Opinion
A153694
07-27-2018
D.B., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1501061)
Petitioner D.B. is the paternal grandmother of now two-and-a-half-year-old S.H. (grandchild or child). Grandmother petitions for extraordinary writ relief seeking to vacate an order denying her petition filed under Welfare and Institutions Code section 388 to change grandchild's placement to grandmother's home. Real party in interest Contra Costa County Children and Family Services Bureau (the agency) opposes the petition. We conclude grandmother's arguments have no merit. Accordingly, we deny her petition on the merits.
All further unspecified statutory references are to the Welfare & Institutions Code.
FACTS
A. Background
In December 2015, the agency filed a dependency petition asking the court to take jurisdiction of four-day-old S.H. who had been detained by the agency and placed in a foster care home. Following a jurisdictional hearing, the juvenile court removed the child from parents' care based on substantiated allegations of general neglect and the child was continued in foster care. At the April 28, 2016 dispositional hearing, the juvenile court granted parents reunification services. The child continued to live in a foster care home, while mother lived in an in-patient residential drug treatment program, and father completed a prison sentence.
When the child was approximately a month old, in January 2016, grandmother submitted a completed application for relative placement. The agency denied the application due to grandmother's criminal background and the criminal background of her roommate. On March 15, 2016, the agency's division manager denied grandmother's request for an exemption due to her criminal history. On July 21, 2016, the agency sent grandmother a notice, stating her home was not approved for the child's placement because her criminal history was not exempted. On October 20, 2016, grandmother filed an administrative appeal of the agency's July 2016 refusal to exempt consideration of her criminal history in determining her placement request. On December 7, 2016, the child was moved from the initial foster care home to a concurrent foster care and prospective adoptive home, where the child currently resides.
On December 1, 2016, the agency sent grandmother an amended notice that her request for placement was denied because her criminal background could not be "cleared/exempted," and the criminal background and/or child abuse history of someone living in the home could not "be cleared/exempted."
On January 12, 2017, the juvenile court terminated family reunification services for both parents. At that time the court held a hearing and considered testimony regarding placement of the child with grandmother. The court ruled it would not order a change in placement at that time without a further hearing on the matter. Before a hearing set to terminate parental rights, the agency submitted a report discussing the reasons for its recommendation that the child not be placed with grandmother even if she prevailed on her administrative appeal. The hearing on grandmother's administrative appeal was conducted on April 26, 2017. Grandmother was no longer living with her roommate with a criminal history. Thus, the administrative law judge considered grandmother's criminal history and the purported lack of sufficient evidence of her rehabilitation as the sole remaining basis for the agency's denial of placement.
On May 10, 2017, the court terminated parental rights. Approximately one month later, on June 7, 2017, grandmother's administrative appeal was granted. The administrative law judge recommended that grandmother be granted an exemption for her criminal record, and directed the agency to reconsider grandmother's request for approval as a placement for the child. Thereafter, on August 28, 2017, the agency approved grandmother's application to be a resource family home for the child.
As of January 1, 2017, the agency assesses a relative's request for placement of a child as a request to be considered a "resource family" under section 16519.5 and related "written directives."
B. Section 388 Petition
On October 4, 2017, grandmother filed her petition under section 388 to change the child's current placement to grandmother's home. The child was then 22 months old and had been living with the current foster care and prospective adoptive parents for 10 months. In support of her section 388 petition, grandmother argued that a change of placement was appropriate because of the favorable decision on her administrative appeal and the agency's subsequent approval of her home. Grandmother further argued the agency had wrongfully rejected her request for placement, and that had the agency done a proper assessment the child would have been placed with grandmother before the disposition hearing. The agency's wrongful denial of her timely placement application had delayed approval of the placement until after termination of parental rights. Accordingly, grandmother argued she was entitled to an independent assessment of her placement request using the criteria in section 361.3 for relative preference, and her request was not subject to assessment under the generalized best interest showing required under section 388. Grandmother asked the court to conduct a relative placement hearing under section 361.3 and order that the agency submit a reconsidered recommendation for a permanent plan for the child under section 366.26.
"When it applies, section 361.3 requires social workers and juvenile courts to give 'preferential consideration' to a request by a relative for placement of a dependent child with the relative. (§ 361.3, subd. (a); see id., subd. (d).) ' "Preferential consideration" means that the relative seeking placement shall be the first placement to be considered and investigated.' (§ 361.3, subd. (c)(1); accord, In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) The relative placement preference established by section 361.3 does not constitute 'a relative placement guarantee.' (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Section 361.3 identifies factors the court and social worker must consider in determining whether the child should be placed with a relative. (§ 361.3, subd. (a)(1)-(8).)" (In re K.L. (2016) 248 Cal.App.4th 52, 66, fn. 4.)
The agency and the child's current foster care and prospective adoptive parents opposed grandmother's request for a change of placement. They argued that the relative placement preference under section 361.3 no longer applied following termination of parental rights and the court's decision of a permanent plan of adoption for the child. Instead the court was required to apply the foster parent (referred to also as "caretaker") preference under section 366.26, subdivision (k)(1). The agency also set forth its reasons for refusing to change the child's placement at that time, even though grandmother's home had been approved for placement.
When it applies, section 366.26, subdivision (k), requires that after a juvenile court has approved a permanent plan of adoption for a dependent child, the agency is to give preference to an adoption application of the child's foster parent if the agency determines that "the child has substantial emotional ties to the . . . foster parent and removal from the . . . foster parent would be seriously detrimental to the child's emotional well-being." (§ 366.26, subd. (k)(1).) " 'Preference' means that the [foster parent's] application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child." (§ 366.26, subd. (k)(2).) Thus, the statute "gives preference in time for the processing of the [foster parent's] application by the agency 'but does not necessarily mandate that other applications will not also be considered.' [Citation.] " (In re M.H. (2018) 21 Cal.App.5th 1296, 1304.) We note that in its ruling here, the juvenile court commented that the statutory foster parent placement preference would apply in this case. However, "[a]lthough the rationale underlying the [foster parent] preference undoubtedly applies in the present situation" (In re M.H., supra, 21 Cal.App.5th at p. 1304, italics added), we are not here concerned with who should adopt the child. Rather, we are concerned only with the child's placement pending the adoption decision.
The juvenile court held hearings on grandmother's section 388 petition over the course of three days in January and February 2018. The juvenile court heard testimony from grandmother, the agency social worker who processed grandmother's relative placement application, and the child's adoption social worker. Grandmother testified regarding her attempts to secure placement of the child since the early stages of the dependency, and her ability and desire to have the child placed in her home. The agency social workers testified regarding the agency's processing of grandmother's requests for placement during the dependency, and the reasons for its opposition to the change of placement at this stage of the proceedings. The agency submitted a letter dated February 1, 2018, from the child's treating physician and a hospital social worker, indicating that the two-year-old child had bonded deeply with the foster care and prospective adoptive parents with a strong emotional attachment, it would be detrimental to move the child from the current placement where the child was thriving in their care, and it would be a huge setback for the child to be disrupted or moved again.
The juvenile court observed that given the passage of time its ruling would be based "on where we are today not where we could or should have been sometime in the past. And I make no findings here that the [agency] mishandled, failed to do things they should have done, as that's not an issue for me to decide. And, so I'm not making any conclusions about that." The court went on to explain its reasons for denying grandmother's section 388 petition "at this time." The court first noted that the child had been "essentially removed at birth and has been in . . . out of home care since that time," and with the current foster care family "now for well over a year." The court further found that all of the evidence demonstrated that the child was "doing well," was "loved," and the child's physical and emotional needs were being met by the foster care parents. The child had adjusted to the current placement and was "very happy and healthy." Based on the foregoing circumstances, the court found "it would be extremely undermining and harmful" to remove the child from the current placement. The court found "irreparable damage" would be caused if it issued an order removing the child. Even if the removal was attempted "in some thoughtful way[,] . . . [taking] two or three months to transition [the child] yet to another home," the court did not believe a transitional move would be "a wise or lawful decision," as it "would cause significant turmoil and regression for this child."
DISCUSSION
Grandmother challenges the juvenile court's denial of her section 388 request for a placement change on various grounds, none of which requires reversal.
Initially, we conclude the statutory provisions applicable here are (a) sections 366.3 and 366.26, subdivision (j), which govern the placement of a child after termination of parental rights and referral to the agency for adoptive placement, and (b) section 388, subdivision (a)(1), which permits a person having an interest in a dependent child to petition to modify a prior court order "upon grounds of change of circumstances or new evidence."
Section 366.26, subdivision (j) provides that after a juvenile court has terminated parental rights and the child's permanent plan is adoption, the agency "shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption . . . is granted." However, "notwithstanding section 366.26 subdivision (j) . . ., [the agency's] discretion regarding adoptive placement and interim foster care placement is not unfettered . . . . [¶] Section 366.3 provides in pertinent part: '(a) If a juvenile court orders a permanent plan of adoption . . ., the court shall retain jurisdiction over the [child . . .] until the [child . . . ] is adopted . . . . The status of the [child . . . ] shall be reviewed every six months to ensure that the adoption . . . is completed as expeditiously as possible. . . . (e) [A]t the review held every six months . . ., the reviewing body shall inquire about the progress being made to provide a permanent home for the [child] and shall determine all of the following: [¶] (1) The [continuing necessity for, and] appropriateness of the placement. . . .' [Citation.] [¶] The provision for judicial review of the appropriateness of the agency's placement of the [child] indicates a legislative assessment that the agency, despite its expertise, might on occasion abuse its discretion and therefore should not be given carte blanche in its placement decisions. [Citation.] [¶] This does not mean the juvenile court may substitute its judgment for [the agency] as this would interfere with [the agency's] exclusive custody and control of the [child] and [the agency's] discretion in making adoptive or temporary care placements. . . . [T]he court must assess whether [the agency] acted arbitrarily and capriciously, considering the [child's] best interests. [Citation.] Absent a showing that [the agency's] placement decision is patently absurd or unquestionably not in the [child's] best interests, the juvenile court may not interfere and disapprove of the [child's] placement, thereby requiring that the [child] be relocated to another home." (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 733-734.) At the hearing on a section 388 petition for a change of placement, "the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317, citing to § 388.) We evaluate both placement decisions and section 388 petitions for a change of placement for an abuse of discretion. (See In re A.S. (2012) 205 Cal.App.4th 1332, 1340 [placement decision]; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416 [section 388 petition].)
In challenging the juvenile court's ruling, grandmother's overarching claim is that the agency was biased and thwarted her attempts to be considered for placement. She therefore argues that the juvenile court should have evaluated her placement request using the criteria in section 361.3, and not the more general best interest inquiry applied under section 388. She supports her argument by citing to In re Isabella G. (2016) 246 Cal.App.4th 708. In that case the appellate court found the grandparents' section 388 petition for a change of placement should have been considered under the criteria for relative placement (§ 361.3), and not the foster care placement statute (§ 366.26, subd. (k)), because the placement request was made before the juvenile court had terminated parental rights and selected adoption as the child's permanent plan. (In re Isabella G., supra, at pp. 712, 718, 723.) In this case, however, at the time grandmother filed her section 388 petition and sought the change in placement, the juvenile court had already terminated parental rights and determined the child's permanent plan would be adoption. Consequently, the relative placement preference did not apply in this case. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031 ["[i]t is well established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption"]; accord, In re Lauren R. (2007) 148 Cal.App.4th 841, 855 (Lauren R.).)
Grandmother argues the juvenile court improperly refused to allow her to present relevant evidence to support her claims of agency bias and purposeful conduct to thwart her placement requests. She asks us to consider that at the hearing her counsel sought to question an agency social worker as to whether a former agency social worker had a social relationship with the prospective adoptive mother at the time the child was moved to the current foster care home in December 2016. The juvenile court sustained the agency counsel's objection to the question on relevancy grounds. Grandmother argues the question was relevant because if there had been such a relationship, it would have supported her claims regarding the agency's conduct.
We see no merit to grandmother's argument that Lauren R. is distinguishable from this case because it involved an adoption plan for a much older child at a much later stage of the proceedings.
As we recently recognized in In re M.H., supra, 21 Cal.App.5th 1296, the preference for relative placement can be frustrated when a relative requests placement shortly after removal of the child but is denied placement for reasons that may be beyond the relative's control. (Id. at p. 1303.) Nevertheless, our Supreme Court has informed us that "regardless of the relative 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." (In re Stephanie M., supra, 7 Cal.4th at p. 321.) " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (Id. at p. 317.) " '[T]he overriding concern of dependency proceedings . . . is not the interest of extended family members but the interest of the child. . . . Section 361.3 does not create an evidentiary presumption that relative placement is in a child's best interest. [Citation.] The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of [the child's] best interests.' " (In re M.H., supra, at pp. 1303-1304, quoting from In re Lauren R., supra, 148 Cal.App.4th at p. 855; see In re Stephanie M., supra, 7 Cal.4th at pp. 323-324 [Court of Appeal mistakenly focused on alleged violations of grandmother's rights during the dependency proceeding, rather than on whether a change in placement to grandmother's home would be in the child's best interest].)
"Because parental rights had been terminated, [the agency] had the discretion to decide with whom [the child] should live until the final adoption decision was made." (Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 12.) By denying grandmother's request for a change of placement, the juvenile court found the agency's decision to continue the child's placement with the foster care parents was not an abuse of discretion. The juvenile court also properly found that grandmother's proffer in support of her claim that the agency social workers were biased against her and had thwarted her requests for placement was irrelevant. As the juvenile court poignantly noted, even if grandmother proved her allegations regarding the agency social workers' conduct, the remedy could not be placement of the child in grandmother's care because "we cannot unwind the clock." Rather, at this stage of the proceedings the juvenile court had to focus on the child's best interests, rather than grandmother's interest. (In re Stephanie M., supra, 7 Cal.4th at p. 322.) "From the point of view of the child, . . . grandmother's intervention did come too late; the child was already bonded to foster parents." (Id. at p. 323.) Having "properly evaluated the evidence" as to the child's current circumstances, and "placing special weight on the child's need for stability, as was appropriate," the juvenile court acted within its discretion in denying grandmother's section 388 petition. (Id. at p. 319.) "The Legislature has declared that a dependent child has an interest in continuity and stability in placement. [Citations.] This interest was served by the order denying change of placement." (Id. at p. 326.)
DISPOSITION
The petition for an extraordinary writ is denied on the merits. (Cal. Rules of Court, rule 8.456(h)(1).) Our decision is final immediately. (Cal. Rules of Court, rules 8.456(h)(5), 8.490(b)(2)(A).)
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.