Opinion
F085187
06-09-2023
In re D.D., a Person Coming Under the Juvenile Court Law. v. T.J., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
T.J., in pro. per., for Defendant and Appellant. Margo A. Raison, County Counsel, and Kelli R. Falk, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. JD142227-00. Susan M. Gill, Judge.
T.J., in pro. per., for Defendant and Appellant.
Margo A. Raison, County Counsel, and Kelli R. Falk, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
Juvenile dependency proceedings were initiated on behalf of infant D.D., culminating in termination of parental rights and selection of adoption as his permanent plan (Welf. &Inst. Code, § 366.26). D.D.'s maternal grandmother, T.J., who had legal guardianship of two of D.D.'s older siblings, had sought placement of him early in the dependency proceedings prior to parental rights being terminated but was denied. After parental rights were terminated, T.J. continued to seek placement and was again denied. She brought a section 388 petition requesting the court to order the Kern County Department of Human Services (department) to place D.D. with her and his siblings. After holding an evidentiary hearing, the juvenile court denied T.J.'s petition. T.J., in pro. per., appeals from the denial. Finding no error, we affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
D.D. was born in late June 2021. His mother had received limited prenatal care and tested positive for THC and amphetamines at the time of D.D.'s birth. The department received a referral alleging general neglect. It was determined that mother's two older children, then one-year-old N.W. and then 10-year-old K.W., were in the care of T.J. Mother claimed she lived with maternal grandfather, D.B., and also stayed with T.J., with whom most of her baby supplies were located.
The investigating social worker called T.J., and T.J. explained she had legal guardianship of N.W. and K.W. and was willing to obtain legal guardianship of D.D. When the social worker later asked mother if she would consent to T.J. obtaining legal guardianship of D.D., mother shook her head and responded," 'The only way my son will go to my mother's home is if I go with him.'" The social worker subsequently referred T.J. to resources to assist her with filing an emergency court order for temporary custody of D.D.
On July 6, 2021, the hospital advised the social worker that D.D.'s health had declined, and he would need surgery, but mother insisted the nurses were" 'not real' " and D.D. did" 'not need surgery or medication.'" The following day, the hospital informed the social worker that mother was trying to leave with D.D. against medical advice and would not release D.D. to the nurses. Law enforcement responded; mother had put D.D. down and was arrested for outstanding warrants. D.D. was taken into protective custody.
On July 8, 2021, mother was released from custody, but the social worker was unsuccessful in contacting her. The social worker made contact with T.W., D.D.'s father, who informed the social worker he wanted the" 'same arrangements'" to be made for D.D. as were made for his son N.W., in that he did not want family reunification services but wanted D.D. to be placed in a legal guardianship with T.J. The social worker contacted T.J. and asked her if she was willing to take placement of D.D., to which she responded," 'Absolutely.'" T.J. informed the social worker she had filed paperwork and was awaiting an ex parte hearing. The social worker continued to be unable to contact mother.
On July 9, 2021, the social worker called T.J., who informed the social worker that she had brought mother to her home yesterday, and mother was" 'not in her senses.'" Mother was refusing to sign any legal guardianship paperwork. The social worker informed T.J. that because she could not contact mother, a juvenile dependency petition would be filed.
Also on July 9, 2021, the department filed the petition, alleging D.D. came within the juvenile court's jurisdiction under section 300, subdivision (b) because he was at substantial risk of harm due to mother's mental health issues and substance abuse. The petition further alleged he came within the juvenile court's jurisdiction under section 300, subdivision (j) because D.D.'s sibling, N.W., had been subject to dependency proceedings initiated in February 2020 for similar reasons. Family reunification services were not provided to mother because she was found to be incapable of utilizing services due to her mental disability (§ 361.5, subd. (b)(2)).
The juvenile court ordered D.D. detained from mother on July 12, 2021.
The department's jurisdiction report dated August 11, 2021, indicated D.D. had been placed in a Resource Family Approval (RFA) home. The report detailed mother's lengthy child welfare history, including several involving her older child, K.W., from 2011 through 2017. The referrals documented that mother and K.W. sporadically resided with T.J. over the years. In February 2020, dependency proceedings were initiated on behalf of N.W. when he was about four months old. These proceedings resulted in a section 360 guardianship with T.J.
Section 360 provides in pertinent part in context of the disposition stage of a dependency proceeding: "Notwithstanding any other law, if the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services and has executed a written waiver of any of those services, the court may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the child's age or physical, emotional, or mental condition prevents the child's meaningful response." (Id., subd. (a)(1).)
At the jurisdictional hearing conducted on August 24, 2021, the court found D.D. was described by section 300, subdivisions (b) and (j) as alleged in the petition. The matter was set for a dispositional hearing.
In the department's disposition report dated December 7, 2021, it was reported D.D. had "extensive medical needs" due to several diagnoses.
The disposition report also included the following information regarding T.J.'s efforts to obtain placement of D.D. On July 9, 2021 (the day the dependency petition was filed), an application for emergency placement was submitted on behalf of T.J., and the application was denied. On July 13, 2021, the social worker explained the RFA process to T.J. and e-mailed the RFA orientation information to T.J. On July 22, 2021, T.J. submitted an RFA application requesting placement of D.D. On November 12, 2021, T.J.'s RFA application was denied "due to [T.J.'s] noncompliance." It was reported that "numerous letters and telephone calls were made to [T.J.] prior to denying her application in an attempt to gain compliance, but [T.J.] was nonresponsive." It was further reported that at the time of the writing of the report, there were no RFA applications pending on D.D.'s behalf.
The report further indicated that T.J. participated in virtual visits with D.D. in August and November 2021.
At the dispositional hearing conducted on February 9, 2022, the court ordered D.D. removed from mother's physical custody. Family reunification services were not offered to father because the court found they would not benefit D.D. nor mother because the court found mother suffered from a mental disability rendering her incapable of utilizing services and even with services, she was unlikely capable of adequately caring for D.D. within 12 months pursuant to section 361.5, subdivision (b)(2). The court set a section 366.26 hearing.
The department's section 366.26 report dated May 24, 2022, recommended that parental rights be terminated and adoption be selected as D.D.'s permanent plan. Mother had never visited D.D., and the last documented contact between mother and D.D. was when she left him at the hospital after D.D. was born. Father had a total of two virtual visits over the course of the dependency proceedings. D.D. had virtual visits with his siblings. The report indicated the department attempted to place D.D. with his siblings, but T.J. was not approved for placement via RFA.
The report further indicated D.D. had been with his care providers since August 1, 2021, and they had expressed commitment to adopting him. D.D.'s foster mother was 25 years old, Caucasian, and a full-time caregiver for her family and children. The foster father was Native American and a full-time supervisor at a local retail business. The care providers had been married since 2016 and had two biological children. They had no criminal or child welfare history. They expressed wanting to provide D.D. with a stable, safe, and loving environment and were open to mental health services. They further expressed being open to postadoption contact with D.D.'s siblings.
It was reported the care providers were adept at making sure D.D.'s daily physical and emotional needs were met. It was observed that D.D. smiled at his care providers, appeared comfortable in the home, and was "fully integrated into the family." It was further reported the care providers were explained the "importance of open conversation about the child's race, and discrimination issues that may apply, the importance of race/culture mentors, integrating the child's culture into the family and celebrating the differences." The care providers understood, given that D.D.'s foster father was Native American and still learning about his own culture, and they were open to learning about D.D.'s African American heritage.
The section 366.26 hearing was conducted on June 3, 2022. Father's attorney requested a continuance. He represented that T.J. was present and explained that she was the legal guardian of N.W., established pursuant to section 360, and that she also had K.W. in her care. He explained that T.J. applied for placement early in the process and "[t]here's been a lot of conflicting and confusing information as to why that application was denied or whether it was denied." Counsel explained T.J. was "still working with the Department and has indicated that she's been approved but that approval has not been formally finalized." Counsel stated, "it would be a tragedy for these siblings to not be together when all along they have been fighting for that result."
D.D.'s counsel requested the court to deny the request for continuance as "[T.J.] is not prepared to take [D.D.] in" and that D.D. had been in his current placement since August 2021 and was doing "really well." Counsel for the department also objected to a continuance, stating that "placement is [not] an issue today" and pointed out that T.J.'s application had been denied, further stating that "[s]he may have restarted the process," but that was not an issue for a section 366.26 hearing.
When the court asked father's counsel to address T.J.'s RFA denial, father's counsel stated, "the information that [T.J.] is supplying tells a wildly different story, but I can't make those representations. I'm not her attorney, and I don't have personal knowledge of those facts. But what I can say is. If the Court heard from [T.J.] directly. She could advise the Court how all of this transpired. Which sounds like a completely different story than what's in the reports."
The court responded by saying, "Okay. Well, there is a process for that and it's not before the Court today. What is before the Court today is the issue of parental rights for this child being terminated or not. I don't find there's good cause for a continuance, so I will deny that request." The court further stated, "And it sounds like what you've said that [T.J.] is working with the Department to try and address that issue. So I'm sure she's apprised to the grievance issues or the grievance rights," to which father's counsel responded he had mentioned the grievance process to T.J.
Following submission of the matter, the court terminated parental rights and placed D.D. in the care, custody, and control of the County Adoption Agency for adoptive placement. D.D.'s counsel requested the care providers be designated prospective adoptive parents, to which the court responded, "I'm not going to do that at this time . . . in light of the representation that there's another placement request pending."
Father timely appealed from the order terminating his parental rights. The sole issue in that appeal was Indian Child Welfare Act of 1978 inquiry compliance. This court issued an opinion affirming the juvenile court's order on December 13, 2022, and remittitur was issued February 14, 2022.
On July 29, 2022, T.J. filed a section 388 petition requesting the juvenile court to change its order terminating parental rights and vesting placement authority with the County Adoption Agency. Specifically, T.J. requested the court find the department had abused its discretion in denying placement of D.D. with T.J. and order the department to place D.D. with T.J. The petition alleged that since the section 366.26 orders, wherein the court vested placement authority with the department, T.J. had received RFA approval and been denied placement and a grievance hearing right. It was alleged that the department's denial of placement was an abuse of discretion because they either did not or did not properly consider it was in D.D.'s best interest to be placed with T.J. and his siblings. The petition alleged the order was in the best interest of D.D. because "[(a.)] it would bring mixed race siblings, who already have a relationship, together; [(b.)] it would facilitate other family ties with maternal and paternal relatives; [and] [(c.)] it would provide upbringing in a racially and culturally matched home with a relative and extended family who can deal with unique issues associated with mixed race children."
The petition explained that T.J. and D.B. were appointed temporary guardians over K.W. on February 17, 2017, and permanent guardians on May 4, 2017, in a Kern County case. The petition further alleged that T.J. was initially denied placement of N.W. in the juvenile dependency case pertaining to him, because of an "old but serious criminal/cps record," but eventually obtained a criminal exemption and successfully challenged the denial and was granted court-ordered placement in a section 360 legal guardianship on February 8, 2021.
T.J. attached several documents to the petition, including a letter dated June 29, 2022, indicating that "an assessment of your home and occupants was conducted and found to meet the qualifications standards set forth by the State of California." The letter further indicated that pursuant to section 16507.5, subdivision (b), which provides, "The granting of a community care license or approval status does not entitle the care giver to the placement of a specific child or children. Placement is based on the child's needs and best interest," that D.D. would not be placed in T.J.'s home. The letter also indicated T.J. was not entitled to a grievance hearing because parental rights had been terminated.
T.J. also attached documented correspondence between her and the department suggesting that the reason she was initially denied RFA was because she failed to turn over a budget sheet and health assessment for over a 30-day period. T.J. further asserted she was not in contact with the department for a period of time because she had contracted COVID-19 and lost her phone and its contacts around this time but attached e-mails to "show consistent effort by [T.J.] to comply with application requirements, and consistent contact with the Department." T.J. further alleged she was never able to address the court "as she was denied entry into the court building" on four occasions "due to Covid restrictions in place at the time."
The court ordered a hearing on T.J.'s petition.
The department prepared a report in response to the section 388 petition, dated August 31, 2022, recommending that a plan of adoption with D.D.'s care providers were in his best interest. The report indicated that as of the time of the writing of the report, contrary to T.J.'s assertion, she was not RFA approved as the department had concerns from the family evaluation prepared as part of the RFA process that needed to be mitigated. The department had attempted to obtain mitigations from T.J. but had not received them as of the writing of the report. The report also explained that in June 2022, T.J. received a "Temp Tab" approval, but the department determined it would not be in D.D.'s best interest to move him.
The hearing on T.J.'s petition was continued so that notice could be provided to the care providers. On October 17, 2022, T.J. and D.D.'s care providers attended mediation, where no agreement could be reached.
On October 21, 2022, D.D.'s care providers filed an objection to the removal of D.D. from their home. They concurrently requested the court to find them to be D.D.'s de facto parents and designate them D.D.'s prospective adoptive parents. The care providers asserted there had been no abuse of discretion by the department; they contended because D.D. had been placed with them his entire life, had special needs and medical issues of which the care providers were fully informed and willing to assist with D.D.'s substantial treatment needs, a change in placement would be detrimental to D.D. The objection further alleged the care providers had participated in the adoption process, had cooperated with the adoption home study, and attended classes required of adoptive parents.
The department prepared a supplemental report on T.J.'s petition dated October 21, 2022. The report indicated as of the writing of the report, T.J. was still not RFA approved due to concerns from the family evaluation. It was reported that "[t]he greatest delay [in obtaining approval] was in the fact that [T.J.] was not responsive to the RFA workers, and also in getting [D.B.'s] criminal exemption." The report identified the department's greatest concerns from the family evaluation. It was reported that T.J. "has never addressed her childhood trauma and she is still affected by it today." Further, T.J. and D.B.'s children had been removed due to domestic violence (DV). Though they separated and T.J. had completed her case plan and had her children returned to her care, the department had concerns that there were still domestic violence issues in the relationship. D.B. never completed his case plan requirements, and T.J. did not feel he needed to because he was a psychologist. T.J. and D.B. were still separated and resided in separate homes, but D.B. was involved with the children in T.J.'s care and was regularly in her home. In addition, while D.B.'s criminal exemption was processing, T.J. signed an affidavit stating that D.B. would not be in her residence until his exemption was granted, but he subsequently called the department and stated he never agreed to stay out of her home and they "couldn't hold him to that." This indicated to the department that "he is still very controlling in the relationship and there are still issues of DV that needed to be addressed."
The report further indicated that the RFA worker recommended that T.J. "participate in counseling to address childhood trauma, grief, and DV because she is still not capable of setting appropriate boundaries with her husband even though she completed her CPS plan." However, T.J. was "claiming that the family evaluation 'is all lies', that she doesn't have any childhood trauma, and [the department] shouldn't be basing [its] assessment on '[the worker who conducted the family evaluation]'s doodles.'" T.J. was "adamantly refusing to do any counseling, asserting there is no need to because [the family] evaluation is based on lies."
The report included a timeline of T.J.'s RFA application process. It indicated T.J. had first applied for RFA approval for placement of N.W. in April 2020. Her criminal record exemption was approved, but the application was withdrawn in February 2021, as she had been granted legal guardianship of N.W.
T.J. restarted the RFA process in July 2021. She was unresponsive to attempts to schedule her family evaluation interviews in August 2021, and a "30[-]day compliance letter" was mailed. T.J. scheduled the family evaluation interviews in September 2021, and they were completed in October 2021. She thereafter became nonresponsive to requests for documents, and the application was "ceased due to non[]compliance" in November 2021.
T.J. reapplied in January 2022, and her family evaluation was still valid. T.J. reported D.B. would be regularly present in the home, and she was informed he would need to participate in a live scan. The department received the live scans in late March 2022 and advised T.J. that D.B. would need a criminal record exemption. D.B. submitted the criminal exemption request in April 2022. His references did not respond, and new references needed to be requested in May 2022. In June 2022, T.J. reported D.B. would not be regularly present in her home and signed an affidavit to that effect. She later told the social worker she never said D.B. would not be in the home but admitted in the same conversation she only said that because that is what she thought the department wanted her to say.
T.J.'s RFA case was submitted for final approval in June 2022, and a written report was completed. The department identified several issues in need of mitigation prior to approval. T.J. was referred to counseling and stated she was open to attending but did not provide verification of enrollment. In July 2022, D.B.'s criminal record exemption was granted. In late August 2022, a 30-day letter to cease application for noncompliance was sent to T.J. In September 2022, T.J. informed the RFA worker "emphatically" that she would not be participating in any counseling. She was informed her case would be sent for state review for possible denial and she would have the ability to appeal that decision if denied. She stated she would wait and see the state review decision and again stated she would not participate in any counseling.
On October 24, 2022, T.J. filed a "Relative Information" (JV-285) form to which several documents were attached, including the family evaluation document prepared as part of T.J.'s RFA application that documented the areas of concern requiring mitigation, text messages between her and her attorney indicating the family evaluation contained errors, as well as photos of her and her family members with D.D.
The hearing on T.J.'s petition was ultimately conducted on October 25, 2022. The court granted the care providers' requests to be named prospective adoptive parents and D.D.'s de facto parents.
T.J. testified that if D.D. were to be placed in her care she would "absolutely" welcome visitation between him and the foster parents. D.D. was comfortable with T.J. and embraced her. N.W. had been in out-of-home placement for 13 months before being placed with her, and he had no problems transitioning. She was hopeful for the same type of transition with D.D.
D.D.'s prospective adoptive/de facto father testified that if T.J.'s petition were denied, he wanted her and D.B. to have a grandparent relationship with D.D. The prospective adoptive parents invited T.J. and other biological family members to D.D.'s first birthday party, and they attended. The prospective adoptive father intended to create a relationship with T.J. and D.B., starting with getting D.D. together with his biological siblings and progressing, for example, to having D.D. visit T.J. for a weekend.
During argument the court requested clarification on the June 29, 2022 letter attached to T.J.'s petition indicating the assessment of T.J.'s home and its occupants was "found to meet the qualifications standards set forth by the [S]tate of California" asking counsel for the department whether "that mean[t] she was RFA approved at that time." Counsel for the department responded, "It did not." County counsel indicated the letter was referring to "what [the department] called a temp tab" meaning "she had passed all the background information." However, T.J.'s family evaluation prevented her from "getting the full RFA approval" because of the issues that needed to be mitigated.
In ruling, the court noted it "d[id not] know why the assessment for the guardianship was approved and this RFA assessment was not," but that the issue before the court was for placement in D.D.'s case. The court noted it did not know why "there were some delays" and "[f]ault" for the delays "is pointed in both directions," but that the primary question for the court was whether the department abused its discretion. The court further noted it had reviewed the family evaluation and "[p]erhaps not every single one of t[he] concerns would be a basis . . . to mitigate against an RFA approval, but some of them are pretty significant and supported by the evidence, and others, you know, I think would require some investigation at least or some discussion about why counseling wasn't necessary." The court further noted that D.D. had been in his current home "for virtually his whole life," and when T.J. came forward requesting placement, the department did not fail to evaluate her, they did and concluded she was not approved for placement. The juvenile court concluded there was "no basis to make a decision contrary to the [d]epartment's decision" and denied T.J.'s petition.
DISCUSSION
Under section 388, subdivision (a), a party may petition the juvenile court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interest. (Ibid.; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
A section 388 petition is" 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.'" (In re A.R. (2015) 235 Cal.App.4th 1102, 1116- 1117.) We look to whether the juvenile court"' ["]exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The parties below and on appeal agree that because the department was granted exclusive custody, control and supervision of a child referred for adoptive placement, the trial court does not exercise independent judgment regarding placement decisions; rather, the court's role in evaluating T.J.'s request was whether the department's placement decision constituted an abuse of discretion. (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 731-734.) "In other words, the court must assess whether [the department] acted arbitrarily and capriciously, considering the minor's best interests. [Citation.] Absent a showing that [the department's] placement decision is patently absurd or unquestionably not in the minor's best interests, the juvenile court may not interfere and disapprove of the minor's placement, thereby requiring that the minor be relocated to another home. 'In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity.'" (Id. at p. 734.)
We cannot say the court abused its discretion by finding the department had not abused its discretion in denying placement of D.D. with T.J. and declining to order such placement. "Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.) At the time of the hearing on T.J.'s petition, parental rights had been terminated and adoption was ordered as D.D.'s permanent plan. T.J. was not RFA approved at the time of the hearing and had expressed that she would not be participating in the services recommended to her for mitigating the concerns that arose in the family evaluation in order to gain approval. Thus, at the time of the hearing on T.J.'s petition, there was no evidence that T.J. would be able to adopt D.D. In contrast, D.D. was placed with care providers who could provide him with the stability and permanence of adoption and had taken steps to complete the adoption process. He was stable and thriving in his prospective adoptive parents' home, where he had lived nearly all his life. The prospective adoptive parents were willing and capable to address his special medical needs, his identity as a mixed-race child, and all his daily physical and emotional needs. They were eager to include T.J., D.B., and D.D.'s biological siblings in D.D.'s life. The juvenile court had no basis on which to remove D.D. from his prospective adoptive home to place him in a less stable and permanent option of placement in a non-RFA approved home, even though that home was with biological relatives.
We understand and acknowledge T.J.'s desire to have placement of D.D. and have him be with his biological siblings, and we do not doubt T.J. is motivated by what she genuinely believes is in D.D.'s best interest. T.J. has not demonstrated, however, that the juvenile court erred. Much of T.J.'s briefing outlines the errors she alleges the department and juvenile court made throughout the dependency proceedings. She contends the court was not "proactive" (capitalization omitted) enough in considering placement with her. She contends she was denied an opportunity to directly address the court because she was denied entry to hearings because of COVID-19 restrictions, and when she was present at the section 366.26 hearing, the court declined to hear from her. She criticizes the department for not approving her request for emergency placement of D.D. and requiring her to go through the RFA process even though she had previously been awarded legal guardianship of N.W. She denies she caused any delay in the RFA application process and suggests the department caused "deliberate" delays in approving her or at the very least that she "was ignored and allowed to slip th[rough] the cracks." None of these contentions compel reversal.
First, our task on appeal is to review only the denial of T.J.'s section 388 petition. We do not have jurisdiction to review findings and/or orders that have become final. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331 ["Appellate jurisdiction to review an appealable order is dependent upon a timely notice of appeal. [Citation.] The earlier orders have long since become final and cannot be belatedly reviewed [in an appeal from a later order].") In the present case, the order terminating parental rights and all prior findings and orders have long become final, barring our review of any of the juvenile court's decisions or reviews of department actions prior to its consideration of T.J.'s section 388 petition.
Further, T.J.'s assertions about what happened prior to termination of parental rights were minimally relevant to the juvenile court's determination of her section 388 petition, as well as our analysis on appeal. T.J. bore the burden of showing the change in placement was in D.D.'s best interests at the time of the petition. (In re Stephanie M., supra, 7 Cal.4th at p. 322.) "Evidence that at earlier proceedings the court had not sufficiently considered placement with [a relative] was not relevant to establish that at the time of the [request for a change of placement], placement with [a relative] was in the child's best interests." (Ibid.) We also note, with regard to T.J.'s assertion that she should have obtained a "quick approval" based on her obtaining legal guardianship of N.W. shortly before D.D.'s dependency proceedings were initiated, that the circumstances surrounding her legal guardianship of N.W. were very different from the circumstances surrounding D.D.'s removal. The legal guardianship of N.W. was ordered pursuant to section 360, meaning the parents agreed to the guardianship, and T.J. never needed to complete the full RFA process. Here, mother was emphatic she did not agree with T.J. having placement or guardianship over D.D. and then absented herself from the proceedings. The juvenile court properly narrowed its focus on D.D.'s best interests as opposed to comparing his case to N.W.'s.
We reject T.J.'s assertion her case is like In re Isabella G. (2016) 246 Cal.App.4th 708. Isabella G. was an appeal from an order terminating parental rights, where the father and the paternal grandparents asserted the trial court erred by failing to apply the relative placement preference set forth in section 361.3 in light of the grandparents' repeated requests for placement since the beginning of the case and the agency's "significant, unwarranted delay in assessing their home." (Isabella G., at p. 718.) The appellate court agreed with the appellants, concluding that the relative placement preference applied after reunification services had been terminated, which was the primary issue in that case. (Id. at p. 723.) The appellate court reversed the juvenile court's denial of the grandparents' section 388 petition to modify the previous placement order and "necessarily" reversed the order terminating parental rights and designating the caregivers as the child's prospective adoptive parents. (Isabella G., at pp. 724-725.)
Section 361.3 provides in pertinent part that when a child is removed from the physical custody of their parents pursuant to section 361, "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative."
Isabella G. is not applicable because of the vastly different procedural stance. After the termination of parental rights, the relative placement preference no longer applies. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031.) Assuming only for the purpose of T.J.'s argument the agency did not properly consider her request for placement during the reunification period, reversal would not be required under Isabella G. (See In re Maria Q. (2018) 28 Cal.App.5th 577, 597.)
T.J. also asserts the court should have found the department acted arbitrarily or capriciously because she had completed her family evaluation in October 2021, received the letter that led her to believe she had been RFA approved in June 2022, and subsequently was informed she had not yet been RFA approved and needed to mitigate concerns from the October 2021 family evaluation. She questions why "concerns from the 2021 meeting suddenly c[a]me back up." We reiterate that the court properly focused its determination on what was in D.D.'s best interests at the time the petition was brought by noting that who caused the delays in T.J.'s RFA application was "not really the important thing." In any event, we find the department's timeline clears up any potential confusion. While T.J. completed the family evaluation in October 2021, it appears there were several delays in processing the final report, which, because of these delays, did not occur until June 2022. It appears completing the application triggered the "temp tab" approval, but T.J. was never granted full RFA approval because of the areas of concern that arose after the entire application was evaluated. The alleged discrepancy between the timing of the family evaluation, the June 29, 2022 letter, and the final report discussing issues for mitigation did not compel the juvenile court to find the department abused its discretion.
For the reasons we have stated, we conclude the juvenile court did not err by denying T.J.'s section 388 petition.
DISPOSITION
The juvenile court's October 25, 2022 order denying T.J.'s section 388 petition is affirmed.
WE CONCUR: DETJEN, Acting P. J. MEEHAN, J.