Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK69521. Terry Troung, Referee.
John L. Dodd, under appointment by the Court of Appeal, for Petitioner and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
ZELON, J.
Cynthia S., maternal grandmother of I.H., filed a Welfare and Institutions Code section 388 petition seeking placement of I.H. in her home. The juvenile court denied the petition, and we affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I.H. was born approximately 10 weeks prematurely and required months of hospitalization. When I.H.’s mother, Rena H., failed to attend classes to train her to take care of the child, the hospital contacted the Department of Children and Family Services (DCFS) with its concerns that she was not prepared to meet I.H.’s needs. R.H.’s mother, Cynthia S., told DCFS that she had completed the requisite feeding training and that she was supporting Rena H. in caring for I.H. Cynthia S. assured DCFS that she would ensure that Rena H. completed the training and that she would assist Rena H. in obtaining financial and medical assistance. The hospital agreed to release I.H. to Rena H. based on Cynthia S.’s agreement to a safety plan that provided that Cynthia S. would ensure that I.H. was properly fed until R.H. was trained in feeding him; Cynthia S. would be present at the discharge of I.H.; and Cynthia S. would ensure that Rena H. participated in an aftercare outpatient program. The child was discharged from the hospital on May 26, 2007.
On June 4, 2007, DCFS learned that Rena H. was alone with I.H. The social worker contacted Cynthia S. on her cell phone and expressed concern that Rena H. was left alone with the child before having completed the feeding training. Cynthia S. reported that she had taken Rena and I.H. to a clinic appointment and that she believed the training had been given there. When the social worker insisted that Cynthia S. should have verified that the training was given, Cynthia S. became upset and responded, “I can’t be here 24 hours a day. I have things to do. She’s doing fine feeding the baby. You must be out of your mind if you think that I am going to sit at home for 24 hours to watch her.”
A home visit a few days later revealed that I.H. appeared content, healthy and well-nourished, with good hygiene and appropriate development. Rena H. told DCFS that the clinic doctor said she did not need to complete feeding training since the baby appeared healthy, but she was not able to provide the name of that doctor. The same day, the social worker and public health nurse visited and found Cynthia S. very resistant to allowing them to enter the home. Among other things, they emphasized the importance of Rena H. taking the feeding training and Cynthia S. supervising the care of I.H.
Over the next two weeks, arrangements were made for the feeding training. When DCFS telephoned to confirm that Rena H. had received the message that the training was scheduled for June 19, 2007, Cynthia S. hung up on the social worker. Rena H. did not appear for the training. For several days, DCFS attempted to reach Rena H. by phone. On June 26, Rena H. called DCFS and explained that she had missed the session because I.H. had been hospitalized for breathing problems. She could not remember the dates of the hospitalization, and she also denied receiving messages about the June 19 feeding training appointment. Rena H. denied having moved, but asked that I.H.’s care be transferred to another hospital.
Social workers unsuccessfully attempted to contact Rena H. numerous times in early and mid-July. In late July, Cynthia S. called DCFS and, using profanity, told them to stop calling her house because Rena H. did not live there anymore. She claimed not to know where they were. At the time DCFS filed a dependency petition, it could not locate Rena H. or I.H. DCFS alleged that I.H. fell within the jurisdiction of the juvenile court under section 300, subdivision (b) (failure to protect) due to Rena H.’s medical neglect and her failure to provide adequate care and supervision; and also under subdivisions (b) and (g) due to the failure of I.H.’s father (whose whereabouts were unknown) to provide for I.H.’s basic needs and support.
His location still unknown, I.H. was ordered detained on August 14, 2007. The juvenile court ordered a protective custody warrant issued for I.H. On August 23, 2007, Rena H. called DCFS and stated that she was at a drug and alcohol treatment program and that she was afraid of losing I.H. Rena H. left the program before the social worker could get there to place I.H.
Also in August 2007, Cynthia S. came to DCFS offices and met with a social worker. She “was upset and requested a copy of the initial child abuse referral and the detention report so she could confront the reporting party and also attempt to ‘reverse’ the [c]ourt process. She indicated that she wanted a copy of the safety plan that she signed that indicated that she would supervise Mother with her child. She then added that she never supervised Mother like she had agreed to do. Maternal Grandmother [Cynthia S.] stated she and her daughter were going to go to [c]ourt but that her daughter would never ‘give up’ the baby.” According to the social worker, Cynthia S. yelled through most of the meeting, accused the reporting party and DCFS of lying, was hostile, and argued that there was no reason that DCFS should be involved in her life or her daughter’s life.
An arrest warrant was ordered issued for Rena H. on September 26, 2007. In late September the social worker who had originally made the DCFS referral spoke with DCFS and was very concerned that the matter had proceeded as it had. She characterized Rena H. as a caring mom with some learning disabilities who was scared to take care of I.H. and was “flaking out” as I.H.’s discharge date approached. The baby had been in good condition when last seen and the hospital had no objection to the family’s request for transfer of his care. She expressed regret at making the referral and confirmed that the doctors had decided that additional feeding training was not necessary.
DCFS was also notified that I.H. had missed five appointments at the new clinic where he was to be receiving care. The clinic confirmed that he had not been seen there.
On October 29, 2007, Rena H. appeared before the juvenile court and the warrants for her and for I.H. were ordered recalled. The court again ordered I.H. detained. The court also ordered a multidisciplinary assessment team evaluation of I.H.
Proceedings in the dependency matter continued with I.H. in foster care and DCFS attempting to locate I.H.’s father. On February 7, 2008, Cynthia S. filed a petition under section 388 requesting that the juvenile court place I.H. in her care until the case was resolved. As changed circumstances, Cynthia S. contended that visitation was not taking place as ordered by the juvenile court and that I.H. no longer recognized his mother or grandmother; she also expressed concern about his health, noting that she and Rena H. were not allowed to go to I.H.’s medical appointments. Cynthia S. stated that she had the training provided by the hospital and knew what to do if the baby were to experience problems. She contended that it would be in I.H.’s best interest to be placed with her because he would be with family members who love and care about him, he could bond with his family, and “at the end of this trial he will not f[ee]l as though he has been taken away from his parents again which are [the foster parents], this may scar[] him for life.”
In an amendment to the petition, Cynthia S. submitted a six-page declaration setting forth her view of the dependency proceedings. She asserted that the family stopped wanting DCFS services because of “all the pressure and demanding that petitioner drop everything or whatever she was doing to meet with the Depts.’ staff without any previous notice to get their reports completed.” She contended that she had completed all the required safety classes before I.H.’s discharge and that Rena H. had only one class to complete. She said she had asked DCFS to accept training or monitoring from a doctor in place of the remaining training session, and DCFS refused. She complained, “[W]e’ve given them documentation and it’s still not good enough.” She complained that DCFS asked too much of her with respect to supervising Rena H.’s care of I.H. She described the medical care that I.H. was receiving, complained of not receiving letters from doctors as requested, and stated that she felt pressured, threatened, and intimidated by DCFS. Cynthia S. alleged that DCFS broke into her home with the Sheriff’s Department and the landlord, ostensibly looking for Rena H. and I.H.—but, she said, DCFS had already known that Rena H. and I.H. did not live there. She complained of the condition in which her home was left after the authorities entered. Cynthia S. described her view of the circumstances that had led to Rena H. being placed in foster care when she was a minor, contended that Rena H. had been abused in the foster care system, and asserted that although she had fully complied with her case plan, Rena H. had not been returned to her. She stated that “there is a lot of mistrust with the department, their behavior and the manner in which and how they have handle[d] this case, the lies told to proceed with the petition, the over[]all damages and the attorney[]s assigned to the case.” She requested that the court return I.H. to Rena H. or place him with Cynthia S.; appoint an advocate on behalf of the family; and order DCFS to report accurate information to the courts and the family. The juvenile court set a hearing on the petition for March 27, 2008.
The multidisciplinary assessment team submitted its findings in early 2008. During the assessment process, the team scheduled two appointments with Rena H., both of which she missed. The team contacted Cynthia S. to ask about where Rena H. was, and Cynthia S. was reported to have become upset and disrespectful. Neither Rena H. nor Cynthia S. attended the team’s summary of findings meeting despite Rena H.’s statement the prior evening that she would be there. It also appeared at this time that Rena H., despite being entitled to six hours of visitation weekly, did not consistently visit her son.
As of the February 14, 2008 court hearing, DCFS informed the court that Rena H. had not obtained a mental health assessment although referrals had been provided to her at the start of January. Cynthia S. claimed that the assessment was not available from some of the agencies and that others expected Rena H. to participate in six months of services. The court was also advised that I.H. had been referred to a failure to thrive clinic. Mother’s visitation continued to be inconsistent. DCFS had offered her unmonitored visits twice weekly, but during January 2008, Rena H. visited only twice. Moreover, on I.H.’s return from one of the unmonitored visits, the foster mother found a cigarette she believed to be a marijuana cigarette in his diaper bag. DCFS acknowledged that it was possible that the cigarette contained tobacco but reinstated the requirement that visits be monitored. On February 14, 2008, the juvenile court ordered that DCFS was to contact Rena H. within three days to set up a visitation schedule; to set-up and confirm an appointment for Rena H.’s assessment; to confirm the appointment with Rena H.; and to keep Rena H. informed of any and all medical appointments.
Later in February 2008 Rena H. submitted to a mental health assessment. She reported daily marijuana use except during pregnancy, and even smoked it during a break at the assessment. Her appearance was disordered, her motor behavior slow, and she was not oriented to her situation. Her speech was disorganized, her responses slow, and her memory appeared to be impaired as to recent events. While cooperative in attitude, she appeared to be impaired in intellectual functioning; her judgment was inappropriate; her concentration was impaired; and her insight was inadequate. The evaluator wrote, “Rena presented as very guarded yet cooperative throughout the interview. Her responses were minimal and brief to questions posed to her. Throughout the interview, Rena posed questions to her mother to assist her in remembering common information (i[.e.,] ‘what is my religion?’ ‘Why didn’t I go to the class?’). It appeared that Rena’[s] memory is severely impaired and it was suggested that she keep all important information written down to assist her in meeting her needs. With the impairment that Rena is exhibiting, there is a concern whether she can meet all of her child’s needs (medical, physical, emotional[]) appropriately as she will need to remember important dates, times etc. Rena would require monitoring and supportive services to assist her in providing quality and appropriate care for her child.”
On February 29, 2008, a DCFS social worker observed Rena H.’s visitation with I.H., and was highly concerned that Rena H. could neither understand nor properly administer I.H.’s asthma treatments with a nebulizer machine. Rena H. also told the social worker that she could not stay for two hours with I.H. and asked if Cynthia S. could “stand in” for her on some of her scheduled visits.
On March 5, 2008, a first amended petition was filed and amended by interlineation. Rena H. denied the allegations of the petition but submitted on the amended petition and DCFS reports. The juvenile court sustained the allegations of the petition under section 300, subdivisions (b) and (g). The sustained allegations that pertained to Rena H. were as follows: (1) “The four-month-old child I[.H.] was born premature and suffers from respiratory problems and feeding problems. The child’s mother, R[.H.], needs training to provide adequate care and supervision for the child’s medical needs. On 6/13/07, the child was hospitalized for six days suffering from respiratory distress. The mother was unable to obtain necessary infant feeding training classes for the child and [p]rior DCFS voluntary services and community services have failed to resolve the family problems which endanger the child’s health and place[] the child at risk of harm” and (2) “The child, I[.H.]’s mother, Rena H[.], has a history of marijuana use and is currently a user of marijuana, which periodically renders the mother unable to provide regular care for the child and endangers the child and places the child at risk of harm.” Rena H. entered into a dispositional case plan that provided, inter alia, that she would attend drug rehabilitation, undergo individual counseling, and have monitored visitation with I.H.
Cynthia S.’s section 388 petition remained outstanding. DCFS filed an Interim Review Report for the hearing on the petition. DCFS reported that Rena H. was currently provided visits monitored by the foster caregiver three days a week for two hours at a time. A maternal cousin had also been recently approved as a monitor. DCFS repeated its assertion that in late February Rena H. had asked DCFS if Cynthia S. could substitute for her at visits and that she was told that Cynthia S. may visit, but not in Rena H.’s place. DCFS stated that Rena H. had been informed about a clinic appointment on February 19, 2008, and that she was informed of and encouraged to attend subsequent medical appointments on March 6 and 25, 2008. The caregiver also reported that Cynthia S. “seldom[] calls her to schedule her visit with I[.H.], but shows up to substitute for mother when mother cannot make her visits, and shows up late.”
Regarding Cynthia S.’s request for custody of I.H., DCFS reminded the court that Cynthia S. had not followed through on the safety plan she signed for I.H.’s hospital discharge, and labeled her hostile, uncooperative, and resistant to DCFS. The report described Cynthia S. as cursing and yelling at every DCFS worker she has contact with and described Cynthia S.’s most recent visit to DCFS offices in March, 2008. On that visit, Cynthia S. “became irate when the live-scan technician informed her that she could not live-scan with an expired driver’s license. Grandmother yelled and cursed out lo[u]d in the lobby, creating a scene and disregarding children and staff in the building.” DCFS also reminded the court that Rena H. had been taken from Cynthia S.’s custody in 1998 due to physical and emotional abuse and neglect, as well as substance abuse. Finally, DCFS described the new information about Rena H.’s marijuana use and the corresponding change from unmonitored visits back to monitored visits. DCFS concluded, “Grandmother’s intensive DCFS physical, emotion[al] and substance abuse history does not make her appropriate to care for a medically sensitive child. Grandmother’s lack of cooperation, as well as frequent display of anger and chronic cigarette use will not be in the best interest of the child. DCFS has given the family resources and the opportunity to stabilize, but mother and grandmother’s inconsistent compliance will cause more harm than good for the child’s health, safety and well-being.”
Cynthia S. filed a document responding to the DCFS report, in which she contended that DCFS reports were incomplete and included false allegations, statements, and accusations. She stated that I.H.’s health was getting worse since his removal from the family home. She contended that DCFS had “lied numerous times in their reports about Rena H[.] being an unfit mother, and as [for] me for my attitude towards them they are correct.” She stated that I.H.’s health had never been in danger with his family, only with the court and DCFS. She claimed that “Rena H[.] has no drug history of marijuana use and is not an abuser and if she is it’s because of the 19 or 20 foster homes she was placed into by a system that was supposed to protect children” but failed to protect her. She asserted that it was only through “creative writing” that DCFS made the family look bad, and that I.H. could die in foster care if he was not returned home. She claimed that the reason they were in dependency court was that they refused some DCFS services and preferred other services, complained that she was not able to visit I.H. except with Rena H., and alleged that Rena H. was being denied the full measure of visitation ordered by the court. Cynthia S. said that the foster mother has refused to permit her to have her own visits due to the foster mother’s day care business. She complained of the entry into her home and the circumstances of Rena’s removal from her care years earlier. She claimed she to have apologized for some of the things she had said to DCFS, but, having read the DCFS report, rescinded that apology. She contended that the procedures were fundamentally unjust: “The department will lie about any and everything, and then submit it to court and now they have the court on their side believing the lies. The decisions are already made prior to entering the courtroom[,] we’re just going through the formalities to make it look like we’re having a trial.” Cynthia S. complained of a double standard for care between parents and foster care providers, accused DCFS of being overzealous, and alleged that the court system was willing to dismember families with the assistance of court-appointed counsel.
On March 27, 2008, the juvenile court held a hearing on Cynthia S.’s section 388 petition. County counsel submitted on DCFS’s report, and I.H.’s counsel joined with DCFS. Rena H.’s counsel argued that Cynthia S. had submitted proof that she addressed the issues that gave rise to Rena’s detention years earlier and had worked very hard to support her daughter in this proceeding. He said that his observation was that Cynthia S. set good boundaries with her daughter, had an understandable reaction to the search of her home, and that she was very focused on helping DCFS meet its goals. He claimed that her attitude had completely changed since the first hearing and that she had been completely appropriate at every hearing since then. Rena H.’s counsel argued that Cynthia S. should have unmonitored visits and that she would also be a completely suitable placement who would respond to DCFS’s concerns.
I.H.’s attorney indicated she had no opposition to giving Cynthia S. additional visits so that she was not a substitute for Rena H. She said, “[S]he should visit regularly on her own and not monitor the mother’s visit. [¶] And maybe, during the visit, I have no problem if it’s unmonitored in placement. And if she continues regularly to visit and cooperate with the Department, I’m sure the grandmother can file another [section] 388 [petition] very soon and ask at that time for limited unmonitored visit[s]. I have no problem with that, Your Honor.”
The juvenile court advised Cynthia S. that it had read her petition, the amendment to her petition, and her response to the interim review report, and asked her whether there was anything else she wanted the court to consider. Cynthia S. responded, “No, Your Honor. I’m just leaving it up to you to decide. One thing, I do feel that there is a need for me to go to another anger management class. And I am seeking therapy because this is driving me crazy. So I went yesterday, and I went a couple of weeks ago previously because it’s just here. I’m just—I’m not holding it, keeping my composure like I should. [¶] Like I say, I do need something, therapy, on that because this is driving me crazy. So I didn’t bring the paperwork to show the court that I am joining, but I did provide information, as far as that I had complied with the court previously to get my daughter back, but they never gave her back to me. So she did A.W.O.L., and we’ve been together ever since.”
The court said that it was not aware of all the facts and circumstances of that case but was instead focused on I.H. The court expressed surprise that the issue of Cynthia S.’s visitation had not been addressed before, and said, “At this time I do not have a problem with you visiting I[.H]. Unfortunately, he does have medical issues, and I’m going to make the visitation monitored at this time until I can get a sense that everyone is on board with regards to what I[.H.] needs in order for you to have unmonitored visitation. [¶] What I mean by that is that I want to make sure that you meet with the social worker and with the PHN—the PHN, is a public health nurse who is assigned to I[.H.]’s case—that the person explains what it is he needs and what his condition is, and so forth. That’s one of the things that I would feel more comfortable with to change your visitation to unmonitored. [¶] The other is that the Department has a position that you are not cooperating. You are uncooperative with them. And as long as they perceive that, they’re not going to change your monitored visitation to unmonitored, even if I give them discretion to do so. [¶] So here’s the deal. You’re going to have to convince me, okay, since I have a feeling they’re not going to do it, you have to convince me that unmonitored is warranted. So if you are in these anger management courses or classes or counseling, whatever it is that the program is, bring it to me, show it to me, okay, next time we’re here. [¶] And please start visiting I[.H]. He is a very young child. He does need to bond with his relatives and his family. I agree with you on that.”
Cynthia S. objected that “they” had not set up visits. The court said, “There’s been no order for them to set up visitation. That order is going to be made today.” The juvenile court went on to advise Cynthia S. that if visitation was not forthcoming to return to court and the court would make more specific orders, but encouraged her to communicate with the new social worker who was anticipated to be assigned to I.H.’s case.
Cynthia S. told the court that she had been to I.H.’s appointments and that she knew about his breathing treatment. She said there was very little she needed to learn and that she did try the asthma class, but what “that lady” wanted was to come to the house and to speak to I.H.’s doctor. She claimed that she knew what she was doing and contended that “during this time the County verbally threatened” her. She said, “They’re very demeaning. They have no respect for me; so, therefore, hey, you give me respect, I give you respect. But don’t comment me like I’m a piece of trash off the ground because that’s not going to work with me.” She complained at the demands DCFS imposed on her just so that social workers could meet their deadlines. She concluded with, “They need to correct themselves before they come to me. I already can’t stand up. I’m trying to control myself. If you [are] coming to me wrong, then I’m not responsible.”
The court responded, “I understand where you’re coming from. I also understand what the Department is trying to do in trying to protect what they perceive as risk to I[.H].” The court urged Cynthia S. to work with DCFS so that she would be familiar with any new medical needs that I.H. had and would be able to do whatever I.H. needed, and she agreed. The court ruled, “With regards to the petition, it is denied. However, monitored visitation is ordered for the maternal grandmother. The Department has the discretion to liberalize the grandmother’s visits. I’m also ordering either the PHN or some equivalent to meet with the maternal grandmother regarding I[.H.]’s medical care.” The minute order from this date specifies that the section 388 petition was denied on the basis that the child’s best interests would not be served by the requested change of order.
On May 28, 2008, Cynthia S. filed another section 388 petition requesting custody of I.H. She alleged that her earlier petition had been denied solely on the basis of her prior record with her daughter; that now Rena H. had given her temporary custody of I.H.; and that she sought custody of I.H. She claimed that the change in custody would be in I.H.’s best interest because he would be with family members who would give him the same care that he would receive from his foster care providers, the care that they were giving before he was removed from the home. Cynthia S. attached a document signed by Rena H. purporting to give Cynthia S. temporary power of attorney over Rena H.’s business and private affairs and temporary custody of I.H. The juvenile court denied this petition without a hearing on the ground that it did not state a change in circumstances.
Cynthia S. appealed the denial of her first section 388 petition.
DISCUSSION
Cynthia S.’s appeal is addressed to the denial of her first petition under section 388. Section 388 is a general provision permitting the court, “upon grounds of change of circumstance or new evidence... to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).) The statute permits the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) changed circumstances or new evidence exists; and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the court’s ruling for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In her opening brief, Cynthia S. raised several jurisdictional arguments intended to preemptively address arguments she anticipated would be made by the respondent, but respondent in fact made none of those arguments. We therefore need not address these points.
Cynthia S. contends that the juvenile court denied her section 388 petition because Cynthia S. had once had a dependency matter herself. To support this view, she quotes a comment made by the juvenile court at the hearing before the hearing on the section 388 petition in which the juvenile court expressed its expectation that DCFS would oppose placement of the child with Cynthia S. due to her prior DCFS involvement. The court said, “I have not ruled on the [section] 388 motion yet. I was hoping we can deal with it today as well given what would occurred [sic] today. [¶] Here’s what my concern is. Here’s my problem. That given that the maternal grandmother herself had a case here in the building and while I can assess the file and make my own determination of what happened in the case, that’s probably going to be a strong reason for the Department opposing any sort of placement with her especially given that I understand that the case was terminated and not because the child or that the mother here in this case was returned to the maternal grandmother.”
Using ellipses, Cynthia S. removes the court’s statement that it could review the file to determine what happened in the earlier case, and asserts that this comment demonstrates that the court made its decision on the section 388 petition based on Cynthia S.’s previous dependency matter. We do not believe that the statement can be so interpreted. This statement was not made at the hearing the juvenile court conducted on the section 388 petition; it was made approximately three weeks earlier in the context of explaining that the court had hoped that issues raised in the petition would have been addressed at the jurisdictional and dispositional hearing that was conducted that day. Moreover, the juvenile court was not stating a ruling or even a tentative ruling on the petition, but instead was anticipating that DCFS would—as it in fact did—oppose Cynthia S.’s placement request because she had previously had a child removed from her custody. This comment cannot be construed as the articulation of the basis for a ruling that the juvenile court had not yet made.
Cynthia S. claims that the juvenile court denied her section 388 petition “without any further discussion.” This is incorrect. The juvenile court conducted a hearing on the section 388 petition on March 27, 2008. The court called the matter, advised the parties that the matter was on for the hearing of the section 388 petition, and asked whether anyone wished to be heard. Counsel for DCFS submitted on the reports, counsel for I.H. joined in DCFS’s position with the clarification that she supported visitation for Cynthia S., and Rena H.’s counsel argued that the motion should be granted—or at least that Cynthia S. should be given unmonitored visitation. Then the court specifically advised Cynthia S. that it had read her petition, her amended petition, and the response she had submitted to the DCFS interim review report; and asked her if there was anything else she wanted to present to the court. She spoke at length with the court. At the close of argument, the juvenile court made orders for Cynthia S.’s visitation and discussed what the court needed Cynthia S. to do to prepare herself to obtain unmonitored visitation. Then the court denied the section 388 petition. The court did not expressly state its reasons on the record, but it did specify in the minute order that the requested order would not be in the best interest of the child.
There was no abuse of discretion in this ruling. Substantial evidence supports the juvenile court’s implicit conclusion that placing I.H. in Cynthia S.’s custody would not have been in I.H.’s best interest. He was a medically fragile infant whose health was in apparent decline. Cynthia S. had completed received feeding training given shortly after I.H.’s birth, but Cynthia S. provided no evidence that she was trained with respect to the specific medical needs that had arisen for I.H. in subsequent months. As the court’s comments indicated, Cynthia S.’s level of readiness to care for I.H.’s medical issues was so limited that even though the juvenile court believed that bonding with Cynthia S. was desirable and important, the court felt that it was not yet able to permit her to visit with him without monitoring. If Cynthia S. was not yet clearly prepared to care for I.H. during visits such that she could be left alone with him, placement was obviously out of the question: it would not be in the child’s best interest to be placed in her custody. In light of the earlier events in this proceeding, the juvenile court could reasonably decline to assume that Cynthia S. would undergo and follow through with training such that a placement with her could be made prior to her demonstration that she was fully prepared to care for I.H. Moreover, the juvenile court could also have concluded that placement with Cynthia S. was not in I.H.’s best interest due to Cynthia S.’s extreme distrust of and refusal to cooperate with DCFS, and her admitted need for anger management training. There was no abuse of discretion in denying the section 388 petition here.
Our conclusion is unaffected by Cynthia S.’s claim that the juvenile court failed to follow the legislative preference set forth in section 361.3 for placement with relatives. “The relative placement preference, codified in section 361.3, provides that whenever a new placement of a dependent child must be made, preferential consideration must be given to suitable relatives who request placement. [Citation.] ‘“Preferential consideration” means that the relative seeking placement shall be the first placement to be considered and investigated.’ [Citation.] Preferential consideration ‘does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests.’ [Citation.]” (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.)
While section 361.3 may have placed Cynthia S. “at the head of the line” when placement decisions were made, it did not establish that placement with her would be appropriate. The juvenile court was always required to determine what placement was in the child’s best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320 [even when the relative preference applies, it does not “overcome the juvenile court’s duty to determine the best interest of the child”].) In fact, the first factor listed as a consideration for whether a placement with a relative is appropriate is the “best interest of the child, including special physical, educational, medical, or emotional needs.” (§ 361.3, subd. (a)(1).) While the juvenile court should have explicitly addressed the applicability of the relative placement preference here and should also have stated for the record the reasons that placement with Cynthia S. was denied (§ 361.3, subd. (e)), these errors are harmless because, as we have already discussed, it is clear from the record that there was no abuse of discretion in the conclusion that placement with Cynthia S. was not at that time in I.H.’s best interest. The section 388 petition was properly denied.
Although respondent contends that the relative placement preference was inapplicable here due to Cynthia S.’s “prior history of child abuse,” it cites to no evidence in the record to support its contention that Cynthia S. would be barred from placement under section 361.4.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.