Opinion
D082610 D082948
04-18-2024
In re Bl.F. et al., Persons Coming Under the Juvenile Court Law. v. Bl.F. et al., Defendants and Appellants; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, Do.B. et al. Respondents.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendants and Appellants, Bl.F. and Ad.R. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant, Ad.F. Lianna Serobian, under appointment by the Court of Appeal, for Defendants and Appellants, Ro.F, Jo.F., and Ri.B. Leslie A. Barry, under appointment by the Court of Appeal, for Respondents, Do.B. and Jo.B. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Natasha C. Edwards, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County, Nos. NJ520438A-B Nadia J. Keilani, Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendants and Appellants, Bl.F. and Ad.R.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant, Ad.F.
Lianna Serobian, under appointment by the Court of Appeal, for Defendants and Appellants, Ro.F, Jo.F., and Ri.B.
Leslie A. Barry, under appointment by the Court of Appeal, for Respondents, Do.B. and Jo.B.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Natasha C. Edwards, Deputy County Counsel, for Plaintiff and Respondent.
BUCHANAN, Acting P. J.
In this juvenile dependency case, the minor children Bl.F. and Ad.R. (children), their mother Ad.F. (Mother), and their relatives Ro.F., Jo.F., and Ri.B. (Relatives) (together, appellants) appeal orders (1) granting the Welfare and Institutions Code section 388 petition filed by the children's de facto parents Do.B. and Jo.B. (De Facto Parents) for an order placing the children with them and (2) denying the section 388 petition filed by the children for an order placing them with Ro.F. and Jo.F. On appeal, the appellants contend: (1) the San Diego County Health and Human Services Agency (Agency) did not comply with its obligations under section 309 to conduct an investigation to identify and locate all adult relatives of the children within 30 days of their removal from Mother's custody; (2) the court erred by not applying the section 361.3 preference for placement of the children with relatives; (3) the court erred by finding that the best interests of the children were to remain placed with De Facto Parents and not be placed with Relatives; and (4) the court erred by allowing counsel for De Facto Parents to object to evidence offered at the contested hearing on the parties' section 388 petitions. For the reasons discussed below, we affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2020, Bl.F., then two years old, and Ad.R., then 10 months old, were living with Mother in her car. Mother left the children with a caregiver without provisions for their care and support and failed to return at the appointed time. The following day, the caregiver took the children to the maternal grandmother, who was unable to care for them. The children had unexplained marks and bruises. The maternal grandmother was concerned that Mother was using methamphetamine and leaving the children with caregivers who were not well known to her or the family. Thereafter, the Agency was contacted and attempted to create a safety plan for the children with Mother and the maternal grandmother. Mother was uncooperative, became hysterical, and was arrested by police on an outstanding warrant.
Jo.R., the children's father (Father), was imprisoned in another state at that time and was not in contact with Mother or the children. Father is not a party to this appeal.
In late June, the Agency filed dependency petitions alleging that the children came within the jurisdiction of the juvenile court within the meaning of section 300, subdivision (b)(1). At the detention hearing, the court found that the Agency had made prima facie showings on its petitions, detained the children out of the home, and ordered supervised visits for Mother with the children.
In its jurisdiction and disposition report, the Agency recommended that the court sustain its petitions, place the children out of the home, and order reunification services and visitation for Mother. The Agency was unable to locate Father. It sent relative notification letters to the maternal grandmother, paternal grandfather, and paternal great-grandfather. Mother told the Agency that she had three siblings, Ro.F., Ri.B., and Jo.B., but she was not close to them. Although Mother wanted the children to be placed with the maternal grandmother, the maternal grandmother was caring for her adult disabled son and withdrew her request for placement of the children.
At the November contested jurisdiction and disposition hearing, the court sustained the petitions, placed the children in a licensed resource home, and ordered reunification services and supervised visitation for Mother. The court found that no relative was available who was able and willing to care for the children. It ordered Mother to disclose the names and contact information for any known relatives.
In a prior appeal by Mother, we affirmed the juvenile court's November 2020 jurisdictional and dispositional findings and orders.
In its six-month review hearing report, the Agency stated that Mother remained homeless and had only sporadically visited with the children. She had not participated in reunification services and was not in regular contact with the Agency. The Agency could not locate Father. The children had been moved from their initial resource home to another resource home because of a bruise that Ad.R. had sustained on his cheek. Bl.F. had received a diagnosis of autism spectrum disorder (ASD) and had begun receiving services for that disorder. Ad.R. also received services for certain developmental concerns and was making progress due to consistency, structure, and routine.
In June 2021, at the contested six-month review hearing, the court terminated Mother's reunification services, placed the children in a licensed resource home, and set a section 366.26 permanency planning hearing.
In its section 366.26 report, the Agency stated that in early August its social worker had spoken with Ro.F., the children's maternal aunt who resided in South Carolina, and asked her whether she was interested in placement of the children. Three weeks later, Ro.F. asked to be evaluated for placement of the children because she wanted to adopt them. The social worker informed her that the Agency would start the Interstate Compact on the Placement of Children (ICPC) process for such an out-of-state placement, but would move the children to a new resource home in the interim. In early September, Ro.F. met the children for the first time. One week later, the children were moved to the home of De Facto Parents.
At that time, De Facto Parents were a resource family. In February 2023, they were designated as the children's de facto parents.
In mid-August, the Agency located and contacted Father in another state. He wanted custody of the children. In September, the court found Father to be the children's presumed father. In its section 366.26 report, the Agency recommended that the court continue the section 366.26 hearing for 120 days.
In September and October, Father filed a section 388 petition and amended section 388 petition, requesting that the court vacate its dispositional orders and instead order reunification services for him and/or placement of the children with him.
In mid-October, the court granted Father's section 388 petition, found placement of the children with Father would be detrimental to them, ordered reunification services for Father, vacated the section 366.26 hearing, and set an 18-month review hearing.
Also in mid-October, the Agency filed an ex parte application requesting an order for an expedited ICPC evaluation of the home of Ro.F. and her husband, Jo.F., for placement of the children. In mid-November, however, the ICPC evaluation process for Ro.F. and Jo.F. was terminated because they had not been in contact with the South Carolina agency.
In its 18-month review hearing report, the Agency stated that Mother's whereabouts were unknown. Father had not participated in reunification services or visitation. De Facto Parents wanted to adopt the children. The Agency recommended that the court terminate Father's reunification services and set a section 366.26 hearing.
On June 3, 2022, at the contested 18-month review hearing, the court terminated Father's reunification services and set a section 366.26 hearing.
In its new section 366.26 permanency planning report, the Agency stated that Ri.B. (the children's maternal uncle who lived in Florida) and the maternal grandmother had a positive visit with the children in the San Diego area in July. Shortly thereafter, Ri.B. told the Agency that the family agreed that Ro.F. and Jo.F. should obtain custody of, or adopt, the children. He explained that the family had been confused about the children's placement after Father was located and the focus shifted to reunification with him. The Agency reported that the children stated they wanted to live with the maternal grandmother. In late August, De Facto Parents filed a request for prospective adoptive parent status and de facto parent status.
In late September, on the Agency's recommendation, the court continued the section 366.26 hearing to allow completion of the ICPC evaluation for Ro.F. and Jo.F.
In its addendum report for the continued section 366.26 hearing, the Agency stated that the home of Ro.F. and Jo.F. was approved for placement of the children through the ICPC process on January 4, 2023. In January, the children told an Agency social worker that they wanted to live with Ri.B., talked about living with the maternal grandmother, and stated they liked living with De Facto Parents. The Agency recommended that the court place the children with Ro.F. and Jo.F., order transitional overnight visits for the children at the new home, terminate parental rights, and select adoption as the children's permanent plans.
In support of its recommendation for placement of the children with Ro.F. and Jo.F., the Agency submitted a section 361.3 assessment, which stated that Ro.F. and Jo.F. were aware of Bl.F.'s needs and services and had researched local services for him. Mother stated that she wanted the children placed with Ro.F. and Jo.F. Father also wanted the children to be adopted by them. Although Ro.F. and Jo.F. had not visited the children for the past two years, they planned future visits with them to ensure a successful transition. Ro.F. and Jo.F. wanted to adopt the children to provide them with stability. However, Ro.F. stated that they "couldn't be selfish and just do guardianship." Jo.F. rated himself at a 7 out of 10 in his commitment level to the children, while Ro.F. rated herself at 10 out of 10. They planned to support and maintain the children's cultural heritage. In contrast, the Agency reported that De Facto Parents both rated themselves at a 10 out of 10 in their commitment levels to the children. De Facto Parents wanted to adopt the children. The children had a positive attachment to them and referred to them as "mom" and "dad."
The Agency stated its opinion that it would be in the best interests of the children to be adopted by Ro.F. and Jo.F., noting that placement with their biological family would reduce the trauma to the children because they could share stories of their family heritage and culture and maintain connections with relatives. If not placed with Ro.F. and Jo.F., the Agency believed the children might lose their Spanish language and feel shame and guilt because of their differences with another adoptive family. It did not believe that a transition to the home of Ro.F. and Jo.F. would cause the children severe emotional distress.
In arranging a January overnight visit between the children and Ro.F. and Jo.F., one of the De Facto Parents (i.e., Do.B.) became upset when Ro.F. and Jo.F. wanted to change the drop-off location and stated: "I've had it with this family." The children were excited to see Ro.F. and Jo.F. and had a positive visit with them.
On February 15, 2023, the court designated De Facto Parents as the children's de facto parents.
In March, Ro.F. and Jo.F. had an unsupervised visit with the children that was positive. When the Agency informed Ro.F. and Jo.F. of the children's health and diagnoses, they were unaware of the children's specific needs (contrary to what the Agency had previously reported). De Facto Parents were concerned that the children would have a break in services if they were placed with Ro.F. and Jo.F.
On April 4, counsel for the children filed a section 388 petition, requesting an order placing the children with Ro.F. and Jo.F. The following day, De Facto Parents filed a caregiver information form in which they stated the children experienced increased dysregulation after visits with Ro.F. and Jo.F. They also stated their belief that it was not in the children's best interests to be placed with Ro.F. and Jo.F. The court found that Ro.F. and Jo.F. had made a prima facie showing in support of their petition's allegations and set the matter for an evidentiary hearing.
On May 17, De Facto Parents filed a section 388 petition, requesting an order specifically placing the children with them. They alleged that the children were bonded to them and had participated in services while in their care and their therapist opined that a move would be detrimental to them. At a May 22 pretrial status hearing, the court found that De Facto Parents had made a prima facie showing in support of their petition's allegations and set the matter for an evidentiary hearing. The court also approved a visit by the children with Ro.F. and Jo.F. at their South Carolina home.
In May, counsel for the children filed a statement of Bl.F.'s wishes. Bl.F. stated that he wished to live with the maternal grandmother, but loved De Facto Parents and Ro.F. and Jo.F. In late May, the children had a five-day visit at the South Carolina home of Ro.F. and Jo.F. After their visit, the children displayed increased behaviors, including screaming.
At the June 20 hearing, the Agency recommended that the court order a permanent plan of adoption for the children, grant the children's section 388 petition, and deny De Facto Parents' section 388 petition. The Agency identified Ro.F. and Jo.F. as prospective adoptive parents for the children. The Agency noted that De Facto Parents and the maternal family had a contentious relationship. During a video call between the children, Mother, and Ri.B. that was supervised by an Agency social worker, the children began physically fighting and De Facto Parents did not timely intervene. The social worker also observed that the children did not listen to the De Facto Parent (presumably, Do.B.) during a home visit and was therefore concerned with the caregiver's ability to safely manage the children. The court later authorized a three-week visit by the children with Ro.F. and Jo.F. in South Carolina.
Before the three-week visit in late July, an Agency social worker advised Ro.F. and Jo.F. that they needed to always be with and supervise the children when visiting with Mother and other maternal relatives. Ad.R. told the social worker that he wanted to live with Ro.F. and Jo.F. in South Carolina. Bl.F. equivocated on whether he wanted to live in California or South Carolina. Bl.F. told her that De Facto Parents spanked him when he was in trouble and, based on that report, the social worker submitted a child welfare hotline referral.
During the three-week visit, Ro.F. and Jo.F., with the Agency's permission, traveled to Florida with the children to visit Mother and other relatives for the weekend. Ro.F. and Jo.F. supervised a visit between the children and Mother. Two days later, the Agency social worker learned that Ro.F. and Jo.F. had left the children in Florida with Ri.B., their maternal uncle. When the social worker instructed Ro.F. that the children needed to be returned to her care immediately, Ro.F. went to Florida the following day and returned the children to South Carolina.
In an updated statement of wishes filed by the children's counsel in late July, Bl.F. referred to De Facto Parents as mom and dad and to Mother as mom. Bl.F. wanted to live with Jo.F. When the children's counsel spoke with Bl.F. while he was in South Carolina, however, he stated he wanted to go back to California to be with his mom and dad (i.e., De Facto Parents). Ad.R. wanted to live with Ro.F. and Jo.F. in South Carolina. Meanwhile, the children told the Agency social worker that they wanted to live in South Carolina with Ro.F. and Jo.F.
In early August, a contested evidentiary hearing was held on both section 388 petitions. The court received in evidence the Agency's reports and various exhibits offered by the children's counsel and De Facto Parents. The court also heard testimony from the Agency social worker, one of the De Facto Parents (i.e., Do.B.), Ro.F., Ri.B., and two of the children's service providers.
Do.B. testified that she and her husband had accepted placement of the children with the intent to adopt them. She was primarily responsible for the children's daily care. Bl.F. had a diagnosis of ASD and participated in therapy three times per week to help his behavior and coping skills. Ad.R. did not have any diagnoses and was developmentally on track. After they were placed with Do.B., the children's behavior improved over time. In the fall of 2021, after Ro.F.'s first visit with the children in August 2021, Ro.F. periodically contacted Do.B. about the children, but did not speak directly with them or request further visits with them. On Christmas Day in 2021, Ro.F. and Jo.F. had a five-minute video call with the children, but the children did not know who they were. Thereafter, Do.B. rarely heard from Ro.F. and Jo.F. from January through March 2022 and did not hear from them at all from April through September 2022. After a video call with the children in October 2022, Ro.F. and Jo.F. began to regularly contact the children.
Do.B. further testified that she never impeded contact between the children and the maternal relatives and instead tried to engage the children in their calls with the maternal family. She believed it was best for the children to maintain contact with their biological family. She believed that calls with the maternal family triggered behaviors by the children. Do.B. believed the children were bonded to her and stated that they referred to her as mom and Jo.B. as dad. For discipline, she never spanked the children, but instead used time outs, separated them, and took away items. Do.B. was confused about the children's ethnicity. She believed Bl.F. was African American and "Hispanic" and Ad.R. was "Hispanic" and Samoan. To facilitate learning about their culture, the children attended a daycare with a "Hispanic provider" and Bl.F. was on the waitlist for a Spanish immersion class. Do.B. had not asked the maternal relatives about the children's traditions or culture.
Ch.S., a behavior analyst, testified that she provided the children with applied behavioral analysis (ABA) services. In July 2021, Bl.F. began receiving services to address aggression and self-injury, which behaviors were extreme. Do.B. was an active participant in the ABA services. Do.B. ensured the children received consistent services and changed her work schedule to accommodate their appointments. Ch.S. believed that De Facto Parents successfully used the methods and skills taught through ABA services. When Bl.F. visited relatives and did not receive services, his behaviors increased. She believed that a change in homes would be significantly disruptive to Bl.F. It was important for Bl.F. to have consistency in adults. During the summer of 2022, she also provided ABA services to Ad.R. He improved on all areas, including aggression, self-injury, and fighting with Bl.F. Ch.S. testified that De Facto Parents acted in a parental way toward the children. They knew the children well and understood their needs by looking at them. They were firm, but not harsh, with the children. She stated that it takes "a very specialized set of adults and patience to navigate the challenging behavior that the boys have."
The Agency social worker testified that she had been assigned to the children's case in February 2023. From September through November 2021, there was not a lot of contact between the Agency and the maternal relatives. She was aware that Ro.F. had not returned a prior social worker's calls. In September 2022, the ICPC process was reinitiated for Ro.F. and Jo.F. The social worker had observed the children with De Facto Parents and noted their interactions were positive. She believed that the children were bonded to De Facto Parents. Although De Facto Parents did not ask her about the children's origin or culture, she provided Do.B. with ways to incorporate the children's culture into their daily lives. When Bl.F. stated that De Facto Parents spanked him, he was in a hotel room in Jo.F.'s care. Because the spanking allegation was still under investigation, she did not consider it in determining the Agency's assessment.
The children visited Ro.F. and Jo.F. in South Carolina from July 14 through August 6, 2023. On July 21, Ro.F. received the Agency's permission to take the children to Florida to visit Mother and maternal relatives and they left that day. Two days later, Ro.F. and Jo.F. returned to South Carolina without the children. Ro.F. and Jo.F. had planned to leave the children in Florida for one week despite being told they needed to stay with and supervise them at all times. The social worker advised Ro.F. that she needed to immediately retrieve the children because they should not have been left alone in Florida. The following day, Ro.F. retrieved the children. Although the social worker was initially concerned that Ro.F. and Jo.F. had left the children in Florida, she was no longer concerned after discussing the issue with them. Contradicting Ro.F., the children told the social worker that they did not have any contact with Mother in Florida. In assessing whether Ro.F. and Jo.F. could protect the children, the social worker did not consider the fact that they had left the children in Florida. She recommended that the children be placed with Ro.F. and Jo.F. Although the children would suffer short-term feelings of loss by moving to South Carolina and could suffer longterm grief, that loss would be lessened with the support of family. Also, if they were not placed with relatives, the children could suffer long-term effects, including issues with intimacy and abandonment, imprisonment, inability to sustain jobs, and feeling lost.
Ro.F. testified that she first met Bl.F. as an infant and then met Ad.R. in September 2021. In November 2021, she received the ICPC packet, but did not return it because Father was receiving reunification services. Although she received updates on the children from Do.B. in January 2022, she did not think to ask to talk with the children. She did not communicate with De Facto Parents in April 2022 because Father was receiving services and she backed away. In August, she had her first video call with the children. Do.B. helped with video calls by holding the phone for the children. Ro.F. testified that during the three-week visit with the children, she took them to Florida to visit Mother, the maternal grandmother, and siblings and to reunite under one roof. When she left the children with Ri.B., Mother was present. She had not spent the night at Ri.B.'s home.
Ro.F. testified that she was Mexican and Puerto Rican and Father was black and Samoan. She was familiar with Samoan culture because she attended a diverse school. Ro.F. wanted to adopt the children because they needed to know their family, they loved one another, and Mother was doing well so it was important to reunite the family. She understood that adoption would mean that the children would be Jo.F.'s and her children. She would not return the children to Mother even if she was doing well.
Ri.B. testified that when the children visited him in Florida, Mother did not spend the night in his home. Mother was in a program with a curfew and was not allowed to stay overnight at other places. If the children moved to South Carolina, he intended to continue his relationship with them.
On August 10, 2023, after considering the evidence and arguments of counsel, the court stated on the record the chronology of events in the children's cases. The court then found that both De Facto Parents and the children had met their burdens to show a change of circumstances in support of their section 388 petitions. It found that the section 361.3 relative placement preference did not apply in this case. It then found that the best interests of the children were to remain placed with De Facto Parents and not to be moved to a placement with Ro.F. and Jo.F., citing the children's needs for permanency and stability. The court alternatively found that, even assuming the section 361.3 preference applied, placement of the children with Ro.F. and Jo.F. was not appropriate. Accordingly, the court granted De Facto Parents' section 388 petition and denied the children's section 388 petition. The children, Mother, and Relatives each filed notices of appeal challenging the orders.
On October 31, 2023, we issued an order granting the parties' stipulated request to consolidate Relatives' appeal in case no. D082948 with the appeals of the children and Mother in case no. D082610 and directing that all documents be filed thereafter in case no. D082610.
DISCUSSION
I
The Agency's Failure to Timely Comply with Section 309
The appellants contend that the Agency did not comply with its obligations under section 309 to conduct an investigation to identify and locate all adult relatives of the children within 30 days of their removal from Mother's custody. The children argue that the Agency's failure to comply with section 309 caused the court to err by finding the section 361.3 relative placement preference did not apply. Mother also argues that because of the Agency's failure to comply with section 309, the children must be placed with Ro.F. and Jo.F. Relatives also argue that the Agency violated its obligations under section 309 by failing to consider Ri.B. for placement of the children.
A
Section 309 requires the Agency to, among other things, conduct an investigation to identify and locate all adult relatives of a child within 30 days of removal from a parent's custody. (In re S.K. (2018) 22 Cal.App.5th 29, 37.) If the court later removes the child from the parent's custody at the disposition hearing, the court shall make a finding as to whether the Agency exercised due diligence in conducting the investigation to identify, locate, and notify the child's relatives. (§ 358, subd. (b)(2); In re S.K., at p. 37.) If the court finds that the Agency has not used due diligence, the court may order the Agency to do so and require a written or oral report to the court. (Cal. Rules of Court, rule 5.695(e); In re S.K., at p. 38.)
Section 309, subdivision (e)(1) provides in part: "If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, other adult relatives of the child, as defined in paragraph (2) of subdivision (h) of Section 319, including any other adult relatives suggested by the parents .... The social worker shall provide to all adult relatives who are located . . ., within 30 days of removal of the child, written notification and shall also, whenever appropriate, provide oral notification, in person or by telephone, of all the following information: [¶] (A) The child has been removed from the custody of their parent or parents .... [¶] (B) An explanation of the various options to participate in the care and placement of the child and support for the child's family, including any options that may be lost by failing to respond.... [¶] . . . [¶] (3)(A) The social worker shall use due diligence in investigating the names and locations of the relatives ...."
B
At the August 10, 2023 hearing on the section 388 petitions, the court noted that the Agency had not reached out to Ro.F. and Jo.F. until one year after the children's jurisdiction and disposition hearing. It stated: "It was clearly a failure for the Agency to have gone so long without reaching out to these particular maternal relatives." In so stating, the court implicitly found that the Agency had not complied with its section 309 obligations to conduct an investigation to locate and notify all adult relatives, including the maternal aunt, Ro.F., within 30 days after the children's removal. However, the court further found that "from August 2021 onward," the Agency did not ignore, disregard, or fail to assess Ro.F. and Jo.F. It also found that "the Agency's efforts were stymied by [Ro.F.'s and Jo.F.'s] failure to cooperate with the ICPC process by not completing the necessary paperwork."
C
Based on our review of the record, we conclude, as the Agency asserts, the appellants have waived or forfeited their contentions on appeal regarding section 309 error by not timely raising them below. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 (Doers) [appellate court will ordinarily not consider procedural defects or erroneous rulings where objection could have been, but was not, presented to trial court; it is unfair to trial judge and adverse party to take advantage of error on appeal when it could have been corrected at trial]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 (Hinman) [same]; cf. In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642 (Anthony P.) [appellant waived right to assert error regarding sibling visitation by not properly raising issue below]; In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 (Riva M.).) Here, none of the appellants timely raised in the juvenile court the Agency's section 309 error after learning of that error, thereby depriving the Agency and/or the court of the opportunity to address that error and potentially take measures to cure it. The record shows that in September 2021 all appellants (except, possibly, Ri.B.) were aware of the Agency's belated efforts to locate and notify all adult relatives of the children pursuant to section 309 because the Agency contacted Ro.F. at that time to inquire whether she (and, presumably, her husband, Jo.F.) were interested in placement of the children. Likewise, Ri.B. became aware of the children's dependency cases no later than July 2022 when he and the maternal grandmother had a visit with the children. Yet, despite being aware of the Agency's dilatory action under section 309, none of the appellants raised that error at any of the subsequent hearings in the children's dependency cases that occurred over the two-year period leading up to the August 2023 contested hearing on the section 388 petitions. By failing to timely raise the Agency's section 309 error below, we conclude they have waived or forfeited that error and therefore cannot raise it on appeal. (Doers, at pp. 184-185, fn. 1; Hinman, at p. 1002; Anthony P., at pp. 641-642; Riva M., at pp. 411-412.)
Contrary to Relatives' assertion in their appellants' reply brief, we conclude that the Agency is not precluded from filing a respondent's brief that argues in support of the juvenile court's order denying the children's section 388 petition for placement with Ro.F. and Jo.F., despite the Agency's recommendation below that the court grant the children's section 388 petition. None of the cases cited by Relatives that relate to changes in trial theories support their assertion that the Agency is prohibited from arguing on appeal in favor of the court's order. (See, e.g., Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 [in general, theories not raised in trial court cannot be raised for first time on appeal].)
In particular, we note that although Mother appealed the November 2020 jurisdiction and disposition orders, she did not raise the issue of the Agency's noncompliance with section 309 or otherwise complain that it did not consider the children's adult relatives for their placement.
In any event, assuming the appellants did not waive or forfeit the Agency's section 309 error, we nevertheless conclude that they have not carried their burdens on appeal to show that they were prejudiced by such error. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [judgment may not be reversed unless it caused miscarriage of justice (i.e., appellant shows reasonable probability of more favorable result absent the error)].) Although the Agency did not conduct an adequate investigation to locate and identify all adult relatives of the children within 30 days of their removal in July 2020, we conclude that the record shows the Agency contacted all adult relatives, including Ro.F. in August 2021 and Ri.B. in July 2022, and, by so doing, belatedly complied with its obligations to locate and notify all adult relatives. As discussed above, at the August 2023 contested hearing on the section 388 petitions, the juvenile court found that "from August 2021 onward," the Agency did not ignore, disregard, or fail to assess Ro.F. and Jo.F. The court also found that after Ro.F. and Jo.F. were located and notified about the children's dependency cases in August 2021, Ro.F. and Jo.F. failed to cooperate with the ICPC process by not completing the necessary paperwork in late 2021. Specifically, in mid-November 2021 during Father's reunification period, the ICPC evaluation process for Ro.F. and Jo.F. was terminated because they had not been in contact with the South Carolina agency. Thereafter, Ro.F. and Jo.F. did not renew their interest in the children's placement until about July 2022. Likewise, the record shows that Ri.B. was aware of the children's dependency cases and even picked them up from De Facto Parents for a visit by the maternal grandmother and him in late July 2022, but he never sought placement of the children with him. Furthermore, the children's section 388 petition sought placement only with Ro.F. and Jo.F. and not with Ri.B. By not timely proceeding with the ICPC process and/or other actions to obtain placement of, or otherwise participate in the cases of, the children after receiving notice of their dependency cases, neither Relatives, the children, nor Mother can now show that they were prejudiced by the Agency's error in not initially complying with its section 309 obligations to locate and notify Ro.F., Jo.F., and Ri.B. Alternatively stated, the appellants have not carried their burden on appeal to show it is reasonably probable that if the Agency had complied with its section 309 obligations within 30 days after the children's removal, Ro.F. and Jo.F. (or Ri.B.) would have sought and obtained placement of the children. (Watson, at p. 836.) In any event, as the Agency asserts, to the extent the appellants argue the Agency's section 309 error was prejudicial in that Ro.F. and Jo.F. were not timely located and notified and therefore not considered for placement of the children, the juvenile court's finding that placement of the children with Ro.F. and Jo.F. was not in their best interests (as discussed below) necessarily precludes a finding of prejudicial error.Accordingly, we need not, and do not address, their arguments regarding the appropriate relief for that purported prejudicial error.
Although the Agency argues that Ri.B. does not have standing to appeal the juvenile court's orders granting De Facto Parents' section 388 petition and denying the children's section 388 petition, we conclude that Ri.B. reasonably argues that, as an adult relative entitled to notice under section 309, he is an aggrieved party with standing to appeal the orders.
Although Mother cites In re K.B. (2023) 97 Cal.App.5th 689 (K.B.) in support of her argument that the Agency's section 309 error requires placement of the children with Ro.F. and Jo.F., we conclude that K.B. is factually and procedurally inapposite to this case and therefore does not persuade us to reach a contrary conclusion. In particular, in K.B. the mother appealed the dispositional order and argued the agency in that case had not exercised due diligence to notify adult relatives for placement of the children. (Id. at p. 698.) Because the agency was in contact with the relatives but had failed to inquire of them about placement of the children, K.B. reversed the dispositional order and remanded the case for a new dispositional hearing to determine whether the agency had exercised due diligence under section 309. (Id. at pp. 700-701.) Accordingly, the procedural and factual circumstances in K.B. are significantly different from the circumstances in this case.
II
Court's Finding that Section 361.3 Relative Placement Preference Did Not Apply
The appellants contend that the juvenile court erred by finding that the section 361.3 relative placement preference did not apply in its determination of the section 388 petitions after reunification services for both Mother and Father had been terminated and the matter had been set for a section 366.26 hearing. We disagree.
A
Section 361.3, subdivision (a) provides: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative ...." (§ 361.3, subd. (a).)" 'Preferential consideration' means that the relative seeking placement shall be the first placement considered and investigated." (§ 361.3, subd. (c)(1).) The section 361.3 relative placement presumption "does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) The section 361.3 preference applies at the beginning of a child's dependency case and also after disposition and through the reunification period whenever a new placement of the child must be made. (§ 361.3, subd. (d); In re Maria Q. (2018) 28 Cal.App.5th 577, 595 (Maria Q.).) In exceptional cases, the preference may also apply after the reunification period "where the relative has made a timely request for placement during the reunification period and the child welfare agency has not met its statutory obligations to consider and investigate the relative seeking placement." (Id. at p. 595, citing In re Isabella G. (2016) 246 Cal.App.4th 708, 723 (Isabella G.).)
In determining whether placement with a relative is appropriate pursuant to section 361.3, the Agency and the court shall consider 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 7930) of Division 12 of the Family Code regarding relative placement.
"(4) Placement of siblings and half-siblings in the same home ....
"(5) The good moral character of the relative and any other adult living in the home ....
"(6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful.
"(7) The ability of the relative to do the following:
"(A) Provide a safe, secure, and stable environment for the child.
"(B) Exercise proper and effective care and control of the child.
"(C) Provide a home and the necessities of life for the child.
"(D) Protect the child from his or her parents.
"(E) Facilitate court-ordered reunification efforts with the parents.
"(F) Facilitate visitation with the child's other relatives.
"(G) Facilitate implementation of all elements of the case plan.
"(H)(i) Provide legal permanence for the child if reunification fails. [¶]
"(I) Arrange for appropriate and safe child care, as necessary.
"(8)(A) The safety of the relative's home...."
"The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) In determining whether to place a child with a relative, the court exercises its independent judgment in applying the section 361.3 factors and any other relevant factors. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.)
On appeal, we review a juvenile court's placement orders under section 361.3 for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 (Robert L.).) In so doing, we will not disturb the court's order unless it was arbitrary, capricious, or patently absurd (i.e., exceeded the bounds of reason). (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
B
At the contested hearing on the section 388 petitions, the court found that the section 361.3 relative placement preference did not apply at that stage of the children's dependency cases. First, the court found there was no new placement of the children that "must" be made for which the section 361.3 preference would apply (e.g., De Facto Parents had not given notice they no longer wished to care for the children). Second, even if a new placement of the children was required, the court concluded that the section 361.3 preference did not apply because the children's dependency cases had reached the section 366.26 stage for selection of permanent plans for them (i.e., the reunification period had ended). Finally, the court concluded that the Isabella G. exception did not apply here despite the Agency's delay in contacting and assessing all relatives (including Ro.F. and Jo.F.) because after being contacted in August 2021, Ro.F. and Jo.F. had not followed through with the initial ICPC process for placement of the children after learning Father was receiving reunification services and therefore the children's cases were no longer at the section 366.26 stage for selection of adoption or other permanent plan for the children. Thereafter, Ro.F. and Jo.F. had little or no contact with the children until the summer of 2022. In August 2022, when Ro.F. and Jo.F. again requested placement of the children two months after Father's reunification services had been terminated, the children had been in the care of De Facto Parents for almost one year, during which time the children had bonded with and been cared for and loved by them. Based on the record, the court found that Ro.F. and Jo.F. were interested only in placement of the children once reunification services were terminated and they could be considered as an adoptive placement, but were not interested in placement during the reunification period. The court stated that is not the purpose of the section 361.3 relative placement preference. The court therefore concluded that the circumstances in Isabella G. were distinguishable from those in the children's cases. Concluding the section 361.3 relative placement preference did not apply, the court then proceeded to address whether a change in the children's placement was in their best interests under section 388 and concluded it was not in their best interests (as discussed below).
C
Based on our review of the record, we conclude that the appellants have not carried their burden on appeal to show the juvenile court erred by finding that the section 361.3 relative placement preference did not apply at the time of the contested hearing on the section 388 petitions. First, both Mother's and Father's reunification services had been terminated when in August 2022 Ro.F. and Jo.F. renewed their interest in placement of the children and thereafter when the contested hearing on the section 388 petitions was held in August 2023. Therefore, in the circumstances of this case, we conclude that the court did not commit any error by finding that Ro.F. and Jo.F. (or other appellants) were not entitled to the section 361.3 relative placement preference, which generally applies only through the reunification period. (§ 361.3, subd. (d); Maria Q., supra, 28 Cal.App.5th at p. 595.) As the court noted, assuming that Ro.F. and Jo.F. would have been entitled to the section 361.3 preference in August 2021 when they initially requested placement of the children, they, in effect, abandoned their request when they did not complete the ICPC process after Father was granted reunification services. Because they did not renew their interest in placement of the children until August 2022 and only thereafter completed the ICPC process for placement, the children's dependency cases had at that point progressed beyond the reunification stage and had reached the section 366.26 permanency planning stage and therefore the section 361.3 preference no longer applied.
Although the abuse of discretion standard of review generally applies to a juvenile court's placement orders under section 361.3 (Robert L., supra, 21 Cal.App.4th at p. 1067), the de novo standard of review may, as Relatives argue, apply to its determination of whether section 361.3's relative placement preference applies to undisputed facts. (Cf. Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) However, we need not, and do not, decide which standard of review applies to the court's finding that the section 361.3 preference did not apply at the time of its determination of the section 388 petitions because we conclude the court did not commit any error under either standard of review.
Second, contrary to the appellants' assertion, we conclude that the court also correctly found that the Isabella G. exception to the section 361.3 general rule did not apply in the circumstances of this case. In Isabella G., the grandparents requested placement of the child from their initial removal through the dispositional hearing, but the agency's social worker incorrectly informed them that the child's placement could not be changed for one year and the agency failed to assess them. (Isabella G., supra, 246 Cal.App.4th at pp. 711, 722-723.) They requested placement again after one year, but the agency again failed to assess them for placement. (Id. at pp. 711, 722-723.) After reunification services were terminated and a section 366.26 hearing was set, they requested placement a third time, but the agency again failed to assess them for placement. (Id. at pp. 711-712, 723.) After the grandparents filed a section 388 petition, the agency finally completed an assessment and approved their home for placement of the child within three weeks. (Id. at pp. 712, 723.) However, the juvenile court denied their request for application of the section 361.3 preference because reunification services had been terminated and then denied their section 388 petition for placement of the child. (Id. at pp. 712, 717, 723.) On appeal, we concluded: "[w]hen 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." (Id. at p. 712, fn. omitted.) In the circumstances of Isabella G., we concluded that the juvenile court erred by finding the section 361.3 relative placement preference did not apply after reunification services had been terminated. (Id. at p. 723.) After further concluding that the court's error was not harmless, we reversed the order denying the grandparents' section 388 petition, as well as its concurrent order terminating parental rights, and remanded the matter for a hearing on the grandparents' request for placement under section 361.3. (Id. at p. 724-725.)
We agree with the trial court that the Isabella G. exception did not apply because the circumstances in that case were different from those in this case. Here, as the court found, Ro.F. and Jo.F. were contacted by the Agency in August 2021 and began the ICPC process for approval of their home for placement of the children. However, as the court further found, Ro.F. and Jo.F. did not complete the ICPC process at that time because Father had been granted reunification services and the children's cases were no longer at the section 366.26 adoption stage. Thereafter, they had little, if no, contact with the children until the summer of 2022 after Father's reunification services had been terminated. In August 2022, Ro.F. and Jo.F. resumed their interest in placement of the children and completed the ICPC process. However, by that time, the reunification period had ended and the children's dependency cases had proceeded to the permanency planning stage under section 366.26. Because Ro.F. and Jo.F. had abandoned their initial request in August 2021 for placement of the children during Father's reunification period, unlike the grandparents in Isabella G. who had consistently and repeatedly sought placement during the child's reunification period, the court here found that the circumstances in Isabella G. were different and therefore did not require application of the section 361.3 relative placement preference to the children's section 388 petition seeking a change in placement to Ro.F. and Jo.F. We conclude that the court did not commit any error in so finding. (Cf. In re J.Y. (2022) 76 Cal.App.5th 473, 484-485 [court erred by holding section 361.3 hearing where there was no need to change child's placement and placing child instead with relatives whom agency had not contacted earlier and had not sought placement until after termination of reunification services].)
Because we conclude the court did not abuse its discretion by finding the section 361.3 relative placement preference did not apply at the time of its decision on the section 388 petitions, we need not, and do not, address the appellants' additional contention that the court abused its discretion by alternatively finding that if the section 361.3 preference had applied, it was nevertheless in the children's best interests to be placed with De Facto Parents and not Ro.F. and Jo.F. on its consideration of the section 361.3, subdivision (a) factors and other relevant evidence. Though not necessary to our decision because we agree the relative placement preference did not apply, we would find no abuse of discretion in the court's alternative rationale even if the relative placement preference did apply. The relative placement preference does not outweigh as a matter of law the other countervailing factors properly considered by the trial court in determining the children's best interests.
III
Court's Finding That Placement of Children with De Facto Parents Was in Their Best Interests
The appellants contend that the juvenile court abused its discretion by finding that placement with De Facto Parents was in the children's best interests and, based on that finding, granting De Facto Parents' section 388 petition and denying the children's section 388 petition.
A
Section 388 provides that any person having an interest in a dependent child may petition the juvenile court to change, modify, or set aside a previously made order. (§ 388, subd. (a)(1).) A section 388 petitioner has the burden to prove, by a preponderance of the evidence, that: (1) there is a change of circumstances or new evidence; and (2) that the requested change is in the child's best interests. (§ 388, subd. (a)(1); In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) The juvenile court has discretion whether to grant or deny a section 388 petition. (In re J.C. (2014) 226 Cal.App.4th 503, 525526; In re Y.M. (2012) 207 Cal.App.4th 892, 920.) On appeal, we will not reverse the juvenile court's decision to grant or deny a section 388 petition unless the court exceeded the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (Stephanie M., supra, 7 Cal.4th at p. 318.) The appellant has the burden on appeal to show the court abused its discretion. (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
B
At the August 10, 2023 hearing, after first finding that the petitioners had shown a change in circumstances under section 388 and that the section 361.3 relative placement preference did not apply, the court found that placement of the children with Ro.F. and Jo.F. would not be in their best interests within the meaning of section 388. In support of its finding, the court cited the circumstances of the children's removal from Mother three years earlier and their four placements since then. It noted that the children had been placed with De Facto Parents (their fourth placement) for 23 months at the time of the hearing. At the time of their placement with De Facto Parents, Bl.F. was four years old and Ad.R. was almost two years old. The court noted that because the parents' reunification services had been terminated, the focus had shifted to the children's need for permanency and stability. It further noted that there was a rebuttable presumption that continued foster care was in the children's best interests. The court found that the children's counsel had not presented anything (other than the section 361.3 preference that did not apply) to rebut the presumption that continued foster care was in the children's best interests.
Instead, the court found that the evidence showed the children were doing "exceedingly well" in their placement with De Facto Parents. The children called them mom and dad. Bl.F. had made large strides in his development with the therapy De Facto Parents made sure that he attended, and Ad.R. was on track developmentally. The children had benefited from the stability, nurturing, and love they had received from De Facto Parents. The court stated: "The boys' time with [De Facto Parents] has been the longest period of consistent care and nurturing that they have received for the entirety of their lives." It found that the children were finally bonded with adults who put their needs first. The court stated that all children benefit from stability, and, as to B.F., who was autistic, a premium must be placed on stability. It also noted that during his visit with Ro.F. and Jo.F., Bl.F. told his counsel that he wanted to go back to California to live with mom and dad (i.e., De Facto Parents). The court stated that although De Facto Parents did not share a common heritage with the children, that issue did not take precedence over the children's need for stability and continuity.
The court also expressed concerns about the ability of Ro.F. and Jo.F. to protect the children from Mother and whether they were truly committed to caring for the children themselves versus placing them in the hands of others, including Mother. In particular, the court cited the fact that Ro.F. and Jo.F. had not intended to make full use of their three-week visit with the children to bond with them and instead planned to leave them in the care of others, including Mother, for one-third of that time (which was contrary to the Agency's protocols requiring Ro.F. to stay with and supervise the children at all times). It also noted that when the Agency asked Ro.F. why she wanted to adopt the children, she stated that Mother was doing so good right now, it was important for them to be reunited as a family.
Based on its consideration of the evidence, the court found it was in the children's best interests to maintain their current placement with De Facto Parents. Accordingly, the court granted De Facto Parents' section 388 petition, denied the children's section 388 petition, and issued a specific order that the children remain placed in the home of De Facto Parents.
The court alternatively found that even if the section 361.3 relative placement preference had applied, its consideration of the section 361.3 factors, including the children's best interests, weighed against placement with Ro.F. and Jo.F. As we have explained, we would find no abuse of discretion in the court's alternative rationale even if the relative placement preference did apply.
C
Based on our review of the record, we conclude that the appellants have not carried their burden on appeal to show that the juvenile court abused its discretion by finding placement with De Facto Parents was in the children's best interests, granting De Facto Parents' section 388 petition, and denying the children's section 388 petition. On the contrary, as discussed above, the court set forth specific evidence and its reasoning in great detail, reflecting its judicious consideration of the evidence in making its finding regarding the children's best interests. Importantly, the court (correctly) noted that the focus at that time was the children's need for permanency and stability. (See, e.g., Stephanie M., supra, 7 Cal.4th at p. 317.) The court then found that De Facto Parents had provided the children with love and stability during the two-year period the children had been in their care. In so finding, we conclude that the court did not exceed the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (Id. at p. 318.) Accordingly, we conclude the juvenile court acted rationally and did not abuse its discretion by finding that placement with De Facto Parents was in the children's best interests, granting De Facto Parents' section 388 petition, and denying the children's section 388 petition.
In support of their argument that the court abused its discretion by finding placement with De Facto Parents would be in the children's best interests, the appellants cite only evidence and inferences that would have supported a contrary finding by the court and, in so doing, misconstrue the applicable abuse of discretion standard of review. In determining whether the court abused its discretion, we defer to its underlying factual findings and reasonable inferences and do not substitute our decision for that of the juvenile court in determining whether it exceeded the bounds of reason. (Robert L., supra, 21 Cal.App.4th at pp. 1066-1067; Stephanie M., supra, 7 Cal.4th at pp. 318-319.) In particular, the Supreme Court stated: "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) We will find an abuse of discretion only if under all the evidence, viewed most favorably in support of the juvenile court's decision, no judge could reasonably have made the order that he or she did. (In re Caden C. (2021) 11 Cal.5th 614, 641, citing Robert L., supra, at p. 1067.) Therefore, by citing only evidence and inferences in their favor (e.g., the Agency's recommendation that the children be placed with Ro.F. and Jo.F. and the children's statements regarding who they wanted to live with), the appellants misapply the applicable standard of review and, in so doing, do not carry their burden on appeal to show the court abused its discretion.
IV
Objections to Evidence by Counsel for De Facto Parents
The children contend, and Mother and Relatives join in their contention, that the juvenile court erred by allowing counsel for De Facto Parents to object to evidence presented at the contested hearing on the section 388 petitions. However, because the record shows that the appellants did not object to or otherwise raise that purported error below, we conclude, as the children concede, that the appellants waived or forfeited their challenge to that error on appeal. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1 [appellate court will ordinarily not consider procedural defects or erroneous rulings where objection could have been, but was not, presented to trial court]; Hinman, supra, 55 Cal.App.4th at p. 1002.) Accordingly, we need not, and do not, address the merits of the appellants' contention.
DISPOSITION
The orders are affirmed.
WE CONCUR: CASTILLO, J. RUBIN, J.