Opinion
B301407
05-14-2020
In re J.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S., a Minor, etc., et al., Appellants.
Jesse McGowan, under appointment by the Court of Appeal, for Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. 17CCJP01959A APPEAL from an order of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
____________________
The juvenile court removed J.S. from his parents' custody after the infant tested positive for methamphetamine at birth. For several months the child lived with foster parents and visited with his twelve-year-old half-sister Jh.S., father's daughter from a prior relationship. When J.S. was just over one year old, Jh.S.'s mother, Ms. A., asked to have the infant placed in her custody so J.S. could be raised in the same home with his half-sister. The Los Angeles County Department of Children and Family Services (the Department) opposed Ms. A.'s request, emphasizing concerns about her ability and willingness to protect J.S. from father. The juvenile court granted the request, concluding J.S. would benefit from the sibling bond. (See Welf. & Inst. Code, § 361.3, subd. (a)(4).) However, four months later, the Department petitioned for a change of placement, citing new concerns about Ms. A.'s failure to protect children in her custody and about the unlikelihood that she would be able to adopt J.S. The juvenile court granted the Department's petition, found the placement with Ms. A. was no longer in J.S.'s best interest, and returned the infant to his foster parents.
Statutory references are to the Welfare and Institutions Code.
J.S., through his guardian ad litem, appeals the order removing him from the placement with Ms. A. (See § 387, subd. (b).) Appellant contends the evidence was insufficient to support the court's finding that Ms. A. was unable to protect J.S. from his parents, and he argues Ms. A.'s prospect for adopting him was not a sufficient basis standing alone to remove him from a placement with a relative. (See §§ 361.3, subds. (a)(7)(D) & (a)(7)(H)(i), (ii).) We conclude the evidence was sufficient to support the inability to protect finding, and the court did not err when it considered Ms. A.'s likelihood of adopting J.S. as an additional factor supporting the removal order. Substantial evidence of J.S.'s strong bond with his foster parents also supports the best interest finding. We affirm.
We will refer to J.S. as "appellant" when discussing the arguments made through his guardian ad litem.
FACTS AND PROCEDURAL HISTORY
Consistent with our standard of review, we state the facts established by the evidence in the light most favorable to the juvenile court's findings, resolving all evidentiary conflicts in favor of the prevailing party, and indulging all reasonable inferences to uphold the court's order. (In re H.G. (2006) 146 Cal.App.4th 1, 12-13 (H.G.).) 1. Father , Ms. A., and J.S.'s Half-Sister Jh.S.
J.S. was born in November 2017. His half-sister Jh.S. was born in 2007. Jh.S. is father's and Ms. A.'s daughter.
In 2013, Ms. A. separated from father. The same year, father was arrested for drug possession. After their separation, father remained a primary caregiver for Jh.S., while Ms. A. worked multiple jobs and also provided care for the child. Jh.S. lived with Ms. A. Father lived with his mother.
In June 2013, the Department received a report that father had been drinking and punched Ms. A. in the head. Ms. A. called the police. She said there had been no prior incidents of domestic violence with father, she did not feel in danger, and she saw no need to seek a restraining order or to press charges against him. She said Jh.S. did not witness the incident and she did not want her daughter's relationship with father to be affected by a restraining order or family law order. The Department concluded the allegations of emotional abuse against Jh.S. were "unfounded."
In July 2015, Ms. A. had an argument with father while driving with Jh.S. When they reached a stop sign, father punched Ms. A. in the mouth. Ms. A. told the responding police officer she had separated from father when he "began using crystal meth." She said she allowed father to visit Jh.S. "only when he is not strung out on meth." Ms. A. wanted to press charges against father, but he fled the scene. The Department deemed the referral "inconclusive."
Despite these past incidents and father's drug abuse, Ms. A. allowed Jh.S. to have frequent unsupervised contact with father. Father regularly had custody of Jh.S. after school and he was "actively involved" in her schooling. Ms. A. said she and father "co-parent[ed]" Jh.S., but she denied being in a relationship with him. 2. J.S.'s Initial Placement
After separating from Ms. A., father started a relationship with J.S.'s mother. Mother had a long-standing drug problem and had lost her parental rights to two other children. Father and mother were homeless.
In November 2017, mother gave birth to J.S. Both tested positive for methamphetamines at the hospital. The Department took the newborn into protective custody and contacted Ms. A. to see if J.S. could be placed with his half-sister. Ms. A. said she was unable to care for the infant and suggested her aunt Ms. W. as an alternative. Four days after his birth, the Department placed J.S. with Ms. W.
Ms. W. frequently allowed Ms. A. to babysit J.S. at Ms. A.'s home. The Department had given permission for Ms. A. to babysit, but Ms. A. was not permitted to babysit the child in her own home, in part because the Department had not assessed it for risk. While babysitting the infant, Ms. A. frequently allowed father and mother to visit J.S.
The Department advised Ms. A. that the parents were not to have contact with J.S. without an approved monitor present. Ms. A. said she understood, but she also defended father, telling the social worker he "is a good person" and she had "no concerns with him." She also defended J.S.'s mother as a "nice woman," and said she had "no concerns" about mother visiting J.S. Ms. A. claimed she was unaware of father's substance abuse, despite having reported his methamphetamine use to police when he attacked her in 2015.
Ms. A. also defended father's frequent unmonitored contact with Jh.S. Notwithstanding the neglect and abuse allegations regarding J.S., Ms. A. said she would allow the visits to continue because she did "not want to break their bond." When speaking to J.S.'s social worker, she denied her previous contact with the Department and did not divulge the past domestic violence incidents.
To ensure Ms. A. understood the protective orders for J.S., the Department required her to sign an affidavit pledging she would not allow mother or father to have contact with the infant without the Department's approval. 3. J.S.'s Placement with the Foster Parents and Ms. A.'s Petition for a Relative Placement
In July 2018, Ms. W. asked the Department to place J.S. in a new home because she was overwhelmed by the responsibility. The Department assessed Ms. A.'s home at the time, but determined the placement would not be suitable.
The Department placed J.S. with nonrelative foster parents, Mr. and Ms. C. It also established monitored sibling visits between J.S. and Jh.S. twice per month. Ms. A. brought father to one of the sibling visits without notifying the Department beforehand.
In December 2018, Ms. A. filed a petition to place J.S. in her home. She said she wanted to adopt J.S. so he could be raised with his half-sister. She pledged not to allow father to visit either child without an approved monitor, and she obtained a court order for sole custody of Jh.S. She supported the petition with a letter from Jh.S. describing her bond with her half-brother; a reference letter from a man who said Ms. A. provided respite care for his special needs son; a November 2016 community care licensing clearance form showing Ms. A.'s background checks had cleared; and a conciliation court order restricting father to monitored visits with Jh.S.
The Department opposed Ms. A.'s petition. Although Ms. A. had obtained a court order restricting father's contact with Jh.S., the Department remained concerned about her reluctance to require monitored contact. Emphasizing Ms. A.'s omissions regarding father's past domestic violence and drug abuse, the Department urged that Ms. A. seemed unable to acknowledge child safety concerns related to father. And it maintained the parents' drug abuse presented a special problem because Ms. A. admitted she could not tell whether someone was under the influence.
The Department reported J.S. was "thriving and well-adjusted" in his foster parents' care, and the foster parents were committed to adopting him. They had been caring for J.S. for almost a year, and the infant had a strong bond with them. He referred to his foster parents as "momma" and "dada" and he cried when he had to be separated from them. The foster parents had consistently demonstrated their commitment to ensuring J.S.'s safety and well-being, and to addressing his medical, emotional, developmental, and educational needs.
In March 2019, the Department approved Ms. A. to foster J.S. through the Resource Family Approval (RFA) process. In its written report, the RFA team addressed the two domestic violence incidents involving father, as well as a December 2013 incident in which Ms. A. was accused of sexually inappropriate behavior with a minor. The Department had referred the accusations to law enforcement, and no charges were pursued. The RFA team found Ms. A.'s home was appropriate, her criminal record included only a minor infraction, and she and her daughter shared a close relationship with J.S.
The Department's opposition to Ms. A.'s placement petition detailed the accusations and the investigation J.S.'s social workers conducted outside the RFA process. In December 2013, Ms. A. was accused of sexually abusing a seven-year-old boy who she cared for at her former job. There allegedly was video and audio footage of Ms. A. asking the child to kiss her. She was also accused of using inappropriate language around the child and of allowing the child to view inappropriate websites. She allegedly told the child not to tell anyone about the incidents. The Department referred the matter to the Long Beach Police Department, but the alleged victim's family asked to close the case because they feared retaliation from Ms. A., who they believed was gang affiliated. When confronted with the accusations in connection with J.S.'s case, Ms. A. claimed she never had a client with the alleged victim's name. Ms. A.'s former employer confirmed that Ms. A. worked for the victim's family and that she was advised of the accusations when they were made. According to the former employer, Ms. A. had recently contacted its human resources department regarding the accusations and had explained she was attempting to adopt a child. The record strongly suggests the juvenile court did not credit the accusations when it granted Ms. A.'s petition to have J.S. placed in her custody.
On May 7, 2019, the juvenile court granted Ms. A.'s petition and ordered J.S. placed in her home. The court concluded the relative placement preference applied and J.S. would benefit from growing up in the same home as his half-sister. The court found Ms. A. had gone to "extraordinary efforts" to implement "protective measures . . . in every instance where the Department identified a potential concern." "[S]he rectified [the safety concerns] as quickly as she could and made every effort to provide a home that would be welcoming." The court granted the Department's request for a one-week stay to pursue writ review and suggested the parties should meet and confer on a plan for transitioning J.S.'s placement.
On May 10, 2019, this court denied the Department's writ petition for review of the placement order.
The parties agreed to a five-week transition plan during which J.S. would remain in the foster parents' home and have overnight weekend visits with Ms. A. By mid-June 2019, J.S. was to have fully transitioned to his placement with Ms. A. 4. Rescission of Ms. A.'s RFA and the Department's Petition for Change of Placement
One week after the court granted the placement order, the Department requested that Ms. A. enroll in a domestic violence counseling program. Ms. A. agreed, and eventually completed 13 of 16 classes.
In June 2019, Ms. A. asked to postpone J.S.'s placement because she was moving into a new home. The foster parents and the Department agreed.
In July 2019, the Department denied a request for the change of placement to Ms. A.'s new home. At the time, Ms. A. already had another foster child, K.C., living with her and she had been approved to foster only one child. The Department also could not transfer J.S.'s placement because Ms. A. did not have an RFA certificate for her new address.
The Department placed K.C. with Ms. A. in April 2019, after she received the RFA certificate for her previous home.
On September 4, 2019, the Department filed a petition for modification of the existing placement order and to return J.S.'s placement to the foster parents' home. The petition alleged Ms. A. continued to exhibit an unwillingness to comply with protective measures and visitation orders for the children in her care, reigniting concerns that she was unable to protect dependent children from their parents. It also alleged Ms. A. was unlikely to receive approval for J.S.'s adoption because the Department was in the process of rescinding her RFA.
The Department filed the request under section 385, which authorizes the juvenile court to change, modify, or set aside any order "as the judge deems meet and proper, subject to such procedural requirements" as are imposed by the relevant statute. The parties agree the procedural requirements for the change of a relative placement are set forth in section 387, subdivision (b), and the record shows the court properly applied the procedural requirements specified in the statute when it ruled on the Department's petition.
In July 2019, a social worker interviewed Ms. A.'s daughter Jh.S. after receiving a report that Ms. A. allowed K.C.'s godmother, N.S., to take custody of the child twice a week without a monitor, in violation of a monitored visitation order. Jh.S. confirmed that K.C. was "not at their home very much" and that K.C. regularly "stay[ed] at the home of her godmother." Ms. A. claimed K.C.'s social worker authorized the unmonitored contact with N.S.
Contrary to Ms. A.'s claim, K.C.'s social worker confirmed Ms. A. was told K.C. was not to have unmonitored contact with N.S. K.C.'s social worker also explained that N.S. was K.C.'s mother's ex-girlfriend and that she had disrupted K.C.'s prior foster placement, which led to the child's placement with Ms. A.
The Department continued to believe Ms. A.'s relationship with father posed a risk to J.S. Despite telling the RFA team she intended to keep her new address confidential, Ms. A. had invited father to her home after her mother's funeral. And she still claimed to be unaware of father's drug problem. Even when confronted with her statements to the police in 2015, Ms. A. challenged the report, replying, " '[I] never said that, but if the police report says that I said that, then it must be true.' " When asked about Jh.S.'s recent birthday party that J.S. had attended, Ms. A. confirmed father was not present. But she argued it was " 'not fair that [J.S.'s] parents are not able to see [J.S]' " and it was " 'not fair that [Jh.S.] has to choose between [J.S.] and her father.' "
Due to the issues with K.C.'s placement and its ongoing concerns about Ms. A.'s relationship with father, the Department reported it had "no confidence" in Ms. A.'s ability to protect children under dependency supervision. Before the hearing on the petition, the Department held an RFA conference and determined there were sufficient grounds to rescind Ms. A.'s RFA.
On October 3, 2019, the juvenile court granted the Department's petition to return J.S. to the foster parents. The court reasoned the rescission of Ms. A.'s RFA raised significant "hurdles" to her adoption of J.S. And, because adoption is the preferred outcome for a dependent child, the court found J.S.'s best interest would be served by placing him with the foster parents, who remained viable adoptive parents.
The juvenile court also shared the Department's concerns regarding Ms. A.'s "lack of protective capacity and judgment." It acknowledged "[s]ome of the information was previously before the court" when Ms. A. requested the placement, but emphasized there was "new" information that reinforced the Department's early concerns about Ms. A.'s persistent inclination to downplay the risks posed by father's conduct. Based on "the weight of all the cumulative evidence," the court found Ms. A. had "minimized some threats to the child in the past," and that factor, coupled with the unlikelihood of adoption, compelled the court to find "the best interest of the child" demanded a change of placement. The court said the "other factors listed in [section] 361.3" largely supported the best interest finding, and this, the court found, "overcomes the preference for family as well as the factor relating to [placement] with the siblings."
After granting the Department's petition, the juvenile court held the pending section 366.26 hearing. The court terminated the parents' rights and designated the foster parents as prospective adoptive parents.
DISCUSSION
Appellant contends the juvenile court erred when it removed J.S. from the relative placement with his half-sister in Ms. A.'s home. He makes two interrelated arguments. First, he contends there was no proof that Ms. A. could not protect J.S. from his parents. (See § 361.3, subd. (a)(7)(D).) He maintains "the relevant safety issue" was that Ms. A. might allow father to have unsupervised contact with J.S., and he argues anything short of proving such contact occurred was insufficient to support the court's finding. Appellant's second argument rests on his first. Because he maintains the evidence was insufficient to support the inability to protect finding, appellant contends the court could not rely on Ms. A.'s unlikelihood of adopting J.S. as the "sole basis" for revoking the preferential placement with a relative. (See id., subd. (a)(7)(H)(i), (ii).) Viewing the record as we must in the light most favorable to the juvenile court's order, we conclude the evidence was sufficient to find Ms. A. would not adequately protect J.S. from father. In view of that evidence, the court also properly considered Ms. A.'s unlikelihood of adopting in assessing which placement was in J.S.'s best interest. (See §§ 387, subd. (b) & 361.3, subd. (a)(1).)
1. Change of a Relative Placement - Governing Law and Standard of Review
When the child welfare agency "seeks to change the placement of a dependent child from relative care to a more restrictive placement, such as foster care, it must file a supplemental petition under section 387." (H.G., supra, 146 Cal.App.4th at p.10.) "[I]n the case of a placement with a relative," the petition "shall contain a concise statement of facts . . . sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b).) Under section 387, the agency "has the burden to show by a preponderance of the evidence that the factual allegations alleged in the petition are true." (H.G., at p. 11.)
In determining whether the child's placement with a relative is appropriate, section 361.3, subdivision (a) directs the juvenile court to consider a non-exhaustive list of factors, including: the best interest of the child; the placement of siblings and half-siblings in the same home; the good moral character of the relative; the nature and duration of the relationship between the child and the relative; the safety of the relative's home; and the relative's ability to do the following:
"(A) Provide a safe, secure, and stable environment for the child.
"(B) Exercise proper and effective care and control of the child.
"(C) Provide a home and the necessities of life for the child.
"(D) Protect the child from his or her parents.
"(E) Facilitate court-ordered reunification efforts with the parents.
"(F) Facilitate visitation with the child's other relatives.
"(G) Facilitate implementation of all elements of the case plan.
"(H)(i) Provide legal permanence for the child if reunification fails. [¶] (ii) However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for
precluding preferential placement with a relative.
"(I) Arrange for appropriate and safe child care, as necessary." (§ 361.3, subd. (a)(7).)
"If the court finds the previous disposition is no longer effective or the placement with the relative is not appropriate, then, in a separate disposition phase, the court must determine whether removal of the child from his or her placement is required." (H.G., supra, 146 Cal.App.4th at p.12, citing Cal. Rules of Court, rule 1431(e)(2).) Notwithstanding the factors set forth in section 361.3, our Supreme Court has instructed that, "regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M. (1994) 7 Cal.4th 295, 321.)
"We review a decision to remove a child from a relative caretaker under the substantial evidence test. [Citation.] We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order." (H.G., supra, 146 Cal.App.4th at pp. 12-13.)
2. Substantial Evidence Supports the Inability to Protect Finding
Appellant contends the Department's evidence was "not responsive to the relevant safety issue" and, thus, insufficient to support the finding that Ms. A. could not adequately protect J.S. from father. He emphasizes Ms. A. "never allowed father to have unsupervised contact with J.S.," and he argues the Department's evidence did not support a reasonable inference that she would have allowed such contact if J.S. remained in her custody. We disagree.
Based on "the weight of all of the cumulative evidence," the juvenile court found Ms. A. sometimes "minimized" the threats posed by father's misconduct, and her inconsistent appreciation of those risks raised legitimate doubts about her "protective capacity and judgment." As the court acknowledged, some of this evidence was before the court when it granted Ms. A.'s petition for a relative placement. It included evidence showing Ms. A. allowed her daughter Jh.S. to have frequent unsupervised contact with father, despite father's past domestic violence and ongoing drug abuse, and it showed she allowed mother and father to have unauthorized contact with J.S., even though she knew the juvenile court had taken jurisdiction over the infant and placed him in protective custody. In granting Ms. A.'s petition, the court expressly found she had "rectified" these areas of "potential concern" by securing sole physical custody of Jh.S. and executing an affidavit promising not to allow unauthorized contact with J.S. However, despite these promising first steps, new evidence soon emerged to cast doubt on this finding.
Shortly after Ms. A. was to have taken full custody of J.S., the Department raised new concerns about her unwillingness to comply with protective measures and visitation orders for the children in her care. At the time, Ms. A. had been caring for another foster child, K.C., and had repeatedly allowed the child to have unmonitored contact with her mother's ex-girlfriend, in violation of a monitored visitation order. When testifying at the hearing on the Department's petition, Ms. A. claimed she had never allowed the prohibited unmonitored contact, contradicting her daughter who said that K.C. was "not at their home very much" and that the child regularly "stay[ed] at the home of her godmother." And, when confronted about the improper contact, Ms. A. claimed she received permission to allow the visits. K.C.'s social worker confirmed this was not true and Ms. A. knew about the monitored visitation order.
Ms. A.'s distortions about father's misconduct also persisted. Just days before the hearing on the Department's petition, Ms. A. again denied knowledge of father's substance abuse, despite reporting it to law enforcement in connection with the last domestic violence incident. And, when confronted with her statement that father was a "crystal meth" user, she told the Department she " 'never said that,' " while seeming to insinuate the police had fabricated the statement.
Appellant acknowledges Ms. A. was not "completely forthcoming about father's substance abuse history," but he maintains this is "besides the point" because she was "under no illusion about father's potential dangerousness." He emphasizes Ms. A. called the police after both domestic violence incidents and, unlike her denial of father's drug abuse, she openly discussed the assaults with the Department. He also argues Ms. A.'s violation of K.C.'s monitored visitation order "did not show that her ability to protect J.S. was compromised," because K.C.'s social worker thought the violation might have been an " 'honest mistake.' "
Contrary to appellant's assertion, J.S.'s social worker reported Ms. A. had denied her previous contact with the Department and she did not divulge the past domestic violence incidents when they first spoke.
According to K.C.'s social worker, Ms. A. thought N.S. was allowed to have unmonitored contact with K.C. because N.S. was K.C.'s godmother and they had visits together before the child was placed in Ms. A.'s home. Although she had told Ms. A. that N.S. was not to have unmonitored contact with the child, K.C.'s social worker did not think Ms. A. intentionally violated the order.
To be sure, the evidence is susceptible of the interpretation appellant advances. But it is also reasonably susceptible of the inferences the juvenile court drew, and we are bound under our standard of review to accept those inferences (and to reject appellant's contrary inferences) to affirm the court's judgment. (See H.G., supra, 146 Cal.App.4th at pp. 12-13.) Ms. A. responded appropriately to father's assaults, but she also allowed him to have unmonitored contact with her daughter despite his history of domestic violence and known methamphetamine abuse. She knew the juvenile court had removed J.S. from his parents and placed him with Ms. W. under the Department's supervision, but she allowed the parents to have several visits with the infant without informing the Department. She initially took steps to address the Department's concerns, but then she violated a monitored visitation order for another foster child and lied about it when the Department confronted her. And, although one social worker may have thought Ms. A. made an honest mistake, the juvenile court was not only permitted, but required to exercise its independent judgment in assessing Ms. A.'s willingness to follow court orders and her capacity to protect the children in her care. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 547-548 [the juvenile court "must exercise its own discretion" when it determines whether a relative placement is "not appropriate"]; accord H.G., at p. 15.)
Contrary to appellant's contention, this evidence, although conflicting in some cases, was responsive to the relevant safety issue—namely, whether Ms. A. would protect J.S. from his parents if he remained placed in her custody. (§ 361.3, subd. (a)(7)(D); § 387, subd. (b).) Critically, it was the parents' methamphetamine abuse that required juvenile court intervention. But Ms. A. repeatedly refused to acknowledge the risks posed by father's drug abuse, and she regularly questioned the need for a Department-approved monitor, despite admitting she could not tell whether someone was under the influence of drugs. Taken together with Ms. A.'s uneven compliance with other protective measures, there was sufficient evidence for the juvenile court to question her "protective capacity and judgment." Substantial evidence supported the inability to protect finding. (See In re F.S. (2016) 243 Cal.App.4th 799, 813 [recognizing "a child need not have been harmed before removal [under section 387] is appropriate because the focus of the statute is on averting harm to the child"].) 3. The Juvenile Court Properly Considered the Unlikelihood of Ms. A. Adopting J.S. and the Child's Close Bond to the Foster Parents
Among the factors the juvenile court must consider in determining whether placement with a relative is appropriate, section 361.3, subdivision (a) lists the relative's ability to "[p]rovide legal permanence for the child" if reunification with the parents fails. (§ 361.3, subd. (a)(7)(H)(i).) However, the statute specifies that any finding made with respect to this factor "shall not be the sole basis for precluding preferential placement with a relative." (Id., subd. (a)(7)(H)(ii).)
Although appellant concedes there was substantial evidence to support the finding that Ms. A. was unlikely to adopt J.S., he argues the court was barred from relying on this finding as the "sole basis" for removing the child from a relative placement. The argument is premised on appellant's contention that substantial evidence did not support the inability to protect finding, which the juvenile court cited as the other express ground for its order. Because we have concluded substantial evidence supported the inability to protect finding, we also conclude the court was not barred under section 361.3, subdivision (a)(7)(H)(ii) from considering Ms. A.'s unlikelihood of adopting J.S. as an additional basis for changing the placement.
The adoption finding also plainly supported the court's order. As the juvenile court recognized, the Legislature has deemed adoption to be the preferred permanent plan for a dependent child who cannot be reunified with his or her parents. (See § 366.26, subd. (b)(1).) And, adoption remains the preferred permanent plan even when the child is living with a relative who is capable of providing a permanent and stable environment through legal guardianship, so long as removing the child from the relative's custody would not be detrimental to the child's emotional well-being. (See id., subd. (c)(1)(A) [if court finds the child is likely to be adopted, it "shall terminate parental rights and order the child placed for adoption," unless it finds the child "is living with a relative who is . . . willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child" (italics added)]; cf. In re K.H. (2011) 201 Cal.App.4th 406, 415 [juvenile court found it would be detrimental to children's well-being to be removed from grandparents' custody and appellants did not challenge finding].)
Finally, appellant's premise is flawed, because the juvenile court did not rely only on its findings concerning Ms. A.'s inability to protect and unlikelihood of adopting J.S. Rather, the court also found returning the child to his foster parents would be in his "best interest" as provided in section 361.3, subdivision (a)(1). Substantial evidence establishing the strong bond he had with his foster parents supported the finding. That evidence showed J.S. lived exclusively with his foster parents for ten months and, even when his placement changed to Ms. A.'s home, he continued to reside with the foster parents for part of the week. He referred to his foster parents as "momma" and "dada" and he cried when he had to be separated from them. And, the foster parents had consistently demonstrated their commitment to ensuring J.S.'s safety and well-being, and to addressing all his various needs.
Here, the juvenile court properly weighed J.S.'s placement with a relative who could not provide him permanency through adoption, and who presented safety concerns, against placement with foster parents who had been providing him exceptional care and with whom he was strongly bonded. Those were proper considerations in assessing the child's best interest. The court's best interest finding also supported the placement order. (See In re Stephanie M., supra, 7 Cal.4th at pp. 321-322 [juvenile court properly denied relative placement where evidence supported finding that "placement was not in the child's best interest, in view of her fragile emotional state and her successful and enduring bond with the foster parents"].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.