Opinion
G053880
04-04-2017
In re M.C., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.L., Defendant and Appellant; S.L., Objector and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Christine E. Johnson for Objector and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DP024889-002) OPINION Appeals from orders of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Order terminating parental rights. Reversed in part, affirmed in part, and remanded. Order denying placement. Affirmed. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Christine E. Johnson for Objector and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
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INTRODUCTION
T.L. (Mother) is the mother of M.C., who was born and taken into protective custody in April 2014. The Orange County Social Services Agency (SSA) took protective custody of M.C. after Mother was arrested on a warrant for not reporting a past criminal charge to her probation officer and for narcotics use.
Mother appeals from the juvenile court's order terminating parental rights under Welfare and Institutions Code section 366.26. Mother contends (1) the juvenile court did not comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and (2) the juvenile court erred by finding the section 366.26, subdivision (c)(1)(B)(i) benefit exception (the parental benefit exception) did not apply. S.L., who is M.C.'s maternal cousin, appeals from the order denying his request for placement under the relative preference of section 361.3. S.L. contends the juvenile court erred by not having him evaluated for placement under section 361.3, subdivision (a) and by denying his request for placing M.C. with him and his wife, Sh.L.
Further code references are to the Welfare and Institutions Code unless otherwise specified.
As to Mother's appeal, SSA agrees with Mother that reversal is necessary for the limited purpose of ICWA compliance. We will reverse and remand for that purpose but otherwise affirm. The juvenile court did not abuse its discretion in determining that the detriment to M.C. from terminating the parent-child relationship between Mother and M.C. did not outweigh the benefit to M.C. from adoption. We therefore affirm the order finding the parental benefit exception did not apply.
As to S.L.'s appeal, we conclude that SSA did not err by failing to conduct a relative placement assessment or that any error by the juvenile court in not ordering SSA to conduct such an assessment was harmless in light of the court's ultimate decision to have S.L. and Sh.L. assessed, to have a bonding study conducted, and to hold an evidentiary hearing on S.L.'s request for placement. Finally, the juvenile court did not err in making the difficult decision to deny S.L.'s request for placement and to maintain placement in the foster home in which M.C. had been living for some 16 months.
FACTS AND PROCEDURAL HISTORY
I.
Dependency Petition
Mother gave birth to M.C. in April 2014. Mother had a history of heroin and methadone use, and M.C. tested positive for methadone the day after she was born. A few weeks later, Mother was arrested on an outstanding warrant for forging narcotic prescriptions. When Mother was arrested, she tested positive for methamphetamine, opiates, and marijuana. M.C. was taken into protective custody.
On May 1, 2014, SSA filed a juvenile dependency petition (the Dependency Petition) alleging failure to protect under section 300, subdivision (b). As amended by interlineation, the Dependency Petition alleged:
"b-1. On April 28, 2014, [M]other . . . was arrested for not reporting to probation, on the charge of forging narcotic prescriptions. [M]other also tested positive for opiates, methamphetamine, and marijuana. During the week of April 21, 2014, [M]other used marijuana while in a vehicle with the alleged father . . . . [M]other knowingly but not simultaneously abused drugs while breastfeeding the child, M[.C.].
"b-2. [M]other . . . has an unresolved substance abuse problem that includes, but may not be limited to, the abuse of opiates, methamphetamine, and marijuana. [M]other also has a long history of heroin abuse. [M]other has also been taking methadone.
"b-3. [M]other . . . exposed the newborn child, M[.C.] to drug abuse. [M]other and child were residing with the child's maternal relatives who abuse marijuana regularly. The child's home smelled of marijuana, and drug paraphernalia was in and around the home. After [M]other's arrest, she left the child in the care of maternal relatives who are inappropriate caretakers. On April 30, 2014, the child M[.C.] was inconsolable while in the care of the maternal relatives. She exhibited a high[-]pitch[ed] cry, shaking, disturbed sleep, intermittent bouts of coughing, and she had diarrhea. The child had a severe diaper rash that was red, inflamed, and raw. The alleged father . . . knew that [M]other and the maternal relatives abuse drugs.
"b-4. The father . . . used substances includ[ing], but may not be limited to, the abuse of alcohol, heroin, marijuana, and methamphetamine. [The father] self-reports that during the week of April 21, 2014, he was with [M]other in a vehicle while she used marijuana. [¶] . . . [¶]
"b-6. [M]other . . . has a criminal history that includes arrests and/or convictions for: Business & Professions Code 4140—possess hypodermic needle/syringe; Health & Safety Code 11350(a)—possess narcotic controlled substance; Penal Code 460(b)—burglary: second degree; Health & Safety Code 11368—forge/alter narcotic prescription."
When taken into protective custody, M.C. was living in the home of her maternal grandmother, K.L., along with various other relations. On April 29, 2014, the assigned social worker made an unannounced visit to K.L.'s home. The social worker confirmed there were marijuana and drug paraphernalia around the house, which smelled of marijuana. M.C. was found to have diarrhea and diaper rash so severe that "the baby's entire bottom was red, inflamed, and raw as at least one layer of skin had sloughed off." M.C. shook, emitted a high-pitched cry, was inconsolable, and had disturbed sleep.
At the detention hearing on May 2, 2014, the juvenile court found that M.C. was a child described under section 300 and there were no reasonable means to protect her without removing custody from Mother and from M.C.'s presumed father (Father). The court ordered SSA to provide Mother and Father reunification services. It denied Mother's in-custody visits, but ordered Mother to have supervised visits when released for a minimum of six hours weekly, and she was not to breastfeed M.C.
Father is not a party to this appeal.
Mother and Father had filed parental notification of Indian status forms (Judicial Council form ICWA-020) with the court that indicated he had no Indian ancestry, but that she might have Cherokee ancestry. The court found ICWA might apply, deferred making an ICWA finding to a later date, and ordered SSA to inquire further.
The juvenile court ordered M.C. detained and removed her from parental custody. K.L. was denied placement. M.C. was placed in an emergency shelter home.
II.
Jurisdictional/Dispositional Hearing
In an interview with the assigned social worker, Mother reported she had a long history of heroin use and had been on methadone for the past seven years, including the period of time during which she was pregnant with M.C. Mother stated that on the day before she was arrested, she used heroin and believed methamphetamine had become stuck to the heroin tar.
In the jurisdiction/disposition report, SSA recommended sustaining the Dependency Petition, declaring M.C. a dependent child of the court, and offering reunification services to Mother and Father. According to SSA, "[M]other reports that she is very motivated to become clean and reunify with her child."
In May 2014, Mother was provided referrals for drug testing, substance abuse treatment, self-help meetings, and parenting education classes. She was encouraged to enroll in services upon release from jail. Mother was released from jail on June 10, 2014.
On May 15, 2014, maternal cousin S.L. and his wife, Sh.L., reported to the social worker that they might be interested in having M.C. placed with them at a later time. S.L. and Sh.L. were planning to move at the end of the month. The social worker asked them to call her or another social worker and request a referral once they had moved. Placement status with S.L. and Sh.L. was listed as "[p]ending."
Trial was conducted on June 19, 2014. The juvenile court ordered the Dependency Petition amended by interlineation. Mother and Father pleaded no contest. The court found the allegations of the Dependency Petition true by a preponderance of the evidence and declared M.C. to be a dependent child of the court. Custody of M.C. was removed from Mother and Father and placed with SSA for suitable placement. The court approved the case plan recommended by SSA and ordered reunification services. ICWA documentation was filed with the court. The documentation included green postcard receipts from the Bureau of Indian Affairs and all Cherokee tribes, and a negative response from one tribe.
III.
Six-month Review Hearing
In December 2014, SSA recommended the juvenile court terminate family reunification services as Mother had relapsed and Father was incarcerated. Mother had weaned herself off of methadone by August 2014 but then resumed drug use and tested positive for morphine and heroin on five separate occasions. Mother blamed the drug testing lab before admitting she had relapsed.
Mother enrolled in perinatal drug abuse treatment in June 2014, but did not complete the program. In October, Mother enrolled in a substance abuse program, and, in November, successfully completed a 10-week parenting education class. Mother initially was given six hours per week of monitored visits with M.C. In November 2014, the amount of Mother's visitation was increased.
M.C. remained with the emergency placement until November 2014, when she was placed in the home of her paternal grandmother. At some point, K.L. sought to have M.C. placed with her, and SSA denied that request. That decision was overturned (apparently through SSA's internal administrative appeal process), but K.L. withdrew her placement request.
Between December 2014 and January 2015, Mother missed four drug tests. In January 2015, Mother's substance abuse counselor reported that Mother appeared sleepy during sessions, and Mother left the drug treatment program for an hour after learning she would have to be drug tested.
SSA received negative responses to all ICWA inquiries and submitted them to the court. In an order made on December 15, 2014, the court found that ICWA documentation had been filed and notice had been given to the Bureau of Indian Affairs and all appropriate Indian tribes in accordance with ICWA.
In January 2015, the court held a contested six-month review hearing. The court found that returning M.C. to the custody of Mother and Father would create a substantial risk of detriment to M.C.'s safety, protection, or physical or emotional well-being, and that reasonable services had been provided. The court found that out-of-home placement was necessary, continued family reunification services for Mother and Father, and scheduled a 12-month review hearing for June 2015.
IV.
Transfer to Riverside County; Caretaking Issues;
Placement of M.C. in Foster Care
In February 2015, the juvenile court ordered the case transferred to Riverside County. The Riverside County Juvenile Court accepted the transfer. The court found that M.C. was not an Indian child and that ICWA did not apply. The court authorized the Riverside County Department of Public Social Services (DPSS) to "liberalize" visits with Mother and Father, "contingent upon a suitable home evaluation and the parents making the child available to the [DPSS]." DPSS reported that K.L., M.C.'s maternal great-grandmother, the paternal grandmother, and M.C.'s babysitter were authorized to monitor the visitation. The visits were to take place in Orange County and no visits were to take place at K.L.'s home in Riverside County.
On March 17, 2015, DPSS received a report that Mother and Father were living with M.C. and the paternal grandmother, were caring for M.C. while the paternal grandmother was at work, and appeared to be under the influence of drugs. On the same date, SSA conducted an unannounced visit at the paternal grandmother's home. M.C. was not home, and her crib was stacked with blankets. The paternal grandmother claimed that K.L. had taken M.C. to the maternal great-grandmother's home, which was 10 minutes away. K.L. was told to return M.C., but delayed 40 minutes in returning. The paternal grandmother was reminded that M.C. was not allowed to be taken to K.L.'s home.
On March 24, 2015, DPSS learned that M.C. was with K.L. at her home in Riverside County. A DPSS social worker made an unannounced visit to K.L's home and found M.C. there. K.L. claimed that she was caring for M.C. in place of the paternal grandmother. Earlier that day, Mother had taken M.C. to the pharmacy. The paternal grandmother confirmed she had left M.C. at the maternal great-grandmother's home, but claimed she did not know that M.C. was transported to Riverside County. DPSS removed M.C. from the paternal grandmother's care and placed her in a confidential foster home.
DPSS began assessing K.L.'s home for placement of M.C. On April 10, 2015, a relative assessment referral for K.L. was submitted.
In March 2015, Mother completed a substance abuse treatment program. She was referred to an aftercare substance abuse program but was not allowed to return after two sessions due to her attendance. She also missed a drug test. As a result, DPSS recommended continued monitored visits for Mother.
In March 2015, M.C. was removed from her paternal grandmother's home and placed in a foster home. M.C. has not changed placement since then.
V.
June 2015 Status Review Report
In an addendum report dated April 13, 2015, DPSS recommended transferring the case back to Orange County. Attached to that report was a letter, dated December 16, 2014, from K.L. asking that M.C. be placed in her home. The juvenile court denied the motion to transfer and scheduled the 12-month review hearing to be held in Riverside County. M.C. remained in the confidential foster home.
In May 2015, K.L. filed a petition under section 388 requesting the court place M.C. in her care or grant her unsupervised weekend and overnight visits. K.L. also filed a request for de facto parent status. The juvenile court set a hearing on K.L.'s section 388 petition and request for de facto parent status for June 16, 2015 at the same time as the 12-month review hearing.
In the status review report dated June 16, 2015 and the addendum reports (the June 16 Report), DPSS recommended termination of family reunification services. On May 11, 2015, Mother tested positive for methamphetamine and opiates. She had missed some random drug tests and refused to submit to on-demand tests. On May 19, 2015, Mother tested positive for heroin. Mother did not provide proof that she had attended Narcotics Anonymous meetings after April 4, 2015. Mother was defensive and argumentative with the assigned social worker when discussing the positive drug test results. Mother showed the social worker empty prescription bottles for methadone, Norco, amphetamine salts, diazepam, and Valium. Mother claimed to have been prescribed the drugs for medical issues.
The June 16 Report reported that on June l, 2015, during a visit with M.C., Mother and Father threatened to bomb the DPSS building. Law enforcement responded and the building had to be evacuated for two hours. Mother and Father also threatened DPSS social workers and office staff. Due to the threats, Mother, Father, and K.L. were not allowed to visit M.C. at the DPSS office.
According to the June 16 Report, Mother told the assigned social worker that she had moved out of K.L.'s home to allow it to be assessed for placement of M.C. But Mother continued to work at K.L.'s home. The June 16 Report stated that Mother and Father continued to abuse drugs, and they failed to participate in drug treatment programs. Mother also appeared to be under the influence of drugs at some visits as her speech was slurred and she fell asleep while speaking. Mother and Father had not been forthcoming about their living situation and participation in their case plans, and had failed to participate in random drug tests. DPSS reported that M.C. was doing well in her foster home. The foster parents were nurturing, they provided for M.C.'s emotional, educational, and physical needs, and she was thriving in their home. M.C. was adjusting well and appeared to have bonded with the foster parents and their children.
On June 16, 2015, the juvenile court granted K.L.'s section 388 petition in part by authorizing K.L. weekly supervised visits but denied her request for placement, overnight visits, and weekend visits. The court continued the 12-month review hearing and K.L.'s request for de facto parent status to July 23, 2015.
An addendum report, dated July 23, 2015, related an interview, conducted on June 25, 2015, between the assigned social worker and the paternal grandmother. During the interview, the paternal grandmother stated that placing M.C. in the care of maternal relatives would be a "huge mistake" because "[t]he whole family is toxic."
VI.
Twelve-month Review Hearing and Transfer Back to
Orange County
At the 12-month review hearing on July 23, 2015, the juvenile court found that returning M.C. to the custody of either parent would create a substantial risk of detriment to M.C., and that M.C.'s current placement was appropriate. The court ordered Mother and Father to participate in psychological evaluations and ordered DPSS to file a motion to transfer the case back to Orange County. The court ordered continued family reunification services, scheduled an 18-month review hearing, and scheduled a hearing to transfer the case back to Orange County. The court authorized increased visits for K.L., Mother, and Father, and denied K.L.'s request for de facto parent status. The court also denied the foster parents' request for de facto parent status.
In August 2015, the case was transferred back to the Orange County Juvenile Court. At the transfer hearing, Mother's counsel requested the juvenile court to order SSA to assess unspecified relatives for placement. The juvenile court ordered SSA to determine whether M.C.'s current placement was a concurrent planning home, and if it was not, the court would consider the idea of evaluating family members.
VII.
S.L.'s First Request for Placement
On September 3, 2015, S.L. filed a relative information form (Judicial Council form JV-285), requesting authorization to have M.C. live with him. On the form, S.L. provided this information: "We first initiated contact with [SSA] about M[.C.] on 05/07/14 via email and followed up with several phone calls. We also made it known to our Olive Crest case manager that we were interested in placement . . . . My wife and I are certified/licensed foster parents who have been ready and willing to welcome M[.C.] to our home. We've successfully fostered two children—one now lives with his grandparents; the other reunited with his parents after living with us, his 3rd and final foster home, for 10 months."
Attached to the form JV-285 was a timeline of S.L.'s and Sh.L.'s contacts with social workers in Orange and Riverside Counties. In May 2014, Sh.L. contacted SSA by telephone and e-mail and requested M.C. be placed in her and S.L.'s care. Initially, S.L. was told that SSA could not confirm M.C. had a dependency case. He was assured his interest in the child would be passed along. In June 2014, S.L. contacted SSA, expressed interest in having M.C. be moved to his home, and requested visitation to ease M.C.'s transition. In July 2014, Sh.L. left a voice message with the social worker, stating, "we were ready to proceed with placement of M[.C.]." In August 2014, S.L. and Sh.L. met with their foster care agency case manager and discussed the fact that M.C.'s maternal grandmother and paternal grandmother were seeking placement of M.C. S.L. and Sh.L. decided to wait until the juvenile court made a placement decision before further pursuing placement of M.C. with them. In September 2014, M.C. was placed with her paternal grandmother.
On July 28, 2015, S.L. and Sh.L. learned that M.C. had been placed in a nonrelated foster placement. In August 2015, Sh.L. contacted the foster care agency and the DPSS social worker and advised both of her and S.L.'s desire to have M.C. placed in their care. On August 19, 2015, S.L. was advised the case would transfer back to Orange County on August 21. On August 25, S.L. contacted the SSA social worker and advised her that he and Sh.L. were licensed foster parents and were ready to have M.C. placed in their home. On August 28, S.L. and Sh.L. were advised that SSA did not want to move M.C. because the social worker believed it was in M.C.'s best interest to remain in the current placement.
VIII.
Placement Review Hearing and 18-month Review Hearing
In an interim review report dated September 3, 2015, SSA reported that ICWA did not apply because the Riverside County Juvenile Court found that M.C. was not an Indian child. Mother was enrolled in individual therapy. In August 2015, Mother enrolled in a drug and alcohol program after having relapsed in May.
In an addendum report, the social worker reported that the paternal grandmother had requested placement of M.C. The social worker believed that M.C.'s current placement was the safest and most stable and that M.C. should be moved from the current placement only if reunification with a parent were possible.
A case plan review hearing was conducted on September 3, 2015. S.L. was present. Mother's counsel announced that K.L.'s home had been approved for placement and that Mother wished to have M.C. placed with K.L. The court approved a case plan for Mother that included drug treatment and testing, attendance at Narcotics Anonymous and Alcoholics Anonymous meetings, counselling, and a psychiatric/psychological evaluation. Mother was authorized twice-weekly supervised visitation. The court authorized SSA to assess placement of M.C. with S.L. and Sh.L. An 18-month review hearing was scheduled for October 30, 2015. On September 9, 2015, Mother filed a motion pursuant to section 361.3 to have M.C. placed with K.L.
In an interim review report dated September 17, 2015, SSA clarified that K.L.'s home had not been approved for placement because K.L.'s husband had a nonexemptible criminal record and K.L. had a drug history. The social worker had communicated with S.L. and Sh.L. and knew they were interested in having M.C. placed with them. The social worker noted that S.L. and Sh.L. were licensed foster parents and "[w]ere the court to order the child's immediate removal from the current caregivers, [S.L. and Sh.L.] would be an appropriate subsequent placement due to their being family members, willingness to take the child, and status as licensed foster parents."
A placement review hearing was conducted on September 17, 2015. S.L. was present. The juvenile court denied without prejudice Mother's motion to have M.C. placed with K.L.
In October 2015, K.L. contacted the social worker and requested placement of M.C. The social worker made a placement referral request so that K.L.'s home could be evaluated as soon as possible. In a status review report dated October 30, 2015 (the October 30 Report), SSA reported that an evaluation of K.L.'s home for possible placement was underway. In the section of the October 30 Report called "Consideration of Relative Placement" (boldface omitted), S.L. and Sh.L. were not mentioned.
In the October 30 Report, SSA recommended the termination of reunification services and the scheduling of a hearing under section 366.26. Mother had enrolled again in a substance abuse treatment program, but had not resolved her drug problem and declined an inpatient drug abuse treatment program. Her cooperation with the case plan and efforts and progress toward alleviating or mitigating the causes necessitating court involvement had been minimal. Father's cooperation and efforts were described as "none" (capitalization omitted). Nonetheless, SSA increased Mother's visitation from two hours to three hours each visit. M.C. continued to thrive in her foster home and was meeting all of her developmental milestones.
The 18-month review hearing was conducted on November 4, 2015. Mother stipulated to termination of reunification services, and K.L. withdrew a second section 388 petition. The juvenile court terminated family reunification services to Mother and Father and set a hearing under section 366.26. The court found that returning M.C. to the custody of Mother or Father would create a substantial risk of detriment to the safety, protection, and physical or emotional well-being of M.C., and that reasonable services had been provided. The court ordered continued funding for Mother's drug testing, increased Mother's visitation to 12 hours of supervised visits, and allowed K.L. to supervise six hours of Mother's visits. K.L. was to provide SSA with an update of Mother's visits every Monday.
IX.
S.L.'s Second and Third Requests for Placement;
Mother Gives Birth to H.C.
S.L. filed a second relative information form, form JV-285, on January 4, 2016. S.L. again requested that M.C. be placed with him and Sh.L. The form JV-285 recounted the contacts and communications made by S.L. and Sh.L. regarding placement.
Mother gave birth to another daughter, H.C., in January 2016. The hospital detained H.C. because she tested positive for opiates. H.C. was released to a foster parent a few days after being born, but reentered the hospital two days later because she displayed symptoms of withdrawal, such as tremors and shaking. H.C. was released to her foster home 12 days later.
In January 2016, SSA filed a petition under section 388 requesting the juvenile court to restrict Mother's visits to six hours weekly due to changed circumstances (SSA's Section 388 Petition). SSA's Section 388 Petition alleged that Mother had reported giving birth in her home. As noted, the baby was admitted to the hospital and tested positive for opiates. SSA alleged that Mother had not tested positive for methadone during her random drug tests. SSA alleged that Mother did not inform the social worker or the court of H.C.'s birth. The juvenile court granted SSA's Section 388 Petition, pending a hearing, which was scheduled for February 4, 2016.
In December 2015, K.L. filed another petition under section 388 to change a court order. K.L. again requested that M.C. be placed with her. On December 17, 2015, the juvenile court summarily denied K.L.'s section 388 petition. We affirmed that denial in a nonpublished opinion, In re M.C. (Aug. 15, 2016, G052998).
On January 14, 2016, Mother filed a section 388 petition requesting the juvenile court to change the order terminating reunification services. Mother requested more family reunification services, unmonitored or overnight visits with M.C., or custody of M.C. The juvenile court conducted a "prima facie proceeding" on Mother's section 388 petition and denied it without an evidentiary hearing. We affirmed that denial in a nonpublished opinion, In re M.C. (Aug. 15, 2016, G053073).
An interim review report, dated February 4, 2016, stated: "Both [M]other and [K.L.] have been extremely evasive in informing the undersigned or the court of [M]other's newest pregnancy and the birth of the new child . . . . [M]other and [K.L.] also never contacted the undersigned to give the undersigned the information about the new child being taken from [M]other at the hospital, due to the child testing positive for opiates. The undersigned believes that this type of evasiveness clearly demonstrates to both the court and the undersigned that [M]other and [K.L.] are both un-protective of both children and that the child, M[.C.]'s, visits should again be supervised at a supervised visitation center and that [M]other's visits should again be limited to six hours of supervised visits per week each week."
On February 10, 2016, the juvenile court, pursuant to stipulation, relieved Mother of substance abuse testing, reduced Mother's visitation to six hours per week, and authorized supervised visits between Mother and M.C., and H.C., at the foster family's foster agency.
On February 25, 2016, K.L. filed a section 388 petition requesting that M.C. be placed with her. The juvenile court denied the petition on March 3.
Later in March 2016, S.L. filed a section 388 petition to change a court order. S.L.'s petition advised the juvenile court that H.C. was born in January 2016 and had been placed in the care of S.L. and Sh.L on March 14. S.L. and Sh.L. wanted M.C. placed in their care too so she could grow up with H.C. and her family. In support of the request, S.L. attached a timeline showing the communications he and Sh.L. had had with SSA, "Riverside-DCFS," and their foster care agency from May 2014 to March 2016.
On March 23, the juvenile court conducted a prima facie hearing on S.L.'s section 388 petition. At the hearing, S.L. expressed his desire to have M.C. placed in his and Sh.L.'s care because H.C. was in their care and "we really want and desire to have both girls together." M.C.'s foster parents did not want to have H.C. placed with them. Mother's counsel joined in the request to have M.C. placed in the care of S.L. and Sh.L. Denying the request, the juvenile court found there was no change of circumstances and S.L. had not shown the requested change would be in the best interest of M.C. The court advised S.L. and Sh.L. that they "would likely be at the top of the list if something happened with [M.C.'s] current placement."
X.
Section 366.26 Report Dated March 28, 2016
The SSA section 366.26 report, dated March 28, 2016 (Section 366.26 Report), recommended terminating parental rights with a permanent plan of adoption. M.C. was in good health and doing well developmentally, emotionally, and behaviorally. She had been living with her foster parents since March 24, 2015, and the foster parents were "extremely interested in adopting [her]." M.C. was thriving in the care of her foster parents. "Both prospective adoptive parents are loving and nurturing with M[.C.]. She responds well to their attention and seeks them for reassurance, comfort, and security. She appears to be well attached and bonded to both prospective adoptive parents." The foster parents had completed an adoptive home study. They were active foster parents with one biological daughter, one adopted daughter, and three foster children. M.C. loved to interact and play with the other children in the home.
Under "Consideration of Relative Placement" (boldface omitted), the Section 366.26 Report stated: "[M.C.] was placed with relatives prior to the current placement. There are no other relatives known to the Social Services Agency who would be appropriate for placement at this time."
The Section 366.26 Report summarized Mother's visitation through the November 4, 2015 termination of reunification services. From that date to January 11, 2016, Mother's visitation was increased to 12 hours per week, with K.L. supervising 10 hours and the other two hours at the supervised visitation center. Mother cared for and interacted appropriately with M.C. at visits. After January 11, Mother's visitation with M.C. was reduced to four hours per week, and with both M.C. and H.C. to two hours per week. The supervised visitation center reported that Mother and K.L. many times needed to be redirected about their behavior with M.C. Mother and K.L. allowed M.C. to eat food off the floor and smear food on the table, chairs, and walls. The monitor reported that K.L interacted with M.C. while Mother held H.C. M.C. appeared happy to see Mother and K.L. At one visit, the monitor thought Mother and K.L. might be under the influence of drugs because they were hyperactive, loud, and animated.
The Section 366.26 Report concluded: "[M]other relapsed after the last court hearing and has delivered another child, which was positive for opiates and detained by Riverside County Children's Services [i]n January . . . 2016. . . . [M]other has also continued to have unresolved issues with substance abuse and has demonstrated this by having a new child that tested positive for opiates. [M]other has a very long history with opiate and heroin addiction and has continued to struggle with her sobriety since before [M.C.] was detained therefore, [M.C.] cannot be returned to her care."
XI.
S.L.'s Fourth Request for Placement
S.L. brought another section 388 petition to change a court order. On April 1, 2016, the juvenile court set a prima facie hearing for April 5, to coincide with the section 366.26 hearing.
The prima facie hearing on S.L.'s request to change a court order was conducted on April 5. S.L. submitted a memorandum of points and authorities, declarations, and exhibits. The juvenile court heard argument from all counsel and denied a hearing. The court found there had been no mistake in failing to assess S.L. for placement and the petition was untimely because it should have been made in March 2015, when M.C. was placed with her foster parents. The court found the petition did not demonstrate a change in circumstances necessitating a hearing, and S.L.'s argument regarding benefit to M.C. was speculative at best.
XII.
Section 366.26 Hearing
The section 366.26 hearing commenced on April 5, 2016 and continued on April 20, May 25 and 26, and July 20, 28, and 29. On April 5, the Section 366.26 Report was received in evidence and assigned social worker Jessica Chilton testified. Her testimony was consistent with the Section 366.26 Report. She testified it would not be detrimental to M.C. if M.C. had no visitation with Mother and parental rights were terminated because M.C. was under the age of two and had lived with caretakers for the majority of her life. M.C.'s foster parents played the parental role for her, and provided love and day-to-day care. M.C. called her foster parents "mommy" and "daddy."
Chilton testified that Mother had visited M.C. consistently and regularly since Chilton had been assigned the case. At visits, Mother generally cared well for M.C., interacted a lot with her, and was loving and appropriate. Chilton had concerns that Mother and K.L. did not set boundaries with M.C. and allowed her to do whatever she pleased. At visits, M.C. called Mother "mom" and would run to her and hug her. M.C. did not cry or show distress when separated from Mother at the end of visits. Chilton described Mother as a "friendly visitor"—meaning someone whom M.C. saw on and off and "cannot make the parental role."
Chilton testified that since she had been assigned the case, Mother had not tested positive for drugs. H.C. had, however, tested positive at birth for, and suffered withdrawal symptoms from, methadone. The withdrawal symptoms were more severe than would have resulted from Mother taking her prescribed dosage of methadone.
Chilton testified that the only relative whom she had assessed for placement was K.L., who was approved. Chilton did not assess S.L. and Sh.L. because at the time they contacted her, she was in the process of assessing K.L. Chilton was focused on K.L. because she had filed section 388 petitions for placement. Chilton believed the court was seriously considering placing M.C. with K.L because the juvenile court had allowed K.L. supervised visits with her. S.L. had not formally asked to be assessed; he said he was interested in placement. At the start of the case, SSA had offered to place M.C. with S.L. but he had declined. Sometime between May and August 2014, S.L. had asked to be assessed, then, after finding out M.C. would be placed with K.L., withdrew the request.
Also on April 5, 2016, Darryl Buck testified for Mother. Buck, a family friend and Mother's sponsor, testified that Mother told her she had been clean (methadone included) for a month. Mother attended Narcotics Anonymous meetings weekly and told Buck she was on step eight. Buck had seen Mother and M.C. interact like a normal parent and child.
XIII.
Mother's Second ICWA Notification; Order Appointing
Evidence Code Section 730 Evaluator
On April 20, 2016, Mother filed a second ICWA parental notification of Indian status form. Mother indicated she might have Indian ancestry in the Choctaw and Cherokee nations. The filing was noted in a minute order.
Also on April 20, the juvenile court announced that, based on a new appellate opinion, In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.), it intended to appoint an evaluator under Evidence Code section 730 to assess relative bonds (bonding study). S.L. filed another section 388 petition to change a court order based on Isabella G. The court interpreted that petition as a request for a hearing pursuant to section 361.3 (preferential consideration of relative's request for placement of child removed from physical custody of parents). The court granted the request and ordered a hearing pursuant to section 361.3. The court appointed Martha Rogers, Ph.D., to conduct the bonding study, which was to include interviews with M.C.'s foster (and prospective adoptive) parents, and S.L. and Sh.L.
The order appointing Dr. Rogers instructed her to "assess the nature and extent of the relationship between [M.C.] and her current caretakers and the relationship with [m]at[ernal] cousins, and if it would be detrimental to remove [M.C.] from the current placement and why." The report was made due by May 20, 2016, and the court set a hearing for May 25.
XIV.
Addendum Section 366.26 Report and Bonding Study
A. Addendum Section 366 .26 Report
SSA submitted an addendum Section 366.26 Report dated May 25, 2016 (the Addendum Report), prepared by Chilton, which explained that SSA had performed and approved a relative placement assessment for S.L. and Sh.L., who wanted to have M.C. placed with them. They had custody of H.C., wanted to keep the siblings together, and were committed to long-term care of both children. S.L. and Sh.L. had known M.C. since birth and always had maintained contact with her. Since obtaining custody of H.C., they saw M.C. weekly for sibling visitation. S.L. and Sh.L. were willing to adopt M.C. if she did not reunify with Mother. Because S.L. and Sh.L. had an approved home through their foster care agency, it was implied that they could provide for M.C., care for her, and meet her needs. S.L. and Sh.L. were committed to maintaining the sibling relationship. SSA remained concerned, however, whether S.L. and Sh.L. could protect M.C. from Mother, who had tested positive several times for drugs in March and April 2016.
In the Addendum Report, Chilton expressed her belief that moving M.C. at that time would be detrimental to her. M.C. had been in the foster parents' home for the last 14 months out of 25 months of her life. Her caretakers were willing and able to facilitate ongoing family contact. M.C. had a "limited relationship" with H.C. because they had never lived together. M.C. also had a "limited relationship" with S.L. and Sh.L. as they had declined to have M.C. placed with them at the inception of the case and had not maintained visitation since she was placed with her foster parents. On June 23 and July 20, 2016, Chilton reported that M.C. continued to thrive in her foster parents' care. B. Dr. Rogers's Bonding Study
Dr. Rogers submitted her bonding study on May 21, 2016. In conducting the bonding study, Dr. Rogers interviewed Mother, M.C., Chilton, S.L. and Sh.L., the foster (prospective adoptive) parents, and Brande Gomer, who transported M.C. to visits. Dr. Rogers concluded that M.C. was "most attached and bonded" to her foster parents and had become increasingly secure with them. Family visits were, according to Dr. Rogers, more detrimental than beneficial to M.C., and resulted in great conflict, behavioral regression, and confusion due to the different boundaries and rules.
In the bonding study, Dr. Rogers stated that she first observed M.C. and her foster parents in their home. On the same day, Dr. Rogers watched a scheduled visit with M.C., Mother, K.L., and S.L. and Sh.L. Dr. Rogers travelled to and from the visit with M.C. and Gomer. The next day, Dr. Rogers again watched M.C. with her foster parents. Dr. Rogers noted that M.C. played well with her foster parents and foster sister, seemed well connected to her foster parents, and appeared content.
Dr. Rogers described the visit with Mother, K.L., and S.L. and Sh.L. as reflecting "a chaotic, overwhelming barrage of stimulation [and] lack of boundaries." M.C. made limited eye or physical contact, reciprocated somewhat in play interactions, and mostly ran around. M.C. responded better once the adults settled down. She was ready to leave when the visit was over. Dr. Rogers noted that during visits, M.C. seemed most attached to Gomer, and then to K.L. M.C.'s relationship with Mother was more "conflicted and to some extent reflects an avoidance." M.C. recognized S.L. and Sh.L. as familiar people whom she saw often, but did not seem to differentiate them or view them as parental figures. M.C. was affable with S.L. and Sh.L. and did not react when they came or went. She appeared more interested in S.L. than in Sh.L. At times, M.C. would interact with Sh.L., but she also rejected overtures from Sh.L. and from Mother. M.C. was largely not interested in H.C., and it was unlikely that M.C. understood the concept of "sister" at this stage in her cognitive development.
S.L. and Sh.L. told Dr. Rogers they had never spent time with M.C. without Mother present. S.L. and Sh.L. first saw M.C. about six months after she was born. They did not see M.C. again until December 2015. Since then, S.L. and Sh.L. had had three visits per week with M.C. when she visits H.C. S.L. and Sh.L. told Dr. Rogers: "If you feel you don't have a clear enough picture, one without [Mother] and [K.L.], obviously the [prospective adoptive parents] would have to cooperate." (Italics omitted.)
The foster parents told Dr. Rogers that for the first couple of months after placement with them, M.C. experienced separation anxiety, cried when separated from Mother, and pushed the foster mother away. The situation gradually improved, and eventually M.C. came to the foster parents for comfort and wanted them to hold her. She cried when they left her but was improving.
Dr. Rogers concluded: "[I]t would be detrimental to M[.C.]'s well-being, emotional stability, and identity development to separate her from her current care providers . . . even if this was done slowly. At this point, S[.L.] and Sh[.L.], her adult cousins, are people she knows from 30 hours of visitation over the past 2-3 months. We would, in essence, be asking M[.C.] to start all over again after she has gone through the trauma of family separation and connecting with [her foster parents]. I cannot say that she has developed an attachment to or 'bonded' to [S.L. and Sh.L.]. In part, this is explainable by the number of people present during family visits, and the intrusiveness particularly of [K.L.]. In part it is explainable because [S.L. and Sh.L.] generally defer[] to [Mother] and K[.L.] in the contacts they have with [M.C.]. In part, it is simply that [M.C.] sees [the foster parents] as her parents and the other children in their home as siblings. I don't think she is yet able to realize that H[.C.] is a sibling."
On May 25, 2016, S.L. and Sh.L. filed objections to the bonding study and requested that another bonding study be conducted by someone other than Dr. Rogers. S.L. and Sh.L. asserted that Dr. Rogers's bonding study was defective both in content and methodology. Their primary objection was that Dr. Rogers made her observations during Mother's scheduled visitation and had spent "very minimal time" observing M.C. interact with them.
On May 26, the juvenile court noted that it had received Dr. Rogers's bonding study and S.L. and Sh.L.'s objections to it. After hearing argument from counsel, the court offered S.L. and Sh.L. the opportunity to obtain their own expert to conduct an Evidence Code section 730 bonding study. Counsel for S.L. and Sh.L. accepted the offer, and the juvenile court continued the hearings to give them time to have a bonding study prepared.
XV.
The Hearings Resume
The hearings resumed on July 20, 2016. The juvenile court received Dr. Rogers's bonding study in evidence, with the understanding that S.L. and Sh.L. had made a foundational objection to it. A. Dr. Rogers
Dr. Rogers testified that she has been a member of the panel of experts since 1986. She confirmed the conclusions reached in her bonding study that M.C. was most closely bonded with the foster parents and removing her from their care would be detrimental.
Dr. Rogers testified she was not aware of any standardized protocol for conducting a bonding study. She had developed her own protocol and, with one exception, followed it in conducting the study of M.C. Dr. Rogers explained that she followed M.C. through a typical day, in familiar places, to obtain her genuine reactions to stimuli. She observed M.C. with her foster parents on two days for a total of about three and one-half hours. Dr. Rogers observed M.C. with Mother, K.L., S.L. and Sh.L., and Gomer for two to two and one-half hours. Dr. Rogers observed M.C. with just S.L. and Sh.L. for about half an hour.
Dr. Rogers testified that, overall, S.L. and Sh.L. related well with M.C. and she was comfortable with them. They played amicably and interactively together. Dr. Rogers testified the foster parents made "a little more attempt at verbal interaction" but the foster parents and S.L./Sh.L. "were good." M.C. was more interactive with S.L. than Sh.L. and initiated a piggyback ride with him. Sh.L. fed M.C., and they snuggled.
Dr. Rogers was questioned about M.C.'s foster mother having fostered 17 children in her home. Dr. Rogers agreed that having a large number of children going in and out of a home could be disruptive to a child placed in that home. Dr. Rogers did not determine how many foster children had been in and out of the foster parents' home while M.C. was placed there because Dr. Rogers "had limited time" and "did what [she] could." B. Dr. Judy Ho
S.L. and Sh.L. retained Judy Ho, Ph.D., as an expert, and she testified after Dr. Rogers. Dr. Ho had reviewed Dr. Rogers's bonding study and concluded that it was not prepared in accordance with the recommendations of the American Psychological Association. Dr. Ho criticized the bonding study on the ground it did not clearly define the terms "attachment" and "bonding," which have empirically based definitions. Dr. Ho testified that Dr. Rogers did not follow any of the recognized protocols for bonding studies. Dr. Ho criticized Dr. Rogers for not spending enough time observing M.C. with just S.L. and Sh.L., used an "inequitable time frame" in observing M.C. with the various parties, did not give sufficient regard to S.L. and Sh.L.'s interview, and did not refer at all to positive indicators for placing M.C. with S.L. and Sh.L. (such as continuing contact with Mother). Dr. Ho testified the lack of time spent observing M.C. with S.L. and Sh.L. led Dr. Rogers to reach biased results.
Dr. Ho considered the fact that M.C. had a period of difficulty following transfer from K.L. to the foster parents but was able to form a relationship with them. Dr. Ho believed that was "a positive indicator of future bonding and attachment"—meaning M.C. had the ability to forge new bonds in the future "as long as the prospective parents or the prospective bonding figures are doing their best and setting up structure and giving time for reciprocal interaction." Dr. Ho concluded that, due to inadequate and possibly biased data, Dr. Rogers could not form an unbiased opinion that M.C. was bonded to her foster parents.
Dr. Ho testified, however, that Dr. Rogers's conclusions were not necessarily inaccurate: "I am referring to inaccuracies in her documentation of, for example, the terminology and not grounding empirical definitions. I'm not necessarily saying that her conclusions are inaccurate, so they could very well be accurate and a representation of what's going on." C. S.L.
S.L. testified about his home and his relationship with M.C. and her family. He testified that if M.C. was in his care, visitation with Mother or K.L. would be determined "based on what we feel is best for her and . . . how well [Mother] is doing in her recovery." S.L. used the term "controlled contact" to describe how he would handle visitation between M.C. and Mother.
S.L. testified that he had an approved home study completed in 2013. He had attended training, classes, a psychological evaluation, participated in a home inspection to secure the home study, and was approved for fostering two children.
S.L. testified that M.C. enjoyed playing with H.C. and liked to help prepare her bottles. If S.L. and Sh.L were not successful in obtaining custody of M.C., S.L. would like to maintain visits between M.C. and H.C. S.L testified that M.C. interacts positively with Sh.L. and himself, sometimes she hugs him, and sometimes she gives him kisses. Other than the visit observed by Dr. Rogers, S.L. and Sh.L. had never spent "alone time" with M.C.
In October 2014, S.L. and Sh.L. requested visitation with M.C., but visitation was not established. After M.C. was placed with her paternal grandmother in 2014, S.L. and Sh.L. advised SSA and their foster care agency that they were willing to provide care to M.C. if the placement with the paternal grandmother was unsuccessful. An e-mail dated October 14, 2014 from social worker Ramona Griffin to S.L.'s foster care agency included assurances that if M.C. were ever returned to foster care, then S.L. and Sh.L. would be considered for placement.
S.L. had become aware that M.C. had been removed from her paternal grandmother's custody about four months after she had been placed in foster care. Immediately upon learning M.C. was in foster care, S.L. and Sh.L. contacted M.C.'s social worker and their foster care agency and requested to have M.C. moved to their home. S.L. testified that the Riverside County social worker advised him she was not aware that he and Sh.L. wanted custody, the case was being transferred back to Orange County, and they should make their requests for placement to the SSA social worker.
S.L. testified that M.C.'s case was transferred back to Orange County in late August 2015, and that around August 24 or 25, he and Sh.L. contacted the intake worker regarding M.C. The intake worker informed S.L. that Chilton was the assigned social worker. On August 28, 2015, S.L. and Sh.L. were able to reach Chilton, advised her of their desire to have custody of M.C., and requested visitation. Chilton advised S.L. and Sh.L. that visitation could not be accommodated, but said she "felt good about moving M[.C.] from one Olive Crest home to another Olive Crest home." Chilton gave S.L. the impression that she was "leaning toward" placing M.C. with S.L. and Sh.L.
According to S.L., either he or Sh.L. called Chilton about once a week. S.L. and Sh.L. were not able to see M.C. on a regular basis until H.C. was born and placed in their home. Visits took place about 75 miles from S.L. and Sh.L.'s home, and round trip travel time was between three and four hours.
S.L. believed it would be in M.C.'s best interest to live with him and Sh.L. He testified: "I believe that M[.C.] living with us would be best for her. It would be best for her sister. So that the sisters can have a relationship and grow up together. So that M[.C.] can be with her family, her biological family that loves her and adores her and wants to take care of her. So that M[.C.] can know her family and know her extended family and her biological cousins and her biological uncles and aunts, and so that she can also know our family traditions and grow up with the faith of our family." Sh.L. planned to take an extended leave of absence from work and stay at home with the children. D. Ruling on S.L.'s Requests
On July 29, 2016, after S.L. testified, the juvenile court heard argument on S.L.'s motion to strike Dr. Rogers's bonding study and appoint a new Evidence Code section 730 evaluator. The court stated it had considered Dr. Ho's testimony about Dr. Rogers not following guidelines of the American Psychological Association. The court stated: "The fact is the [American Psychological Association] guidelines are not . . . universally embraced. There are probably infinite modalities for making these determinations with psychologists." The court ruled that the objection to Dr. Rogers's bonding study went to its weight, not its admissibility, and denied the motion to strike.
The juvenile court next considered S.L.'s request to change placement of M.C. After hearing argument of counsel, the court denied the request and found it was not in M.C.'s best interest to be moved due to the bond she had developed with her foster parents. The court expressed its disappointment that SSA "failed to do the appropriate assessment in a timely way," but was also "perplexed that [S.L. and Sh.L.] did not press forward with this at a much earlier time and particularly, while the child was still in Riverside and prior to a lengthy placement with the current caretakers." The juvenile court found the testimony of S.L. to be "compelling" and stated, "[h]e seemed like a very nice man," has "a good family," and seemed "very much interested in providing the child with a permanent home."
The juvenile court stated, "I don't know what a remedy is for the agency not doing what they're supposed to do in a timely fashion," and noted that if the placement hearing had occurred at a much earlier stage, S.L. and Sh.L. would likely have had M.C. placed in their care. The court explained: "In this case we have a little girl who has experienced nothing but disruption in her life for the first half of her life. Has been traumatic for her. The treatment that she's had in the hands of various caretakers has not been wonderful and then she lands in a foster home that is, for the first time in her life, stable and suitable and caring for all of her needs, where she has people that she looks to as parents and she has other children that she looks to as siblings. [¶] And at this point in time, the request is that the court terminate that relationship, with the hope that things would be better if we place the child with other very competent people, and I think that that's just too speculative. That the risk of harm to this child by moving her from the parents that she knows and the home that she knows and placing her with other people, it would not be in her best interest."
The court concluded: "[B]ased on all the evidence I have before me, the court finds that it would not be in the child's best interest to remove the child from the current caretakers and place with [S.L. and Sh.L.], largely because the child has formed bonds and attachments where she is and that it would be detrimental to the child to sever those bonds at this point in time, and the court finds that [S.L. and Sh.L.] have not carried the burden of proof to show that it would be in the best interest of the child to change placements at this time." E. Mother
The section 366.26 hearing resumed with Mother testifying. She denied having an unresolved drug problem and testified her sobriety date was sometime in March 2016, when she tested positive for opiates. That positive test was the result of a pain pill for which she did not have a prescription. She testified that she had not used heroin in over two years. She had completed steps one through four of a 12-step program, though currently she was just attending meetings instead of working the steps.
Mother testified she had supervised visits with M.C. six hours per week. Mother described the visits as "very, very important" and "good." M.C. was happy during visits. At the start of visits, M.C. would run to Mother. M.C. called Mother "mommy" or "grandma." Mother described M.C.'s relationship with her as "amazing" and "very close."
Mother brought food and toys to visits with M.C. They read books and did projects together. Mother enforced rules, and M.C. listened. M.C. sought out Mother for comfort and did not want to leave at the end of visits. F. Ruling on Section 366 .26 Hearing
The juvenile court terminated parental rights. The court found by clear and convincing evidence that M.C. was likely to be adopted and was adoptable. The court found the exceptions to termination of parental rights did not apply and termination of parental rights would not be detrimental to M.C. and would be in her best interest. The court found that Mother "maintained regular visitation and contact" with M.C. but "never stood in a parental role with this child" and had always been a "visitor." The court set an adoption review for October 11, 2016 and periodic review for January 30, 2017.
DISCUSSION—MOTHER'S APPEAL
I.
ICWA
In February 2015, the juvenile court in Riverside County found that M.C. was not an Indian child and that ICWA did not apply. Mother filed a second ICWA notice in April 2016. In this notice, Mother indicated she might have Indian ancestry in the Choctaw and Cherokee nations. Mother's first ICWA notice had identified only possible Cherokee ancestry. The juvenile court took no action in response to Mother's second ICWA notice.
Under ICWA, when an Indian child is involved in a juvenile dependency proceeding, the Indian child's tribe must receive notice of the pending proceeding and of its rights under ICWA, including the right to intervene. (25 U.S.C. § 1912(a).) A duty arises to give the Indian child's tribe notice when the juvenile court or the social services agency "knows or has reason to know that an Indian child is involved." (§§ 224.2, subd. (a), 224.3, subd. (d).) Such a duty arises when a person having an interest in the child informs the court or the county welfare agency or provides information suggesting that the child is an Indian child. (§ 224.3, subd. (b); Cal. Rules of Court, rule 5.481(a)(5).)
Mother contends the juvenile court erred by failing to comply with ICWA notice requirements in response to her second ICWA notice. SSA agrees. SSA proposes a remand for the limited purpose of redoing the ICWA notice procedures in accordance with In re Nikki R. (2003) 106 Cal.App.4th 844, 855-856. We reverse for the limited purpose of ICWA compliance, and our disposition is based on In re Nikki R.
The disposition in In re Nikki R., supra, 106 Cal.App.4th at pages 855-856, read as follows: "The judgment terminating parental rights is reversed and the matter is remanded to the juvenile court with directions to conduct further proceedings to determine whether SSA complied with the notice provisions of ICWA. If not, the juvenile court shall direct SSA to comply; if Nikki is determined to be an Indian child, a new hearing shall be held. If notice is found to be sufficient, all previous findings and orders shall be reinstated, subject to the juvenile court's consideration of any circumstances that may have arisen during this appeal that may affect the outcome."
II.
Parental Benefit Exception
Adoption must be selected as the permanent plan for an adoptable child unless the court finds that termination of parental rights would be detrimental to the child under one of the statutory exceptions. (§ 366.26, subds. (b)(1) & (c); In re J.C. (2014) 226 Cal.App.4th 503, 528-529; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) Mother contends the juvenile court erred by finding the parental benefit exception of section 366.26, subdivision (c)(1)(B)(i) did not apply.
Under the parental benefit exception, parental rights cannot be terminated if the juvenile court finds "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The party claiming the exception has the burden of proving the exception by a preponderance of the evidence. (In re J.C., supra, 226 Cal.App.4th at p. 529.) We review the juvenile court's decision under a standard that incorporates both the abuse of discretion and substantial evidence standards. (Id. at p. 530; In re Bailey J., supra, 189 Cal.App.4th at p. 1314.) The substantial evidence test applies to findings of fact, while the abuse of discretion standard applies to the determination whether preservation of the parent-child relationship constitutes a compelling reason for determining that termination of parental rights would be detrimental to the child. (In re J.C., supra, at pp. 530-531; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J., supra, at pp. 1314-1315.)
SSA agrees that Mother satisfied the first part of the parental benefit exception—that Mother "maintained regular visitation and contact with [M.C.]." (§ 366.26, subd. (c)(1)(B)(i).) We address the second part of the parental benefit exception—whether "the child would benefit from continuing the relationship." (Ibid.)
"The 'benefit' necessary to trigger this exception has been judicially construed to mean 'the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.'" (In re J.C., supra, 226 Cal.App.4th at pp. 528-529.) Factors relevant to determining the strength of the parent-child relationship include the child's age, the portion of the child's life spent in the parent's custody, the nature of the interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) "It is not enough to show that the parent and child have a friendly and loving relationship" inasmuch as some interaction between a natural parent and child "'"will always confer some incidental benefit to the child."'" (In re J.C., supra, at p. 529.)
Substantial evidence supported the factual findings predicate to the determination the parental benefit exception does not apply. First, there was sufficient evidence from which the juvenile court could find that the foster parents rather than Mother were fulfilling the parental role. M.C. was removed from Mother's care just a few weeks after being born. When the section 366.26 hearing commenced, M.C. was about two years old, and, when the juvenile court terminated parental rights, she was about just over 27 months old. M.C. had been in the foster parents' home since March 2015, the last 16 of those 27 months. The foster parents provided M.C. with food, shelter, and care during that time period.
SSA's reports and addendum reports up through the Addendum Report (May 2016) noted that M.C. thrived with her foster parents. The Section 366.26 Report stated: "Both prospective adoptive [foster] parents are loving and nurturing with M[.C.]. She responds well to their attention and seeks them for reassurance, comfort, and security. She appears to be well attached and bonded to both prospective adoptive parents." At the section 366.26 hearing, Chilton testified that M.C.'s foster parents played the parental role for her, provided love and day-to-day care, and M.C. called them "mommy" and "daddy."
In the bonding study, Dr. Rogers concluded that M.C. was "most attached and bonded" to her foster parents and had become increasingly secure with them. Family visits were, according to Dr. Rogers, more detrimental than beneficial to M.C., and resulted in great conflict, behavioral regression, and confusion due to the different boundaries and rules. At the section 366.26 hearing, Dr. Rogers confirmed the conclusions reached in her bonding study that M.C. was most closely bonded with the foster parents and removing her from their care would be detrimental.
Second, there was sufficient evidence from which the juvenile court could find that M.C. did not have a parental relationship with Mother and that Mother did not provide M.C. a "substantial, positive emotional attachment." (In re J.C., supra, 226 Cal.App.4th at p. 528.) Mother's visits with M.C. had been consistent and regular. The Section 366.26 Report stated that Mother cared for and interacted appropriately with M.C. at visits. M.C. appeared happy to see Mother and K.L. However, the supervised visitation center reported that Mother and K.L. many times needed to be redirected about their behavior with M.C. On at least one occasion, the monitor thought Mother and K.L. might be under the influence of drugs because they were hyperactive, loud, and animated.
Chilton testified that Mother and K.L. did not set boundaries with M.C. and allowed her to do whatever she pleased. At visits, M.C. called Mother "mom" and would run to her and hug her. But M.C. did not cry or show distress when separated from Mother at the end of visits. Chilton described Mother as a "friendly visitor"—meaning someone whom M.C. saw on and off and "cannot make the parental role."
The bonding study described the visit with Mother, K.L., and S.L. and Sh.L. as "a chaotic, overwhelming barrage of stimulation." M.C. made limited eye or physical contact, reciprocated somewhat in play interactions, and mostly ran around. M.C. responded better once the adults settled down. She was ready to leave when the visit was over. M.C.'s relationship with Mother was more "conflicted and to some extent reflects an avoidance."
Given the evidence supporting the predicate findings, the juvenile court did not abuse its discretion in determining that the detriment to M.C. from terminating the parent-child relationship between Mother and M.C. did not outweigh the benefit to M.C. from adoption. (In re J.C., supra, 226 Cal.App.4th at pp. 531, 532.) M.C. is entitled to stability and permanence through adoption. (In re C.F. (2011) 193 Cal.App.4th 549, 557.) It is clear from the record that Mother regularly visited M.C. and Mother usually behaved appropriately during visits. Mother testified the visits were "very, very important" and "good," M.C. was happy during them, and M.C. called her "mommy" or "grandma." But more than frequent and pleasant visits is necessary to establish the parental benefit exception. (In re J.C., supra, at p. 532; In re C.F., supra, at p. 555; In re Helen W. (2007) 150 Cal.App.4th 71, 81; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Mother contends that guardianship or long-term foster care would be better for M.C. as either would allow them to maintain their "significant relationship." Adoption, Mother contends, "is every bit as revocable as a guardianship" and therefore would no better satisfy M.C.'s need for stability and permanence. However, the Legislature has determined that if a child is adoptable (as M.C. is), there is a strong preference for adoption and "'guardianship is not in the best interests of children who cannot be returned to their parents.'" (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Because M.C. is adoptable, Mother had the burden of showing that termination of parental rights would be detrimental under one of the exceptions of section 366.26, subdivision (c). (In re J.C., supra, 226 Cal.App.4th at p. 528.) We conclude the juvenile court did not err by finding the parental benefit exception did not apply.
DISCUSSION—S.L.'s APPEAL
I.
S.L.'s Requests for Placement in September 2015 and
January, March, and April 2016
A. The Relative Placement Preference
S.L. and M.C. are first cousins once removed. As a first cousin once removed, S.L. contends the juvenile court erred by not ordering SSA to conduct a relative assessment of him and Sh.L. in September 2015, January 2016, March 2016, and April 2016.
"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).) Section 361.3 gives "'[p]referential consideration'" to a relative's request for placement, meaning "the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) In assessing the appropriateness of relative placement, the court and the social worker must consider eight factors. (§ 361.3, subd. (a)(1)-(8).) Relatives desiring placement "shall be assessed according to the factors enumerated in this subdivision." (§ 361.3, subd. (a)(8)(B); see Isabella G., supra, 246 Cal.App.4th at p. 719 ["The Agency is required to assess those relatives seeking placement according to the factors described in section 361.3, subdivision (a) . . . ."].)
Section 361.3, subdivision (a) states in part: "In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (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, unless that placement is found to be contrary to the safety and well-being of any of the siblings, as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (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. [¶] (ii) However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) (A) The safety of the relative's home." (Italics added.)
Section 361.3 distinguishes between preferential consideration and preferential placement. "'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Any "'[r]elative,'" meaning an adult related to the child by blood, adoption, or affinity within the fifth degree of kinship, may seek preferential consideration. (§ 361.3, subd. (c)(2).) Only an adult who is a grandparent, aunt, uncle, or sibling "shall be given preferential consideration for the placement of the child." (Ibid.) "In this context, 'preferential consideration' only means that the relative asking for placement of the child should be considered and assessed first [citation]." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016) Disposition Hearing, § 2.127[3], p. 2-437.)
Section 361.3 is not a placement guarantee. Rather, "[t]he 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 interests.'" (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 (Cesar V.).) Nor does section 361.3 create a presumption that the juvenile court must place the child with the relative; instead, the court must determine "whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child. [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 321.)
Section 361.3, subdivision (d) states: "Subsequent to the hearing conducted pursuant to Section 358 [the dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child." B. S.L.'s Relative Information Submissions and Section 388 Petitions
1. September 2015
As a first cousin once removed, S.L. is a relative of M.C. under section 361.3, subdivision (c)(2). On September 3, 2015, S.L. filed a relative information form and sought to have M.C. placed with him and Sh.L. At that time, M.C. had been living with her foster parents for about six months.
S.L. contends the juvenile court erred by not applying the relative preference in September 2015. SSA contends that the authority at that time did not require application of the relative placement because a new placement for M.C. was not required. As of September 2015, the governing authority was set forth in section 361.3 itself and, in order of discussion, Cesar V., supra, 91 Cal.App.4th 1023; In re Lauren R. (2007) 148 Cal.App.4th 841 (Lauren R.); In re Joseph T. (2008) 163 Cal.App.4th 787 (Joseph T.); and In re R.T. (2015) 232 Cal.App.4th 1284 (R.T.).
Subdivision (d) of section 361.3 states that after the dispositional hearing, consideration for relative placement must be made "whenever a new placement of the child must be made." In Cesar V., a panel of this court concluded the relative preference applies "when a new placement becomes necessary after reunification services are terminated but before parental rights are terminated." (Cesar V., supra, 91 Cal.App.4th at p. 1032.) In Lauren R., a different panel of this court concluded the relative placement preference did not apply because no new placement was necessary and the placement requested was for adoption. (Lauren R., supra, 148 Cal.App.4th at p. 845.) The court also stated, "[t]he preference applies at the dispositional hearing and thereafter 'whenever a new placement of the child must be made.'" (Id. at p. 854, quoting section 361.3, subdivision (d).)
In Joseph T., the Court of Appeal concluded, "the relative placement preference applies at least through the family reunification period" and "[d]uring the reunification period, the preference applies regardless of whether a new placement is required or is otherwise being considered by the dependency court." (Joseph T., supra, 163 Cal.App.4th at p. 795.) The concurrence and dissent in Joseph T. reached the conclusion, based on subdivision (d) of section 361.3, that the relative placement preference only applies at or before the dispositional hearing and afterwards only when a new placement must be made. (Joseph T., supra, at p. 799 (conc. & dis. opn. of Mallano, J.).) "If section 361.3, subdivision (a) is construed to require compliance with the relative placement preference throughout the entire reunification period regardless of whether a new placement needs to be made, subdivision (d) would be rendered superfluous and meaningless, a result to be avoided." (Ibid. (conc. & dis. opn. of Mallano, J.).)
In R.T., the Court of Appeal concluded the juvenile court erred by deeming the relative preference inapplicable to postdisposition proceedings. (R.T., supra, 232 Cal.App.4th at p. 1300.) Summarizing the case law, the court explained: "It is presently 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 and termination of reunification services. (See In re Stephanie M., supra, 7 Cal.4th at pp. 319-320 [noting but not resolving issue].) One case, upon which the agency relies, suggests the relative preference does not apply after the dispositional hearing unless the nonrelative placement fails and a change of placement is required. (In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855 . . . .) Other cases disagree. (E.g., In re Joseph T. (2008) 163 Cal.App.4th 787, 794-795 . . . .) The issue has no bearing here, where the relatives invoked the preference before the dispositional hearing, the agency and court failed to apply it at disposition, and the error was timely raised by a section 388 motion. Under these circumstances, the court should have directed the agency to evaluate the relatives for placement under the relevant standards (§ 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 [citation]." (Ibid.)
Although Lauren R., supra, 148 Cal.App.4th at page 845, states the relative preference applies only when a new placement is required, that statement arguably is dictum because the case holds that the relative preference does not apply when placement is for adoption (in September 2015, S.L. requested only placement, not adoption). R.T. notes the issue whether the relative preference applies after the dispositional hearing but when a new placement is not required had not been settled by the California Supreme Court. (R.T., supra, 232 Cal.App.4th 1284.) But in Joseph T., the Court of Appeal held that the relative preference applies during the reunification period regardless whether a new placement is required. (Joseph T., supra, 163 Cal.App.4th at p. 795.)
Under principles of stare decisis, Joseph T. was binding on all the superior courts of the State of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, as of September 2015, the relative preference did apply to S.L. even though M.C. was in a stable placement.
S.L. did not, however, timely raise the relative preference by a section 388 petition. Nor did S.L. file a petition or motion pursuant to section 361.3. Nonetheless, on September 3, 2015, the juvenile court ordered SSA to assess placement with S.L. ("relatives in Los Alamitos"). An SSA interim review report, dated September 17, 2015, stated the social worker had communicated with S.L. and Sh.L. and knew they were interested in having M.C. placed with them. The social worker noted that S.L. and Sh.L. were licensed foster parents and "[w]ere the court to order the child's immediate removal from the current caregivers, [S.L. and Sh.L.] would be an appropriate subsequent placement due to their being family members, willingness to take the child, and status as licensed foster parents."
In Isabella G., the Court of Appeal concluded that "when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition. (Isabella G., supra, 246 Cal.App.4th at p. 712, italics added.) S.L. filed his first relative information form in September 2015, some 15 months after the dispositional hearing.
At the placement review hearing on September 17, 2015, the only matter before the juvenile court was Mother's motion pursuant to section 361.3 to have M.C. placed with K.L. S.L. did not have a section 388 or section 361.3 petition or motion for placement pending. S.L. appeared at the placement review hearing but did not mention or request relative preference, a home assessment, or placement of M.C.
2. January 2016
On November 4, 2015, the juvenile court terminated reunification services. On January 4, 2016, S.L. filed the second relative information form. At that point in time, there was no binding authority addressing whether the relative preference applied after termination of reunification services and regardless whether a change in placement was required. Joseph T. concluded a change in placement was not required and the relative preference applied through the reunification period. (Joseph T., supra, 163 Cal.App.4th at p. 795; see Isabella G., supra, 246 Cal.App.4th at p. 721 ["Joseph T. left open the issue whether the relative is entitled to the preference after reunification services have been terminated and no new placement of the child is required."].) Cesar V. stated the relative preference does apply after reunification services are terminated but (in dictum) only when a new placement is necessary. (Cesar V., supra, 91 Cal.App.4th at p. 1032.) Given this state of the law, we cannot say the juvenile court erred to the extent it did not apply the relative preference.
Moreover, S.L. did not file a section 388 petition or a petition or motion pursuant to section 361.3. Soon after S.L. filed the second relative information form, K.L. filed another section 388 petition to have M.C. placed with her. As a grandparent, K.L. had statutory priority over S.L. (§ 361.3, subd. (c)(2).) At a hearing on March 3, 2016, the juvenile court denied K.L.'s section 338 petition to have M.C. placed with her.
3. March 2016
In March 2016, after the juvenile court denied K.L.'s section 388 petition, S.L. filed a section 388 petition to change a court order in which he formally sought placement of M.C. The juvenile court conducted a prima facie hearing on March 23, 2016. In denying the petition, court stated: "I do want to emphasize, however, that code section I cited to you, 361.3, basically puts you folks in the running if something were to happen with the current placement. So if that were to happen, make certain that the agency knows that you're interested in placement and as a relative caretaker of the child's sibling, I would expect that you would be [at] the top of the list." (Italics added.)
The juvenile court's comments indicate the court believed the relative preference only applies when a change in placement is required. The state of the law on March 23, 2016 was the same as it had been in January. The juvenile court could find that the relative preference did not apply because, based on a fair reading of Cesar V., a new placement was not required or because, based on a fair reading of Joseph T., the reunification period had ended.
Assuming the juvenile court erred and should have ordered a relative placement assessment under section 361.3, subdivision (a), the error was harmless because within a month the juvenile court reversed course based on Isabella G.
4. April 5, 2016
In April 2016, S.L. filed another section 388 petition to change a court order. The court denied the petition on April 5. The court found there had been no mistake in failing to assess S.L. for placement and the petition was untimely because it should have been made in March 2015, when M.C. was placed with her foster parents. In so finding, the court again expressed its understanding that the relative preference applied only when a change in placement is required.
Isabella G. was issued on March 30, 2016. In Isabella G., the Court of Appeal concluded the relative preference applies (1) after the reunification period has ended and (2) even if no new placement is necessary. (Isabella G., supra, 246 Cal.App.4th at pp. 720-721.) Based on Isabella G., the relative preference arguably applied to S.L. even though the reunification period had ended and a new placement for M.C. was not required. Any error by the juvenile court was harmless because on April 20, just 15 days after denying S.L.'s section 388 petition, the court ordered a section 361.3 hearing for S.L. and appointed a special evaluator to conduct a bonding study. By May 25, SSA had completed a relative placement assessment for S.L. and Sh.L. and had approved them.
Isabella G. is distinguishable factually from this case. In Isabella G., the child's grandparents had requested placement before the detention, jurisdictional, and dispositional hearings. (Isabella G., supra, 246 Cal.App.4th at p. 722.) "The Agency did not comply with its obligation to conduct a home assessment of the Grandparents." (Ibid.) The court noted that if the social services agency had conducted a home assessment when the grandparents first requested placement, the assessment would have been completed and the home approved before the dispositional hearing. (Id. at p. 721.) That would not have happened here. In addition, in Isabella G., supra, 246 Cal.App.4th at page 711, preference was sought by the grandparents who, unlike S.L. and Sh.L., were entitled to preferential placement, not just preferential consideration.
The holding of Isabella G. which would have bound the juvenile court under stare decisis is that when a relative who is entitled to preferential consideration for the placement of the child (§ 361.3, subd. (c)(2)) requests placement of the child before the dispositional hearing, and the social services agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a petition under section 388, regardless whether reunification services have ended or a new placement is necessary. (Isabella G., supra, 246 Cal.App.4th at pp. 712, 720721.) S.L. and Sh.L. were not relatives entitled to be given preferential consideration for the placement (as distinguished from assessment) of M.C. and did not request placement until long after the dispositional hearing.
II.
The Juvenile Court Did Not Err by Denying S.L.'s
Request for Placement.
S.L. contends the juvenile court erred by finding he did not meet his burden of proof at the hearing in July 2016. He argues, "[s]ection 361.3 does not place the burden of proof on the relatives to demonstrate the requested change of placement is in the best interest of the minor, rather it places an obligation on the juvenile court to independently assess the relatives under the factors outlined [in section 361.3, subdivision (a)]."
Section 361.3 sets forth the relative preference and the procedures for assessing whether placement with a relative is appropriate. It has been held that "[w]hen section 361.3 applies to a relative placement request, the juvenile court must exercise its independent judgment rather than merely review SSA's placement decision for an abuse of discretion." (Cesar V., supra, 91 Cal.App.4th at p. 1033; see Isabella G., supra, 246 Cal.App.4th at p. 719.)
The subject of the juvenile court's order made on July 29, 2016 was S.L.'s section 388 petition to change a court order. S.L.'s petition is correctly characterized as made under section 388 because S.L. sought to change the order placing M.C. with her foster parents with a new order placing M.C. with him and Sh.L. This was not an initial placement or a new placement necessitated by the failure or termination of a current placement. While the basis for S.L.'s request for placement was the relative preference of section 361.3, S.L. sought a change in placement, thereby invoking section 388.
Section 388, subdivision (a) provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child or the nonminor dependent shall state the petitioner's relationship to or interest in the child or the nonminor dependent and shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction."
The petitioner seeking the modification bears the burden of proof. (Cal. Rules of Court, rule 5.570(h)(1).) For a change in placement of the child, the burden of proof is preponderance of the evidence. (Id., rule 5.570(h)(1)(D).) "At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In determining whether the petition makes a prima facie showing of changed circumstances, the court may consider the case's "entire factual and procedural history." (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
A juvenile court's determination regarding relative placement is typically reviewed under the abuse of discretion standard. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) "Such a determination . . . 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." (Ibid.)
Thus, the juvenile court did not err by placing the burden of proving changed circumstances on S.L. A rigorous standard applies when "the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.)
The evidence did not compel a finding that M.C. must be placed with S.L. and Sh.L. The juvenile court had before it evidence in the form of the Section 366.26 Report, the Addendum Report, Chilton's testimony, and Dr. Rogers's report and testimony, all of which showed that M.C. was bonded to her foster parents, was thriving in their home, and changing placement would be traumatic for her. The Addendum Report included SSA's section 361.3 assessment of S.L. and Sh.L., and there is nothing to indicate the juvenile court, which also heard testimony from S.L. and Dr. Ho, did not independently review that assessment.
Because the court stated that its decision was "based on all the evidence I have before me," we can infer that the juvenile court fulfilled any duty it might have had to independently consider the factors identified in section 361.3, subdivision (a)(1) through (8). (See Isabella G., supra, 246 Cal.App.4th at p. 722, fn. 11 ["in determining whether the child should be placed with the relative, the juvenile court should not substitute the generalized best interest showing required under section 388 for its independent assessment of the relevant statutory criteria under section 361.3"].) The court expressly found the first factor, the best interest of the child, to be decisive: "[T]he court finds that it would not be in the child's best interest to remove the child from the current caretakers and place with [S.L. and Sh.L.], largely because the child has formed bonds and attachments where she is and that it would be detrimental to the child to sever those bonds at this point in time."
If the juvenile court did misallocate the burden of proof, reversal would not be warranted. "Misallocation of the burden of proof in a bench trial is not reversible error per se but must be prejudicial to warrant reversal." (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc. (2016) 6 Cal.App.5th 1258, 1287.) An error in allocating the burden of proof in a bench trial is harmless if substantial evidence supports the juvenile court's findings. (Ibid.; see Merrill v. Normandie Corp. (1930) 110 Cal.App. 621, 623 ["the question of the weight of evidence and the question of upon whom rests the burden of proof become purely academic when the trial court has found upon substantial evidence that the essential facts have been proved"].)
Here, substantial evidence supported the juvenile court's finding that placing M.C. with S.L. and Sh.L. was not in M.C.'s best interest. Further, we emphasize, the juvenile court stated its decision was based on all of the evidence, not just the evidence produced by S.L. SSA produced the Section 366.26 Report, the Addendum Report, Chilton's testimony, and Dr. Rogers's report and testimony.
The juvenile court in this case faced an unusually difficult decision. The court readily acknowledged that SSA did not timely do what it was supposed to do and that, had SSA assessed S.L. and Sh.L. earlier, M.C. likely would have been placed with them. The court found S.L. to be a "nice man" and found his testimony to be "compelling." It is perhaps unfortunate that S.L. and Sh.L. did not seek placement at or before the dispositional hearing or that SSA did not evaluate them earlier. "The overriding concern of dependency proceedings, however, is not the interest of extended family members but the interest of the child." (Lauren G., supra, 148 Cal.App.4th at p. 855.) Even if the relative preference applies, it does not "overcome the juvenile court's duty to determine the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 320.) "[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (Id. at p. 321.)
The juvenile court did not abuse its discretion by concluding that changing placement was not in M.C.'s best interest. The juvenile court's explanation, on the record, of its findings demonstrated patience and wisdom.
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the juvenile court to comply with ICWA notice and inquiry procedures. If M.C. is determined to be an Indian child, the juvenile court is ordered to conduct a new hearing under section 366.26 in accordance with the provisions of ICWA. If, after proper inquiry and notice by SSA, no response is received from the tribe or the Bureau of Indian Affairs, or it is determined that M.C. is not an Indian child, the juvenile court shall reinstate its order terminating parental rights, which in all other respects is affirmed. The order denying S.L.'s section 388 petition requesting placement of M.C. is affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.