Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County, No. NJ11540C-D, Harry M. Elias, Judge.
IRION, J.
T.L. and M.L. (the L's) appeal from orders of the juvenile court denying their petition for a change in placement of their nephew and niece, A.S. and J.S., terminating parental rights relating to the children, and placing the children for adoption. The L's contend that the court (1) improperly failed to undertake an independent assessment of whether the children should have been placed with them in accordance with Welfare and Institutions Code section 361.3, which sets forth a legislative preference for placement with relatives under certain circumstances; and (2) abused its discretion in finding that the children's best interests supported their continued placement in their prospective adoptive home. The children appeal as well, also challenging the court's best interest finding. (All further statutory references are to the Welfare and Institutions Code except as otherwise noted.) We find the appellants' arguments unavailing and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
A.S. and J.S. (now ages three and two, respectively) are the children of Jamie and Johnthan S. J.S. was born in June 2007 with heroin and methadone in her system and shortly thereafter, the San Diego County Health and Human Services Agency (the Agency) filed petitions on the children's behalf pursuant to section 300, subdivision (b) based on the parents' long-time drug abuse problems and the prior permanent removal of Jamie's two older children from her care. At the time the children were detained, Johnthan was in custody for a parole violation.
At the detention hearing, the court placed A.S. in foster care, although J.S. remained hospitalized with drug withdrawal issues. The court granted the parents supervised visitation and ordered them to undergo a Substance Abuse Recovery Management System (SARMS) evaluation (in Johnthan's case, subject to his release from custody). The court also ordered the Agency to search for a home where the children could be placed together. Thereafter, Johnthan's mother requested that the Agency consider the L's (Johnthan's adopted sister and her husband from Minnesota) as possible caregivers, and Jamie and Johnthan requested that the children be placed with Jamie's parents.
Within a few weeks of the detention hearing, Jamie entered into a residential drug treatment program and started taking a parenting class. However, in light of the magnitude of the parents' substance abuse history, assigned social worker Julie Weathersby's jurisdictional and dispositional report recommended that the court set a permanency planning hearing for the children, rather than ordering reunification services for the parents. At the hearing, the court authorized reunification services for Jamie, continued the children's placement in foster care and ordered the Agency to consider all appropriate relative homes as possible placements. Within a few weeks thereafter, J.S. was released from the hospital and placed in a special foster home for medically fragile children, based on the special needs she had as a result of her drug exposure.
During the same time frame, T.L. talked to Weathersby about possible placement of the children with her, but indicated that she needed more time to think about it before making a decision. Johnthan objected to placement of the children with members of his family, which he described to Weathersby as "screwed up." In the meantime, Jamie's parents withdrew from consideration as possible caregivers for the children. Thus, at the next hearing in August 2007, the court found that there was no relative or noncustodial parent available, able and willing to care for the children. The court also found that based on Jamie's progress with her case plan, it appeared the children would be returned to her home by the next review hearing.
As Jamie continued her success with her treatment plan, a new social worker, Jerry James, was assigned to the children's case. In September, T.L. contacted James to request that her Minnesota home be evaluated under the Interstate Compact for the Placement of Children (ICPC) (see Fam. Code § 7900 et seq.) as a foster or adoptive placement for the children. Based on a court order requiring that the children remain in state during the reunification period, James, who had never done an ICPC referral before, informed the L's that a change of placement was on hold pending the parents' reunification efforts. He did not make the referral at that time, even though the Agency's protocol required concurrent placement planning.
The following month, A.S. was moved to a second foster home because of concerns about the care he had received in his first placement. Although originally happy, talkative and friendly by nature, A.S. had become reserved and quiet in his demeanor by the time of his change in placement and he had a difficult time transitioning into his new home.
In November 2007, shortly after being released from jail, Johnthan died from a heroin overdose. The L's came to San Diego to attend the funeral, where they met the children for the first time. Although A.S.'s foster parents were interested in adopting the children themselves, they gave the L's their telephone number and encouraged the L's to call both of the children; they also gave the children's paternal grandmother their address so that the family could send the children cards and gifts. The L's sent holiday gifts to the children in December 2007, but did not otherwise call, send cards or birthday gifts or request visitation because they did not realize that contacting the children was "something [they] should have been doing."
The L's continued to express interest in having their home evaluated under the ICPC. However, because Jamie was still on track to reunify with the children in January 2008, James still did not submit an application, despite being encouraged to do so by his supervisor. Instead, James focused his efforts on getting Jamie the services she needed to reunify with the children. With James's help, Jamie was placed in a residential program in January 2008 that required her to reunify with the children within 60 days and the court extended services for her for another six months.
Unfortunately, Jamie had difficulty coping with Johnthan's death and by mid-January she began to relapse into drug use. As of April 2008, she had largely stopped complying with the requirements of her case plan and the court terminated her from the drug court program.
After concluding that Jamie would not succeed in reunifying with the children, James finally filed an ICPC request for an evaluation of the L's home in mid-April 2008. The L's thereafter attended required classes and bought bedroom furniture for the children.
Meanwhile, the foster parents continued to work with A.S., helping him to adjust and dealing with various health and developmental problems (including a leaky bowel, severe asthma and delays in his speech and gross motor skills), as well as severe separation anxiety. As a result of the foster parents' consistent efforts, A.S. began to respond to them as his primary caregivers and was able to overcome his developmental delays. In April 2008, J.S. was moved into A.S.'s foster home and the foster parents expressed interest in adopting both children. In July 2008, the ICPC home study was completed for the L's, with the Minnesota social worker recommending that the L's be approved for the children's possible foster or adoptive placement.
In August 2008, the foster parents applied to be designated as the children's de facto parents. Based on the established bond between the children and the foster parents, the absence of a relationship between the children and the L's, the imminence of the next court hearing and the stated preferences of Jamie and the children's counsel, the Agency changed its focus from relative placement to adoption by the foster parents. At the 12-month review hearing in September 2008, the court adopted the Agency's recommendation to terminate Jamie's reunification services, grant the foster parents' de facto parent application and set a permanency planning hearing. Shortly thereafter, the Agency transferred the case to adoptions social worker James Largent.
At about the same time that Largent became involved, the L's filed a petition under section 388, requesting that the court place the children with them. Unbeknownst to James, Largent or the parties, the local ICPC coordinator mistakenly withdrew the ICPC approval request for the L's home a week later, although Largent discovered the mistake and reopened the referral within a few weeks' time.
Noting that the L's had only met the children briefly once, Largent encouraged them to undergo additional training and to call and arrange for visits with the children. The L's declined the opportunity to visit on several occasions, although they made arrangements with Largent to visit during the time they would be in San Diego for the November 2008 hearing. The L's also started to put together a photo album and a DVD so that the children could get to know them and their family and to make weekly calls to the foster parents to check on how the children were doing.
In connection with the hearing, Largent prepared a review report outlining the history of the children's detention, including the Agency's contacts with Johnthan's family, and the children's progress while under the care of their foster parents. He expressed concern that the L's had not recognized the importance of having regular contact with the children over time to facilitate possible placement with them and opined that although the L's would "be able to provide a safe, secure home environment for [the children]", the limited nature of their relationship with the children would not provide a sufficient safety net for the children in dealing with the loss of their existing familial relationship with their foster parents and transitioning to yet another household. In light of the circumstances, Largent recommended that the court deny the section 388 petition, terminate parental rights and select adoption as the children's permanent plan.
The hearing on the section 388 petition and permanency planning occurred over the course of several months. Each of the social workers (including the social worker from Minnesota), and the local ICPC coordinator testified, as did Jamie, Johnthan's mother and the L's.
The court reviewed the procedural history of the case and found that the statutory relative preference was inapplicable. Reviewing the sufficiency of the section 388 petition, the court concluded that the belated ICPC approval was a clear change of circumstances and that, if the Agency had conducted a timely evaluation of relative placement in furtherance of its duties under the law to engage in concurrent planning, the ICPC approval of the L's home would have been available in January or February, rather than July of 2008. The court also found, however, that James's failure to initiate the ICPC referral earlier resulted from a mistake rather than an intentional attempt to preclude the L's from being considered as caregivers for the children. It further noted that the statutory preference for relative placement was based in part on the recognition that placing a dependent child with a relative would be more likely to facilitate reunification than placement with foster parents who did not know the child's parents.
The court recognized that both the foster parents and the L's were "ready, willing and able to love these two children" and that the children needed to be promptly placed in a loving home. It concluded that its decision about where to place the children had to be based on their best interests and that under the circumstances (the most significant of which were the lapse of time, the strong bond between them and their foster parents and the problems they would encounter in transitioning to a new placement), their best interests required that they remain placed with their foster parents. The court denied the section 388 petition, terminated parental rights and ordered adoption as the permanent plan.
T.L., M.L., A.S. and J.S. appeal.
DISCUSSION
1. Failure to Apply the Relative Placement Preference
Section 361.3 sets forth a placement "preference" for relatives when a child is removed from the custody of a parent and placed outside the home or when, at other points in the dependency proceedings, a change of placement is required. Specifically, the statute provides:
The L's and the de facto parents have differing views on whether section 361.3 creates a placement preference in favor of adoptive rather than biological relatives. Because we conclude that the statute is inapplicable here for other reasons, we need not, and do not, decide this issue.
"(a) 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. In determining whether placement with a relative is appropriate, the county social worker and court shall consider [various factors relating to the suitability of the relative's home and the best interests of the child].
[¶]... [¶]
"(d) Subsequent to the hearing conducted pursuant to Section 358, 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 addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child."
When section 361.3 applies to a relative placement request, the juvenile court must exercise its independent judgment in determining whether to grant the request rather than simply reviewing the Agency's decision for an abuse of discretion. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033-1034; also In re Antonio G. (2007) 159 Cal.App.4th 369, 379.)
The L's contend that the juvenile court erred in failing to independently assess their request for a change in the children's placement pursuant to section 361.3. By its express terms, however, section 361.3 requires that relatives who have requested placement be given preferential consideration at the time of disposition or when a new placement becomes necessary. (In re Stephanie M. (1994) 7 Cal.4th 295, 321; also In re Sarah S. (1996) 43 Cal.App.4th 274, 283.) Neither of those circumstances existed at the time the L's filed their petition for a change in the children's placement.
The L's nonetheless contend that the relative placement preference is equally applicable when a qualified relative seeks a change in placement at any time prior to the termination of reunification services. (In re Joseph T. (2008) 163 Cal.App.4th 787, 793-798.) Assuming, without deciding, that we agree with this interpretation of the statute, it does not aid the L's here because the juvenile court had already terminated Jamie's reunification services by the time the L's filed their section 388 petition.
Moreover, the application of section 361.3 in this case would have required the juvenile court to make precisely the same decision that it relied upon in denying the L's section 388 petition, to wit, whether the requested placement was in the best interests of the children. (In re Stephanie M., supra, 7 Cal.4th at pp. 319-321; In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [recognizing that "regardless 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"].) Thus, the paramount question on this appeal is whether the juvenile court abused its discretion in reaching that decision.
2. Best Interests Finding
Section 388, subdivision (a) allows a parent or other person having an interest in a child who has been declared a dependent of the juvenile court to petition the court to modify, change or set aside any of its previous orders. To obtain relief under section 388, the petitioning party must establish, inter alia, that the requested change is in the child's best interests at that time. (§ 388; Cal. Rules of Court, rule 5.570(h).) After reunification services are terminated, a request to change a child's placement focuses on the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is true even where a relative who seeks a change in placement has been prejudiced by a failure on the part of the responsible agency or the juvenile court to facilitate the placement preference of section 361.3 in his or her favor. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) We review the juvenile court's decision under an abuse of discretion standard and will not disturb it unless it was " 'arbitrary, capricious, or patently absurd.' " (Id. at p. 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
The L's and the children contend that the juvenile court abused its discretion in (1) failing to place "appropriate emphasis" on the children's interests in maintaining their familial relationships and, in this regard, failing to consider the factors specified in section 361.3 in determining whether the children should be placed with the L's; (2) relying, as the primary basis for its decision, on Largent's testimony that the children would suffer detriment if removed from their foster parents' home; and (3) refusing to correct the Agency's misfeasance in this case. These arguments, however, are not well-taken.
The appellants' argument that a consideration of the factors enumerated in section 361.3 was "vital" to the assessment of the children's best interests essentially assumes that that statute creates a presumption in favor of placing the children with qualified relatives. Such an assumption, however, is contrary to the law. (See In re Lauren R., supra, 148 Cal.App.4th at p. 855, citing In re Stephanie M., supra, 7 Cal.4th at p. 320.) Moreover, the record establishes that the court in fact considered whether the L's home was an appropriate placement for the children and concluded that the L's were "ready, willing and able to love these two children" and that their home would be sufficient to meet the children's needs.
Because the court clearly did consider both the L's home as a proper possible placement for the children and the children's interests in maintaining their familial relationships, it acted well within its discretion in determining from the evidence before it that those interests were outweighed by the detriment to the children of removing them from their foster parents' care. As of the time of the court's ruling on the section 388 petition, the children had each lived with their foster parents for more than half of their lives and had developed close, familial bonds with the foster parents. By contrast, they had had no significant contact with the L's until shortly before the hearing on the section 388, commenced in November 2008. Thus, although the familial relationship between the children and the L's was one that is recognized by the law, it did not involve the type of bond and shared experiences that the children themselves perceived to be in the nature of a parent-child relationship. The existence of the former did not require the juvenile court to order a change of placement in the L's favor. (See In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112-1113.)
The appellants' challenge to the court's reliance on Largent's testimony is similarly unavailing. The court was entitled to assess Largent's credibility and decide what weight to attribute to his testimony and it is not our role to override its conclusions on those points. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Even if Largent's testimony alone would not have sufficed to support the juvenile court's finding that a change in the children's placement in March 2009 would have been detrimental to them, there was ample additional evidence in the record to establish that A.S. had had difficulties transitioning between placements in the past and that the close nature of the children's relationship with their foster parents would have made it quite difficult for them to transition into a new home.
Finally, insofar as the appellants contend that the court was required to rectify the mistakes made by the Agency in this case, they are mistaken. Under well established law, the court was required to make an assessment of whether the children's best interests were better served by keeping them in their existing placement or placing them with the L's. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) For sound policy reasons, the children are not required to pay the price for others' mistakes.
For the foregoing reasons, we conclude that the juvenile court did not abuse its discretion in denying the L's section 388 petition.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.