed to notify Aunt, or notify Fathers, of her rights to preferential placement at the beginning of the dependency proceedings. This impacted Aunt's ability to show she was entitled to relative placement preference. The trial court erred by determining that Aunt did not unequivocally request placement in January 2015; it was the Department's obligation to notify her of her right to placement and to assess her for placement.
Section 309, subdivision (e)(1) requires the social worker to conduct, within 30 days after a child has been detained outside the home, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, and other adult relatives of the child, including any other adult relatives suggested by the parents. Section 309, subdivision (e), requires that the social worker provide to all adult relatives who are located with written and oral notification of the removal, and an explanation of the various options to participate in the care and placement of the child, and forms to provide information to the social worker regarding the needs of the child, including a provision by which the relative may request permission to address the court. (§ 309, subds. (e)(1)(A) & (B), (e)(2); see also In re R.T. (2015) 232 Cal.App.4th 1284, 1296.) The social worker is required to use due diligence to investigate relatives. (§ 309, subd. (e)(3).)
Aunt and Fathers have waived this claim by failing to raise the issue in the trial court. In both the Welfare and Institutions Code section 388 petitions and the motion filed pursuant to Welfare and Institutions Code section 361.3, Aunt only referred to Welfare and Institutions Code section 361.3, the relative placement preference, Welfare and Institutions Code section 388 and Family Code section 7950. At no time did Aunt alert the juvenile court that she was claiming the Department violated Welfare and Institutions Code section 309, subdivision (e)(1), by failing to notify Aunt within 30 days after the detention of the Children of Aunt's relative placement preference. Aunt only argued that the relative placement preference should apply and the Children should be placed with her. She claimed the Department failed to properly consider her for placement. Moreover, the Department filed a response to the Welfare and Institutions Code section 388 petitions and motion pursuant to Welfare and Institutions Code section 361.3 arguing they had made diligent efforts to assess all relatives who expressed a desire for placement.
A reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (Ibid.) Here, Aunt and Fathers waived the issue by failing to properly raise it below.
Moreover, the juvenile court determined that even if Aunt contacted the Department in January 2015, she did not express that she wanted immediate custody of the Children. In fact, she encouraged placement with E.R. According to her own testimony, Aunt was aware of the placement of the Children and wanted them to be placed with E.R. The juvenile court disbelieved that Knight had advised Aunt that she could not have custody because of a 25-year-old conviction. Aunt, according to her own testimony, was aware of the factors in section 309. Moreover, the juvenile court concluded that Fathers had proper notice and they were sent documentation asking about relatives who wanted placement. On this record, there was no notice violation pursuant to section 309, subdivision (e)(1) by the Department.
C. WELFARE AND INSTITUTIONS CODE SECTION 361.3
Aunt, joined by Fathers, additionally argues that the juvenile court erred by finding the relative preference did not apply and denying her immediate placement pursuant to section 361.3. Although Aunt filed section 388 petitions, the trial court properly considered the claim under the motion filed pursuant to section 361.3 (In re Isabella G. (2016) 246 Cal.App.4th 708, 722, fn. 11.)
Section 361.3, subdivision (a) states in relevant part: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." " ' "Preferential consideration" means that the relative seeking placement shall be the first placement to be considered and investigated.' [Citation.] Subdivision (a) further states that when a child is removed from his parents' physical custody 'the court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child' and that the county social worker 'shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them.' Those relatives desiring placement 'shall be assessed according to the factors enumerated in [subdivision (a) ]' and '[t]he county social worker shall document these efforts in the social study prepared pursuant to section 358.1.' The relatives entitled to preferential consideration for placement are 'an adult who is a grandparent, aunt, uncle, or sibling.' " ' " (In re Joseph T. (2008) 163 Cal.App.4th 787, 793-794 (Joseph T.).)
Section 361.3, subdivision (d), states in relevant part: "Subsequent to the hearing conducted pursuant to Section 358 [the dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements." In Joseph T., the court held that "[n]othing in the language of subdivision (d) eliminates the relative placement preference when a qualified relative comes forward after the initial placement and during the family reunification period and seeks placement of the child. Nor does subdivision (d) prevent a child welfare department from continuing to search for an appropriate relative placement after the child initially has been placed with a non-relative." (Joseph T., supra, 163 Cal.App.4th at p. 795; see also In re Isabella G., supra, 246 Cal.App.4th at p. 723 [applying relative preference even after reunification services terminated].) Other courts have held that the relative placement preference only applies whenever a new placement is sought after the disposition hearing. (See In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) We need not decide the issue as the juvenile court stated its reasons that even if the relative placement preference applied, that placement with Aunt was properly denied as it was not in the best interests of the Children.
"The assessment of the relative shall involve the consideration of eight factors set out in the statute, including '[t]he 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'; and '[t]he safety of the relative's home." (Cesar, supra, 91 Cal.App.4th at p. 1033.) "The linchpin of a section 361.3 analysis is whether placement with a relative is the in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) Consequently, "'[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.' [Citation.] Section 361.3 does not create an evidentiary presumption that relative placement is in a child's best interests." (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)
The relative placement preference is not a relative placement guarantee. (Joseph T., supra, 163 Cal.App.4th at p.798; § 361.3, subd. (a).) The juvenile court properly considered the factors in section 361.3. We review its decision for an abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar V., supra, 91 Cal.App.4th at p. 1032.)
Here, the Department did not err by failing to assess Aunt for placement when it moved the Children in April 2016. At that time, as noted by the trial court, Aunt had not been in contact with the Department since January 2015. Even accepting that Aunt contacted the Department in January 2015, she did not seek placement; rather, asked that E.R. be considered for placement. Moreover, as noted ante, the juvenile court rejected that Knight advised Aunt that her conviction rendered Aunt incapable of taking custody of the Children. This was supported by evidence the Department consistently reached out to relatives who sought placement. Finally, Aunt did not have any involvement in the case until May 2016, which was after the time that the Children were placed with the de facto parents.
Further, when Aunt did receive a referral for assessment, she failed to complete it. The assessment had to be closed in June 2016. Additionally, when the Department was advised of relatives who sought placement, the Department immediately referred them to the RAU or ruled them out as potential placements. The Department did not err based on Aunt's own actions and it is unlikely she would have received placement at that time because she failed to complete the initial assessment.
Moreover, it was not in the best interests of the Children to be moved from their placement. The Children were five and seven years old at the time that Aunt requested placement. Prior to the instant dependency proceedings, they had been placed in foster care outside the family for two years. In this case, the Children were on their third placement outside the family. The juvenile court properly determined that the bond with Aunt was not strong. As noted, the Children spent little time with their family during their lives. Moreover, they never spoke of Aunt, and only appeared bonded with E.R., who could not take custody of them.
Additionally, there was no doubt the Children were bonded with the de facto parents and preferred to be placed with them, a factor the juvenile court considered. The juvenile court properly determined it was in the best interests of the Children to remain in the care of the de facto parents.
DISPOSITION
The juvenile court's order denying Aunt's section 388 petitions and motion pursuant to section 361.3 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.