Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Super. Ct. Nos. DP013395, DP013396 & DP013397, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance on behalf of the Minors.
OPINION
O’LEARY, J.
T.W.’s three children were removed from her custody after it was discovered they were being severely physically abused by T.W. (Mother) and their father (Father). After 12 months, the juvenile court terminated reunification services for both parents, who refused to address their problems with drug abuse, child abuse, and domestic violence. At the permanency hearing, the court determined the children were not adoptable due to their maladjusted and aggressive behavior after years of abuse, and it ordered the children to remain in long-term foster care. Mother filed this appeal soon after the juvenile court placed her youngest son, Vin.W., in the care of the paternal grandmother (Grandmother), but declined to also place the two older siblings with Grandmother. Mother claims the court did not adequately consider the relative placement preference under Welfare and Institutions Code section 361.3. (All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.) Father and Grandmother did not appeal the court’s ruling. We conclude the argument lacks merit, and we affirm the order.
I
Because this appeal concerns solely a relative placement issue, we have limited our recitation to facts concerning primarily the paternal grandparents and the children. In May 2006, four-year-old Vin.W., his brother, six-year-old R.W., and their sister, nine-year-old Vio.W., were taken into protective custody. Mother was arrested on an outstanding warrant, and Father was arrested for being under the influence of a controlled substance. The children reported their parents hit them with their hands, fists, a coat hanger, and a belt, leaving bruises. They also discussed the ongoing domestic violence they witnessed between the parents. The children “had extensive visible bruising.” The petition alleged Father’s extensive criminal history and Mother’s lengthy child abuse history. Mother had failed to reunify with four older children during two prior dependencies. These four older children also suffered severe physical abuse and neglect. Mother and Father fled to the State of Idaho during those proceedings.
Vio.W., R.W., and Vin.W., were living with their parents at Grandmother’s home before their detention. Grandmother asked for custody of the children after their detention. However, it was discovered Grandmother had not intervened on the children’s behalf when they were being physically abused and neglected by their parents in her home. The children reported Grandmother hit them as well, leaving marks and bruises. Mother confirmed Grandmother was physically and emotionally abusive to the children. Mother did not agree with the way Grandmother disciplined them. She told the social worker R.W. had a bump on the back of his head after Grandmother pushed him in the bathroom, causing him to fall and hit his head on the bathtub.
Grandmother was denied visits with the children, which upset her. She told the social worker she planned to hire an attorney. Grandmother denied physically abusing R.W., claiming the child was not pushed, but fell.
The children admitted they fought with each other constantly, and they stated not all of their bruises were caused by their parents. Several social workers observed Vin.W. attack his siblings for no reason. The social worker opined, “[T]he children have been acting viciously with each other as a way of acting out what they have experienced and what they have seen. The children clearly demonstrate the damage that has been done to them physically, mentally, and emotionally. Additionally, they have expressed they are fearful of returning home at this time.” The social worker reported Father “is hostile and violent. Police should accompany for interactions with him.”
On May 8, 2006, the parents, Grandmother and her husband (Grandfather) attended the detention hearing. Father asked the Social Services Agency (SSA) to assess the paternal grandparents for possible placement of the children. The children opposed this placement. The court declined to order an evaluation of the grandparents’ home for placement. The children were placed together in a foster home. At the next hearing, the court found the allegations in the petition to be true, and declared the children to be dependents of the court.
In a report prepared for the six-month review hearing, the social worker noted the parents had moved to Las Vegas, Nevada in search of work. They were unemployed and homeless. They had not participated in any case plan services and only visited the children twice. Telephone calls from the parents upset the children. The parents were often incoherent and told their children “they would not be able to come home if they did not behave.”
Vio.W. and R.W. began therapy. The children continued to act very aggressively towards each other. The social worker observed, “Though [Vio.W.] is not as physically aggressive as the others, she can be very manipulative and instigate things between her two siblings.” Vio.W. was getting along well with her peers and her foster parents. However, R.W. was experiencing problems interacting with his peers and was getting into trouble at school. He believed nobody liked him, and he tended to whine and cry easily. He was very aggressive with his younger brother Vin.W., and they fought everyday. The foster parents stated R.W. was a very aggressive and difficult child. Vin.W. was also experiencing great difficulty. He was enrolled in Head Start, a comprehensive child development program. He could not be left in the same room as his siblings for very long or he would fight with them. He threw objects over the neighbor’s fence, starting fights with the neighbor child.
Before the six-month review hearing, Father told the social worker, “I think the kids are pretty stable where they are. I don’t think it’s in their best interest to see my mom [(Grandmother),] and her family. S.P. is [Grandmother’s] sister. [Grandmother] is not to be around the children. . . . There’s nothing wrong with Aunt [S.] but [Grandmother]; I don’t want my kids having contact with her. . . . They are good kids and are doing good where they are. I don’t think we should disrupt that.”
Grandmother was present with an attorney at the six-month review hearing in December 2006. The parents did not attend. The court authorized monitored visitation with Grandmother if SSA’s evaluation concluded it was appropriate. The court continued reunification services for the parents.
By the 12-month review hearing in May 2007, the parents’ address was still in Las Vegas, but they reported they moved back and forth between California and Nevada. They had not participated in any case service plan. They were unemployed and homeless. Father stated, “We’re staying here and there and [Grandmother] . . . lets us shower at her house and stuff.” The social worker recommended termination of reunification services and placement in long-term foster care because the children were not adoptable.
The social worker reported Vio.W. did not exhibit major behavior problems, but she still fought with her brothers. “She will do things purposefully to get them angry or she will manipulate a situation where one is against the other.” She was receiving therapy and tutoring. R.W. was having academic problems at school. His relationship with his peers was improving, but he was still having problems hitting and bullying girls. His behavior at home had improved, and he had formed a bond with his foster dad. He liked the positive rewards he got for appropriate behavior. However, he continued to have problems with his younger brother. He would do things deliberately to get a reaction out of Vin.W. He liked to boss Vin.W., and knew how to make Vin.W. upset and hit him. He did not hit Vin.W., but would let his little brother hit his face and then cry and tell on him.
Vin.W.’s behavior had deteriorated at home and preschool. He was no longer responding to time outs at home. He had a short attention span and was prone to tantrums. Once he became agitated, he was unable to calm himself down. The foster parents stated he stole food and wandered around the house at night. He had nightmares and occasionally sleepwalked. He could recite the rules of the home, but deliberately broke them and did “not appear phased by any consequences.” The foster parents could not take Vin.W. out with his brother due to the constant fighting and bickering. He was reckless with his toys, and the toys often became potential weapons because he tended to swing and toss them around, hitting others, and causing “general mayhem around the home.”
The social worker noted the paternal grandparents had expressed an interest in having the children placed in their care. Grandmother stated she wanted them if Father could not get them back. She stated, “I raised them for a time and I’m their grandmother. We’re willing to do what we have to, [to] have the kids.” Their monitored visits with the children were going well. The case manager at the children’s placement gave positive reports about the visits. “‘The children appeared happy to see [Grandmother] and greeted her warmly. She purchased food and beverages for them. The visits appeared to go well and she appeared to have appropriate control over the behaviors of the siblings. There were no incidents of [R.W.] and [Vin.W.] fighting or arguing with each other as they had when visiting with birth parents. Grandmother appeared to be less tolerant of these behaviors. The children were calm and more well behaved . . . .’”
At the 12-month review hearing on May 11, 2007, per the parties’ stipulation, the court terminated reunification services. It deemed the children were not adoptable, no one was willing to accept legal guardianship, and it ordered the children to remain in long-term foster care. The paternal grandparents attended the hearing. The court authorized overnight visits with the paternal grandparents once a fence had been installed around their pool. The court cautioned, “Parents are not to reside in the home of the grandparents or be present during the visits.”
Six months later, the periodic review report dated November 5, 2007, stated R.W. and Vin.W.’s behaviors had deteriorated. Vin.W. had “started to hit and kick his brother in his private parts as well as stick his bottom in his face when he [thought] the foster parents [were] not looking.” His temper tantrums were more frequent. “He has stated that he believes that he does not have to behave around the home because he will be going to his [Grandmother] eventually. His behavior has also become more aggressive with his throwing objects, spitting on other[s] in the home and hitting others, including the foster grandmother with her own cane.”
The social worker reported R.W. “‘had begun to improve and the whining had lessened, but it appears that upon learning that he would possibly be going to live with [Grandmother], his behavior has started to deteriorate. Foster parents report that he has a hard time following directions from them and is [often] in time out for fighting with his brother.’”
SSA discovered Grandfather had a criminal history from 1976 to 1989. Grandmother had substantiated child abuse allegations against her. Accordingly, SSA’s plans to place the children with them were put on hold. They continued with weekend visits. Grandmother remained adamant about having the children in her care. She was open and receptive to a case plan. She agreed to participate in family therapy with the children and she enrolled in a parenting class. The parties agreed Vin.W. and R.W. should receive help from a therapeutic behavioral coach.
On November 5, the court set a hearing for “visitation review and placement review” for January 28, 2008. There had been recent reports that visits were negatively affecting the children. The court also noted it would explore the possibility of placing the children with their paternal grandparents.
In the social worker’s next report, she stated the parents had not attempted any of the required case plan activities. Their participation and involvement with the children had been minimal. Their last visit with the children in November had to be prematurely terminated due to Father’s angry outbursts. As reported by his seven-year-old son, R.W., to the social worker, “‘My dad had a temper tantrum and a melt down. He was mad and he was yelling. I got scared.’” Father made repeated attempts to have the children removed from the foster home, claiming the children were being mistreated. He accused the social worker of lying and threatened to sue for slander and libel. He repeatedly demanded a different social worker be assigned for himself and the children.
To ensure the children’s safety, the visits were moved to a local police department. The parents had not visited the children since. They inconsistently called the children on the telephone. During a monitored telephone conversation in early December, Father told R.W. that once Grandmother “‘gets them back they can all be together again and they’ll be a family.’” In mid-December, Father was upset the children were calling the foster parents mom and dad. He confronted Vio.W. in a telephone call, telling her to choose between him and Grandmother. The foster parents warned Father to stop talking to his daughter that way or they would disconnect the call. Father began cursing and yelling at the foster parents. They had to disconnect the call a few times. The social workers held a Team Decision-Making (TDM) meeting to address Father’s concerns and recent angry outbursts.
After the meeting, the social worker spoke to R.W. who was very emotional and crying. He told her, “‘I don’t want to go home to mom and dad. I don’t want to go home to my grandma either because my mom and dad will just steal me. When I lived with my dad before, he used to hit me and my mom. We didn’t have food because my dad used all the money to buy drugs and you’re not supposed to do that. . . . I like school. I don’t want to leave here. [My foster parents] feed me. I have a bed and get to go to school. They’re nice to me and they don’t hit me. I don’t want to go home.’”
At the TDM meeting, it was reported the children had become unstable in the foster home. They were violent, poking each other with pencils and other objects to hurt each other. Vin.W. was spreading feces on the wall. The following month, Vin.W.’s aggressive behavior got worse. In mid-January, the foster family agency case manager opined Vin.W. required respite care due to safety issues. The case manager said she saw Vin.W. physically attack the foster parent’s daughter and he had to be pulled off her.
The children’s therapist agreed with this recommendation, stating, “‘[Vin.W.] is out of control. He makes his brother’s life miserable. . . . Separation at this point might be a good idea at least for a while.’” The social workers held another TDM meeting. It was noted Vin.W.’s violent behavior was escalating and expanding to others in his foster home. He had recently been violent with his foster grandmother, who was the primary caregiver in the home. It was decided Vin.W. would transition to another foster home, where he would be the sole foster child. He would continue to visit with his siblings and Grandmother on the weekends. He received a therapeutic behavioral services coach and continued therapy with Grandmother. The paternal grandparents had successfully completed a parenting class.
Vin.W. was very happy about moving. He told the social worker he liked his new foster mother and his own room with a TV and VCR. Vin.W. said he did not care about his brother, and his sister didn’t care about him. R.W. was also happy with the change, stating, “‘It was great when [Vin.W.] was gone. I’m tired of him always hitting me and beating me up. It was quiet. I got to sleep in and he wasn’t fighting with me. I’m tired of [Vin.W.] . . . Can’t he stay there forever?’” When R.W. was informed his brother would not be gone forever and they would have visits twice a week, R.W. began to cry and said he never wanted to see his brother again. R.W. repeated he did not like how Vin.W. always hit him.
Ten-year-old Vio.W. told the social worker she wanted to go to the next court hearing to tell the judge she wanted to stay with her foster parents. She stated, “‘I like them. I like it here. I don’t want to go anywhere else. I don’t want to change schools or softball teams and I want to tell the judge my dad tells lies. He tells people the [foster parents] are hurting us and that’s not true. He’s the one who gets mad and yells and has temper tantrums. I don’t want to go home.’”
The January 28, 2008 visitation/placement review hearing was attended by both parents, Grandmother, and their counsel. Father’s counsel asked the court to set a contested placement hearing for the court to determine if it would be appropriate to place all the children with the grandparents. County counsel reminded the court that in November 2007, SSA asked the grandparents, because of their histories, to participate in a parenting class and counseling with the children so that they could be considered for placement in the future. County counsel stated this review hearing was to evaluate their progress. She noted counseling was still ongoing and SSA was not recommending placement at this time. SSA had given them a case plan to work towards placement. County counsel suggested that if the grandparents insisted on the placement they should file a section 388 motion. Mother’s counsel stated Vin.W. had recently been removed from his foster placement and, therefore, SSA must assess a new appropriate placement for him. Mother’s counsel argued now was an appropriate time to argue placement with Grandmother without a section 388 motion. She requested a contested hearing on the issue of whether the children, and specifically Vin.W., should be placed with the grandparents. The children’s counsel agreed with Father and county counsel that the issues of visitation and placement should be set for a contested hearing.
After a recess, the court held an off-the-record discussion with the parties. After their discussion, the court noted for the record county counsel now conceded there had been a change of circumstance with regard to Vin.W., and it agreed to a hearing on the issue of placement with respect to him. County counsel and the minors’ counsel believed a section 388 petition needed to be filed to reconsider Vio.W.’s and R.W.’s placement. The court set a hearing to consider Vin.W.’s placement, and indicated it would not rule on the issue of whether the siblings’ placement also needed to be evaluated.
On February 1, 2008, the court held a hearing to evaluate Vin.W.’s placement. Father’s counsel stated he planned to file section 388 modification petitions as to Vio.W. and R.W., but he never did so. The court asked SSA to evaluate whether an exemption would be appropriate with respect to Grandfather’s criminal history before the issue of placement was resolved. County counsel requested a few weeks to consider the exemption. The matter was continued to the end of the month, February 26.
Before the hearing ended, the children’s counsel asked if the court could authorize greater flexibility with respect to Vio.W.’s visitation with her grandparents. Vio.W. was trying out for a softball team, which conflicted with visits. Grandmother believed it was too far of a distance to attend her games. The judge pro tem directed the parties to “meet and confer and work this out. I mean this is something this little girl wants to do. And if it entails some inconvenience, I can sympathize with that but I think it’s of sufficient importance that there be aspects of normalcy in this little girl’s life . . . .” The court ordered visitation with Vio.W. to be flexible to accommodate her activities.
Before the next hearing date, Vin.W. was returned to Orangewood Children’s Home (Orangewood) after he had punched a hole in the wall of his new foster home, called his foster mother a bitch, and threatened to kill her with a knife. This outburst occurred after a visit with his parents at the police department. The social worker monitoring the visit stated Father started the visit by arguing about what issues he could not talk about with the children. He went to the police department’s filing window to make a child abuse report regarding the children. When the social worker gathered the children to leave, Father became belligerent. He asked Vio.W. what she was going to say in court. He told Vio.W. that she was an adult and didn’t have to come to visits.
A senior social services supervisor informed the parents Vin.W. had been returned to Orangewood. The social worker was concerned about Father’s request Vin.W. be placed with the paternal grandparents because he told her, “‘At least [he] would have [Vin.W.]’” Grandmother stated her grandchildren were her primary concern and she didn’t care about her son (Father). She stated, “‘I don’t know why he fled to Idaho with the other kids. He said he was just scared but [Father] doesn’t come here, the kids are my main interest.’” Grandmother stated she had attempted to coordinate visits with Vio.W. to accommodate her softball games. She said it was not financially possible for her to attend all the games.
Vio.W. repeated her request to attend the next court hearing to tell the judge she wanted to stay with her foster family. Vio.W. stated she was scared of Father, and Grandmother was “‘back talking. All she cares about is Vin.W. She kept crying and crying because Vin.W. wasn’t at the visit, just back talking. She took us to Orangewood to see him but they wouldn’t let me and R.W. in because we’re not 18.’”
R.W. also told the social worker he wanted to stay with his foster parents. He stated, “‘The visits with my grandma are okay. I’m just afraid she’s going to start smoking again, but my [Grandfather] smokes. . . . My mom and dad smoke all the time. I’m afraid my mom and dad are going to steal me. No, they’re not at my visits with grandma, that one time on my birthday they were but not last time. I don’t want to live at my grandma’s house. I want to stay here with [my foster parents]. I don’t want my dad to steal me[,] he scares me.’”
On February 22, Grandmother told SSA she wanted placement of Vin.W., and she agreed to no contact with his parents. Grandmother promised to call the police if they appeared at her home. She agreed to take Vin.W. to therapy and administer any psychotropic medications.
On February 26, the court held a hearing and ordered Vin.W. was to be detained in Orangewood. It set a 15-day review for March 10. The next day, the court held the contested hearing on the placement review of Vin.W. It authorized Vin.W.’s placement with Grandmother upon approval of a home evaluation. The court ordered the parents and grandparents not to discuss the case with the children, specifically as to where they want to live. They were ordered not to make disparaging comments. The court forbid any unauthorized contact between Vin.W. and the parents.
However, Father continued to be volatile, angry, and disruptive at visits, court hearings, and contact with SSA. The children often acted out following visits with their parents. SSA filed a section 388 petition to limit Father’s visits to one hour a month due to his escalating behavior and the children’s fears. The court reduced the visits pending a hearing on the request on April 7.
Before the hearing, Vin.W. was placed in a different foster home on March 6, but then removed after a violent outburst. On March 10, the court held a review hearing and noted the grandparents had been approved for Vin.W.’s placement. The parties returned to court the next day because the parents opposed SSA’s application for psychotropic medication to treat Vin.W.’s attention deficit/hyperactivity disorder. On March 20, Vin.W. was placed with Grandmother. The court noted section 361.3 was satisfied.
In the social worker’s next report, Vio.W. again expressed her objections to living with Grandmother, stating, “‘I don’t want to live with my grandma and the visits are not good. She said that if we don’t tell the courts we want to live with her then we’re going back to Orangewood. She says the [foster parents] are rude and they’re not. And grandma says [the foster parents] only want us for the money, that’s not true. And my grandma is mad at me too because she keeps saying I’m saying stuff behind her back but she keeps asking me where I want to live and I don’t want to hurt her feelings but I don’t want to live with her but she won’t stop asking me, I want to stay here.’”
R.W. also cried and objected to living with Grandmother. He reported Grandmother told him that if he did not live with her, he would go back to Orangewood. He stated, “‘My grandma always keeps telling me that I have to come and live with her and I don’t want to. . . . I’m still afraid of my grandma and grandpa because I don’t want my parents to take me. I want to live here with [the foster parents] because they don’t hit me when they’re mad and they feed me. You judge people by their actions, my dad always says, “don’t lie, don’t cheat, don’t steal,” but he does all those things. He doesn’t get it. My grandma doesn’t get it. . . . I have to tell my dad lies so he doesn’t get mad because he’ll start yelling and hitting me . . . . I’m lucky I only have one visit a month. I don’t want to see my parents anymore. . . . My grandma says [the foster parents] only care about money but that’s not true. They ([the foster parents]) don’t lie to me, they don’t hit me. I want to stay here. I don’t want to live with my grandma or parents. I can’t wait until I go to court so I can tell the judge the truth.’”
On April 28, 2008, the court combined the hearing on SSA’s section 388 petition to reduce Father’s visitation, with the normally scheduled periodic review, and scheduled a contested hearing for May 14, which was continued to May 29. In a report prepared for the hearing, the social worker noted Vin.W. had been referred for school counseling because he was hitting and had anger issues. It was noted Grandmother and Vin.W. attended one of Vio.W.’s softball games, during which Vin.W. bit R.W. on his arm. The foster father stated the bite was so bad other parents on the team were upset and concerned, and asked if they needed help. Grandmother’s response was “I’ll deal with it later.” When the social worker asked Grandmother what happened, she replied, “[R.W.] hit [Vin.W.] first.”
At the end of April, during a monitored phone conversation, Father told R.W. they “‘“got back on Sunday and went to grandma’s house. We left your presents at Grandma’s house.”’” The foster parents replayed for the social worker “irate and disrespectful” phone messages from Grandmother following the softball game incident and a mix-up with a scheduled visitation (Grandmother was over two hours late for a visit). In one message, Grandmother stated, “‘You people couldn’t be any nicer, thanks a lot for keeping me away from my grandkids.’”
R.W. showed the social worker the mark left where Vin.W. bit him. He told the social worker Vin.W. was always mean to him. He explained, “‘The last time I went on my visit with my grandma [Vin.W.] tried to drown me in the pool. He pinched me on the back and tried to get on my back. I told my grandma and she said “you’re still alive aren’t you?” [Vin.W.] went away and then he came back and went on me. He almost made me sick. He almost made me drown. I still want to live here with [the foster family] because I do not want to get killed by [Vin.W.] . . . And you know what? He said he would poke my eyes out with a fork.’”
Vio.W. informed the social worker she no longer wanted telephone calls or visits with her parents. She said they had nothing to say to her and did not respect her. She knew they were mad at her because she wanted to stay with the foster family. She added, “‘I don’t want to see my grandma either, because she has attitude and [she] keeps giving me a hard time. I’m tired of it. I’ll tell the court if they ever talk to me but I keep waiting and waiting.’”
In the next report, the social worker reported Grandmother continued to badger Vio.W., and made her upset. Father yelled at Vio.W. on the telephone, saying, “Who told you that I would kidnap you?” R.W. and Vio.W. both reported Grandmother was pressuring them to say they wanted to live with her. R.W. said Grandmother told him so many times to tell the court he wanted to live with her, he told her “okay” to make her stop talking to him about it. Vio.W. told the social worker R.W. lied to Grandmother and told her “‘he would live with her but he doesn’t want to. He just said that so she’d stop asking him.’”
At the hearing, R.W. testified he did not like to visit his parents because of his brother. He said Father scared him and he did not feel safe on visits. R.W. said he was afraid his father would come and get him on a visit and take him away. He did not like it when Father talked about court and asked where he wanted to live. R.W. believed Father would take him away if he lived with Grandmother. He liked visits with Grandmother, but he was afraid there was nobody there who would be able to stop Father from taking him. When asked if he wanted more visits with Grandmother, he replied, “No[,] only Saturday.”
Vio.W. gave similar testimony. She was afraid of Father and believed she was safer at the police station during visits. She stated she would not feel safe visiting Father at Grandmother’s house. She was not sure Grandmother would be able to protect her if Father came to take her away from there. Vio.W. later said she was not afraid her parents would come to Grandmother’s house while she was visiting there. She said Grandmother talked about the case and where Vio.W. wanted to live. Vio.W. did not think Grandmother would stop even if ordered by the court.
Vio.W. stated she no longer wanted to visit Grandmother on Sundays, but rather wanted to attend church with her foster parents. She did not want weekend visits with Grandmother because she felt unsafe. She saw Grandmother grab and slap Vin.W. on his face after he slapped her. She admitted Grandmother had not hit anyone other than Vin.W. However, Vio.W. believed Grandmother played favorites and liked Vin.W. the most. She said once Vin.W. pushed R.W. and she told him it was all right. She recalled that after Vin.W. bit their brother, Grandmother did not try to comfort him or tell Vin.W. it was wrong. She did not feel Grandmother would protect her or R.W. from their violent and aggressive little brother.
Vio.W. added Grandmother was angry with her for wanting to be with her foster parents. Grandmother had told Vio.W. the foster family spent the money they received for foster care on themselves. Vio.W. defended her foster parents. Grandmother also told Vio.W. the foster parents were “stealing [her] children.” Vio.W. believed Grandmother felt the softball games interfered with her time. Vio.W. missed the last two visits with Grandmother because of games. Vio.W. had not talked with Grandmother on the telephone for a long time because Grandmother yelled at her. Vio.W. said she loves her Grandmother and Grandfather, but she wanted to remain living with her foster family.
Father testified he wanted the children placed with Grandmother, or at least removed from the foster family’s home. He was convinced the foster family was abusing his children.
The hearing lasted several days. On June 13, 2008, the court made several separate rulings in the minute order: (1) It denied SSA’s section 388 petition requesting limited visitation. The court ordered a new visitation schedule with Father to take place at the police station. It created a schedule for telephone contacts between Father, Grandmother, and the minors. The court ordered the parents to have no other contact with the children. It ordered there were to be no emotional displays in front of the children; no discussion of the court proceedings or the foster care providers; no disagreements with individuals monitoring visits or telephone calls; no negative comments about the children’s activities, such as softball; and no comments about the siblings’ relationship; no physical discipline of Vin.W. It ordered conjoint counseling to commence between the siblings once Vin.W. had “stabilized”; (2) As to the periodic review, the court determined SSA’s services, case plan, and placement of the children was appropriate (Vin.W with Grandmother, Vio.W. and R.W. with foster parents); (3) It delayed ruling on the application to give Vin.W. medication. It ordered a psychological evaluation of Vin.W.; and (4) Under the heading, “as to further orders of the court,” the court “order[ed] no change to placements.” It scheduled the next progress review hearing for August 2008 to address the issues of Vin.W.’s progress, the parents’ progress with visitation, and receipt of the psychological evaluation. Mother filed a notice of appeal from the June 13, 2008 order.
II
Mother claims the court failed to consider the relative placement factors delineated by section 361.3 before denying placement of Vio.W. and R.W. with Grandmother. She maintains SSA should have prepared an analysis of those factors. She concludes the court erred by not placing the children with their younger brother and Grandmother. We disagree, concluding the statutory preference given to considering relatives for placement under section 361.3 was not properly at issue before the juvenile court at the periodic review hearing, occurring long after reunification services had been terminated.
A. Relative Placement Preference General Rules
“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.).)
“[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.)
When considering the relative placement factors, “‘the county social worker shall conduct a direct assessment of the safety of the relative’s home. The information obtained as a result of this assessment shall be documented by the county social worker in the child’s case record.’ (§ 361.3, subd. (a)(5) & (8).) The statute reiterates: ‘The county social worker shall document these efforts [to assess the relative according to the statutory factors] in the social study prepared pursuant to section 358.1.’ (§ 361.3, subd. (a)(8).)” (Cesar V., supra, 91 Cal.App.4th at p. 1033.) “[T]he juvenile court must exercise its independent judgment rather than merely review SSA’s placement decision for an abuse of discretion. The statute itself directs both the ‘county social worker and court’ to consider the propriety of relative placement. (§ 361.3, subd. (a).)” (Cesar V., supra, 91 Cal.App.4th at p. 1033.)
Section 361.3 governs in two situations. The first is at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)). The second, relevant to this case, is 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, the court in In re Joseph T. (2008) 163 Cal.App.4th 787, 794-795 (Joseph T.), determined the scope of section 361.3, subdivision (d). In that case, the juvenile court denied placement of an older child with his paternal aunt at the six-month status review hearing. The child’s father appealed. The court rejected social services’ contention 361.3, subdivision (d), eliminated the relative placement preference once the dispositional phase is completed except when the court was required to change the child’s placement. (Id. at p. 794.)
Section 361.3, subdivision (d), states in relevant part: “Subsequent to the hearing conducted pursuant to [s]ection 358 [the dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements.” The court in Joseph T., reasoned, “The plain language of subdivision (d) states that when a ‘new placement’ is required the procedures ‘described in this section’ must be followed in the same way as when there is an initial placement, including the affirmative duty of the court, under subdivision (a) of section 361.3, to order the parents to disclose the names and pertinent family information of relatives and the obligation of the social worker to follow through on that information, contact all the relatives whose names have been provided, and evaluate those relatives desiring placement. (§ 361.3, subd. (a).) In contrast, 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).” (Id. 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.” (Joseph T., supra, 163 Cal.App.4th at p. 795.) After the reunification period has ended, the preference applies when a new placement is required. (Ibid.) In both situations, the overriding inquiry is whether the change in placement is in the child’s best interests. (See In re Stephanie M. (1994) 7 Cal.4th 295, 320-321.)
B. Application of these Rules
In the case before us, the relative placement preference was first triggered when the children were detained in May 2006 because Grandmother came forward and requested custody. However, due to allegations (made by both the children and Mother) Grandmother had abused the children, the placement request was rejected. During the 12 months of reunification, Grandmother was given monitored visits with the children. In May 2007, when the court terminated the parents’ reunification services, it authorized overnight visits with Grandmother. She had been working with SSA on a case plan to eventually care for all three children, by attending parenting classes and therapy sessions. As discussed in Joseph T., after the reunification period has ended, the preference applies only when a new placement is required. (Joseph T., supra, 163 Cal.App.4th at p. 795; § 361.3, subd. (d).)
In January 28, 2008, the court held a hearing as to Vin.W.’s placement only. It was undisputed there was a change in circumstances warranting a new placement for him. The court and parties discussed whether section 388 petitions were first required to also reconsider Vio.W. and R.W.’s placements, but no motions were filed, and the court made no rulings as to Vin.W.’s siblings. However, as to Vin.W. the court authorized the relative placement with Grandmother upon approval of a home evaluation. In its order, the court noted the relative placement factors of section 361.3 had been satisfied. In mid-March, Vin.W. moved in with Grandmother with SSA’s approval.
At the next regularly scheduled periodic review hearing set for April 2008 (but due to several days of testimony and continuances it concluded in June 2008), the court considered the social worker’s periodic review as well as SSA’s section 388 visitation modification petition. In her appeal, Mother faults SSA and the court for not also considering the relative placement preference at this hearing. Mother argues the relative placement preference as to Vio.W. and R.W. was triggered when the agency removed Vin.W. from his foster care placement. Without any supporting authority, Mother argues SSA and the court were “obligated” at the periodic review hearing to determine if it was in the other children’s best interests to place them all with Grandmother.
In a footnote, Mother acknowledged the court and SSA agreed below that while there had been a change in circumstances with respect to Vin.W., a section 388 modification petition was needed to determine whether Vio.W. and R.W. should be moved as well. Mother opined the court initially agreed with this analysis, but later considered whether Vin.W.’s siblings should be moved in the absence of section 388 petitions for modification. We conclude she has misconstrued the record and applicable case law.
At the hearing (that started in April and ended in June 2008), the court was not considering a placement review as to Vio.W. and R.W. As part of its required periodic review of the children, it determined no change of placement was necessary for any of the children. Contrary to Mother’s contention on appeal, the court did not consider or expressly reject Grandmother as a placement option for the older siblings.
Vin.W.’s need for a change of placement first came to light in January 2008, and the court properly considered the relative placement preference as to him. Mother cites to no authority, and we found none, holding one child’s need for a change of placement necessarily creates a change is circumstances for his siblings requiring revaluation of their placements. In our case, such a rule would be clearly contrary to the best interests of Vio.W. and R.W. These siblings expressed gratitude and relief when Vin.W. moved to a different foster home. As one professional opined, Vin.W. was out of control, his behavior was rapidly deteriorating, and he never stopped violently attacking and hurting his siblings. Indeed, R.W. expressed happiness by the separation from his brother asking, “Can’t he stay there forever?” He cried when he learned his brother would not be gone forever. Vin.W.’s removal was not the kind of change of circumstances requiring the revaluation of his sibling’s secure and happy placements.
As noted above, after reunification services have been terminated, the relative placement preference applies “whenever a new placement of the child must be made” and “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 . . . 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.” (§ 361.3, subd. (d), italics added.) No new placement for Vio.W. or R.W. was required in June 2008. Grandmother, who was initially deemed unsuitable for placement, was still working on her case plan with SSA to eventually care for all three children. There was no evidence that time had come.
To the contrary, at the periodic review hearing, the court warned Grandmother she needed to stop badgering the two older children about living with her because it would likely irreparably damage her relationship with them. The court recalled Vio.W.’s testimony she had qualms about visiting Grandmother more than once a week. The court astutely reasoned, “[T]here seemed to be a . . . series of what the court would describe as small reasons or trivial reasons why it was that [Vio.W.] did not want to expand the visits with Grandmother. [¶] And a discerning listener . . . would understand that all these trivial reasons really amount to one large big reason. And that is the emotional atmosphere that’s created. These children, [Vio.W.] and [R.W.] are placed in a situation where, again, they are conflicted. . . . They are being fostered by foster care providers that they have developed a sense of security with, and they feel that sense of security being jeopardized and threatened, and their own situation threatened.” The court noted Vio.W. seemed to have a good and comfortable relationship with her Grandfather, likely because he was not forcing upon her any kind of agenda. The court expressed hope Grandmother’s relationship with Vio.W. and R.W. would evolve and become healthier in the future.
Mother’s argument Grandmother is the children’s only hope for a permanent home, which is the juvenile court’s primary goal in these dependency proceedings, is misguided. The goal of permanency must go hand in hand with the best interests of the child. It would be contrary to the most basic premise of dependency law to entrust a child to caretakers in a “permanent” home in which he or she feels insecure, afraid, or unhappy. These conditions are usually the starting point, rather than the ending point, of dependency proceedings.
C. Mother had Standing to Appeal
SSA contends Mother was not aggrieved by the court’s order and, therefore, she lacked standing to raise the relative placement preference issue on appeal. Mother asserts her litigation of the issue below confers standing. (Citing Cesar V., supra, 91 Cal.App.4th at p. 1035.)
In Cesar V., the relative placement issue had been argued below and on appeal by the grandmother who had been denied placement. The father, Cesar, also litigated the issue below and was permitted on appeal to support grandmother’s position with arguments of his own. The court reasoned, “We agree with SSA that Cesar has no standing to appeal the relative placement preference issue. Especially in light of his stipulation to terminate reunification services, we cannot see how the denial of placement with [grandmother] affects his interest in reunification with the children. It does not preclude Cesar from presenting any evidence about the children’s best interests or their relationship with him. [Citations.] ‘An appellant cannot urge errors which affect only another party who does not appeal.’ [Citations.] But [grandmother] has properly placed the issue before us, and Cesar has formally joined in her arguments; furthermore, by stipulation of the parties and with the juvenile court’s acquiescence, Cesar extensively litigated the issue below. Under these circumstances, Cesar will be permitted to support [grandmother’s] position with arguments of his own. [Citation.]” (Cesar V., supra, 91 Cal.App.4th at p. 1035, fn. omitted.) In the case before us, neither Father (who initially made the relative placement request below), nor Grandmother appealed the court’s ruling. Mother was against placement with Grandmother when the children were initially detained. The court’s refusal to place Vio.W. and R.W. with Grandmother does not affect Mother’s interest in reunification with her children. She is not aggrieved in this way.
However, more recent appellate court decisions have determined a parent has standing until parental rights are terminated. (See In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053; In re H.G. (2006) 146 Cal.App.4th 1, 9-10.) “Generally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter. [Citation.] To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court’s decision. [Citation.] We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. [Citation.]” (In re H.G., supra, 146 Cal.App.4th at p. 9.)
“Until parental rights are terminated, a parent retains a fundamental interest in his or her child’s companionship, custody, management and care. (In re H.G.[,supra, ] 146 Cal.App.4th [at pp.] 9-10; In re Dakota H. (2005) 132 Cal.App.4th 212, 223 . . .; see also §§ 361.3, subd. (a)(2) [directing the court to consider the parent’s wishes for relative placement, if appropriate], 388 [allowing return to parental custody after termination of reunification services], & 366.21, subd. (h) [authorizing parental visitation after termination of reunification services].) At the time of the proceedings at issue here, [Mother’s] parental rights had not been terminated. This court has also recognized that placement of a child with a relative has the potential to alter the juvenile court’s determination of the child’s best interests and the appropriate permanency plan for that child, and may affect a parent’s interest in his or her legal status with respect to the child. [Citations.] While an alternative permanency plan to adoption may be unlikely on this record, it remains a statutory option for the juvenile court. We resolve doubts in favor of [Mother’s] right to appeal. [Citation.]” (In re Esperanza C., supra, 165 Cal.App.4th at pp. 1053-1054.) We are persuaded this is the correct approach for standing issues and for this reason we considered Mother’s appeal.
III
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.