Opinion
E081080 E081096
03-26-2024
In re E.B., a Person Coming Under the Juvenile Court Law. v. K.C., Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.B., Defendant and Appellant.
Christy C. Peterson, under appointment by the Court of Appeal, for Appellant K.C. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant E.B. Tom Bunton, County Counsel, Joseph R. Barrell and Tiffany Lok, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from the orders of the Superior Court of San Bernardino County, No. J285893 Lynn M. Poncin, Judge. Affirmed.
Christy C. Peterson, under appointment by the Court of Appeal, for Appellant K.C.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant E.B.
Tom Bunton, County Counsel, Joseph R. Barrell and Tiffany Lok, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendants and appellants K.C. (Aunt) and E.B. (Father) appeal from the orders denying Aunt placement of El.B. (Minor). Aunt requested placement of Minor pursuant to Welfare and Institutions Code section 361.3, subdivision (a), after Minor was removed from the care of Father and Minor's mother Er.B. (Mother; collectively, Parents). Minor had been placed in the foster home of Mr. and Mrs. M. (Caregivers) in July 2020 when he was initially removed from Parents. Father advised plaintiff and respondent San Bernardino County Children and Family Services (the Department) and the juvenile court that he sought to have Minor placed with Aunt almost two years after Minor had been detained and Father's reunification services had been terminated. The Department recommended to the juvenile court that Minor be placed with Aunt. The juvenile court held a hearing on relative placement, receiving testimony from Aunt and considering testimony previously given by Caregivers. The court denied the placement request and denied Aunt's subsequent section 388 petition seeking placement of Minor. Father's parental rights were terminated at a section 366.26 hearing and Minor was freed for adoption by Caregivers.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, Aunt and Father contend the juvenile court erred by refusing to place Minor with Aunt after the relative placement hearing. Aunt further contends the juvenile court erred by summarily denying her section 388 petition without ordering an evidentiary hearing.
We acknowledge the Department agrees with Aunt and Father that the juvenile court abused its discretion by denying placement with Aunt after the placement hearing. The Department disagrees with Aunt that a hearing on her section 388 petition should have been granted because Aunt was afforded a full hearing on placement and no new issues were raised in the section 388 petition. While we acknowledge the concession, the juvenile court's decision to deny placement with Aunt after an extensive hearing on the issue was not an arbitrary or capricious abuse of its discretion. As such, we affirm the juvenile court's orders.
FACTUAL AND PROCEDURAL HISTORY
Father and Aunt filed separate appeals in case Nos. E081096 and E081080, respectively. Aunt also filed an appeal in E081426 from the denial of the section 388 petition, which was consolidated with case No. E081080. The record in case No. E081426 was placed in the record of case No. E081080. This court consolidated the appeals in case Nos. E081096 and E081080 for both oral argument and decision. We designated case No. E081080 as the master file.
A. SECTION 300 PETITION AND DETENTION
Minor was born in July 2020. Minor was immediately detained by hospital staff based on Mother being under the influence of opioids and suffering from untreated schizophrenia. Mother threatened to kill herself, tore up her hospital room, and was psychotic. Mother had a history of mental illness, substance abuse, and domestic violence. Mother reported domestic violence between her and Father. Father advised the Department that he was the biological father of Minor. He also reported that he had a significant criminal history including a rape conviction from 1979 and a burglary conviction for which he was sentenced to a 60-year term but had been paroled. He had to wear a GPS ankle monitor because he was a registered sex offender in California based on the rape conviction.
The Department filed a section 300 petition, which alleged against Father that he and Mother engaged in domestic violence, he had a substance abuse problem, he failed to provide a safe and appropriate living environment for Minor, and he was a currently registered sex offender. Minor was detained and, as of the filing of the jurisdiction report on July 29, 2020, had been placed with Caregivers. Father submitted a family find form on July 13, 2020. He listed paternal grandmother B.S. (PGM) as his first choice for placement. His second choice was paternal aunt B.B. He also listed two other paternal aunts, V.S. and D.B.
B. JURISDICTION/DISPOSITION ON SECTION 300 PETITION
In the jurisdiction/disposition report, and in an addendum report, the Department recommended that the court dismiss some of the allegations against Father including substance abuse, domestic violence, and that he failed to provide support for Minor. It recommended that the remaining allegations be found true. The social worker recommended no reunification services for Mother, but stated in the addendum report it was in Minor's best interests to allow Father the opportunity to reunify. A.B., a relative who lived in Fresno, wanted to be considered for placement. Relative assessments were being completed for B.B. and D.W., a paternal cousin.
On October 29, 2020, the Department provided an update. PGM had not been assessed for placement as she needed to provide additional information. D.W. wanted to be assessed for placement but needed to provide additional information. Father wanted Minor placed with PGM if he could not regain custody. Caregivers were granted educational rights for Minor on December 14, 2020.
Caregivers submitted a caregiver information form on December 29, 2020. Minor was thriving in their home and had a stable attachment to them. Minor was content when he was being held by Caregivers. Their other children "adored" Minor. Caregivers provided photographs of Minor. Caregivers submitted a de facto parent request, which was granted on January 13, 2021.
The contested jurisdiction/disposition hearing took place on January 13, 2021. The court dismissed allegations against Father regarding domestic violence and drug use; and made true findings on the allegations against Mother, as well as the allegation that Father was a registered sex offender. The juvenile court declared Minor to be a dependent, found Father to be the presumed father, and removed custody of Minor from Parents. The juvenile court denied reunification services to Mother but found it would be in Minor's best interests to provide Father with reunification services. There was no update as to relative placement.
C. STATUS REVIEW REPORTS ON THE SECTION 300 PETITION
The six-month status review report was filed on July 1, 2021; it recommended that Minor remain with Caregivers and that Father's reunification services be continued. The report provided that no relatives were being assessed for placement of Minor. Father identified his sister, D.B. as part of his safety permanency support system. Mr. M. was critical of Father's visits with Minor. The Department was concerned that Mr. M. was "hindering on some level" the reunification efforts of Father. No relatives had been visiting with Minor. The Department was not recommending that Minor be returned to Father's care at the hearing, as Father needed to complete reunification services, including individual therapy and parent-child interactive therapy. At the review hearing, the juvenile court continued services and ordered additional visitation.
In the 12-month review report filed on August 10, 2021, the Department recommended continued reunification services for Father while he completed his therapy. No relatives were being assessed for placement and none were visiting with Minor. Caregivers wanted to adopt Minor if reunification failed. Father's reunification services were continued.
Caregivers provided information on Minor to the juvenile court on December 17, 2021. Minor was affectionate with them and called them "mama" and "dadda." He had bonded with their four children who were in the home. Caregivers reported that Minor did not willingly go with Father during visits. After the visits, Caregivers reported that Minor would be irritable and cried easily. Caregivers reported that Minor was very bonded to them.
The 18-month review report filed on December 22, 2021, recommended continued reunification services. The Department stated that the Father had again identified D.B. and T.B., who both lived in Colorado, for possible placement of Minor should Father not reunify. No other relatives were being evaluated. The Department was requesting to initiate an ICPC for placement with D.B. should Father not reunify. The social worker noted that Caregivers may have consciously or subconsciously been sabotaging Father's efforts to reunify as they wanted to adopt Minor. It was further reported that Caregivers sent pork products with Minor to visits, despite being aware Father is Muslim. Father indicated that Minor called him" 'dada.'" Caregivers reported that Minor had strong attachments to their other children in the home.
ICPC is the acronym for the Interstate Compact on the Placement of Children. It is a statutory agreement between states that governs the placement of children from one state to another state. (In re C.B. (2010) 188 Cal.App.4th 1024, 1031-1032)"' "The purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children." '" (Id. at p. 1032; Fam. Code, § 7901.)
The social worker felt that Minor should be moved to a new foster home to facilitate reunification. The social worker was concerned that Caregivers were not respecting Father's religion and culture. The social worker also noted that there may be family out of state who could take Minor that had yet to be explored. The social worker recommended six additional months of reunification services and eventual return home to Father on a family maintenance plan.
At the 18-month review hearing, the court adopted the recommendations of the social worker regarding visitation, ordering unsupervised visits a minimum of one time each week, with authorization to increase the frequency and duration of visits to include overnights and weekends. The request to initiate an ICPC was granted. The matter was continued.
The Department sent notice to Caregivers that Minor would be removed from their care on February 5, 2022, based on a verbal altercation involving Father and Mr. M. during visitation. A security guard had to intervene and it was reported that Mr. M. was the aggressor in the incident. In order to facilitate reunification, the removal of Minor was recommended by the Department. Caregivers objected to the removal.
On February 10, 2022, the social worker submitted a first addendum report recommending that Minor be returned to Father under a family maintenance plan. The social worker noted that Minor appeared to know Father was his parent, calling him "dada," and was developing a strong bond with Father. The report also provided there was an additional incident involving Mrs. M. and Father. Father complained that Mrs. M. had grabbed Minor off his lap and he felt disrespected. Caregivers provided a caretaker form on February 22, 2022. They were willing to provide a safe, permanent home if reunification failed. In the prior 19 months, they had facilitated visits with Father, which involved over a one-hour drive each way, and they had done this approximately 100 times. They were devastated whenever Minor was out of their care and visiting Father.
On February 24, 2022, a contested 18-month review hearing was held. Mr. M. testified at the hearing. He stated he and Mrs. M. had three biological children and they had adopted a child from Ethiopia. Minor had lived in their home since he was six days old. Mr. M. testified regarding visits with Father and the interactions with Father. Mr. M. also testified that he gave his word that he would abide by the food restrictions that Father had requested. Father testified regarding his bond and visits with Minor. Father identified that he had sisters and brothers who were part of his support system. At the conclusion of the hearing, the juvenile court ordered Minor returned to Father under a family maintenance plan. Minor remained in Father's care for just 56 days.
D. SECTION 342 AND 387 PETITION
The Department filed a section 342 and 387 petition providing that Minor was detained from Father on April 7, 2022. It was reported by the Department that Father was under the influence while caring for Minor and left drug paraphernalia (crack pipes and two empty baggies) within the reach of Minor placing Minor at substantial risk of serious physical harm. Father admitted to using the drugs. Father reported that he used because he was "overwhelmed" caring for Minor. Father stated that even though family and friends had advised him they would help him, they had not been there for him. The section 342/387 petition alleged that Father's substance abuse put Minor at substantial risk of harm.
On April 12, 2022, the juvenile court ordered that Minor be detained and placed in a foster home that was not Caregivers' home. The juvenile court set the matter for a jurisdiction/disposition hearing for consideration of placement with Caregivers.
The jurisdiction/disposition report was filed on April 29, 2022. It was recommended that Minor be placed in out-of-home care and that Father be denied reunification services. Minor had been placed in foster care and was not returned to the care of Caregivers. Father had received almost two years of services but this did not keep him from placing Minor at risk of harm. Minor was reported to be a "happy toddler."
The Department listed its consideration of relative placements. The social worker had spoken to B.B. who was married to one of Father's brothers. She was unable to care for Minor. PGM was ruled out as a potential placement based on the fact she was 82 years old and had health problems; PGM objected and wanted to be considered. Maternal grandmother A.S. (MGM), was being assessed as she was willing to adopt Minor. The Department did not recommend that Minor be placed with Caregivers based on the history with Father. The Department maintained that Caregivers had disrespected Minor's culture. The Department recommended a section 366.26 hearing be set to terminate parental rights.
The jurisdiction/disposition hearing on the section 342/387 petition commenced on May 17, 2022, spanning three days, with testimony from Father, two social workers, and Caregivers. Present at the hearing was MGM, maternal great-aunt D.L., PGM, and D.B. At the outset, the Department provided that it was seeking to terminate Father's parental rights and have PGM ruled out for placement; it did not want Minor placed with Caregivers. Father testified. He was currently in custody. He testified about the events surrounding him using drugs while caring for Minor.
A social worker testified that she handled the dependency until Minor was placed with Father on a family maintenance plan. The social worker did not want Minor placed with Caregivers because they showed "aggression" to the Department. She later clarified the aggressive interactions were between Mr. M. and Father and were not observed by her but were reported by security at the visitation facilities. She also referred to an incident when Minor had been with Father for an overnight visit. Minor was then returned to Caregivers and they took him to the hospital. Caregivers complained Minor was dirty and accused Father of abuse based on marks found on his arms. The social worker never saw the marks so was not sure if they could have been signs of abuse by Father. The social worker felt Caregivers had an ulterior motive for taking Minor to the hospital. The social worker felt that Caregivers were "so invested in adopting" Minor that they lost sight of their role as foster parents. She believed that Caregivers cared more about "winning" Minor than reunification with Father.
The social worker stated that Caregivers did not have anything positive to say about Father. She surmised in the future they may tell Minor when he misbehaved," 'Oh, you're just like your father. Oh he was not good.'" She also complained that Mrs. M. stormed out of the meeting after she was advised that the Department wanted to move Minor to be closer to Father to increase visitation. The social worker admitted not observing aggression by Mr. M.; it was based on reports from security. She did not ask Mr. M. about the incidents. She was not sure whether Caregivers had been advised not to give pork to Minor for religious reasons.
The social worker who took over the case after Minor had been in the care of Father on a family maintenance plan, stated that there had not been a full assessment of potential relatives who could take Minor. It was not in Minor's best interests to return to the care of Caregivers if Minor was going to be in a permanent placement with relatives. She was also concerned about the animosity that Caregivers had toward Father and surmised it could impact Minor as he got older. MGM was still being assessed for placement. A maternal aunt, A.B. had not passed an emergency assessment. A maternal cousin, B.A. reached out that day regarding placement. The social worker was told there were other potential paternal relatives in Colorado but they had not reached out to the Department. The social worker had not spoken with Caregivers about their behavior. The social worker acknowledged that Caregivers had adopted another child from Ethiopia. The social worker had no knowledge of the type of care that Caregivers had provided to Minor throughout his lifetime. Minor was developing as a normal toddler and had no reported aggression issues.
Mrs. M. also testified. Minor came to their home when he was six days old. Caregivers had three biological children and an adopted child from Ethiopia. Mrs. M. had taken measures to address the particular needs of their adopted child from Ethiopia. A large part of their adopted child's culture was participation in the Eastern Orthodox Church and the entire family had gone to the church and participated in different traditions. Mrs. M. learned to cook food from Ethiopia. When they agreed to be foster parents for Minor, they were advised by the Department that he would very quickly be eligible for adoption. It was important to her that Minor had a positive understanding of Father. Caregivers had provided over 150 photographs of Minor to Father during the dependency so he could see the everyday moments of Minor's life. She and Mr. M. never discussed, with Minor, their interactions with Father.
Mrs. M. felt sad for what had happened to Father but was committed to caring for Minor. Mrs. M. was committed to talking to Minor about Father. Mrs. M. was upset when she was advised by the social worker that Minor was being removed from their care. She felt that they were not given a good reason for the removal. She did not slam the door when she left the meeting and did not aggressively take Minor from Father. Each of the children in their home loved Minor. Mr. M. was not an aggressive person. Once she was advised that Father did not want Minor given pork products, they stopped giving him pork.
Mr. M. also testified. He and Father did not have a negative relationship. He monitored visits between Minor and Father for 10 months without any incidents. Mr. M. had a positive view of Father in his efforts during visitation. He described the incident at the visitation facility between him and Father. He had approached Father and they discussed that Caregivers had hired a lawyer. Father raised his voice and said that Minor was not up for adoption. Mr. M. insisted he told Father just to enjoy his visit with Minor and walked away. He had tried to obtain security video to show the interaction to the Department but that request was denied. He was not aggressive during the interaction. After the first overnight visit with Father, Minor was very congested, he was dirty, and he had an abrasion under his arm. They were concerned and took him to the hospital. They were advised by their attorney and family doctor to get medical attention for Minor. Mr. M. had researched the culture relating to their adopted child from Ethiopia.
Mr. M. had transported Minor on the hour-long trip to visits approximately 100 times. Caregivers just wanted to provide a loving home for Minor. He would be loved every day of his life. Father consistently thanked Mr. M. for loving his son and taking good care of him.
The parties stipulated as to the testimony of PGM and D.B. PGM was willing to take custody of Minor and no longer suffered from health problems. D.B. was also willing to take Minor but had a criminal conviction. She was planning to move to California. An exhibit containing photographs of Minor that were provided to Father was admitted into evidence.
At the conclusion of evidence, the parties argued regarding disposition. Minor's counsel requested that Minor be placed back with Caregivers. Minor's counsel was "disappointed" by the treatment given to Caregivers by the Department. All of the accusations of mistreatment of Father or hindering of reunification had been addressed and were "defunct" based on the testimony heard by the juvenile court. Further, Caregivers had demonstrated that they know how to care for a child with a different cultural identity. Counsel for Caregivers argued the reports of the Department did not accurately represent the situation in the case. The Department provided no guidance on Minor's faith. Caregivers never impeded reunification. The Department requested that Minor not be placed with Caregivers. They had not made any changes to their behavior. The Department requested an ICPC for D.B., who lived in Colorado. The Department wanted authority to place Minor with relatives. Father objected to Caregivers caring for Minor. Counsel for Caregivers stated it was in Minor's best interest to return to the home where he had lived a majority of his life.
The juvenile court found the allegations of the section 342/387 petition to be true. On June 7, 2022, the court resumed the disposition hearing, finding that the previous disposition had been ineffective in the protection of Minor, and removed custody of Minor from Father. The court then terminated services to Father and set a hearing pursuant to section 366.26 to select and implement a permanent plan for adoption.
As for disposition, the juvenile court noted it had observed the testimony of the witnesses and assessed their credibility. Caregivers appeared calm and collected, and not argumentative. Mrs. M. had a good memory of the timeline of the events in the case; the social worker did not appear to remember the events. The juvenile court found Caregivers credible when they said their only goal was to love and nurture Minor. The juvenile court commended Caregivers for providing photographs to Father. The juvenile court questioned whether the Department had done any investigation into whether Caregivers could be safe and proper parents. The juvenile court was "struck" by the fact that Caregivers appeared to have done everything that was in the best interest of Minor. They did not hinder the reunification process. There was clearly a bias by the Department against Caregivers.
The juvenile court placed Minor back with Caregivers as it was in Minor's best interest to be returned to the only home he had known for two years. The juvenile court disagreed as to how Caregivers were portrayed in the Department reports. PGM was ruled out for placement. The juvenile court granted the authority for the Department to assess relatives, including an ICPC in Colorado for D.B. Placement with a relative would necessitate another hearing.
E. PROCEEDINGS INVOLVING AUNT
On September 21, 2022, the juvenile court was contacted directly by Aunt through a letter sent to the court. She advised the juvenile court that she wanted to become Minor's guardian. She had an adult child and two minor children. She sought to provide Minor with a safe and stable home. She claimed to have known that Minor was born but only recently became aware of the court proceedings after Father contacted her to take care of Minor. She claimed to have had video visits with Minor since July 2022.
The section 366.26 report filed on October 3, 2022, stated that as of July 5, 2022, Father was living in an apartment in Texas. Father requested that the Department assess Aunt for placement of Minor. Aunt was aware of the proceedings involving Minor based on social media but believed that Minor had been in Father's care. A few months prior, she was advised that Father did not have custody of Minor. Aunt had "watched" Minor from afar and realized he would need a permanent home. She was willing to adopt Minor.
It was reported that Minor was meeting all of his developmental milestones while in the care of Caregivers; he was a happy toddler. Aunt had been consistent in attending video visits with Minor. The social worker requested additional time to complete an assessment of Aunt. An update was filed on February 2, 2023. A home study was in process for Aunt. Aunt had two in-person visits with Minor and the visits went well.
A caregiver information form was filed by Caregivers on January 26, 2023. When Minor was returned to them in June 2022, he transitioned back to their care quickly. He was sleeping, eating, and interacting with them. He was aggressive with the other children at first but has since adjusted. Minor initially wanted to be held constantly by Caregivers but had transitioned to wanting to walk on his own. Minor was very active and thriving in their home. They requested prospective adoptive parent designation.
On February 17, 2023, the Department filed a notice of special hearing regarding the pending ICPC application requesting to place Minor with Aunt. An addendum was filed on February 28, 2023, that Aunt's home had been approved. The Department was requesting placement of Minor with Aunt. Another addendum report was filed on March 21, 2023. Minor had an overnight visit with Aunt. Aunt reported that the visit went well. The next morning, when Caregivers picked up Minor, he did not want to leave and tried to go in Aunt's car. The Department recommended placement with Aunt so Minor could maintain his cultural connections and family history.
A hearing was held on April 10, 2023, regarding placement with Aunt. The parties stipulated that if Father were called to testify, he would request Minor be placed with Aunt. Aunt testified. She was Father's sister and lived in Colorado. She wanted to adopt Minor. Aunt had two in-person visits with Minor and one overnight visit. She had been having video visits during the prior nine months. Aunt insisted that Minor was connected "very closely" with her and her children. She indicated that Minor did not want to leave her after the overnight visit. She was willing to honor Father's Muslim religion in raising Minor. Aunt's first visit with Minor was in June 2022. She insisted she first became aware that Minor was in need of placement in June 2022. Counsel for Caregivers requested that the juvenile court rely on their testimony from the previous hearing.
Minor's counsel requested placement with Caregivers. There was no relative placement guarantee at this point in the proceedings. Father did not request that Aunt be assessed until two years after the case was initially filed. Aunt was aware of the case through social media. Aunt was required to come forward in a timely manner. Moreover, the juvenile court must consider what was in Minor's best interest. Minor already had a family where he had been placed a majority of his life; he had a sibling who was adopted from Ethiopia and Caregivers were well acquainted with the cultural issues. Aunt started visiting late in the case and the relationship with Minor was not comparable to his relationship with Caregivers. Counsel for Caregivers argued that taking Minor away from the only home that he had known "would be [a] tremendous emotional disaster" for Minor. The Department argued that the juvenile court should take into account the racial and cultural factors in this case. The Department again argued that Caregivers had acted aggressively and acted inappropriately.
After hearing testimony and argument, the juvenile court noted that Minor had been born in July 2020. The juvenile court recounted the lengthy history of the case. Aunt came to the attention of the Department after the disposition and termination of reunification services pursuant to the section 342/387 petition. As such, the juvenile court noted that it was relying on In re Amber G. (2022) 86 Cal.App.5th 456 (Amber G.), which applied after the termination of reunification services. After the termination of reunification services, the focus shifted away from relative placement and toward promoting a permanent and stable environment for Minor. The juvenile court noted the determination of placement with either non-relatives or relatives was oftentimes a "difficult and deeply factual question."
The juvenile court believed that relatives who want placement must come forward in a timely manner and stay informed on the status of the case. The juvenile court referred to the testimony over numerous days by Caregivers. Minor had spent almost his entire life in their custody. Caregivers had been addressing the cultural issues involved in the case. Caregivers had adopted a child from Ethiopia and they planned to instill in that child and Minor their cultural backgrounds. Aunt stated she had been aware of Minor's birth but had not come forward for two years. The juvenile court's sole focus was what was in Minor's best interest.
The juvenile court agreed with counsel for Caregivers that it would be an "emotional disaster" to remove Minor from the care of Caregivers and place him in the care of Aunt. The juvenile court acknowledged this was a "devastating" result for Father and his family. The juvenile court denied the request for Minor to be placed with Aunt and kept Minor in the custody of Caregivers. The juvenile court also granted the request by Caregivers to be named the prospective adoptive parents.
Aunt and Father filed notices of appeal from the placement hearing.
F. SECTION 388 PETITION
On May 9, 2023, Aunt filed a 388 petition. Aunt requested that she be granted a "meaningful" hearing regarding relative placement and that the juvenile court reverse its order denying her placement of Minor. Aunt contended that the Department did not notify paternal relatives that Minor was in the foster system until six months after his removal in January 2021. PGM and D.B. were contacted but they understood from the Department that Minor had to be placed with relatives in California. At the end of May 2022, Father contacted Aunt about taking custody of Minor. This was the "first time" Aunt was informed that Minor was in the foster system. Aunt believed that Father had custody of Minor up until that time and that Minor had only been removed from Mother's care. Aunt was unprepared for her testimony at the previous hearing. She had additional evidence to present to the court. Aunt continued visits with Minor. It was in Minor's best interests to be placed with Aunt. Minor had a bond with Aunt and the rest of the family.
Aunt included exhibits with the petition. D.B. and PGM declared that they were advised by a social worker at the Department in January 2021 that since they lived in Colorado, Minor could not be placed with them. They had consistently attended hearings. Aunt also provided a declaration. Aunt insisted that she did not know that Minor needed placement until May 2022. She was initially advised by the Department that since she lived in Colorado, she could not get placement of Minor. She consistently visited with Minor via video and in person. She provided photographs of family visits. The juvenile court issued a written order on May 10, 2023, denying the petition based on the prior full hearing on the matter and there was no new evidence presented to support the petition.
Aunt filed a notice of appeal from the denial of the section 388 petition.
Father also filed an appeal from the termination of his parental rights at a subsequent section 366.26 hearing. This court, in a nonpublished opinion in case No. E081976, affirmed the juvenile court's order terminating Father's parental rights.
DISCUSSION
Father and Aunt both contend the juvenile court erred by denying Aunt's request for relative placement. Aunt further contends the juvenile court erred by denying her section 388 petition. The Department agrees with Aunt and Father that the juvenile court erred in denying placement with Aunt by failing to properly apply the relative placement preference in section 361.3 but insists that the denial of the section 388 petition was correct.
A. RELATIVE PLACEMENT AFTER TERMINATION OF PARENTAL RIGHTS
"At the outset of a dependency case, section 361.3, subdivision (a), requires [social services agencies] and the court to give 'preferential consideration' to a relative's request for placement, which means 'the relative seeking placement shall be the first placement to be considered and investigated.'" (Amber G., supra, 86 Cal.App.5th at p. 490.) "After the court terminates services, the applicable statutes reflect a shift in policy toward promoting a permanent and stable environment for the child." (Id. at p. 489; see also In re Stephanie M. (1994) 7 Cal.4th 295, 319 (Stephanie M.).)
"[T]he Legislature has carefully crafted a matrix of statutes to assist [child social services agencies] and juvenile courts with placement and removal decisions at all stages of dependency proceedings. Because a child's best interest evolves quickly, the legislators developed a spectrum of preferences (relative placement preferences, caretaker preferences, and prospective adoptive parent preferences). [Citations.] These statutorily created preferences are not to be automatically applied and should not be treated the same as evidentiary presumptions. To the contrary, the statutes discussing each preference require the consideration of multiple factors all dependent on an examination of evidence relating to the minor's current circumstances. Consequently, a reflexive approach that children are always better off with relatives is incompatible with the governing laws." (Amber G., supra, 86 Cal.App.5th at p. 489.)
The relative preference is applicable" 'after disposition only when a new placement is necessary.'" (In re D.P. (2023) 92 Cal.App.5th 1282, 1294.)" 'There is no relative placement preference for adoption.' [Citation.] Section 361.3 is replaced by the caretaker preference (§ 366.26, subd. (k)) and prospective adoptive parent preference (§ 366.26, subd. (n)).'" (Amber G., supra, 86 Cal.App.5th at p. 492.)
Section 366.26, subdivision (k)(1) provides, "Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child's emotional well-being." "The caretaker preference statute . . . 'applies to applications for adoption both before and after the termination of parental rights.'" (Amber G., supra, 86 Cal.App.5th at p. 494.) "[S]ection 361.3 assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application. . . . When reunification fails, . . . [S]ubdivision (k) assures a 'relative caretaker' who has cared for the child that, when parental rights are terminated and the child is freed for adoption, his or her application will be considered before those submitted by other relatives and strangers.'" (In re Lauren R. (2007) 148 Cal.App.4th 841, 857.)
In Amber G., the child was placed in the home of the foster mother at birth. The child remained with the foster mother until the parental rights were terminated and the child was freed for adoption. (Amber G., supra, 86 Cal.App.5th at pp. 480-481.) An aunt from Virginia came forward two months after the child was first detained. Neither parent identified her as a potential caregiver. (Id. at pp. 474-475.) An ICPC was started. The aunt only made a few phone calls to the child during the dependency proceedings but wanted to adopt the child. (Id. at pp. 476, 479-480.) The parental rights were terminated and the child was freed for adoption. Two weeks after this hearing, the ICPC for the aunt was approved and the social services agency recommended placement with the aunt. After a hearing, the juvenile court placed Minor with the aunt and the foster mother filed a writ petition. (Id. at pp. 481-489.)
The appellate court reversed the decision. It relied on the caretaker preference, reviewing the bond between the child and foster mother, and the bond with the aunt. The appellate court criticized the aunt for failing to bond with the child. It noted, "[The aunt's] failure to seek out any relationship with the child she wanted to have placement with, and later wanted to adopt, demonstrated a lack of understanding of the child's ability to form strong bonds at an early age and calls into question her parenting skills." (Amber G., supra, 86 Cal.App.5th at p. 503.) The appellate court noted there was a strong bond with the foster mother and "simply no evidence to support" the decision to remove the child from the only home he had known in his life. (Id. at p. 505.)
The placement of a dependent child is a decision committed "to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (Stephanie M., supra, 7 Cal.4th at p. 318.) "Custody determinations in dependency proceedings are 'committed to the sound discretion of the juvenile court,' and such rulings 'should not be disturbed on appeal unless an abuse of discretion is clearly established.' [Citation.] We will not disturb a custody determination '" 'unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (In re J.M. (2020) 44 Cal.App.5th 707, 718.)
Aunt, Father, and the Department rely on the relative placement preference in section 361.3 to argue the juvenile court erred by denying placement with Aunt. However, after the reunification period ends, that preference was no longer applicable, unless a new placement was being sought (§ 361.3, subd. (d)), which was not the case here. Further, Aunt did not come forward until after the reunification period had ended and was therefore not entitled to the relative preference. (See Maria Q. (2018) 28 Cal.App.5th 577, 595, discussing Isabella G. (2016) 246 Cal.App.4th 708, 723 [relative that came forward prior to disposition but was not approved until after the disposition was entitled to preference].) The proper assessment of whether Minor should be placed with Aunt was under section 366.26, subdivision (k).
Here, the Department had recommended that Minor be placed with Aunt and that she adopt Minor. The Department did not reference the caretaker preference, which requires it to assess whether Minor had substantial emotional ties to Caregivers and whether removal from that caregiver "would be seriously detrimental to the [Minor]'s emotional well-being." (In re Lauren R., supra, 148 Cal.App.4th at pp. 859-861.) However, the juvenile court repeatedly referenced Amber G., exercising its independent judgment as to whether Minor should be placed for adoption with Aunt or with Caregivers. (See Lauren R., at p. 861.)
Here, the juvenile court held two lengthy hearings regarding whether placement with Caregivers was appropriate, and then whether placement with Aunt for adoption was appropriate. The juvenile court reviewed Amber G. and the factors of relative placement, which applied after the disposition hearing at which Father's reunification services were terminated; the permanent plan was adoption. The juvenile court did not reach its decision to deny placement with Aunt in an arbitrary or capricious manner.
By the time that Aunt came forward to seek placement of Minor, the disposition hearing had been conducted and Father's reunification services had been terminated. Father was continuously asked throughout the dependency proceedings whether there were any relatives who could take placement of Minor. Father provided the names of numerous relatives, including PGM, D.B., D.W., and T.B. These relatives were never approved for placement. Father never provided Aunt as a potential placement for Minor until two years after the dependency had started and after the reunification period had ended.
There was some evidence of a bond between Minor and Aunt. Aunt had started video calls with Minor in July 2022 when Minor was already two years old. Aunt had two in-person visits and an overnight visit. The juvenile court assessed this bond but was concerned that Aunt had been aware of Minor since his birth and made no effort to have contact with Minor until July 2022. We further note that when Father had custody of Minor on family maintenance, he told the Department that his family and friends had ensured him they would support him. However, he became overwhelmed and they were not there for him. It was concerning that Aunt was not available to help Father with Minor while Father was caring for him.
We also note that Minor's counsel disagreed with the Department's recommendation that Minor be placed with Aunt. Minor's counsel noted that Father did not request that Aunt be evaluated until two years after the dependency had begun. Minor's counsel argued that relatives must come forward in a timely manner and Aunt admitted knowing of Minor's detention based on social media. Minor's counsel provided that one of Minor's siblings in the adoptive family had been adopted from Ethiopia and the family was well aware of cultural issues. Minor's counsel also noted that Aunt had started visits late in the process and did not have the relationship with Minor that Caregivers did.
By the time the hearing on the placement of Minor was before the juvenile court, it had already conducted the hearing regarding placement of Minor with Caregivers. The juvenile court observed the testimony of Caregivers. The juvenile court found that they were credible and that they showed no signs of aggression. The juvenile court further criticized the Department for failing to make any effort to assess the parenting of Caregivers. The juvenile court noted that Caregivers were sensitive to Minor's culture having already adopted a child from Ethiopia. The juvenile court commended Caregivers for providing photographs to Father so he could see Minor grow up. The juvenile court had already determined it was in Minor's best interests to be placed with Caregivers. The juvenile court focused on the fact that Aunt had not come forward until Minor was two years old. It adopted the language of counsel for Caregivers that it would be an emotional disaster to remove Minor and place him with Aunt. The juvenile court recognized that it was a "devastating decision" for Aunt and Father's family. Such decision was clearly supported by the evidence presented to the juvenile court and was not an abuse of the juvenile court's discretion.
Father argues that the order placing Minor with Caregivers was contrary to the legislative intent to place children with their relatives. Father refers to section 358, which requires a finding by the juvenile court as to whether the social worker exercised due diligence in conducting the investigation to locate relatives. This section reinforces the section 361.3 requirement that the Department search for relatives and assess them in good faith. As noted, section 361.3 was not the applicable statute to the case as Father's reunification services had been terminated and the permanent plan was adoption. Father did not provide Aunt's name to the Department until July 2022, which was after the disposition hearing. The juvenile court did not have to consider the relative preference in determining that Minor should remain with Caregivers and not be placed with Aunt.
We find no abuse of the juvenile court's discretion in denying placement of Minor with Aunt. (In re J.M., supra, 44 Cal.App.5th at p. 718.)
B. SECTION 388 PETITION
Aunt contends the juvenile court erroneously denied her section 388 petition requesting a new hearing, based on her failure to present new evidence. She insists that her hiring of an attorney and new information about Minor's long-term health and well-being warranted a new hearing.
"Under section 388, a [person] may petition to modify a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order." (In re K.L. (2016) 248 Cal.App.4th 52, 61 (K.L.)" 'There are two parts to the prima facie showing: The [petitioner] must demonstrate (1) [either] a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the [child].'" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
" 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (K.L., supra, 248 Cal.App.4th at pp. 61-62; see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
"The conditional language of section 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 807, fn. omitted.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M., supra, 7 Cal.4th at p. 317.)
"We review a juvenile court's decision to deny a section 388 petition without an evidentiary hearing for abuse of discretion." (K.L., supra, 248 Cal.App.4th at p. 62.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Aunt's alleged new evidence included that the Department failed to provide her notice of Minor's detention early in the case and misinformed paternal relatives. She also was not given the opportunity to provide evidence of the bond between her and Minor. She expressed concern that Caregivers would shut her out if they adopted Minor. Moreover, she had hired counsel. Aunt further argued it was in Minor's best interest to be placed with relatives, citing to various studies. She insists despite the juvenile court conducting a hearing on relative placement, and hearing her testimony, the evidence was incomplete.
Aunt acknowledges she had an opportunity to present this evidence but failed to do so. The Department also acknowledges that Aunt had the opportunity to present this evidence; this was not new evidence and there was no showing of a change in circumstances.
Aunt had the ability to hire counsel for the hearing and the juvenile court in no way restricted her ability to present evidence. Any failure to be prepared for the hearing falls to Aunt. The juvenile court was not required to further delay the proceedings so that Aunt could provide additional evidence in a piecemeal fashion. Aunt was given the opportunity to establish that she should have Minor placed with her, and the juvenile court found that the section 388 petition provided no new evidence that could not have already been introduced and that it had already determined placement with Caregivers was in Minor's best interest. The juvenile court properly summarily denied the section 388 petition.
Disposition
The juvenile court's orders are affirmed.
WE CONCUR: RAMIREZ, P. J., MENETREZ, J.