O'ROURKE, J.
The child's father and paternal grandparents
The Legislature "command[s] that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 320 [27 Cal.Rptr.2d 595, 867 P.2d 706] (Stephanie M.).) This case involves repeated requests by the child's grandparents for placement of the child, starting when the child was first detained in protective custody. The San Diego County Health and Human Services Agency (the Agency) did not conduct an assessment of Grandparents' home as required under section 361.3, governing relative placement. Instead, the Agency placed the child in the home of a nonrelative extended family member and secured the cooperation of Grandparents and other relatives by representing that the Agency could not change the child's placement for a year. After a year, Grandparents again requested placement. The Agency did not conduct an assessment of their home as required. After reunification services were terminated, the
At the hearing on the petition, the juvenile court denied Grandparents' request to proceed under section 361.3, instead applying the caregiver adoption preference under section 366.26, subdivision (k). The Agency concedes the juvenile court erred in applying the adoption preference prior to terminating parental rights. The Agency maintains section 361.3 did not apply because Grandparents' request for placement was made after the reunification period ended and no new placement was necessary.
Isabella G. is the daughter of Adriana B. and Alejandro G. Isabella was born in August 2011. The family lived with Isabella's paternal grandparents, John (Grandfather) and Myrna F. (Grandmother). When Isabella was three months old, Adriana moved out of the home, leaving Isabella in Alejandro's and Grandmother's care. Grandmother was Isabella's primary caregiver. Isabella spent weekends in the home of her maternal grandparents. Adriana also lived in their home, but was in and out of jail, as was Alejandro.
Adriana had a history of methamphetamine and marijuana use, and drug-related criminal offenses. Alejandro was addicted to heroin and had a drug-related criminal history. The paternal and maternal grandparents were generally aware of the parents' substance abuse problems. In January 2013, Grandfather asked Alejandro to leave the home. Isabella remained in Grandmother's care.
In July 2013, Adriana and Alejandro took custody of Isabella, who was 23 months old. The parental and maternal grandparents objected but did not
On July 25, the Agency detained Isabella in protective custody at Polinsky Children's Center. Grandparents asked the Agency to place Isabella in their care and provided information to allow the Agency to complete a home evaluation. Grandmother said she had raised Isabella like a daughter. Alejandro asked the Agency to detain Isabella with Grandparents.
The Agency was not able to immediately detain Isabella with the paternal or maternal grandmothers. The maternal grandmother's drug-related criminal conviction disqualified her for placement and unsupervised visitation. Grandmother provided documentation showing that her 1998 conviction for welfare fraud had been expunged, and that prosecutors had dismissed a 2002 charge of conspiracy to distribute marijuana shortly after it was filed. The Agency did not assess Grandmother's home for emergency detention or placement.
Isabella was not doing well at Polinsky Children's Center. She was having trouble eating and sleeping. Out of concern for Isabella's well-being, the family identified Marisol O., whose sister was married to Alejandro's brother, as a caregiver. Marisol and her husband were licensed foster care parents. They had met Isabella at family events. On August 3, the Agency detained Isabella with Marisol as a nonrelative extended family member (NREFM).
On August 6, the Agency held a team decision meeting (TDM) with Marisol and Isabella's relatives. Citing health concerns, Marisol said she did not intend to care for Isabella permanently. The paternal and maternal grandparents and great-grandparents
At the dispositional hearing on August 20, the social worker reported that the relatives had agreed that Isabella was doing well in Marisol's care and should not be moved to avoid any further trauma. A family visitation schedule was set up. Isabella would spend every other weekend (during the days) with Grandparents and alternate weekends with her great-grandparents.
In reports prepared for the six-month review hearing, the social worker said Isabella was a happy, cheerful two year old who enjoyed playing with other children. There were no concerns about her developmental, behavioral, or emotional well-being. Isabella loved all her family members. At bedtime, she sang a good-night song to all her family members.
During the first review period, Alejandro was in local custody, pending sentencing on felony burglary and drug charges. He was unable to participate in reunification services. Adriana remained sober. She visited Isabella almost every day. At the six-month review hearing in March, the court terminated Alejandro's reunification services and continued Adriana's services.
Nine days after the review hearing, Adriana tested positive for methamphetamine and was arrested. She was released on house arrest in July. In August, the social worker reported to the court that Grandmother asked to be evaluated for placement and a home assessment was in progress. This assessment did not occur.
A second TDM was held on August 19, 2014. Grandparents and the great-grandparents requested placement. Adriana opposed changing Isabella's placement. The social worker did not recommend moving Isabella, and stated relative placement would only be considered if a change of placement became necessary. The participants agreed Isabella would remain in Marisol's care during the reunification period, with the goal of reunifying with Adriana, and the Agency would work to approve Grandparents for overnight visits and assess the relatives' home for contingent placement. This assessment did not occur.
An adoptions social worker was assigned to the case in January 2015. Grandparents contacted her and requested placement. The social worker met with them, collected their information, and referred them for a relative home assessment. The Agency decided not to conduct a relative home assessment because Isabella was in a stable prospective adoptive home.
In May, Grandparents retained an attorney and filed a section 388 petition seeking Isabella's placement. The juvenile court ordered an evidentiary hearing on the petition. The Agency then conducted an assessment and approved Grandparents' home for placement in less than three weeks.
A trial on Grandparents' section 388 petition, trailed by the 366.26 hearing, was held over several days in June, July and August 2015. The Agency opposed changing Isabella's placement. The social worker said Isabella had a strong bond with Marisol and her husband, who wanted to adopt her. Isabella consistently said she wanted to stay with Marisol or live with her "Nana" (Grandmother). When told about the possibility of moving, Isabella cried. The social worker was concerned removing Isabella from Marisol's care would be as traumatizing, if not more, than Isabella's initial removal from her parents. If Mirasol were unable to care for Isabella, the social worker would recommend placement with Grandparents because Isabella had lived with them, and they had cared for her when her parents were not available.
Grandmother testified she was present at Isabella's birth. She took care of Isabella while the parents worked. Adriana moved out of the home when Isabella was three months old. When Alejandro was incarcerated for a month in 2012, he gave a power of attorney for medical care for Isabella to Grandmother. In January 2013, Grandfather asked Alejandro to leave because he was misbehaving. Isabella remained in Grandmother's care. In June, the parents took Isabella from the maternal grandparents' home during her weekend visit.
When Isabella was detained at Polinsky, Grandmother visited her every day. She told the social worker she wanted Isabella placed in her care. Grandmother gave the social worker the documents pertaining to her criminal case. A short time later, the social worker changed. Grandmother telephoned the second social worker every day, sometimes twice a day, requesting placement. Grandmother gave the same documentation about her criminal case to the second social worker.
During Isabella's dependency proceedings, Grandparents cared for Isabella on Saturday and Sunday from 8:00 a.m. to 8:00 p.m. every other week. They recently started overnight visits. Grandmother picked up Isabella at school approximately three times a week. Marisol would call to tell her that Isabella was missing her, and Grandmother would spend a few hours with Isabella. Isabella was very happy at her house. She had her own bedroom and a dog.
Marisol testified there were concerns about her health at the first TDM but her condition was stable. Isabella's placement with her was intended to be temporary. At the second TDM, Marisol said she believed Isabella would benefit from living with Grandparents. Isabella was very close to them. The social worker told her the Agency had decided Isabella should stay in her home.
Mirasol said Isabella had a different quality relationship with Grandparents than she did with her great-grandparents. Isabella grew up in Grandparents' home and was bonded to them. Isabella frequently asked for Grandmother. Marisol would telephone Grandmother to let her know Isabella was asking for her. If Marisol needed help, she would ask Grandmother to care for Isabella for a few hours until she was off work. Isabella was happy to be with Grandmother.
Marisol wanted to adopt Isabella. Isabella had been in her care for two years and had a sense of security and love. Isabella called her "Titi" or "Titi Mari." Once in a "blue moon," Isabella would call her "mommy." Marisol said whenever Isabella went anywhere, she would ask, "`I come back to you, Titi, right?' And I would say, `Yes, mamas, you come back home.'"
Marisol did not believe Isabella would be harmed if moved to a relative's home. However, Isabella would be affected because she was attached to Marisol and her husband. Marisol believed it was in Isabella's best interest to have contact with her family.
Adriana testified Isabella adapted well to all the changes in her life. She was bonded with her paternal and maternal families. There was no limit to Isabella's love for them. Adriana believed Isabella would thrive in the great-grandparents' care.
Alejandro testified it was in Isabella's best interest to be with Grandparents. Their home was her home.
After hearing argument concerning whether the relative placement preference
The juvenile court said notwithstanding the applicability of the caregiver adoption preference, its ruling was entirely predicated on Isabella's best interest. Isabella had bonded with Marisol and was starting to think of Marisol as her mother. The juvenile court found that Isabella had substantial emotional ties to Marisol and removal from her care would be seriously detrimental to Isabella. The juvenile court also found that Isabella had a strong bond with Grandparents, and they would provide a safe, nurturing and loving home for her. However, Grandparents did not meet their burden under section 388 to show a change of placement was required.
The juvenile court then turned to the section 366.26 hearing. Alejandro and Adriana asked the court to order a plan of guardianship. The juvenile court terminated parental rights and designated Marisol and her husband as Isabella's prospective adoptive parents.
Alejandro and Grandparents (collectively, Appellants) contend the juvenile court erred by applying the caregiver adoption preference prior to terminating parental rights. Appellants argue the juvenile court should have applied the relative placement preference in view of Grandparents' repeated requests for placement from the beginning of the case and the Agency's significant, unwarranted delay in assessing their home. They assert the error was prejudicial.
The Agency concedes the juvenile court erred in applying the preference for caregiver adoption before selecting a plan of adoption or terminating parental rights.
We accept the Agency's concession the juvenile court erred when it applied the caregiver adoption preference at the section 388 hearing. We therefore address whether the juvenile court erred when it declined to apply the relative placement preference under section 361.3.
The Agency is required to assess those relatives seeking placement according to the factors described in section 361.3, subdivision (a) (placement factors)
Ideally, the statutory scheme contemplates the Agency has identified and approved the child's relatives for placement before the dispositional hearing. However, "[c]onsistent with the legislative intent for children to be placed immediately with a responsible relative, [section 361.3] does not limit the county social worker's ability to place a child in the home of an appropriate relative or a nonrelative extended family member pending the consideration of other relatives who have requested preferential consideration." (§ 361.3, subd. (b), italics added.)
The Agency argues because the reunification period had ended and a new placement was not necessary, the juvenile court was not required to review the relative placement request under section 361.3. In support, it relies on In re Lauren R. (2007) 148 Cal.App.4th 841 [56 Cal.Rptr.3d 151] (Lauren R.) and In re Sarah S. (1996) 43 Cal.App.4th 274 [50 Cal.Rptr.2d 503] (Sarah S.) Those cases do not assist the Agency. As the Agency acknowledges, in Lauren R., the juvenile court had already selected a permanent plan of adoption for the child before addressing the relative's request for placement. (Lauren R., supra, 148 Cal.App.4th at p. 856.) Sarah S. bears no factual resemblance to the circumstances here. That case involves a relative who was granted placement of the child early in the dependency proceedings but then handed the child over to nonrelatives for two years, lying to the court about the child's whereabouts. During the permanent plan hearing, the relative contested the agency's recommendation to allow the child's caregivers to adopt her. The reviewing court affirmed the juvenile court's decision to deny the relative's request to apply section 361.3. (Sarah S., supra, 43 Cal.App.4th at pp. 278-281, 288.)
Joseph T. left open the issue whether the relative is entitled to the preference after reunification services have been terminated and no new placement of the child is required. (In re R.T. (2015) 232 Cal.App.4th 1284, 1300 [182 Cal.Rptr.3d 338] (R.T.) [it is currently unsettled whether a relative is entitled to preference when requested late in the proceedings, when the child is in a stable placement following the disposition hearing and termination of reunification services].) In R.T., a case with many similarities to Isabella's case,
We are not persuaded by the Agency's attempts to distinguish R.T. from this case. The Agency argues, unlike R.T., it did not refuse to consider Grandparents' request for placement at the beginning of the case. The Agency claims it initiated a home assessment before the disposition hearing but was unable to approve Grandparents for placement because of Grandmother's criminal record. The record shows that the Agency did not follow through with any criminal record exemption or assess Grandparent's home for placement at that time. When the Agency did conduct a home assessment, it approved Grandparents' home within three weeks, indicating that had the Agency fulfilled its statutory responsibility when Grandparents first requested placement, their home likely would have been approved prior to the dispositional hearing.
The Agency acknowledges its failure to timely complete the relative home evaluation process was a significant contributing factor to Grandparents' delay in filing their section 388 petition. Nevertheless, the Agency argues Grandparents waited much longer to file a formal petition for placement than did the relatives in R.T. We reject the argument the relative is required to file a section 388 petition to trigger a relative home evaluation, and may lose his or her right to preferential consideration for placement under section 361.3 if a section 388 petition is not timely filed. The obligation to assess a relative's home is triggered by the relative's request for placement of the child.
Grandparents requested placement prior to the detention, jurisdictional and dispositional hearings. The Agency did not comply with its obligation to conduct a home assessment of the Grandparents. Relying on the Agency's
We conclude that the juvenile court erred when it determined section 361.3 did not apply because reunification services had been terminated. The juvenile court further erred when it imposed a burden on Grandparents under section 388 to show that a new placement was necessary and that the change of placement was in the child's best interest. (Cesar V., supra, 91 Cal.App.4th at pp. 1035-1036 [relative was entitled by law to a hearing on placement].) Section 361.3 requires the court to give preferential consideration to a request by the child's relative for placement, including an assessment of whether placement with a relative is in the child's best interest.
The Agency contends any error in not applying the relative placement preference was harmless. It argues there is no reasonable probability of a
We reject the Agency's argument the application of the relative placement factors would not lead to a different outcome on remand. The record shows Grandmother was Isabella's primary caregiver from birth until she was almost two years old. Isabella missed Grandmother and was happy to be with her. Marisol facilitated additional contact with Grandmother at Isabella's request, sometimes as often as three times a week. Isabella had her own bedroom at her Grandparents' home. At the second TDM, Marisol recommended Isabella be placed with Grandmother. When asked, Isabella consistently said she wanted to stay with Marisol or live with Grandmother. Marisol believed Isabella would be affected if returned to Grandmother's care, but would not suffer any harm. The Agency had approved Grandparents' home for placement. Focusing on the history and quality of Isabella's relationship with Grandmother instead of on the quality of Isabella's relationship with her caregiver may lead to a different outcome on remand. We leave that determination to the sound discretion of the juvenile court under section 361.3.
The juvenile court's order denying Grandparents' section 388 petition to modify the previous placement order is reversed. We necessarily reverse the orders terminating parental rights and designating the caregivers as the child's prospective adoptive parents, and the finding that removal from the caregivers
Nares, Acting P. J., and Irion, J., concurred.
After a hearing on the merits of their petition, which was held concurrently with Grandparents' section 388 petition, the juvenile court denied the great-grandparents' request for placement. Because they do not appeal the denial of their petition, in the interests of brevity, we focus on evidence related to Grandparents' requests for placement.