Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Madera County No. BJP016147. Thomas L. Bender, Judge.
R.D., in propria persona, and A.V., in propria persona, for Defendants and Appellants.
David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for the Minor.
OPINION
Gomes, J.
R.D. and A.V., de facto foster parents (collectively the foster parents), appeal from the juvenile court’s orders (1) declaring their foster daughter R.F.’s maternal grandmother her de facto parent, and (2) granting the Madera County Department of Social Services’ Welfare and Institutions Code section 388 petition, which removed R.F. from their home and placed her with her maternal grandmother. The foster parents contend there was insufficient evidence to support the court’s order declaring the maternal grandmother a de facto parent, and the court erred in granting the section 388 petition because it incorrectly applied the relative placement preference (§ 361.3, subd. (a)) and failed to apply the caretaker preference (§ 366.26, subd. (k)). As we shall explain, we find no basis to reverse the juvenile court’s orders and accordingly will affirm them.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORIES
Jurisdiction and Disposition
This dependency proceeding began in November 2007, when the Madera County Department of Social Services (Department) filed a petition alleging that two-day-old R.F. (the baby) had been left without any provision for support since her mother was incarcerated, the baby’s half-sister had been abused and neglected and there was a substantial risk the baby would be abused or neglected, and mother’s reunification services for, and parental rights to, the baby’s half-sister had been terminated. The detention report revealed that mother’s parental rights to the baby’s half-brother also had been terminated and mother had a third child for whom she was not given reunification services. On December 1, 2007, the baby was placed in foster care with the foster parents.
At the December 2007 jurisdictional hearing, the juvenile court found the petition’s allegations true. The social worker stated in the report prepared for the dispositional hearing, originally scheduled for January 10, 2008, that the baby’s maternal grandmother (grandmother) had inquired about the relative approval process and would be provided the appropriate paperwork upon her request. The social worker recommended the court deny mother reunification services and set a section 366.26 hearing.
All subsequent references to dates are to dates in 2008.
At the continued dispositional hearing, ultimately held March 14, the court sustained the petition, denied mother reunification services, and set a section 366.26 hearing for July 10. The court ordered the California Department of Social Services (CDSS) to complete an adoptive assessment of the baby in accordance with section 366.21, subdivision (i).
Section 366.21, subdivision (i) requires the court to order such an assessment whenever it orders a section 366.26 hearing be held.
Proceedings After Disposition
Genetic testing completed shortly before the dispositional hearing excluded the first man mother identified as the baby’s possible father. Mother identified a second possible father (father); genetic testing subsequently ordered for him revealed he is the baby’s biological father.
In June 2008, father filed a section 388 petition seeking placement of the baby with her paternal grandmother or aunt. On June 5, the court set a contested hearing for June 23 on the section 388 petition. The court was informed that grandmother had been approved for placement, but the baby had not been placed with her, and the baby’s paternal relatives were applying for placement. At the request of the baby’s attorney, the court ordered the baby remain with her current care providers at least until the next hearing.
At the June 23 hearing, the court granted the foster parents’ request for de facto parent status. Father’s attorney withdrew his section 388 petition. The court entered a judgment of biological paternity for father, and confirmed the section 366.26 hearing set for July 10.
In the report prepared for the section 366.26 hearing, the CDSS stated it had conducted an assessment and adoption appeared to be the best permanent plan. While no prospective adoptive parents or legal guardian had been identified, the CDSS noted it was assessing the baby’s maternal relatives for adoption and the foster parents also had inquired about adoption. The CDSS noted that according to the records and court reports, grandmother expressed an interest in adoption and placement of the baby shortly after she was placed into dependent care, grandmother had completed a relative placement and home evaluation, a social worker had approved her for placement on February 12, 2008, grandmother had adopted the baby’s two siblings on June 5, 2007, and her home study was up-to-date, but for unknown reasons, the baby had not been placed with her.
On July 10, the court continued the section 366.26 hearing to September 11, as notice of the hearing had not been served, and set a permanency planning review hearing for July 17. In a July 14 status review report prepared for the July 17 hearing, the Department recommended that the baby remain in her current placement with a permanent plan of adoption, and grandmother receive visitation at least once a month. At the July 17 hearing, the court confirmed the section 366.26 hearing set for September, stated it had read and considered the status review report, and adopted the Department’s recommended findings and orders, which included a finding that the permanent plan of adoption continued to be appropriate and an order that the baby continue to reside in her current placement.
Grandmother’s De Facto Parent Status Request
On August 8, a hearing was held on grandmother’s request for de facto parent status. Grandmother testified that when the Department informed her of the baby’s birth she filled out the paperwork for placement and was approved in February. She visited the baby, along with the baby’s siblings, three sisters ages 21, 16 and 6, and an 8-year-old brother; the visits lasted an hour to an hour and a half; and grandmother thought the visits were once a week, but she could not remember. During visits, they would play with the baby, talk to her and take turns holding her. Grandmother believed the baby enjoyed playing with her siblings. Grandmother’s visits had increased in the last month; she had two extended visits a week at her home and believed four or five such visits had occurred. Sometimes the baby’s aunt and grandfather came to see the baby during the extended visits. Grandmother had adopted the baby’s 6-year-old sister and 8-year-old brother almost two years before; a 16-year-old sister was placed with grandmother two days before the hearing. Mother has three other sons -- a 19-year-old, a 14-year-old who lives with his father, and a 4-year-old who was adopted by mother’s first cousin. Grandmother was interested in becoming a de facto parent because she loves the baby and would like the baby to be with her siblings and see her grow. Grandmother testified she had attended all of the court hearings of which she was aware, but she did not remember specifically which hearings she attended.
One of the baby’s foster parents testified that the baby had been placed with them since she was 12 days old. According to the foster parent, when dependency proceedings began, visits were weekly for mother and once-a-month for the family. If grandmother came with mother, they were given a two-hour visit, but if grandmother came without mother, she and the baby’s siblings visited for an hour. On July 22, a social worker told the foster parents the Department was considering filing a section 388 petition and wanted to start immediate visits. After that, there were three six-hour visits and visits on Tuesdays and Thursdays from 5:00 to 7:30. Before the extended visits, grandmother was visiting once a month; she had six visits from January to June, three extended visits in July and two in August. The foster parent observed the grandmother’s interaction with the baby during the visits and thought she tried to take care of the baby’s needs, held her and “loved on her.”
After hearing arguments, the court granted grandmother de facto parent status, explaining it did so based on the facts that (1) she is the grandmother, (2) she was approved for, but was not granted, relative placement in February, (3) the next hearing could foreclose placement with her, and (4) grandmother had been visiting and attending court hearings.
The Section 388 Petition and Hearing
On July 28, the Department filed a section 388 petition asking the court to change its June 5 order that the baby remain in her current placement until June 23 and instead order the baby immediately placed with grandmother. With respect to changes that occurred after the order, the Department asserted: (1) grandmother had passed the relative approval process before disposition, had been diligently attending every hearing and visiting regularly with the baby, and was the suitable relative to gain custody; (2) grandmother had grown a bond and attachment with the baby and wanted her to live in her home; and (3) two of the baby’s half-siblings were living with grandmother, which served the baby’s best interest by residing with her grandmother and half-siblings. The Department asserted the change would be in the baby’s best interest because under section 361.3, preferential consideration must be given to a relative’s request for placement of the baby and placement with grandmother would serve the baby’s best interests, including her special physical, psychological, educational, medical or emotional needs.
A contested hearing was held on the petition, which began on August 21 and concluded on September 11. Holly Simpson, a CDSS adoptions supervisor, testified that a meeting to discuss placement issues was held on July 21 with CDSS, the Department, the baby’s attorney, the foster parents and grandmother present. CDSS was concerned because the child welfare notes indicated that grandmother had been approved for relative placement but the baby was never moved, and CDSS did not know what everyone wanted since it was getting mixed messages -- one that grandmother agreed with the placement as it stood and the other that she was not in agreement. At the meeting, grandmother was asked directly if she wanted placement of the baby and she adamantly said yes.
Simpson confirmed it was CDSS’s position that the baby should be placed with grandmother “[b]ased on relative placement and based on best interest of the child as, you know, that’s basically common procedure within Social Services is to place with siblings when you can, place with relatives, if possible.” Simpson confirmed grandmother had adopted two of the baby’s half-siblings, and the Department’s normal procedures would have been to place the baby with grandmother and the half-siblings after grandmother completed the relative approval process. When asked if placement with grandmother would have been in the baby’s best interest, Simpson responded, “Yes, keeping lifelong connections with relatives and family, yes.”
Simpson agreed there was always a concern when moving a child, but she was not aware the baby had any type of attachment disorders that would make it more difficult to move her. Simpson was aware a subsequent meeting was held at which the issue of transitioning the baby was discussed and assumed a transition plan had been set which would ease the difficulty for the baby. Simpson understood the baby had a relationship with her siblings, grandmother and grandmother’s extended family.
Mary Wilson, a CDSS adoption specialist assigned on April 30, 2008 to work on the baby’s case and to write the section 366.26 report, felt it would be in the baby’s best interest to be moved with her siblings and grandmother. Wilson explained that in forming an opinion about the baby’s best interest she looked at many factors, including biological relatives and siblings, timeliness of a relative coming forward, duration of placement and whether other family members had come forward. In reviewing these factors, Wilson testified the baby’s siblings were in grandmother’s home and grandmother had come forward to request assessment “very quickly” at the end of December 2007 or the beginning of January 2008 and was approved by February 12.
Despite the baby’s fairly long placement with the foster parents, Wilson was recommending she be moved because of the importance of the sibling relationship, which she looks at in any case, i.e. whether the siblings had contact, a relationship and visitation. Here, the sibling relationship was important both for the younger sibling and the two older ones. Wilson explained that the sibling relationship “... for most people is the longest lasting relationship that we will have. Quite often our parents die. We have our siblings. We learn conflict resolution through our siblings. They’re an emotional support. It’s a shared history.” The sibling relationship was a “big part” of her recommendation that the baby be placed with grandmother. Wilson explained that in this case, the siblings had visits and established a relationship, which would become stronger in the future if they are placed together, since “[t]here’s a difference between living with your siblings and being raised with your siblings and visiting your siblings.” In Wilson’s opinion, children who live together in the same household rather than visit occasionally have a “different bonding. The attachments I believe are stronger when siblings live together under the same household, and that’s the benefit of growing up together.”
Wilson testified that while it is hard to move a child, there is a process that would make it less detrimental. A child who has been in a long placement is not immediately moved; instead, a transition process takes place. In Wilson’s opinion, the stress of the transition would be outweighed by the benefits the baby would receive if she was placed with her family.
When Wilson first became involved in the case, the foster parents told her grandmother was only allowed one visit per month, which was increased to twice a month at the foster parents’ urging. After a meeting with the Department, the foster parents, the baby’s attorney and herself, visitations began to be twice a week, unsupervised, with longer duration. At that meeting, Wilson heard a clear statement from grandmother that she wanted to adopt the baby and have her placed with her.
Nick Cha, a Department social work supervisor who worked on the baby’s case and supervised the social worker assigned to it, testified that grandmother’s application for relative placement was submitted on January 23, 2008, and approved on February 12, 2008. The Department did not place the baby with grandmother at that time because it was waiting for genetic testing of the first potential father mother identified; if he was a non-offending father, the Department’s primary goal would have been to release the baby to him immediately. When his test came back negative, the Department did not place the baby with grandmother because a second potential father had been identified for whom they were awaiting genetic testing. By the time his test results came back showing he was the father, grandmother had moved to a new home, which needed to be assessed. The new home was assessed and approved on July 23, 2008. It was at that point the Department wanted to move the baby to grandmother.
According to staff notes, the baby’s visits with grandmother and the half-siblings had been positive. Cha testified that grandmother had been visiting regularly, her visits increased at the end of July 2008, and grandmother had “been in the picture since the initial removal.”
Grandmother testified she applied for relative placement as soon as she found out the baby was in a foster home. A social worker told her in February that she had been approved, but the baby was not placed with her and she was not told why. Grandmother moved to a new home in April because she wanted to have another granddaughter come live with her and needed another bedroom for her; that home was assessed and approved in July. When asked why grandmother wanted the baby placed in her home, she responded: “Well, the reason is obvious, she’s my granddaughter, and I do love her. And if it’s possible, I would like for all the children to be together.” Grandmother had always wanted to adopt the baby.
Grandmother explained that when she was approved for placement, she did not understand what was going on with the court or why the baby was still in foster care, but she assumed the longer they were taking, there was no chance the baby would be placed with her, so she did say that if the court wished for the baby to stay where she was, she would be fine with it. Grandmother recalled making a statement during a meeting with the baby’s attorney present that she wanted the baby placed in her care.
Grandmother testified three of the baby’s half-siblings whom the baby had seen during visits -- an 8-year-old half-brother, and 6- and 17-year-old half sisters -- live in her home. The baby’s half-brother loves the baby and makes her laugh; the baby responds “[v]ery good” to him. The baby’s younger half-sister likes to dress her up and “she responds good to her.” Other relatives have visited the baby, including an older granddaughter and her baby, her grandpa, and uncles and aunts. Up until the end of July, grandmother’s visits with the baby were once-a-month supervised. Grandmother believed she could provide the baby with a safe environment, and provide for her physical and emotional needs.
The foster parents both testified. R.D. testified that the baby, who was placed with them when she was 12 days old, had been in their home for about nine and a half months. Grandmother visited the baby once a month from January to July 26, when visits were increased. Since then, the baby has had some difficulty adjusting to the increased visitation. The foster parents first met with Wilson on June 4, when she came to their home to do an initial contact. Two days later, at Wilson’s direction, A.V. went to the CDSS office and picked up an adoption application, which they completed and returned. R.D. transported the baby to some visits with grandmother and believed grandmother cares for the baby, the baby would be taken care of and loved, and grandmother would do whatever she felt was necessary for the baby.
The baby’s attorney testified that he did not know why the baby was not placed with grandmother at the disposition hearing. He did not think placement with her was an issue after disposition because he thought she supported the baby remaining with the foster parents, although he thought grandmother wanted the baby if she were to be moved or the foster parents could not complete the adoption. He had no reason to think grandmother would not take “very good care” of the baby and did not have any adverse evidence against her regarding her ability to care for the baby. The baby’s attorney requested the June 5 order not to move the baby because he wanted an opportunity to investigate father’s parents should they request placement, not because he wanted to prevent placement with grandmother. It was not until the end of July that he learned grandmother wanted the baby removed from the foster parents and placed in her care.
After hearing arguments and taking the matter under submission, on September 11 the juvenile court granted the section 388 petition and ordered the baby placed with grandmother by October 2. The court found the following changed circumstances: (1) the court had not considered grandmother for placement despite her being approved in February 2008; (2) grandmother had moved; and (3) the first potential father was not excluded by genetic testing until February 28, and the biological father was not denied services until June 23. With respect to the baby’s best interest, the court stated the baby would suffer detriment if it was placed with either the foster parents or grandmother, since placing the baby with grandmother would break the bond the baby obviously had developed with the foster parents but if she remained with the foster parents, she would not know her family.
The court rejected the foster parents’ contention that the section 366.26, subdivision (k) caretaker preference applied, since the court never made a permanent plan of adoption. Instead, the court found the section 361.3 relative placement preference applied. The court evaluated the factors contained therein, including best interest of the child, the parties’ wishes, sibling contact, the grandmother’s moral character, her ability to care for the baby, and the safety of the home, and granted the section 388 petition.
DISCUSSION
The foster parents challenge the trial court’s orders granting grandmother de facto parent status and the section 388 petition which placed the baby in grandmother’s care.
We begin with the section 388 petition. A dependency court order may be changed or modified under section 388 upon a showing circumstances have changed or new evidence discovered such that the proposed change or modification would promote the best interests of the child. (§ 388.) Whether the juvenile court should modify a previously made order rests within its discretion and we will not disturb its determination unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).)
Having reviewed the record as detailed above, we conclude the juvenile court did not abuse its discretion in granting the Department’s section 388 petition. Circumstances had changed since the court entered the June 5 order prohibiting the Department from changing the baby’s placement, as the court had not been asked to consider grandmother for placement although she had been approved since February 2008 and father had withdrawn his section 388 petition for reunification services and placement with his relatives.
There was also evidence that placing the baby with grandmother would promote the baby’s best interests, since such a placement would foster the baby’s lifelong relationship with her grandmother and half-siblings. Grandmother, who came forward quickly after the baby was in foster care and was approved for placement in February, had adopted two of the baby’s half-siblings and another half-sibling was living with her. Grandmother and the half-siblings had established a relationship with the baby as they had visited her regularly since January, the visits had increased in the month before the hearing on the section 388 petition, and the visits had been positive. Wilson, the adoptions specialist, testified that sibling relationships are important and maintaining such relationships was a “big part” of why she recommended the baby be placed with grandmother. While the court reasonably inferred that the baby had bonded with the foster parents, there was no evidence that the baby, who was still very young, would suffer significant detriment if she were moved, e.g. there was no evidence the baby had an attachment disorder that would make it difficult to move her. Although the baby would certainly experience stress in the transition, according to Wilson, that stress was outweighed by the benefits of being placed with grandmother and the half-siblings. In addition, there was no evidence that grandmother would not take good care of the baby; even one of the foster parents admitted that grandmother loved the baby, would take care of her, and would do whatever was necessary to meet her needs. In sum, there was sufficient evidence from which the juvenile court reasonably could conclude the baby’s best interest would be promoted by placing her with grandmother.
In arguing the juvenile court erred in granting the petition, the foster parents contend the juvenile court improperly relied on the section 361.3 relative placement preference, which they assert does not apply here. “Section 361.3 gives ‘preferential consideration’ to a relative request for placement, which means ‘that the relative seeking placement shall be the first placement to be considered and investigated.’ (§ 361.3, subd. (c)(1).) The assessment of the relative shall involve the consideration of eight factors set out in the statute....” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 (Cesar V.).)
The eight factors the county social worker and court must consider when determining whether relative placement is appropriate are: (1) the child’s best interest; (2) the wishes of the parent, relative, and child, if appropriate; (3) the Family Code provisions regarding relative placement; (4) placement of siblings and half-siblings in the same home, if that placement is found to be in each child’s best interest; (5) the good moral character of the relative and any other adult living in the home; (6) the nature and duration of the relationship between the child and relative, and the relative’s desire to care for and provide legal permanency for the child if reunification is unsuccessful; (7) the relative’s ability to provide a safe, secure and stable environment for the child, exercise proper and effective care and control of the child, provide a home and necessities of life for the child, protect the child from his or her parents, facilitate court-ordered reunification efforts, visitation with other relatives, and implementation of all elements of the case plan, provide legal permanence for the child if reunification fails, and arrange for appropriate and safe child care, as necessary; and (8) the safety of the relative’s home. (§ 361.3, subd. (a).)
“[T]he statute express[es] a command that relatives be assessed and considered favorably, subject to the juvenile court’s consideration of the suitability of the relative’s home and the best interests of the child. [Citations.] Section 361.3 promotes a preference for foster placement with relative caregivers as set forth in Family Code section 7950 and helps meet the statutory requirement of … section 16000 that a child live in the least restrictive and most family [ ] like setting possible.” (In re Antonio G. (2007) 159 Cal.App.4th 369, 377, internal quotation marks omitted.) The statute directs both the county social worker and the court to consider the propriety of relative placement. (§ 361.3, subd. (a); see Cesar V., supra, 91 Cal.App.4th at p. 1033.)
“‘[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. [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 her best interests.” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855 (Lauren R.); see Stephanie M., supra, 7 Cal.4th at pp. 320-321.)
Section 361.3 governs in two situations: (1) at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)); and (2) when “a new placement... must be made....” (§ 361.3, subd. (d); see also Cesar V., supra, 91 Cal.App.4th at p. 1032.) The second situation is not just limited to when reunification services are being offered. The relative placement preference also applies when a new placement becomes necessary after reunification services are terminated, but before parental rights are terminated and adoptive placement becomes an issue. (Cesar V., supra, 91 Cal.App.4th at p. 1032.) However, the provision does not apply “after parental rights have been terminated and the child has been freed for adoption.” (Id. at p. 1031, citing In re Sarah S. (1996) 43 Cal.App.4th 274, 285.)
Recently in In re Joseph T. (2008) 163 Cal.App.4th 787 (Joseph T.), the Court of Appeal considered the scope of section 361.3, subdivision (d), and held that, at the six-month review hearing (§ 366.21, subd. (e)), a father was entitled to request evaluation of a relative’s home for the placement of his dependent child even if a new placement was not required. The court explained that, “at least through the reunification period, when a relative voluntarily comes forward at a time when a new placement is not required the relative is entitled to the preference and the court and the social worker are obligated to evaluate that relative (but the court need not again order the parents to disclose other possible relative placements).” (Joseph T., supra, 163 Cal.App.4th at p. 794.) Accordingly, “[d]uring the reunification period, the preference applies regardless of whether a new placement is required or is otherwise being considered by the dependency court.” (Id. at p. 795.) The court explained the relative placement preference continues to apply “while reunification is still ongoing” because “relative caregivers are more likely to favor the goal of reunification and less likely than nonrelative caregivers to compete with the parents for permanent placement of the child.” (Id. at p. 797.)
Here, the juvenile court found the relative placement preference applied under Cesar V. and Joseph T. The section 388 petition seeking the change of placement, however, was filed after the family reunification period ended, as mother had been denied reunification services at disposition four months before. For this reason, the holding of Joseph T. is not applicable here. The baby’s appellate attorney urges us to extend the holding in Joseph T. and conclude that the relative placement preference applies when a relative seeks placement after the family reunification period has ended by termination or denial of reunification services but before the section 366.26 hearing, even if no new placement is required.
We decline the invitation to address this issue because even if the foster parents are correct and the juvenile court should not have relied on the relative placement preference, the juvenile court’s decision to grant the section 388 petition is supported by evidence apart from the relative placement preference that placing the baby with grandmother was in the baby’s best interest. The juvenile court’s reasoning is not a matter for this court’s review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Etc. (1932) 123 Cal.App. 564, 567.) In finding the relative placement preference applicable, the court considered the factors listed in section 361.3, subdivision (a), which included the baby’s best interest. As discussed above, there was sufficient evidence to support the trial court’s finding that placing the baby with grandmother would be in the baby’s best interest, not only because grandmother is related to the baby, but because baby would be raised with her half-siblings.
The foster parents also contend the juvenile court erred in finding they were not entitled to the caretaker preference specified in section 366.26, subdivision (k), which provides, in pertinent part: “Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child from whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being....”
By its terms, the caretaker preference in section 366.26, subdivision (k) applies when the court has approved a permanent plan for adoption or freed the child for adoption. In Lauren R., the court rejected the argument that the caretaker preference applies only after termination of parental rights, explaining it thought “the circumstance that triggers the application of the caretaker preference is the intent to place the child for adoption, not necessarily the termination of parental rights or the termination of reunification services.” (Lauren R., supra, 148 Cal.App.4th at pp. 855-856.) The court concluded that intent was established when the juvenile court, in continuing the section 366.26 hearing, approved a permanent plan of adoption based on findings it made under section 366.26, subdivision (c)(3), identifying adoption as the permanent placement goal and ordering the county to find an adoptive family within six months. (Lauren R., supra, 148 Cal.App.4th at p. 856.)
Section 366.26, subdivision (c)(3) permits the juvenile court, in certain circumstances, to identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family within 180 days.
Relying on Lauren R., supra, 148 Cal.App.4th 841, the foster parents contend the caretaker preference applies here because mother and father were denied reunification services, the Department formed the intent to have the minor adopted, and the foster parents were interested in adopting the baby. We disagree, since Lauren R. is distinguishable. Unlike the court in Lauren R., the court here did not make the findings required under section 366.26, subdivision (c)(3) to approve a permanent plan of adoption and order the Department to find an adoptive family. While the court did sign an order on July 17 which contained a statement that the permanent plan continued to be adoption, the court correctly recognized at the hearing on the section 388 petition that was not a proper order, since the section 366.26 hearing had not yet been held, and found it had never made a permanent plan of adoption. Significantly, the court never made the findings necessary to trigger section 366.26, subdivision (c)(3), i.e. that termination of parental rights would not be detrimental to the baby and the baby had a probability for adoption but was difficult to place for adoption and there was no identified or available prospective adoptive parent. (§ 366.26, subd. (c)(3).) Since the court never made an order under section 366.26, subdivision (c)(3) approving a permanent plan for adoption, the section 366.26, subdivision (k), caretaker preference does not apply here.
Finally, the foster parents contend the juvenile court erred by granting de facto parent status to grandmother. A person seeking to prove he or she is a de facto parent must show by a preponderance of the evidence that “(1) the child is ‘psychologically bonded’ to the adult; (2) the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time; (3) the adult possesses information about the child unique from the other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact with the adult.” (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67.) The determination rests in the sound discretion of the juvenile court and will not be disturbed on appeal if there is substantial evidence supporting the determination. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.)
We agree that the evidence supporting a finding of de facto parent status for grandmother was thin. Even if the juvenile court erred in this regard, however, the foster parents have not shown they suffered prejudice as a result of the court’s decision to grant de facto parent status to grandmother because that status was irrelevant to the request for placement with grandmother. Accordingly, we need not determine the issue.
Based on the foregoing, we find no abuse of discretion in the juvenile court’s order granting the Department’s section 388 petition.
DISPOSITION
The juvenile court’s orders are affirmed.
WE CONCUR: Wiseman, Acting P.J., Levy, J.