McKINSTER, Acting P. J.
Petitioner K.M. (the child) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.456, challenging the juvenile court's order removing her from her de facto parents' home and placing her with the paternal grandmother, at a Welfare and Institutions Code
On September 14, 2016, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was only a few days old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).
The social worker filed a detention report and stated that CFS received a referral on September 11, 2016, alleging that the child's mother, A.M. (mother), tested positive for marijuana at the time she gave birth to the child. Mother had an extensive substance abuse history that resulted in the dependency court previously taking three of her other children.
The court held a detention hearing on September 15, 2016. Mother was present with counsel. She indicated that R.L. was the father, but he was not present at the birth or named on the birth certificate. The court detained the child in foster care.
The social worker filed a jurisdiction/disposition report on October 12, 2016, recommending that the court sustain the petition and deny reunification services for mother, and that the alleged father remain alleged, not entitled to reunification services. The social worker reported that the child was placed in the foster home of Mr. and Mrs. S. (the foster parents). The child was doing well and had formed a healthy attachment with them. The social worker reported that mother talked to the alleged father, R.L., recently. He had a long history of substance abuse and said he had no interest in "getting clean" at that time. He also showed no interest in being a part of the child's life. However, his mother (the paternal grandmother or PGM) had contacted CFS and was interested in being a concurrent home for the child.
The court held a contested jurisdiction/disposition hearing on October 20, 2016. It sustained the petition, declared the child a dependent, removed her from mother's custody, and denied mother reunification services, pursuant to section 361.5, subdivision (b)(10), (11), and (13). The court found that R.L. remained an alleged father, not entitled to reunification services. It then set a section 366.26 hearing with adoption as the permanent plan. The section 366.26 hearing was subsequently continued several times.
The social worker filed a section 366.26 report on February 14, 2017, and recommended that the court continue the section 366.26 hearing for another 60 days to allow time to assess the PGM's home as a prospective adoptive home. The request for relative assessment had not been submitted until December 6, 2016.
The social worker reported that mother had weekly supervised visits with the child until January 2017, when she moved to central California to be near her older daughter and mother. The alleged father had still not had any contact with the child or CFS, but the PGM was granted permission to join mother's weekly visits. She had attended the visits since November 2016 and continued coming to them even after mother moved. The social worker reported that the child had a strong attachment to the foster parents, but she had built a "growing attachment" to the PGM. With each visit, the child showed increased recognition and was more comfortable with the PGM. The PGM initially appeared nervous when the child cried. However, she appeared much more comfortable providing care for the child after mother moved out of the area. She could now tell whether the child was hungry or needed a diaper change, or wanted a different toy. The social worker reported that the PGM often expressed anxiety when the foster parents supervised the visits, since she felt judged as if she could do nothing right. Thus, the social worker started supervising the visits, and the PGM was observed to be more confident. The social worker opined that this confidence and ability to care for the child would continue to grow the more the PGM was given the opportunity to bond with the child, outside of supervision.
The PGM expressed her desire to adopt the child, as she had attended weekly visits for four months, thereby demonstrating a commitment to the child. The PGM currently lived in a studio apartment, but said she would move to a house to have more room and be closer to her support network. Her significant other was also excited to adopt. The social worker believed the PGM would be able to provide a safe and loving adoptive home and identified her as the proposed permanent placement. The child had not been placed with her yet, since CFS had not yet completed a relative assessment.
The foster parents also expressed their desire to adopt the child. They had a mutually strong attachment with the child, who turned to them for comfort and affection. They had provided a nurturing environment for the child. The social worker identified their home as the concurrent planning home.
The court held a hearing on February 17, 2017, and continued the matter for 60 days to April 17, 2017.
On March 13, 2017, the foster parents filed a request for de facto parent status.
The court held a hearing on April 17, 2017, and mother's counsel confirmed with the court that the alleged father had been located in prison. The court appointed him counsel and ordered paternity testing. It then continued the matter.
At a hearing on June 20, 2017, the court confirmed that the paternity testing showed R.L. was the father of the child. The court also granted de facto parent status to the foster parents.
Prior to the hearing, the social worker filed a memorandum with additional information for the court. She reported that the overnight and weekend visits went well, and the child showed a strong bond with the PGM. The social worker recommended that the child be immediately placed with the PGM. The social worker noted that, due to the PGM's relationship with mother, the child would be able to maintain a connection with her maternal family.
At the hearing on August 14, 2017, the court confirmed the prior visitation order and continued the matter to September 27, 2017. The court subsequently vacated that hearing for a contested section 366.26 hearing on November 17, 2017.
The social worker filed an addendum report on November 15, 2017, recommending that the child be placed with the PGM for adoption. The PGM had been having unsupervised, overnight visits since June 20, 2017. The court authorized extended visits on October 3, 2017. The social worker reported that the child was happy and transitioned between the foster parents and the PGM "with ease." The social worker made two unannounced home visits during the extended visits. The child appeared to be happy and bonded with the PGM. She smiled and responded with laughter, and she turned to the PGM for "cuddles and kisses." The PGM had age-appropriate toys in her home that promoted learning and the development of fine motor skills. Overall, the visits were positive and helped strengthen the bond and attachment between the PGM and the child. The PGM was consistent and proactive in caring for the child, and the social worker was confident she would provide a safe, stable, and loving home. The social worker attached a copy of daily journal entries the PGM kept of the child's meals and snacks, nap times, and activities.
However, the social worker also stated that the foster mother reported some difficulties with the child after visits with the PGM, such as being clingy and wanting to be held all the time. The child reportedly took a few days to readjust to the foster parents' home and schedule.
The matter was continued several times. At a hearing on January 17, 2018, the court stated that it would deal with both placement and the termination of parental rights on the same day, at a further contested section 366.26 hearing.
The court held the section 366.26 hearing on January 26, 2018. The child, who was at risk for not developing appropriately due to prenatal drug exposure, had been seeing a therapist regarding attachment and early development. The therapist who had been providing the child with services testified. She testified that, as of April 2017, the child had formed a secure attachment with the foster parents. She further testified that she did a Marschak Interaction Method (MIM) assessment to measure the overall quality of the child's relationship and attachment interaction with the foster parents. The assessment indicated that the child's interactions with them were age-appropriate and very positive. A social worker who had made home visits to the foster home testified that the child was bonded with them.
The therapist also testified regarding a MIM assessment of the PGM. She observed that the PGM had difficulty getting the child to be engaged in activities with her. The child would not make eye contact with the PGM. At the completion of the session, the child fell back and hit her head. She was upset and crying, but she pushed the PGM away and did not accept her nurturing. The therapist stated she only observed interactions between the PGM and the child twice—during the MIM assessment and one other session. The therapist also testified that, given the amount of time spent between the child and the PGM, it was reasonable to expect for the child to not display the same secure attachment that she had with the foster parents.
The therapist additionally testified that there would be negative implications if the child was to switch placements. She opined that moving to a new placement would be either emotionally or psychologically damaging to the child.
The supervising social worker testified at the hearing, as well. She said the PGM requested to have placement of the child, but did not have relative assessment approval until March 2017. Thus, the child had resided with the foster parents for six consecutive months. The supervising social worker testified that CFS was recommending to move the child to the PGM's home because she had been having overnight visits, had developed a strong bond with the PGM, and there were no concerns for her safety in the PGM's home.
Another social worker testified that the PGM had had an 18-day extended visit with the child. She further testified that the child called the PGM "mama," but she also called the foster mother "mom." The social worker testified that the child had a primary bond with the PGM, in that she met the day-to-day needs of the child.
After the testimonies, the court heard closing arguments. County counsel essentially asserted that the PGM and the foster parents were both appropriate placements and that the child would do well in either home. However, CFS was recommending placement with the PGM because of the statutory preference for placement with relatives under section 361.3. As to the 366.26 issues, county counsel asked the court to order termination of parental rights with adoption as the permanent plan. Counsel for mother and father agreed.
Counsel for the child disagreed. She argued that R.L. remained an alleged father, even though he was the biological father, so the relative preference did not apply. She asked that the child remain with the foster parents.
Counsel for the foster parents argued that the child should stay with the foster parents, with whom she was securely attached, and that she could still maintain a relationship with the PGM.
The court concluded that it was in the best interest of the child to place her with the PGM. The court emphasized that the most important consideration was the best interest of the child. The court stated that it based its decision on mother's request that the PGM be considered for placement, and observed that the child was too young to express her preference. As to the duration and nature of the relationship, the court noted that the PGM began having supervised weekly visits as of November 2016, and she came forward asking for placement in October 2016. She started having overnight and weekend visits on or about June 20, 2017. The PGM had several extended visits beginning in October 2017. The child was currently on a two-week extended visit. Thus, the court found that there had been substantial contact and interaction. It acknowledged that both the foster parents and the PGM provided for the child's daily needs. The court further noted that a quality relationship with the PGM had developed, and the child called her "mama." There was a strong bond and secure relationship there, and the PGM was committed to providing her with a loving, safe, and stable home. The court added that the PGM had a relationship with mother, and the child played with her cousin when she visited the PGM. The court recognized the testimony regarding adjustment issues the child may have, but noted there was no evidence the issues would be permanent. Moreover, the PGM was offered therapy for the child to reduce/eliminate issues she might have. The court also stated that it was aware of the MIM assessment of the PGM, which was done in August, when the visits were increasing. However, the MIM had not been repeated since then. The court considered the impact of transitioning and adjustment on the child, and noted that the issues had been improving and resolving. The child's psychological and emotional development appeared to be appropriate for her age. The court found no risk of psychological harm or damage, in light of written letters from workers who were monitoring the child's condition. The court also found no mistreatment by the PGM. The court assessed the "bottom line best interest" for the child was to be with the PGM. The court emphasized that no one had done anything wrong here, but CFS had shown that it was in the child's best interest to remain with the PGM, who had had the child the last two weeks.
The court then proceeded to the section 366.26 portion of the hearing. It found clear and convincing evidence that the child was going to be adopted, terminated parental rights, and declared adoption as the permanent plan. The court stated that, "with respect to the underlying placement issue, the Court is going to make the placement order that the child be placed with the paternal grandmother."
The child argues that the court abused it discretion in removing her from the foster parents and placing her with the PGM. She claims that the court applied the wrong standard, since it found that it would not be detrimental to place her with the PGM, rather than finding that it was in her best interest to do so. She then argues the evidence did not support a finding that it was in her best interest to be placed with the PGM. We find no abuse of discretion.
At the outset, we note that the child has filed a writ petition, pursuant to California Rules of Court, rule 8.456 (Rule 8.456). Rule 8.456 governs writ petitions to review placement orders following the termination of parental rights. (Cal. Rules of Court, rule 8.454, subd. (a).) However, the record reflects the court determined that the child should be placed with the PGM, and then proceeded with the section 366.26 portion of the hearing and terminated parental rights. Thus, it appears that the court made its placement order before terminating parental rights. In such circumstance, an 8.456 writ petition would not apply. We note the court did state that it was "going to make the placement order that the child be placed with the paternal grandmother," after it terminated parental rights. In any event, while an appeal may have been the proper method of challenging the placement order, we will reach the merits of the argument for purposes of expediency. (See Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151 ["The intent of the Legislature, especially with regard to young children, is that the dependency process proceed with deliberate speed and without undue delay."].)
Section 361.3, subdivision (a), provides that "[i]n 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." "`Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) "`Relative' includes a member of the child's birth family and nonrelative extended family members, regardless of whether the parental rights were terminated." (§ 361.3, subd. (f)(3).) The relative placement preference applies when a relative seeks placement after the dispositional hearing, even if no new placement is required. (In re Isabella G. (2016) 246 Cal.App.4th 708, 721; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 ["[T]he Legislature did not intend to limit the purpose of the relative placement preference to reunification efforts."].)
"We review a juvenile court's custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863 (Alicia B.).) "Broad deference must be shown to the trial judge. The reviewing court should interfere only `"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 (Robert L.).)
The issue for the juvenile court was whether placement with the PGM was appropriate, considering the suitability of her home and the best interest of the child. In determining whether placement with a relative is appropriate, the court shall consider, but is not limited to, considering factors such as: (1) the best interest of the child; (2) the wishes of the parent, the relative, and the child, if appropriate; (3) the nature and duration of the relationship between the child and the relative, and the relative's desire to provide legal permanency for the child; (4) the relative's ability to provide a safe, secure, and stable environment for the child, exercise proper control of her, provide life necessities, protect her from the parents, and facilitate visits with other relatives; and (5) the safety of the relative's home. (§ 361.3, subd. (a).) "The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B., supra, 116 Cal.App.4th at pp. 862-863.)
The record shows that the court properly stated its reasons for placing the child with the PGM, and we conclude the court's decision was well within its discretion. The court stated it found that placement with the PGM was in the best interest of the child. It based its decision on mother's request that the PGM be considered for placement, and noted that the child was too young to express her preference. As to the duration and nature of the relationship, the court noted that the PGM came forward and asked for placement in October 2016, and she began having supervised weekly visits in November 2016. The PGM started having overnight and weekend visits on or about June 20, 2017. The PGM had several extended visits, which the court listed as October 3 to 6 and 11 to 17, October 25 to November 1, November 8 to 13, November 22 to December 6, and December 25 to January 12, 2018. At the time of the hearing, the child had been with the PGM on a two-week visit. Therefore, the court found there had been substantial contact and interaction between the child and the PGM. The court acknowledged that both the foster parents and the PGM provided for the child's daily needs. It further noted that the PGM had developed a quality relationship with child, and the child called her "mama." The court cited the evidence that there was a strong bond and secure relationship there, and the PGM was committed to providing the child with a loving, safe, and stable home. The court further noted that the PGM had a relationship with mother, and that the child played with her cousin when she visited the PGM.
The evidence was sufficient to support the court's decision. It showed the PGM had demonstrated a commitment to the child by attending the weekly visits with mother and the child at the outset of the dependency. Even after mother moved, the PGM continued to attend the visits. The social worker reported that the child was happy and easily transitioned between the foster parents and the PGM. When the PGM progressed to extended visits, the social worker made unannounced home visits and observed the child to be happy and bonded with the PGM. The child turned to her for affection. The home was clean and free from hazards, and there were age-appropriate toys for the child. The social worker stated that the PGM demonstrated protective capacity, in that she said she would not allow her son or mother to visit the child if they were under the influence of any substance. The PGM was eager to adopt the child, and she was willing to move to a bigger place to have more room for her. The social worker observed that the PGM was consistent and proactive in caring for the child. She was confident the PGM would be able to provide a safe and loving adoptive home and identified her as the proposed permanent placement.
As to the child's assertion that the court applied the wrong standard by finding that it would not be detrimental to place the child with the PGM, rather than finding that it would be in her best interest, the record belies such claim. At the outset, the court expressly stated that "the best interest for [the child's] placement [was] with the paternal grandmother." After outlining the reasons for its decision, the court repeated that it "does believe that the best interest here and the burden that is needed to be met by the Department to show that the placement is in the best interest has been met, and the Court's bottom-line conclusion of what is in her best interest considering what's been pointed out as adverse, that the Court believes has resolved or is quickly resolving [sic] is to have [the child] placed and to remain with the paternal grandmother. . . ."
Viewing the evidence in the light most favorable to the court's action, as we must, we conclude the court did not abuse its discretion in ordering the child placed with the PGM. (See Robert L., supra, 21 Cal.App.4th at p. 1067.)
The writ petition is denied.
