Opinion
G054288
06-26-2017
In re A.S., a Person Coming Under Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. E.S. et al., Defendants and Appellants; T.Y., Objector and Appellant, P.A. et al., Claimants and Respondents.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant E.S. (father). Grace Clark, under appointment by the Court of Appeal, for Defendant H.Y. (mother). Donna Balderston Kaiser, under appointment by the Court of Appeal, for Objector and Appellant T.Y. (maternal aunt-in-law). Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. Christine E. Johnson for Claimants and Respondents Joseph and Paula A. (foster parents).
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
The opinion filed on June 26, 2017, is modified as follows:
1. On page 3, in the first line of the last paragraph insert "(aunt)" after the first instance of "T.Y." Replace the two subsequent instances of "T.Y." in the paragraph with "aunt." In the same paragraph, replace the words "Brian Y." with "(uncle)" so that the paragraph now reads:
The social worker stated she had located and notified T.Y. (aunt), the wife of maternal half uncle (uncle), in Colorado, advising aunt the child had been removed from the parents' care. The report contains a notation reflecting aunt desired "ongoing contact." The report also reflected "Assessment Status" as "Pending," and "Placement Status," as "Not Placed." The social worker wrote, SSA "is not currently looking to place the child out of state in order to allow for visitation and bonding with the parents."
2. On page 5, in the first sentence of the second full paragraph delete words "maternal" and ", Brian Y.," and in the fourth sentence replace words "maternal uncle Brian's wife, T.Y.," with "aunt" so that the paragraph now reads:
The report reflected that on April 4, 2016, an interstate home study (ICPC) of uncle had been "accepted by the state" of Colorado for evaluation. "The home approval for this relative placement is pending due to the potential relative caregivers needing to complete the required hours of training for the foster care licensing process. This is reportedly the last item that needs to be completed and includes 12 hours of foster care training and should be completed on July 28, 2016." The social worker noted SSA's initial jurisdiction report in December 2015 had identified aunt as a potential placement, but A.S. had not been placed with her because it would "hinder visitation, bonding with his parents and, reunification services."
3. On page 5, in the fourth full paragraph, replace "T.Y." with "aunt", and replace "Brian" with "uncle" so that the paragraph now reads:
On August 3, 2016, aunt asked the court to place A.S. with her and uncle, but county counsel stated it was unclear whether the ICPC had been completed. When father contested the recommendation to terminate reunification services, the court continued the review hearing to September 15.
4. On page 6, in the second full paragraph in the first sentence, replace "the Y.'s" with "aunt and uncle" and in the second sentence of this paragraph, replace "Y.'s" with the word "they" so that the paragraph now reads:
On August 22, aunt and uncle filed a motion for placement. In the motion, they claimed they had requested placement a few days after learning A.S. was in protective custody, and asserted "it would appear [] placement would have been made" had they lived in California. They acknowledged the social worker "appropriately requested that they apply for and obtain an approval through the [ICPC] to have the child placed in their home," and they "began the process in March 2016, after learning the reunification for the parents appeared unlikely." The ICPC was approved on August 1, 2016.
5. On page 6, in the third full paragraph in the first sentence, delete the words "maternal uncle Brian and his wife T.Y." and replace with "aunt and uncle" and in the thirds sentence of this paragraph delete "T.Y." and replace with "aunt" so that the paragraph now reads:
On August 30, the social worker received documentation dated August 25 reflecting aunt and uncle had completed the licensing process and their home was approved for potential placement. The social worker denied placement at that time because she had not yet received the approval documentation. The social worker stated she had facilitated two one-hour supervised visits with aunt during her August stay in California.
6. On page 6, in the fourth paragraph which continues to page 7, in the first sentence, delete the word "Brian" and replace with "Uncle." In the second sentence of this same paragraph, delete the first occurrence of the word "Brian" and replace it with "uncle's" and delete the second occurrence of the word "Brian" and replace it with "he." In the third sentence, delete the word "Brian" and replace it with "Uncle." In the fourth sentence delete "The Y.'s" and replace it with "Aunt and uncle." In the fifth sentence delete the word "Brian" and replace it with "Uncle," so that the paragraph now reads:
Uncle told the social worker he learned about mother and his other half siblings a few years earlier. They shared a biological father, who left uncle's mother when he was four years old. Uncle
had only one physical contact with mother, although they had spoken on the telephone a few times, most recently a year or so earlier. Aunt and uncle expressed a desire to adopt A.S. if he could not be reunified with the parents. Uncle stated he "would like the child to be with a biological family member versus being adopted by a family who has no biological ties to the child." Due to employment and his children's needs and finances, he could not accompany his wife to the next hearing and visit with A.S.
7. On page 7, in the first full paragraph, delete the first sentence and replace it with "The ICPC reflected aunt and uncle had been married for over 10 years and had children of their own." In the second sentence delete the word "Brian" and replace it with "Uncle." In the third sentence replace "T.Y." with "aunt." In the same third sentence delete the words "Brian and T.Y." and replace it with "They," so that paragraph now reads
The ICPC reflected aunt and uncle had been married for over 10 years and had children of their own. Uncle was employed and received veteran's pay, providing the family with a sufficient income. Aunt did not work outside the home, so childcare was not an issue. The family's rented home was "very clean" and located in a family-oriented neighborhood. They were described as an "active, fun, involved couple" who had "created a home that has routine, structure, and boundaries which makes the home predictable, safe, and functional for children who have been diagnosed with Attention Deficit Disorder (ADHD) or trauma."
8. On page 7, in the first sentence of the second full paragraph, remove word "Brian" and replace it with "Uncle", delete the balance of the sentence after "deployment" and replace it with "but was managing his heal issues." In the third sentence, remove ".T.Y." and replace it with "Aunt," so that the paragraph now reads:
Uncle was a military veteran who was injured in his final deployment, but was managing his health issues. He had an older daughter from a previous relationship who had been sexually abused by a stepfather and reportedly had mental health issues. Aunt also had a history of childhood trauma that made her anxious whenever her children met new friends. In 2007 she had checked herself into a psychiatric hospital for one week, but now took medication to control her anxiety. A structured analysis family evaluation (SAFE), including a psychosocial inventory, reflected the couple's history of
trauma placed them in the category of "serious concern" and "extremely serious concern" in several categories.
9. On page 7, in the third full paragraph which continues to page 8, delete all three instances of the word "Brian's" and replace it with "uncle's," so that the paragraph now reads:
The social worker concluded that although Colorado had approved uncle's home, "some concerns regarding this relative placement remain," including the absence of a familial relationship between A.S. and his biological relatives, uncle's lack of familial relationship with A.S.'s parents, and the couple's "unmitigated trauma scores from the SAFE assessment." "It is difficult to know the extent to which these unmitigated scores would or could impact the maternal relatives" ability to care for A.S. But the social worker also stated under section 361.3, if a placement change became necessary, the child would be placed in uncle's home.
10. On page 8, in the second sentence of the first full paragraph, delete "T.Y." and replace it with "aunt." In the third sentence of this paragraph, delete "T.Y." and replace it with "She." In the fourth sentence of this paragraph, delete "T.Y.'s" with "aunt's," so that the paragraph now reads:
On September 15, the court granted father's motion to continue the six-month review. The court authorized daily unmonitored, unsupervised two-hour visits for aunt while she was in Orange County. She had several visits with A.S. The foster mother reported A.S. was "very stressed" by the visits and said "mama, mama, mama" when she approached aunt's car after visits.
11. On page 8, in the second sentence of the third full paragraph, delete the word "Brian" and replace it with "aunt and uncle," so that the paragraph now reads:
The court conducted a placement review hearing in advance of the six-month review commencing September 22, 2016, and concluding November 8, 2016. The contested issue was whether the court should change placement from the foster parents to aunt and uncle in Colorado.
12. On page 9, in the first sentence of the first full paragraph, delete "the Y.'s" and replace it with "aunt and uncle," so that the sentence now reads:
Charette believed mother requested consideration of aunt and uncle for placement in December 2015, but SSA sent the ICPC request to Colorado on March 22. Charette explained she believed an ICPC could not be initiated before the disposition hearing. She received a preliminary home study, dated May 23, in early June.
13. On page 9, in the first sentence of the second full paragraph, delete "T.Y." and replace it with "aunt," and delete the words "T.Y. and Brian" and replace them with the words "aunt and uncle," so that the paragraph now reads:
Charette first spoke with aunt sometime in July, but between July and early August, aunt and uncle did not ask about A.S.'s health or special needs and Charette did not recall any requests for contact through Skype or FaceTime. By August when the ICPC had been approved, the social worker believed moving A.S. would be detrimental because A.S. demonstrated a deepening attachment to the foster parents.
14. On page 9, in the first sentence of the third paragraph, replace all three instances of "T.Y." with "aunt," so that the paragraph now reads:
Charette observed two visits between aunt and the child on August 2 and August 4. Aunt was affectionate, her interaction with A.S. was appropriate, and he was able to "sustain play with" her, but after 20 to 40 minutes he "wanted to go back to mama," meaning the foster mother. The social worker also described how A.S. awoke after a car ride and "reached for the foster father." The foster mother provided ongoing detailed reports suggesting A.S. was "not adjusting to the visits," but aunt reported her visits with A.S. were "good."
15. On page 9, in the second sentence of the fourth full paragraph, delete the "Y.'s" and replace it with the words "aunt and uncle." In the fourth sentence, delete "Brian's" and replace it with the words "the maternal," so that the paragraph now reads:
Charette admitted she was emotionally involved in the case and was "interested in this little baby and his well-being," which she felt was best served if he remained with the foster parents. Charette expressed concern there was not an adoptive home study for aunt and uncle, as contrasted with the approved ICPC, explaining that an adoptive home study tended to "have a lot more depth" and "more
information than . . . a placement study." She recommended placement with the foster parents "based on the relationship that the child currently has with his current caregivers and how he sees them." She explained there was "hardly any kind of a family tie" with the maternal family such that a relative placement should "tak[e] priority over everything."
16. On page 9, footnote 2 which continues on to page 10, delete the first two instances of "T.Y." and replace them with "Aunt." In the last sentence of footnote 2, replace "theY's" with "aunt and uncle," so that the new footnote will read:
In an addendum report dated November 2, 2016, filed during the hearing after she initially testified, Charette stated an ICPC cannot be submitted to SSA's ICPC unit until the child has been declared a dependent at the disposition hearing. Aunt stated she was interested in placement in early December 2015. The disposition hearing occurred February 17, 2016. Manzer received the disposition order on March 8, the ICPC unit received the ICPC packet from Manzer on March 16, and the ICPC unit submitted the ICPC to Colorado on March 22. The social worker received the preliminary home study from Colorado on June 10, but the child could not be placed before foster care licensing was completed. Aunt provided the social worker with a foster care completion certificate on August 2, and on August 25, SSA received documentation from Colorado stating aunt and uncle were approved for placement.
17. On page 10, in the third full paragraph, delete the two instances of "T.Y." and replace them with "aunt," so that paragraph now reads:
The foster parents described a typical day with A.S. and various activities the couple and their extended families enjoyed with the child. A.S. looked confused when they dropped him off for visits with aunt. As visits with the aunt increased, A.S. appeared more comfortable, but still looked back at the foster parents at drop offs and lunged toward them at pickups. He was "clingy" after visits with aunt, but not with other temporary caretakers. A.S. now called Joseph "dada," and he had called Paula "mama" since June or July. The foster parents described various interactions they believed demonstrated A.S. viewed them with affection and looked to them for comfort and consoling.
18. On page 11, in the fourth sentence of the first full paragraph, delete the words "Brian and T.Y.'s family," and replace it with the words "aunt and uncle," so that the paragraph now reads:
The couple wanted to adopt A.S. because they had cared for him since February, loved him, and wanted him to "grow up in a positive environment." Joseph would allow monitored contact with the biological parents if the parents drug tested and "the trust would have to be built from there." Joseph did not feel comfortable giving the biological parents their home address because contact with them had been sporadic, the biological parents were mentally unstable, and they viewed the A.'s as a threat. They also would allow contact with the extended family, including aunt and uncle.
19. On page 11, in the first sentence of the second full paragraph, delete the entire first sentence and replace it with "Uncle testified his biological father abandoned his mother when he was four years old." In the second sentence delete the word "Brian" and replace it with "He." In the fourth sentence delete the word "Brian" and replace it with "Uncle." In the seventh sentence delete the word "Brian" and replace it with "him," so that the sentence now reads:
Uncle testified his biological father abandoned his mother when he was four years old. He only learned about his paternal family, including mother, his half sister, around 2012. He first learned about A.S. in March 2016 through another paternal half sister. Uncle had started a new job in March 2016, and he had not been able to make it to California to meet A.S. personally until the review hearing in late September 2016. He began taking the 12 hours of foster care licensing classes in July because earlier classes conflicted with his new job. He described the placement approval process, which included background checks, a home inspection, physical examinations, CPR and first aid classes. Colorado approved him for custody of A.S. in August 2016.
20. On page 11, in the first sentence of the third full paragraph, delete the entire first sentence and replace it with "He and his wife lived with an adult daughter and the couple's two sons." In the third sentence of the same paragraph, replace "Brian" with "Uncle" and remove "A.," so the paragraph now reads:
He and his wife lived with an adult daughter and the couples' two sons. Both boys took medication for attention-deficit/hyperactivity disorder (ADHD). Uncle planned to have A.S. share a room with his youngest son, who was excited about the idea.
21. On page 11 of the fourth paragraph which continues to page 12, delete the entire paragraph and replace it with the following:
Uncle had two daughters from his first marriage. Following his divorce, he obtained full custody of the girls after the stepfather molested the eldest daughter. When she was 12, she touched the couple's oldest son, then age 4, inappropriately. The boy received counseling. The daughter ran away several times and had been hospitalized for depression and anxiety. She was now an adult, lived out of state, and had not visited in several years. Uncle would only allow supervised contact between her and A.S.
22. On page 12 in the first full paragraph, delete the first four sentences and replace them with "Uncle had served in the Army, and received various awards and commendations. He suffered injuries, but 'fully recovered' through counseling and physical therapy, and described his current health as 'pretty good.'," so that the paragraph now reads:
Uncle had served in the Army, and received various awards and commendations, including a Purple Heart. He suffered injuries, but "fully recovered" through counseling and physical therapy, and described his current health as "pretty good." He had no physical or mental health issues that prevented him from being able to parent A.S. He obtained a certificate in mountaineering, SCUBA and outdoor leadership and recreational technology from a community college. He received substantial military retirement pay, and began working as a guard for an armored car company in March 2016.
23. On page 12, in the first sentence of the second full paragraph, delete the word "Brian" and replace it with "Uncle." In the second sentence, delete the word "T.Y.'s." and replace it with "aunt's." In the third sentence, delete the words "with T.Y." and replace it with "aunt." In the fourth sentence, delete the word "T.Y." and replace it with "aunt." In the fifth sentence, delete the word "Brian" and replace it with "Uncle," so that the new paragraph now reads:
Uncle visited A.S. for the first time the day before he testified. He also saw A.S. on FaceTime during aunt's prior visits.
During the FaceTime encounters, the child appeared to be having "a blast" with aunt, giggling and laughing. A.S. "li[t] up" and smiled when he saw aunt during a recent visit, and he was "leaning for her and trying to reach for her." Uncle could provide a safe and secure home for the child, and would care for him for the rest of his life.
24. On page 12, in the third full paragraph, delete the three instances of word "Brian" and replace them with "Uncle," so that the new paragraph now reads:
Uncle wanted A.S. placed with him because he believed "he belongs with his family." He stated, "I know what it's like to . . . grow up and have family members out there, blood relatives, and not know them. And I don't want that for him because it's a horrible feeling." He described the "hole inside" when his father left home. Uncle's father lived in an adjacent city, but never tried to contact uncle. He explained how this experience would make him a better caretaker of A.S.
25. On page 13, in the first full paragraph, delete the five instances of word "T.Y." and replace them with "aunt." In the second sentence of this paragraph, delete the words "Aunt Lori" and replace them with "another aunt," so that the new paragraph now reads:
Aunt testified she learned about A.S. the day he was born because mother called her. A few days after the birth, mother told her authorities were going to take the child, and she wanted aunt or another aunt, to have A.S. She described mother, who she did not know well, as a "great person" who had a hard life, and made poor choices. Aunt contacted the social worker, Shelley Manzer in December 2015 and stated she wanted custody. Manzer stated she could not offer an ICPC yet, and it wasn't until February 18 that Manzer told her she was starting the ICPC. On March 8, Manzer told her she sent the approval to Colorado, explaining the delay was because "[A.S.] wasn't [] in state custody yet." Manzer explained there was a "six-month hold," to give father "some opportunities" and A.S. could not be placed out-of-state during this period. Manzer advised aunt in June or July she was no longer the caseworker. Aunt tried repeatedly, but unsuccessfully, to contact the assigned social worker before the court hearing on August 3.
26. On page 13, in the second full paragraph, delete the two instances of word "T.Y." and replace them with "Aunt." In the fourth sentence of this
paragraph, delete the word "Brian" and replace it with "uncle," so that the paragraph now reads:
Aunt met with the Colorado social worker, Adeliada Holden, several times at their home. She described the process Holden employed to evaluate the family and the home. Holden finished her work and provided a preliminary home study on May 25. Aunt could not take required foster training classes earlier because uncle was training for his new job, and "some of [the classes] weren't open for another month; some . . . were already filled; some . . . were already on [class numbers 3 and 4] and we needed all four of them. So we had to wait." They finished the classes, and the ICPC was certified on August 1.
27. On page 13, in the third full paragraph, delete the three instances of word "T.Y." and replace them with "Aunt," so that the paragraph now reads:
Aunt provided the ICPC certificate to social worker Charette when she arrived for her first visit with A.S. on August 2. She called and e-mailed the social worker to arrange a visit with A.S. on August 5 before she returned to Colorado, but received no response. Aunt described the visits on August 2 and 4, and subsequent daily unmonitored visits that started on September 15, as positive experiences. Aunt's children enjoyed spending time with A.S. during the two visits they had.
28. On page 14, in the first sentence of the first full paragraph, delete the word "T.Y." and replace it with "Aunt." In the third sentence, delete the word "T.Y." and replace it with the word "She." In the fifth sentence, delete the word "T.Y." and replace it with the word "She," so that the paragraph now reads:
Aunt was a stay-at-home mom and A.S. would not be in daycare. She had friends she trusted to babysit as needed. She explained she wanted A.S. to be a part of their family because she loved him, he belonged to family, and they could give him what he needed. She also believed A.S. should know his biological parents. She acknowledged she took medication for depression and obsessive-compulsive disorder.
29. On page 14, in the first sentence of the second full paragraph, delete the words "of the Y.'s home." In the third sentence, delete the word "the
Y.'s" and replace it with "aunt and uncle." In the fifth sentence, delete the word "the Y.'s" and replace it with "aunt and uncle," so that the paragraph now reads:
Colorado social worker Holden testified she received notification from California to conduct a certified SAFE home study (ICPC) on March 29, and began the ICPC process the first week of April. Her ICPC unit sent the completed study to California sometime after May 23. Holden could not certify the study until aunt and uncle completed the foster care training on July 28. She certified their home on August 1 and her ICPC unit sent it to California on August 16. She did not believe aunt and uncle intentionally delayed receiving their foster training. Classes began at the beginning of each month and the agency did not allow a person to "just join in" an ongoing series of classes.
30. On page 14, in the first sentence of the third full paragraph, which continues on to page 15, delete the words "the Y.'s" and replace it with "aunt and uncle." In the third sentence, delete the word "Brian" and replace it with the word "uncle." In the fifth sentence, delete the word "Brian" and replace it with the word "uncle," so that the paragraph now reads:
Holden did not have concerns about aunt and uncle based on the results of the SAFE psychosocial inventory, and believed they would be approved to adopt A.S. She explained her scoring per SAFE guidelines. For example, she gave uncle a "4" (serious concern) for "psychiatric history" because "any type of short-term or long-term counseling is an automatic 4" for this category. His mitigated score for this category was "left as a 4 because . . . he's able to continue going to counseling if he needs to." Holden stated she received training "that we're able to leave numbers the same even if they're high numbers . . . because as long as they're mitigated in the body of the home study, we're fine," and Holden concluded in the body of her report uncle had addressed all his issues. In other words, she gave a "rating[] of serious concern where [she] determined that there isn't a serious concern" because "most of the states that we" deal with "look at the body of the home study" and the recommendation rather than the numbers because "they don't understand these numbers."
31. On page 15, in the second sentence of the first full paragraph, delete the word "Perotti" and replace it with the word "Perrotti," so that the paragraph now reads:
The foster parents called psychologist Michael Perrotti as an expert witness. Perrotti explained neurological imprinting of the child begins with feedings and caregiving in the months after a birth, and the child's "initial attachment" or bond with a caretaker begins around six months. A template for emotional stability for trust is established in the early months. Disruption of this attachment may result in "distancing," depression, sadness, flat emotional expressiveness, emptiness, mourning, isolation, and an increase in anger and irritability. Prenatal exposure to drugs compromises the child cognitively and negatively affects his coping mechanisms and resiliency. Perrotti did not think traumatic effects from severing a bond with a primary caretaker could be overcome, but acknowledged it might depend on the child.
32. On page 15, in the first sentence of the second full paragraph, delete the words "The Y.'s" and replace it with the words "Aunt and uncle," so that the paragraph now reads:
Aunt and uncle called psychologist Miriam Galindo as an expert witness. Galindo, who worked with children born of drug-addicted parents, explained exposure to substances in utero is a risk factor for later physiological, social and behavioral problems, but the risk depends on the substance and timing of exposure. A risk factor is "[a]nything that has the potential to destabilize the child's emotional state or psychological health and well-being." Parenting at risk children requires flexibility, resourcefulness, empathy, and resilience.
33. On page 16, in the first sentence of the second full paragraph, delete the word "T.Y.'s" and replace it with the word "aunt's." In the fourth sentence, delete the words "the Y.'s" and replace it with the words "aunt and uncle," so that the paragraph now reads:
The juvenile court stated it did not find a "negative with regards to either family," and specifically noted aunt's sacrifice in spending approximately two months in California. The court also noted the foster parents had "done a fantastic job" of caring for a baby who had physical problems and might later experience difficulties because of drug exposure. The court acknowledged relatives "must be assessed and considered favorably if any are interested in coming forward," and "[t]hat happened in this case," but faulted the social worker for becoming emotionally involved,
and the delay in the ICPC process, which should have been expedited. The court observed aunt and uncle initiated contact when learning of A.S.'s birth, and A.S. would have been placed with them had there been no ICPC. But the court noted the "ICPC has done what it's done and it cannot be undone."
34. On page 17, in the last sentence of the paragraph which commenced on page 16, delete the words "the Y.'s" and replace it with the word "aunt and uncle," so that the paragraph now reads:
The court addressed section 361.3 and noted "it has to do with providing legal permanency [if] case reunification is not successful," but reunification had not yet been terminated in this case. The court stated aunt and uncle "fit the criteria" of section 361.3 in that they would be protective of A.S., they had a proper home, and they would assist in reunification.
35. On page 17, in the only sentence of the second full paragraph, delete the word "T.Y." and replace it with the word "aunt," so that the paragraph now reads:
Father and aunt timely appealed.
36. On page 17, footnote 3, delete the word "T.Y." and replace it with the word "aunt's" so that the new footnote will read:
Mother did not file a notice of appeal. Her appointed lawyer has nonetheless filed a brief joining in father's and aunt's arguments, and appeared at oral argument. (Cal. Rules of Court, rule 8.200(a)(5).)
37. On page 17, in the first sentence of the third full paragraph, delete the word "T.Y." and replace it with the word "aunt," so that the paragraph now reads:
Father and aunt contend the juvenile court erred in placing A.S. with the foster parents, arguing the criteria in section 361.3 favored placement with the maternal relatives. The abuse of discretion standard applies "to the review on appeal of the juvenile court's determination regarding relative placement pursuant to section 361.3. Such a determination, like decisions in custody cases, involves primarily factual matters and a judgment whether the ruling
rests on a reasonable basis. . . . . [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. [Citations.] Broad deference must be shown to the trial judge. The reviewing court should interfere only '"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that [the judge] did."'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 (Robert L.).)
38. On page 19, in the last sentence of the paragraph which commenced on page 18, delete the words "the Y.'s" and replace it with the words "aunt and uncle's," so that the paragraph now reads:
Section 361.3 provides in pertinent part: "In any case in which a child is removed from the physical custody of his or her 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." (§ 361.3, subd. (a).) "'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Section 361.3, subdivision (a)(1) to (8), enumerates nonexclusive factors to be considered by the county social worker and the juvenile court in determining whether placement with a relative is appropriate, beginning with "[t]he best interest of the child . . . ."4 The juvenile court must give effect to the statutory mandate not only through the initial disposition hearing, but whenever a new placement of the child is necessary. (§ 361.3, subd. (d); In re K.L. (2016) 248 Cal.App.4th 52, 65-66; In re R.T. (2015) 232 Cal.App.4th 1284, 1300 (R.T.).) In addition, several appellate courts have held the court and the social worker are obligated to evaluate a relative for possible placement even if no new placement is otherwise required after the disposition hearing. (In re Isabella G. (2016) 246 Cal.App.4th 708, 721, 723; In re Joseph T. (2008) 163 Cal.App.4th 787, 793 (Joseph T.); see R.T., at p. 1300 [unsettled whether a relative is entitled to preference when requested late in the proceedings when the child is in a stable placement following the dispositional hearing].) As did the juvenile court, we assume for present purposes the section 361.3 criteria applied when the court considered aunt and uncle's request for change of placement during the reunification period even though there was no need to change placement.
39. On page 19, in the first sentence of the second full paragraph, delete the words "the Y.'s" and replace it with the words "aunt and uncle." This paragraph which continues on to page 20, in the last sentence of this paragraph, delete the words "the Y.'s" and replace it with the words "aunt and uncle", so that the paragraph now reads:
The juvenile court found, and we have no basis to disagree, aunt and uncle fulfilled most of the section 361.3 criteria. But the court placed primary emphasis on the first factor, "the best interest of the child . . . ." By the time the hearing on the request to change placement concluded in early November 2016, A.S. had been with the foster parents over eight months. As the court noted, while biological family is important, A.S. had bonded with the foster parents and "is healthy and happy" in the foster home. The court therefore was unwilling to "take a chance and put that child out there and say let's see if he's going to bond again," and "it's in the best interest of this child to leave the child where this child is." The court reasonably feared moving A.S. to Colorado with relatives he only knew from recent visits risked causing him significant psychological and emotional harm by disrupting A.S.'s bond with the foster parents. The court considered that A.S. had been exposed to drugs in utero, suffered withdrawals requiring an ESH home placement for three months, and afterward experienced physical manifestations of withdrawal. The court's reasoning finds ample support in the record. Nothing suggests the court failed to "adequately consider" the factors in section 361.3, subdivision (a). Nor does anything suggest the court was required to place A.S. with aunt and uncle under section 361.3 in November 2016 regardless of the child's best interests.
40. On page 20, in the second sentence of the first full paragraph, delete the word "T.Y." and replace it with the word "Aunt," so that the paragraph now reads:
Father complains "[n]either expert in this case opined that [A.S.] could not bond with the maternal aunt or uncle, if he were moved." Aunt relates the expert testimony in great detail, claims the juvenile court "misremembered the evidence" and asserts "[t]he expert testimony supported moving a child [A.S.'s] age to a new home."
41. On page 20, in the third sentence of the second full paragraph, delete the words "the Y.'s" and replace it with the words "aunt and uncle," so that the new paragraph now reads:
We recounted significant portions of the expert testimony above. In brief, Perrotti stated a child whose primary bond is disrupted will suffer some degree of trauma, and Galindo acknowledged changing a child's placement may be a "risk factor." Although the expert testimony also suggested A.S., assuming he had achieved a secure attachment with the foster parents, might have the resiliency to bond with aunt and uncle, the juvenile court considered the relevant statutory factors and concluded it was in A.S.'s best interests to remain where he was. The relative placement preference is just that - a preference, not a presumption or guarantee. The court need not find a proposed relative placement to be detrimental to the child to conclude a change of placement is not in a child's best interest.5 Here, the court reasonably could conclude A.S.'s best interest was in maintaining his placement in a home where he was thriving and had bonded with the foster parents.
42. On page 21, in the first sentence of the first full paragraph, delete the word "T.Y." and replace it with the word "Aunt," so that the paragraph now reads:
Aunt analogizes this case to R.T., supra, 232 Cal.App.4th 1284. There, the father and his sisters, the paternal aunts, requested placement of father's newborn son with the aunts at the outset of the case. (Id. at p. 1293.) The agency promptly initiated "home safety inspections," (ibid.) but apparently never applied the section 361.3 factors or seriously considered placing the child with the aunts, preferring to place the infant in a home with an unrelated adult who had custody of the child's 17-year-old sibling. One of the aunts protested at the disposition hearing the agency had discouraged her placement request, and she and the parents again requested placement with her. The court denied the request without considering the section 361.3 factors and without awaiting completion of the home studies. The court bypassed reunification services, and scheduled a section 366.26 selection and implementation hearing with an eye toward adoption by the unrelated caretaker. The aunts' home study was approved not long after the disposition hearing, when the child was now three months old. The agency refused to consider moving the child, again failing to consider the section 361.3 factors. A month later, the relatives filed a section 388 petition asserting they had been denied preferential consideration. (Id. at p. 1294.) The court conducted a hearing over the
course of seven months. The social worker testified the agency's policy was to perform assessments, but relatives did not receive preference. The court did not rule on the section 388 petition until the child was 14 months old, and it rejected applicability of the section 361.3 preference. The court also rejected the parents' application to relinquish their parental rights for adoption by the relatives under Family Code section 8700, concluding it had no jurisdiction to review the agency's decision not to accept the relinquishment.
43. On page 22, in the second sentence of the first full paragraph, delete the first usage of the words "the Y.'s" and replace it with the words "aunt and uncle." In the second and third usage of the words "the Y.'s" , replace it with the word "them" so that the paragraph now reads:
R.T. is distinguishable. In the current case, assuming SSA failed promptly to initiate or expedite an assessment of aunt and uncle for placement, nothing suggests SSA refused in bad faith to consider them for placement or declined to evaluate them under the section 361.3 criteria. The social worker assessed the section 361.3 factors in her September 15, 2016, addendum report. The juvenile court expressly considered the section 361.3 factors at the change of placement hearing in November 2016, and exercised its independent judgment that a change of placement was not in A.S.'s best interests. No basis therefore exists to conclude the court acted unreasonably and abused its discretion. (In re Robert L., supra, 21 Cal.App.4th at p. 1067.)6
44. On page 23, in the first sentence of the first full paragraph, delete the word "T.Y." and replace it with the word "aunt." In the same sentence delete the words "the Y's" and replace it with the words "aunt and uncle." In the second sentence, delete the word "T.Y." and replace it with "Aunt." In the same sentence, delete the words "the Y's" and replace it with the word "her." In the third sentence, delete both instances of the use of the words "the Y.'s" and replace it with the words "aunt and uncle," so that the paragraph now reads:
Father and aunt assert SSA failed to timely assess aunt and uncle for placement. Aunt also complains SSA gave her inaccurate information, namely that it could not send an ICPC request until after the disposition hearing and they had to wait until the parents were given a chance to reunify with the child.7 SSA responds it assessed aunt and uncle "properly and timely," but any delay is not a proper basis for reversal because the issue is whether it would be in
A.S.'s best interest to change placements, not whether the delay unfairly hindered aunt and uncle's chances for placement. (Stephanie M., supra, 7 Cal.4th at p. 322 [juvenile court's failure to sufficiently consider placement with a relative earlier in the proceedings was irrelevant on whether placement with the relative was in the child's best interests at the time of the hearing].)
45. On page 23, footnote 7, delete the words "the Y.'s" and replace it with the words "aunt and uncle" so that the new footnote will read:
SSA does not appear to disagree the social workers, Manzer and Charette, provided erroneous information to aunt and uncle. The error appears to stem from a lack of training, knowledge and experience, or flawed SSA policy, rather than bad faith.
46. On page 23, in the first sentence of the second full paragraph, delete the words "the Y.'s" and replace it with the words "aunt and uncle," so that the paragraph now reads:
We agree with SSA any failure to assess aunt and uncle promptly does not provide a basis for reversal. But we address the assessment issue because the juvenile court noted it was a recurring problem.
47. On page 25, in the second sentence of the third paragraph which continues on to page 26, delete the first instance of the word "T.Y." and replace it with the word "aunt," and replace the second instance of the word "T.Y." with the word "her," so that the sentence now reads:
SSA asserts "even if [it] had sent the ICPC request before the disposition hearing, approval would not have come significantly earlier, and placement would not have necessarily been affected." It notes that after aunt stated she was interested in placement in early December, from December 2015 through February 2016, SSA collected information from her necessary to initiate the ICPC, SSA needed a month to go through various procedural steps to complete the ICPC request, and Colorado then took nearly five months to approve the ICPC. "Assuming similar processing time by SSA's and Colorado's ICPC units, an ICPC request based only on the detention order would have been sent to Colorado in perhaps February 2016 instead of March 2016. Colorado would have perhaps approved the ICPC in July 2016 instead of August 2016. Appellants cannot plausibly show that approximately one month
would have made a difference in outcome." SSA also states "it generally does not recommend an expedited ICPC unless the out-of-state relatives are licensed foster parents" because only "licensed foster parents can receive federally funded foster care maintenance payments . . . ."8
48. On page 26, footnote 8, delete the word "T.Y." and replace it with the word "aunt" so that the new footnote will read:
As aunt notes, nothing in the ICPC suggests a relative must be a licensed foster parent before they may be assessed for placement. Few if any out of state relatives would qualify for assessment under such a policy.
49. On page 26, in the first full paragraph, delete the two uses of the word "T.Y." and replace them with the word "aunt," so that the paragraph now reads:
Assuming aunt requested placement in early December 2015, SSA does not adequately explain why it would have taken until February 2016 to complete the ICPC Form 100A for transmission to Colorado. The ICPC Guide states 30 working days is the "recommended processing time" for the receiving state to approve or deny a placement. Further, a priority process under ICPC Regulation No. 7 is available where, among other things, the proposed placement recipient is with a close relative and the child is under two years of age or in an emergency placement. The Colorado worker began the home study in the first week of April and completed the study sometime before May 23. It is not inconceivable she could have completed the ICPC by the February 17 disposition hearing, and perhaps even before SSA placed A.S. in a "concurrent planning home," if SSA had initiated the process in early December when aunt came forward.
These modifications do not change the judgment.
WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.
NOT TO BE PUBLISHED IN 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. (Super. Ct. No. DP026860-001) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Request to take judicial notice/additional evidence. Denied. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant E.S. (father). Grace Clark, under appointment by the Court of Appeal, for Defendant H.Y. (mother). Donna Balderston Kaiser, under appointment by the Court of Appeal, for Objector and Appellant T.Y. (maternal aunt-in-law). Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. Christine E. Johnson for Claimants and Respondents Joseph and Paula A. (foster parents).
* * *
The Orange County Social Services Agency (SSA) took A.S. into protective custody at birth in November 2015. Approximately one year later, the juvenile court denied a request by maternal relatives to change his placement from the foster parents' home, where A.S. had resided since February 1, 2016, to the relatives' residence in Colorado. The juvenile court found a change in placement was not in A.S.'s best interests. Our review discloses no basis to reverse the court's order, and therefore we affirm.
I
FACTS AND PROCEDURAL BACKGROUND
In late November 2015, the Orange County Social Services Agency (SSA) filed a petition alleging there was a substantial risk newborn A.S. (born November 2015) would suffer serious physical harm or illness resulting from the parents' failure or inability to protect him, or to provide him with regular care due to substance abuse, and because the parents had abused A.S.'s prior sibling. (Welf. & Inst. Code, § 300, subd. (b), (j); all statutory citations are to the Welf. & Inst. Code unless otherwise noted). The mother, H.Y., had been admitted to the hospital in late October 2015 because of high blood pressure and other pregnancy risk factors, and remained hospitalized until the child's birth approximately three weeks later. Mother received no prenatal care, used methamphetamine the day before her hospital admission, and admitted she recently used heroin. A.S. was born full term and healthy, although he tested positive for marijuana.
Mother acknowledged using methamphetamine and heroin since the age of 21, but was not interested in drug treatment. Both she and the father, E.S., had extensive drug and theft-related criminal histories. Both parents were chronically homeless, but said they had no interest residing in a shelter. SSA removed another infant (born September 2008) from mother's care in August 2009 after she left him with unrelated parolee drug users. That child now resides with his father, who has full legal and physical custody.
SSA placed A.S. in an emergency shelter home (ESH) on November 16, 2015, after his release from the hospital. At the initial petition or detention hearing on November 18, the court detained A.S. and authorized SSA to release the child to a parent, relative, or suitable adult as appropriate.
Social worker Shelley Manzer prepared SSA's initial report, dated December 14, 2015, for the jurisdiction and disposition hearing. She recommended reunification services for father, but none for mother based on her substance abuse history and resistance to prior court-ordered treatment (§ 361.5, subd. (b)(13)). The social worker referred the parents to various services, including parenting, counseling, drug testing and substance abuse treatment, and encouraged them to enroll. The ESH caregiver reported A.S. was eating and "doing very well," his "withdrawal symptoms are decreasing and [] his 'tremors are down to once a day."
The social worker stated she had located and notified T.Y., the wife of maternal half uncle Brian Y., in Colorado, advising T.Y. the child had been removed from the parents' care. The report contains a notation reflecting T.Y. desired "ongoing contact." The report also reflected "Assessment Status" as "Pending," and "Placement Status," as "Not Placed." The social worker wrote, SSA "is not currently looking to place the child out of state in order to allow for visitation and bonding with the parents."
A.S.'s parents failed to submit to drug testing and visited inconsistently. At the January 5, 2016, jurisdiction hearing, the court admitted SSA's reports into evidence and the parents submitted on the petition. The court found the allegations true and scheduled a contested disposition hearing.
On February 1, 2016, SSA placed A.S. in a concurrent planning home (foster/adoptive) with Paula and Joseph A. The parents continued to miss visits. Father wanted to reunify, but felt he did not require substance abuse treatment. The foster mother remarked mother had numerous scabs and open wounds on her arms and legs and expressed concern A.S. was having skin to skin contact with her.
SSA's addendum report for the disposition hearing dated February 17, 2016, signed by temporarily assigned social worker Shannon Kurdoglu because Manzer was on vacation, reflected the recommendation remained the same, including family reunification for father, no reunification services for mother, and "[s]uitable placement orders with consideration of placement to relatives." The report did not specifically identify T.Y. or any other relative.
At the disposition hearing on February 17, 2016, the court found A.S. to be a dependent child of the court and formally removed him from the parents' custody. The court vested custody with SSA for suitable placement, and found reunification services need not be offered to mother. The court approved SSA's case and visitation plan and denied father's request to remove the substance abuse component. At the hearing, no one mentioned relative placement or assessment. The court scheduled a six-month review hearing for August 3, 2016.
In her report for the six-month review dated August 3, 2016, the social worker Jennifer Charette, assigned to the case on March 14, 2016, recommended terminating reunification services for father, who had yet to comply with any component of the case plan. The parents did not visit A.S. frequently, and when they did visit the Olive Crest foster agency worker reported concerns about the bleeding scabs on the bodies of the parents and outward signs they were under the influence of drugs. A.S. was inconsolable at visits unless the foster mother held him for a few minutes to calm him down. Mother appeared more interested in "charging her three cell phones" than safely attending to A.S. Mother did not know how to bottle feed and ignored direction from the foster mother, who supervised visits. The foster mother reported A.S. cried for an hour after these visits.
The social worker noted A.S. was thriving in the caregivers' home, although delayed in expressive language. The foster parents expressed interest in adopting A.S. if father was unable to reunify.
The report reflected that on April 4, 2016, an interstate home study (ICPC) of maternal uncle, Brian Y., had been "accepted by the state" of Colorado for evaluation. "The home approval for this relative placement is pending due to the potential relative caregivers needing to complete the required hours of training for the foster care licensing process. This is reportedly the last item that needs to be completed and includes 12 hours of foster care training and should be completed on July 28, 2016." The social worker noted SSA's initial jurisdiction report in December 2015 had identified maternal uncle Brian's wife, T.Y., as a potential placement, but A.S. had not been placed with her because it would "hinder visitation, bonding with his parents and, reunification services."
The social worker initiated a permanency planning assessment in July. The adoptions unit determined adoption was likely given A.S.'s characteristics and attributes.
On August 3, 2016, T.Y. asked the court to place A.S. with her and Brian, but county counsel stated it was unclear whether the ICPC had been completed. When father contested the recommendation to terminate reunification services, the court continued the review hearing to September 15.
Following an August 17 hearing, the juvenile court granted the foster parents' request for de facto parental status. (Cal. Rules of Court, rules 5.534(a) [court may recognize child's present or previous custodian as a de facto parent and grant standing to participate as a party concerning the status of the dependent child]; 5.502(e)(10) ["de facto parent" is a person found by the court to have assumed, on a day-to-day basis, the role of parent, and had assumed that role for a substantial period].)
Counsel for the foster parents argued her clients qualified for de facto status because they had provided parental care for A.S. since February 1, and had bonded with the child. Minor's counsel concurred. SSA and the parents objected. Mother's counsel noted foster parents by definition stand in a parental role, father's reunification services had not been terminated, a relative placement investigation was in process, and it was premature "to grant de facto standing to" persons such as the foster parents, who wanted to adopt, who were "not on the same page as the court - which is reunification."
On August 22, the Y.'s filed a motion for placement. In the motion, Y.'s claimed they had requested placement a few days after learning A.S. was in protective custody, and asserted "it would appear [] placement would have been made" had they lived in California. They acknowledged the social worker "appropriately requested that they apply for and obtain an approval through the [ICPC] to have the child placed in their home," and they "began the process in March 2016, after learning the reunification for the parents appeared unlikely." The ICPC was approved on August 1, 2016.
On August 30, the social worker received documentation dated August 25 reflecting maternal uncle Brian and his wife T.Y. had completed the licensing process and their home was approved for potential placement. The social worker denied placement at that time because she had not yet received the approval documentation. The social worker stated she had facilitated two one-hour supervised visits with T.Y. during her August stay in California.
Brian told the social worker he learned about mother and his other half siblings a few years earlier. They shared a biological father, who left Brian's mother when Brian was four years old. Brian had only one physical contact with mother, although they had spoken on the telephone a few times, most recently a year or so earlier. The Y.'s expressed a desire to adopt A.S. if he could not be reunified with the parents. Brian stated he "would like the child to be with a biological family member versus being adopted by a family who has no biological ties to the child." Due to employment and his children's needs and finances, he could not accompany his wife to the next hearing and visit with A.S.
The ICPC reflected Brian and his wife had been married since 2002 and had two sons, ages 13 and nine. Brian was employed and received veteran's pay, providing the family with a sufficient income. T.Y. did not work outside the home, so childcare was not an issue. The family's rented home was "very clean" and located in a family-oriented neighborhood. Brian and T.Y. were described as an "active, fun, involved couple" who had "created a home that has routine, structure, and boundaries which makes the home predictable, safe, and functional for children who have been diagnosed with Attention Deficit Disorder (ADHD) or trauma."
Brian was a military veteran who was injured in his final deployment, suffering significant hearing loss, but was "managing his mental health and pain through prescribed medications." He had an older daughter from a previous relationship who had been sexually abused by a stepfather and reportedly had mental health issues. T.Y. also had a history of childhood trauma that made her anxious whenever her children met new friends. In 2007 she had checked herself into a psychiatric hospital for one week, but now took medication to control her anxiety. A structured analysis family evaluation (SAFE), including a psychosocial inventory, reflected the couple's history of trauma placed them in the category of "serious concern" and "extremely serious concern" in several categories.
The social worker concluded that although Colorado had approved Brian's home, "some concerns regarding this relative placement remain," including the absence of a familial relationship between A.S. and his biological relatives, Brian's lack of familial relationship with A.S.'s parents, and the couple's "unmitigated trauma scores from the SAFE assessment." "It is difficult to know the extent to which these unmitigated scores would or could impact the maternal relatives" ability to care for A.S. But the social worker also stated under section 361.3, if a placement change became necessary, the child would be placed in Brian's home.
On September 15, the court granted father's motion to continue the six-month review. The court authorized daily unmonitored, unsupervised two-hour visits for T.Y. while she was in Orange County. T.Y. had several visits with A.S. The foster mother reported A.S. was "very stressed" by the visits and said "mama, mama, mama" when she approached T.Y.'s car after visits.
The social worker continued to recommend terminating father's reunification services. The parents continued to reside in the homeless encampment and father had not enrolled in any services or submitted to drug testing. He insisted he had been treated unfairly and the child should not have been taken from him.
Placement Change Hearing
The court conducted a placement review hearing in advance of the six-month review commencing September 22, 2016, and concluding November 8, 2016. The contested issue was whether the court should change placement from the foster parents to Brian in Colorado.
Social Worker Testimony
The social worker, Jennifer Charette, testified A.S. should remain in his current placement because he was "placed with the people who he believes to be his family." She explained A.S. had been exposed to drugs in utero and suffered withdrawal symptoms after his birth, which did not subside until January or February 2016, but now he was thriving in his current placement with the foster parents. She acknowledged A.S. "could reattach" if moved, but cautioned "[w]e don't know for sure."
Charette believed mother requested consideration of the Y.'s for placement in December 2015, but SSA sent the ICPC request to Colorado on March 22. Charette explained she believed an ICPC could not be initiated before the disposition hearing. She received a preliminary home study, dated May 23, in early June.
Charette first spoke with T.Y. sometime in July, but between July and early August, T.Y. and Brian did not ask about A.S.'s health or special needs and Charette did not recall any requests for contact through Skype or FaceTime. By August when the ICPC had been approved, the social worker believed moving A.S. would be detrimental because A.S. demonstrated a deepening attachment to the foster parents.
Charette observed two visits between T.Y. and the child on August 2 and August 4. T.Y. was affectionate, her interaction with A.S. was appropriate, and he was able to "sustain play with" her, but after 20 to 40 minutes he "wanted to go back to mama," meaning the foster mother. The social worker also described how A.S. awoke after a car ride and "reached for the foster father." The foster mother provided ongoing detailed reports suggesting A.S. was "not adjusting to the visits," but T.Y. reported her visits with A.S. were "good."
Charette admitted she was emotionally involved in the case and was "interested in this little baby and his well-being," which she felt was best served if he remained with the foster parents. Charette expressed concern there was not an adoptive home study for the Y.'s, as contrasted with the approved ICPC, explaining that an adoptive home study tended to "have a lot more depth" and "more information than . . . a placement study." She recommended placement with the foster parents "based on the relationship that the child currently has with his current caregivers and how he sees them." She explained there was "hardly any kind of a family tie" with Brian's family such that a relative placement should "tak[e] priority over everything."
In an addendum report dated November 2, 2016, filed during the hearing after she initially testified, Charette stated an ICPC cannot be submitted to SSA's ICPC unit until the child has been declared a dependent at the disposition hearing. T.Y. stated she was interested in placement in early December 2015. The disposition hearing occurred February 17, 2016. Manzer received the disposition order on March 8, the ICPC unit received the ICPC packet from Manzer on March 16, and the ICPC unit submitted the ICPC to Colorado on March 22. The social worker received the preliminary home study from Colorado on June 10, but the child could not be placed before foster care licensing was completed. T.Y. provided the social worker with a foster care completion certificate on August 2, and on August 25, SSA received documentation from Colorado stating the Y.'s were approved for placement.
Foster Parents' Testimony
The foster parents Joseph A. (age 34) and Paula (age 41) testified A.S. was placed in their home February 1, 2016. The A.'s were a concurrent planning (foster/adoption) home, but SSA advised the A.'s a relative had come forward seeking placement. The social worker advised them to be prepared for a change in placement after she received the preliminary home study in May.
A.S. had been exposed to drugs prenatally, and he was initially stiff, reserved, did not make much eye contact, sensitive to light, and suffered from shakes. The couple installed dimmers and special blinds in his room, and exercised and massaged him, and the symptoms subsided after a few months. A.S.'s biological family made no inquiries about his health between February and August.
The foster parents described a typical day with A.S. and various activities the couple and their extended families enjoyed with the child. A.S. looked confused when they dropped him off for visits with T.Y. As visits with the aunt increased, A.S. appeared more comfortable, but still looked back at the foster parents at drop offs and lunged toward them at pickups. He was "clingy" after visits with T.Y., but not with other temporary caretakers. A.S. now called Joseph "dada," and he had called Paula "mama" since June or July. The foster parents described various interactions they believed demonstrated A.S. viewed them with affection and looked to them for comfort and consoling.
The couple wanted to adopt A.S. because they had cared for him since February, loved him, and wanted him to "grow up in a positive environment." Joseph would allow monitored contact with the biological parents if the parents drug tested and "the trust would have to be built from there." Joseph did not feel comfortable giving the biological parents their home address because contact with them had been sporadic, the biological parents were mentally unstable, and they viewed the A.'s as a threat. They also would allow contact with the extended family, including Brian and T.Y.'s family.
Maternal Relatives' Testimony
Brian Y. (age 39), mother's paternal half brother, testified his biological father abandoned his mother when Brian was four years old. Brian only learned about his paternal family, including mother, his half sister, around 2012. He first learned about A.S. in March 2016 through another paternal half sister. Brian had started a new job in March 2016, and he had not been able to make it to California to meet A.S. personally until the review hearing in late September 2016. He began taking the 12 hours of foster care licensing classes in July because earlier classes conflicted with his new job. He described the placement approval process, which included background checks, a home inspection, physical examinations, CPR and first aid classes. Colorado approved Brian for custody of A.S. in August 2016.
Brian and his wife T.Y. had three children living in their home, including an 18-year old daughter, and two sons, ages 13 and nine. Both boys took medication for attention-deficit/hyperactivity disorder (ADHD). Brian planned to have A.S. share a room with his youngest son A., who was excited about the idea.
Brian had two daughters from his first marriage. He divorced in 2000, and obtained full custody of the girls in 2007 after the stepfather molested the eldest daughter L. when Brian was in Iraq. When L. was 12, she touched Brian's oldest son, C., then age 4, inappropriately. C. received counseling. L. ran away several times when she was around 16 years old and had been hospitalized for depression and anxiety. She was now 20 years old, lived in Kentucky, and had not visited in several years. Brian would only allow supervised contact between L. and A.S.
Brian had served 15 years as a noncommissioned officer in the Army, deployed to Iraq and Afghanistan, and received various awards and commendations, including a Purple Heart. He suffered serious injuries when an IED exploded, and saw several comrades killed. He had "come back from and fully recovered" through counseling and physical therapy, and described his current health as "pretty good." He received a medical retirement in 2012, and continued to see a primary care manager at the VA. He took Prozac to help relieve anxiety around crowds, and a muscle relaxer. He had no physical or mental health issues that prevented him from being able to parent A.S. He obtained a certificate in mountaineering, SCUBA and outdoor leadership and recreational technology from a community college. He received substantial military retirement pay, and began working as a guard for an armored car company in March 2016.
Brian visited A.S. for the first time the day before he testified. He also saw A.S. on FaceTime during T.Y.'s prior visits. During the FaceTime encounters, the child appeared to be having "a blast" with T.Y., giggling and laughing. A.S. "li[t] up" and smiled when he saw T.Y. during a recent visit, and he was "leaning for her and trying to reach for her." Brian could provide a safe and secure home for the child, and would care for him for the rest of his life.
Brian wanted A.S. placed with him because he believed "he belongs with his family." He stated, "I know what it's like to . . . grow up and have family members out there, blood relatives, and not know them. And I don't want that for him because it's a horrible feeling." He described the "hole inside" when his father left home. Brian's father lived in an adjacent city, but never tried to contact Brian. He explained how this experience would make him a better caretaker of A.S.
T.Y. testified she learned about A.S. the day he was born because mother called her. A few days after the birth, mother told her authorities were going to take the child, and she wanted T.Y. or Aunt Lori, to have A.S. She described mother, who she did not know well, as a "great person" who had a hard life, and made poor choices. T.Y. contacted the social worker, Shelley Manzer in December 2015 and stated she wanted custody. Manzer stated she could not offer an ICPC yet, and it wasn't until February 18 that Manzer told her she was starting the ICPC. On March 8, Manzer told her she sent the approval to Colorado, explaining the delay was because "[A.S.] wasn't [] in state custody yet." Manzer explained there was a "six-month hold," to give father "some opportunities" and A.S. could not be placed out-of-state during this period. Manzer advised T.Y. in June or July she was no longer the caseworker. T.Y. tried repeatedly, but unsuccessfully, to contact the assigned social worker before the court hearing on August 3.
T.Y. met with the Colorado social worker, Adeliada Holden, several times at their home. She described the process Holden employed to evaluate the family and the home. Holden finished her work and provided a preliminary home study on May 25. T.Y. could not take required foster training classes earlier because Brian was training for his new job, and "some of [the classes] weren't open for another month; some . . . were already filled; some . . . were already on [class numbers 3 and 4] and we needed all four of them. So we had to wait." They finished the classes, and the ICPC was certified on August 1.
T.Y. provided the ICPC certificate to social worker Charette when she arrived for her first visit with A.S. on August 2. She called and e-mailed the social worker to arrange a visit with A.S. on August 5 before she returned to Colorado, but received no response. T.Y. described the visits on August 2 and 4, and subsequent daily unmonitored visits that started on September 15, as positive experiences. T.Y.'s children enjoyed spending time with A.S. during the two visits they had.
T.Y. was a stay-at-home mom and A.S. would not be in daycare. She had friends she trusted to babysit as needed. T.Y. explained she wanted A.S. to be a part of their family because she loved him, he belonged to family, and they could give him what he needed. She also believed A.S. should know his biological parents. T.Y. acknowledged she took medication for depression and obsessive-compulsive disorder.
Colorado Social Worker Testimony
Colorado social worker Holden testified she received notification from California to conduct a certified SAFE home study (ICPC) of the Y.'s home on March 29, and began the ICPC process the first week of April. Her ICPC unit sent the completed study to California sometime after May 23. Holden could not certify the study until the Y.'s completed the foster care training on July 28. She certified their home on August 1 and her ICPC unit sent it to California on August 16. She did not believe the Y.'s intentionally delayed receiving their foster training. Classes began at the beginning of each month and the agency did not allow a person to "just join in" an ongoing series of classes.
Holden did not have concerns about the Y.'s based on the results of the SAFE psychosocial inventory, and believed they would be approved to adopt A.S. She explained her scoring per SAFE guidelines. For example, she gave Brian a "4" (serious concern) for "psychiatric history" because "any type of short-term or long-term counseling is an automatic 4" for this category. His mitigated score for this category was "left as a 4 because . . . he's able to continue going to counseling if he needs to." Holden stated she received training "that we're able to leave numbers the same even if they're high numbers . . . because as long as they're mitigated in the body of the home study, we're fine," and Holden concluded in the body of her report Brian had addressed all his issues. In other words, she gave a "rating[] of serious concern where [she] determined that there isn't a serious concern" because "most of the states that we" deal with "look at the body of the home study" and the recommendation rather than the numbers because "they don't understand these numbers."
Expert Testimony
The foster parents called psychologist Michael Perrotti as an expert witness. Perotti explained neurological imprinting of the child begins with feedings and caregiving in the months after a birth, and the child's "initial attachment" or bond with a caretaker begins around six months. A template for emotional stability for trust is established in the early months. Disruption of this attachment may result in "distancing," depression, sadness, flat emotional expressiveness, emptiness, mourning, isolation, and an increase in anger and irritability. Prenatal exposure to drugs compromises the child cognitively and negatively affects his coping mechanisms and resiliency. Perrotti did not think traumatic effects from severing a bond with a primary caretaker could be overcome, but acknowledged it might depend on the child.
The Y.'s called psychologist Miriam Galindo as an expert witness. Galindo, who worked with children born of drug-addicted parents, explained exposure to substances in utero is a risk factor for later physiological, social and behavioral problems, but the risk depends on the substance and timing of exposure. A risk factor is "[a]nything that has the potential to destabilize the child's emotional state or psychological health and well-being." Parenting at risk children requires flexibility, resourcefulness, empathy, and resilience.
Galindo disagreed with the concept of "one psychological parent," and stated a child can bond with multiple caregivers. Moving a 12-month-old, drug-exposed child from one household to another is a "risk factor" that would require a plan for mitigation, but would "not necessarily [cause] trauma." Galindo defined trauma as a "life-threatening event or something that's perceived as life-threatening. The results and symptomology such as exaggerated startled response, . . . prolonged tantrums, . . . a significant regression from skills that were once mastered down to a younger age level." Transitioning a child from one placement to another typically involves increasing allotments of time with the second caregiver so the child can develop a bond.
According to Galindo, moving a one-year-old child from a home where the child seemed adjusted and well bonded to another placement with biological relatives would require balancing benefits and risks. An overwhelming percentage of adopted children tend to search for their roots. Psychological health includes the child's ability to establish trust at an early age as opposed to seeing the world as a dangerous place that does not meet his needs. Another critical point in development comes later between 12 and 18 years of age when the adolescent is "resolving the conflict of 'Who am I?' and 'Where do I belong.'" If a child is with biological relatives, this question can be answered and he can participate in "traditions that reinforce that the child has an identity." The adoptive family may mitigate this risk if they allow the adopted child to have contact and relationships with biological relatives.
Juvenile Court's Ruling
The juvenile court stated it did not find a "negative with regards to either family," and specifically noted T.Y.'s sacrifice in spending approximately two months in California. The court also noted the foster parents had "done a fantastic job" of caring for a baby who had physical problems and might later experience difficulties because of drug exposure. The court acknowledged relatives "must be assessed and considered favorably if any are interested in coming forward," and "[t]hat happened in this case," but faulted the social worker for becoming emotionally involved, and the delay in the ICPC process, which should have been expedited. The court observed the Y.'s initated contact when learning of A.S.'s birth, and A.S. would have been placed with them had there been no ICPC. But the court noted the "ICPC has done what it's done and it cannot be undone."
The court addressed section 361.3 and noted "it has to do with providing legal permanency [if] case reunification is not successful," but reunification had not yet been terminated in this case. The court stated the Y.'s "fit the criteria" of section 361.3 in that they would be protective of A.S., they had a proper home, and they would assist in reunification.
But the court found the "code is a guideline" and the court had to decide "what is in [A.S.'s] best interest." The court noted that while biological family was important, it knew "this child is bonded well right now, is healthy and happy" in the foster home. The court stated it was unwilling to "take a chance and put that child out there and say let's see if he's going to bond again." "This child is bonded, is healthy, and it's in the best interest of this child to leave the child where this child is." The court urged the relatives to maintain contact with A.S. and become a part of his family.
Father and T.Y. timely appealed.
Mother did not file a notice of appeal. Her appointed lawyer has nonetheless filed a brief joining in father's and T.Y.'s arguments, and appeared at oral argument. (Cal. Rules of Court, rule 8.200(a)(5).)
II
DISCUSSION
A. Section 361.3
Father and T.Y. contend the juvenile court erred in placing A.S. with the foster parents, arguing the criteria in section 361.3 favored placement with the maternal relatives. The abuse of discretion standard applies "to the review on appeal of the juvenile court's determination regarding relative placement pursuant to section 361.3. Such a determination, like decisions in custody cases, involves primarily factual matters and a judgment whether the ruling rests on a reasonable basis. . . . . [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. [Citations.] Broad deference must be shown to the trial judge. The reviewing court should interfere only '"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that [the judge] did."'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 (Robert L.).)
Section 361.3 provides in pertinent part: "In any case in which a child is removed from the physical custody of his or her 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." (§ 361.3, subd. (a).) "'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Section 361.3, subdivision (a)(1) to (8), enumerates nonexclusive factors to be considered by the county social worker and the juvenile court in determining whether placement with a relative is appropriate, beginning with "[t]he best interest of the child . . . ." The juvenile court must give effect to the statutory mandate not only through the initial disposition hearing, but whenever a new placement of the child is necessary. (§ 361.3, subd. (d); In re K.L. (2016) 248 Cal.App.4th 52, 65-66; In re R.T. (2015) 232 Cal.App.4th 1284, 1300 (R.T.).) In addition, several appellate courts have held the court and the social worker are obligated to evaluate a relative for possible placement even if no new placement is otherwise required after the disposition hearing. (In re Isabella G. (2016) 246 Cal.App.4th 708, 721, 723; In re Joseph T. (2008) 163 Cal.App.4th 787, 793 (Joseph T.); see R.T., at p. 1300 [unsettled whether a relative is entitled to preference when requested late in the proceedings when the child is in a stable placement following the dispositional hearing].) As did the juvenile court, we assume for present purposes the section 361.3 criteria applied when the court considered the Y.'s request for change of placement during the reunification period even though there was no need to change placement.
The other listed factors include the following: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home .... [¶] (5) The good moral character of the relative and any other adult living in the home .... [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative 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. [¶] ... [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8)(A) The safety of the relative's home...." (§ 361.3, subd. (a)(1)-(8).)
The juvenile court "is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The section 361.3 relative placement preference "is not a relative placement guarantee." (Joseph T., supra, 163 Cal.App.4th at p. 798; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 ["correct application of the relative placement preference places the relative 'at the head of the line when the court is determining which placement is in the child's best interest'"].)
The juvenile court found, and we have no basis to disagree, the Y.'s fulfilled most of the section 361.3 criteria. But the court placed primary emphasis on the first factor, "the best interest of the child . . . ." By the time the hearing on the request to change placement concluded in early November 2016, A.S. had been with the foster parents over eight months. As the court noted, while biological family is important, A.S. had bonded with the foster parents and "is healthy and happy" in the foster home. The court therefore was unwilling to "take a chance and put that child out there and say let's see if he's going to bond again," and "it's in the best interest of this child to leave the child where this child is." The court reasonably feared moving A.S. to Colorado with relatives he only knew from recent visits risked causing him significant psychological and emotional harm by disrupting A.S.'s bond with the foster parents. The court considered that A.S. had been exposed to drugs in utero, suffered withdrawals requiring an ESH home placement for three months, and afterward experienced physical manifestations of withdrawal. The court's reasoning finds ample support in the record. Nothing suggests the court failed to "adequately consider" the factors in section 361.3, subdivision (a). Nor does anything suggest the court was required to place A.S. with the Y.'s under section 361.3 in November 2016 regardless of the child's best interests.
Father complains "[n]either expert in this case opined that [A.S.] could not bond with the maternal aunt or uncle, if he were moved." T.Y. relates the expert testimony in great detail, claims the juvenile court "misremembered the evidence" and asserts "[t]he expert testimony supported moving a child [A.S.'s] age to a new home."
We recounted significant portions of the expert testimony above. In brief, Perrotti stated a child whose primary bond is disrupted will suffer some degree of trauma, and Galindo acknowledged changing a child's placement may be a "risk factor." Although the expert testimony also suggested A.S., assuming he had achieved a secure attachment with the foster parents, might have the resiliency to bond with the Y.'s, the juvenile court considered the relevant statutory factors and concluded it was in A.S.'s best interests to remain where he was. The relative placement preference is just that - a preference, not a presumption or guarantee. The court need not find a proposed relative placement to be detrimental to the child to conclude a change of placement is not in a child's best interest. Here, the court reasonably could conclude A.S.'s best interest was in maintaining his placement in a home where he was thriving and had bonded with the foster parents.
The social worker believed a move would be detrimental because the child had been exposed to drugs in utero, suffered from withdrawal symptoms, and already had been moved once. The social worker noted A.S. viewed his caregivers as his parents and looked to them for all his needs, he was thriving and developing, and it was unknown whether he could reattach if moved.
T.Y. analogizes this case to R.T., supra, 232 Cal.App.4th 1284. There, the father and his sisters, the paternal aunts, requested placement of father's newborn son with the aunts at the outset of the case. (Id. at p. 1293.) The agency promptly initiated "home safety inspections," (ibid.) but apparently never applied the section 361.3 factors or seriously considered placing the child with the aunts, preferring to place the infant in a home with an unrelated adult who had custody of the child's 17-year-old sibling. One of the aunts protested at the disposition hearing the agency had discouraged her placement request, and she and the parents again requested placement with her. The court denied the request without considering the section 361.3 factors and without awaiting completion of the home studies. The court bypassed reunification services, and scheduled a section 366.26 selection and implementation hearing with an eye toward adoption by the unrelated caretaker. The aunts' home study was approved not long after the disposition hearing, when the child was now three months old. The agency refused to consider moving the child, again failing to consider the section 361.3 factors. A month later, the relatives filed a section 388 petition asserting they had been denied preferential consideration. (Id. at p. 1294.) The court conducted a hearing over the course of seven months. The social worker testified the agency's policy was to perform assessments, but relatives did not receive preference. The court did not rule on the section 388 petition until the child was 14 months old, and it rejected applicability of the section 361.3 preference. The court also rejected the parents' application to relinquish their parental rights for adoption by the relatives under Family Code section 8700, concluding it had no jurisdiction to review the agency's decision not to accept the relinquishment.
The Court of Appeal reversed, concluding the agency failed to provide statutorily-mandated written notice to the relatives of the various options to participate in the child's placement and the services and support available to them (§ 309, subd. (e)(1)(B)). Most significantly, the agency and the court repeatedly failed to consider relative placement and weigh it against the benefits of placing the infant in the home with his much older brother. (R.T., supra, 232 Cal.App.4th at p. 1297.) There was nothing in the record to indicate the agency ever performed a relative placement evaluation under statutory standards. (Id. at p. 1299 ["agency simply decided, without reference to or consideration of statutory standards, that R.T. was in a good placement and would not move him"].) The juvenile court erroneously denied the relatives placement consideration at the disposition hearing, and then failed to correct its error when the relatives promptly filed a section 388 petition. The court erroneously deemed section 361.3 inapplicable to the postdisposition proceedings in the case. (Id. at p. 1300 ["the court should have directed the agency to evaluate the relatives for placement under [§ 361.3, subd. (a)(1)-(8)] and, upon receipt of the evaluation and the agency's placement recommendation, exercised its independent judgment to consider if relative placement was appropriate" rather than "applying a generalized best interest test unguided by the relevant statutory criteria"].)
R.T. is distinguishable. In the current case, assuming SSA failed promptly to initiate or expedite an assessment of the Y.'s for placement, nothing suggests SSA refused in bad faith to consider the Y.'s for placement or declined to evaluate the Y.'s under the section 361.3 criteria. The social worker assessed the section 361.3 factors in her September 15, 2016, addendum report. The juvenile court expressly considered the section 361.3 factors at the change of placement hearing in November 2016, and exercised its independent judgment that a change of placement was not in A.S.'s best interests. No basis therefore exists to conclude the court acted unreasonably and abused its discretion. (In re Robert L., supra, 21 Cal.App.4th at p. 1067.) B. Failure to Timely Initiate ICPC
The foster parents move this court to receive additional evidence of or judicially notice (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252; see also Evid. Code, §§ 452, subd. (d), 459, subd. (a)) the juvenile court's order dated March 6, 2017, terminating mother and father's parental rights. They assert the order terminating parental rights reflects the focus has now shifted to A.S.'s need for permanency and stability, and this supports the juvenile court's decision regarding the placement issue. We deny the request. (In re Zeth S. (2003) 31 Ca1.4th 396 [general rule is the appellate court reviews the correctness of an order as of the time of its rendition].)
Father and T.Y. assert SSA failed to timely assess the Y.'s for placement. T.Y. also complains SSA gave the Y.'s inaccurate information, namely that it could not send an ICPC request until after the disposition hearing and they had to wait until the parents were given a chance to reunify with the child. SSA responds it assessed the Y.'s "properly and timely," but any delay is not a proper basis for reversal because the issue is whether it would be in A.S.'s best interest to change placements, not whether the delay unfairly hindered the Y.'s chances for placement. (Stephanie M., supra, 7 Cal.4th at p. 322 [juvenile court's failure to sufficiently consider placement with a relative earlier in the proceedings was irrelevant on whether placement with the relative was in the child's best interests at the time of the hearing].)
SSA does not appear to disagree the social workers, Manzer and Charette, provided erroneous information to the Y.'s. The error appears to stem from a lack of training, knowledge and experience, or flawed SSA policy, rather than bad faith.
We agree with SSA any failure to assess the Y.'s promptly does not provide a basis for reversal. But we address the assessment issue because the juvenile court noted it was a recurring problem.
Section 309 provides that after a child has been taken into temporary custody, the social worker must investigate the facts supporting intervention if warranted and attempt to maintain the child with the child's family. Where the child cannot be released to a parent, and "an able and willing relative, as defined in Section 319, . . . is available and requests temporary placement of the child pending the detention hearing, or after the detention hearing and pending the dispositional hearing conducted pursuant to Section 358, the county welfare department shall initiate an assessment of the relative's or nonrelative extended family member's suitability, which shall include an in- home inspection to assess the safety of the home and the ability of the relative . . . to care for the child's needs, and a consideration of the results of a criminal records check conducted pursuant to subdivision (a) of Section 16504.5 and a check of allegations of prior child abuse or neglect concerning the relative . . . and other adults in the home. . . . Upon completion of this assessment, the child may be placed on an emergency basis in the assessed home. For purposes of this paragraph, and except for the criminal records check conducted pursuant to subdivision (a) of Section 16504.5, the standards used to determine suitability shall be the same standards set forth in the regulations for the licensing of foster family homes." (§ 309.)
Section 319 provides that at the initial petition/detention hearing, the social worker "shall report to the court . . . . whether there are any relatives who are able and willing to take temporary physical custody of the child." (§ 319, subd. (b).) Where "the child cannot be returned to the physical custody of his or her parent . . . the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to paragraph (1) of subdivision (d) of Section 309." (§ 319, subd. (d)(2).)
SSA initially argued it could not initiate an ICPC request until the child was declared a dependent at the disposition hearing. It relied on California Rules of Court, rule 5.616(h)(2), addressing ICPC which requires the juvenile court before ordering an expedited placement to "make express findings that the child is a dependent child removed from and no longer residing in the home of a parent and now being considered for placement in another state with a stepparent, grandparent, adult aunt or uncle, adult sibling, or legal guardian." SSA also relied on Judicial Council form JV-567 for expedited placements, which requires the court to find the "child is a dependent child within the jurisdiction of [the] court, based on a petition filed by the child welfare agency. The child does not currently live in the home of the parent or guardian from whom the child was removed. [¶] 6. The court has authority to determine custody and placement of the child or has delegated that authority to the child welfare agency." Finally, SSA cited ICPC (Fam. Code, § 7900 et seq.) and its associated regulations.
In a supplemental letter brief filed shortly before oral argument, SSA restated its position: "Appellants' interpretation, that the detention order confers sufficient authority to initiate an ICPC request for evaluation of out-of-state relatives is [] reasonable." SSA also notes "it does occasionally send an ICPC request to another state based on the detention order instead of waiting for the disposition order, to get the assessment process started should placement be needed." SSA "continues to believe a child should not be actually placed out of state until there is a disposition order declaring the child to be a dependent."
We have reviewed the court rule, the ICPC and its regulations, and nothing suggests SSA and the court do not have authority to initiate an ICPC assessment to obtain a home study on an out-of-state relative as soon as the child is taken into protective custody. Section 309 provides SSA must "initiate an assessment of the relative's . . . suitability" whenever the child has been taken into temporary custody, the child cannot be released to a parent, and an able and willing relative requests temporary placement. No exception is made for out of state relatives.
SSA asserts "even if [it] had sent the ICPC request before the disposition hearing, approval would not have come significantly earlier, and placement would not have necessarily been affected." It notes that after T.Y. stated she was interested in placement in early December, from December 2015 through February 2016, SSA collected information from T.Y. necessary to initiate the ICPC, SSA needed a month to go through various procedural steps to complete the ICPC request, and Colorado then took nearly five months to approve the ICPC. "Assuming similar processing time by SSA's and Colorado's ICPC units, an ICPC request based only on the detention order would have been sent to Colorado in perhaps February 2016 instead of March 2016. Colorado would have perhaps approved the ICPC in July 2016 instead of August 2016. Appellants cannot plausibly show that approximately one month would have made a difference in outcome." SSA also states "it generally does not recommend an expedited ICPC unless the out-of-state relatives are licensed foster parents" because only "licensed foster parents can receive federally funded foster care maintenance payments . . . ."
As T.Y. notes, nothing in the ICPC suggests a relative must be a licensed foster parent before they may be assessed for placement. Few if any out of state relatives would qualify for assessment under such a policy.
Assuming T.Y. requested placement in early December 2015, SSA does not adequately explain why it would have taken until February 2016 to complete the ICPC Form 100A for transmission to Colorado. The ICPC Guide states 30 working days is the "recommended processing time" for the receiving state to approve or deny a placement. Further, a priority process under ICPC Regulation No. 7 is available where, among other things, the proposed placement recipient is with a close relative and the child is under two years of age or in an emergency placement. The Colorado worker began the home study in the first week of April and completed the study sometime before May 23. It is not inconceivable she could have completed the ICPC by the February 17 disposition hearing, and perhaps even before SSA placed A.S. in a "concurrent planning home," if SSA had initiated the process in early December when T.Y. came forward.
Despite the foregoing, we cannot conclude the juvenile court abused its discretion when it found that by November 2016, A.S. was in a stable placement with the foster parents and therefore it was in his best interest to remain with them. Any misfeasance by SSA and the juvenile court in the case is not remediable at this late juncture.
III
DISPOSITION
The August 8, 2016, order denying a change in placement is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J