Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. J-1241401Thomas R. Adams, Judge
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Appellant Minor.
Dennis A. Marshall, County Counsel, Gustavo E. Lavayen, Chief Deputy County Counsel, for Appellant Child Welfare Services.
Melissa J. Fernandez for Respondent Debra B.
Charles M. Oxton for Respondent Tiffany H.
PERREN, J.
A qualified and able aunt seeks to gain custody of her niece. The minor suffers from a severe medical condition requiring constant attention. The child had been placed for 13 months in an equally qualified and exceptional foster home as a result of her mother's complete failure to provide for and protect her, leading to termination of family reunification services. Relying on the relative placement preference (Welf. & Inst. Code, § 361.3), the court ordered the child removed from the care and custody of her foster parents and placed with the aunt. There is, however, an equally compelling "caretaker" preference which was not applied by the trial court. Here we conclude that the court erred in applying the relative placement preference. As we shall explain, the purpose of the relative placement preference is to facilitate reunification, whereas the purpose of the caretaker preference is to facilitate adoption.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
The juvenile court exceeded the allowable scope of judicial discretion by applying the relative placement preference because (1) no new placement was necessary and (2) it was a placement for adoption. Because the placement order was for adoption, the caretaker preference (§ 366.26, subd. (k)) may apply. Accordingly, we remand for consideration and application of the proper statute.
FACTS AND PROCEDURAL HISTORY
Jade B. was born in January 2003 to Debra B. Jade was born with gastroschisis. She required several surgeries to shorten her small and large intestines and remove her duodunem. Her condition requires that she be fed through a tube at night with constant monitoring of her nutrition intake.
A person with gastroschisis has intestines that are formed outside the abdominal wall.
Jade was hospitalized for seven months following her birth. Jade's aunt Tiffany traveled from her home in Riverside County on numerous occasions to visit Jade in the hospital. After Jade was released from the hospital, she and Debra lived with Tiffany for approximately four to six months. During this time, Tiffany helped Debra care for Jade.
In the de facto parent statement, Tiffany states that Debra and Jade lived with her from September 2003 until July 2004. At trial, however, Tiffany testified that Debra and Jade were in her home on a consistent basis only until January 2004. After that, Debra and Jade stayed with Tiffany only intermittently until they moved to Santa Barbara in July 2004.
With Tiffany's help, Debra and Jade moved to an apartment in Santa Barbara in July 2004. From 2004 through September 2008, Tiffany spent weekends with Debra and Jade varying between two to eight times a year. In 2005, Jade was hospitalized for two months. During this time, Tiffany made frequent trips to Santa Barbara to visit Jade and help Debra with housekeeping.
Santa Barbara County Child Welfare Services (CWS) became involved with Debra and Jade in July 2008, after referrals that Debra was not properly caring for Jade. At that time, CWS did not detain Jade and offered Debra voluntary services in her home. On September 3, 2008, Tiffany contacted CWS because she was concerned about the "deplorable" and "shocking" condition in Debra's home that she had observed on her last visit.
On November 21, 2008, CWS conducted a team decision making conference (TDM) which Tiffany attended by telephone. The purpose of the meeting was to determine whether Jade should be removed from Debra's home. At that time, CWS asked Tiffany if she would be willing to provide a placement for Jade. Tiffany agreed, and faxed a relative placement application to CWS that day. CWS determined not to remove Jade from Debra's home at that time and, instead, began providing Debra with voluntary family maintenance services. CWS advised Tiffany that no placement would be made unless and until Jade was detained.
On February 2, 2009, Debra was admitted to the hospital due to injuries sustained during a domestic violence altercation with her current boyfriend. The doctor who examined her determined she was under the influence of methamphetamine. Jade was detained by CWS at that time and hospitalized due to her medical condition. In the report prepared by CWS for the detention hearing, CWS noted that Tiffany was being considered for placement.
On February 12, 2009, Jade was placed in a confidential emergency shelter home. She remained there until March 19, 2009, when she was placed in a confidential foster home located in Los Alamos. She was removed from that home on May 6, 2009, after an incident in the home. Jade was placed in another confidential foster home in Lompoc but was removed from that home on May 21, 2009, due to the foster parents' inability to deal with Jade's medical needs. On May 21, 2009, she was placed with Kenny and Latisha V., where she remains in their care.
At the disposition hearing on April 22, 2009, the court ordered that Debra be provided with family reunification services. CWS determined that it would not be appropriate to place Jade with Tiffany at that time because Tiffany and Debra had a conflictual relationship and Tiffany lived in Riverside County. CWS believed that both these circumstances would impede family reunification efforts between Debra and Jade.
The addendum report for the hearing contains the following "Family History:" "[Debra] said she has two older sisters, whom she does not speak to presently. Client reported, 'My family hasn't talked to me in 2 years, ' other than her mother."
Tiffany was not notified by CWS or Debra of Jade's detention or placement in foster care until June 2009. At that time, Tiffany contacted CWS and again requested that Jade be placed with her. CWS could not find the previous relative placement application Tiffany had submitted; therefore, she filled out a second application and immediately submitted it to CWS. On July 6, 2009, Tiffany contacted CWS and requested that she be permitted to visit Jade. On July 18, 2009, Tiffany and two other family members met Jade and her foster parents at the Santa Barbara Zoo. Tiffany initially was given permission to telephone Jade. However, other family members also began telephoning Jade. Subsequently, the foster parents requested that family members no longer be permitted to telephone Jade due to the increased frequency of the calls. As a result, CWS told Tiffany that any further contact with Jade would be limited to written correspondence through CWS.
On August 10, 2009, Jade had gained sufficient weight and attained a degree of medical stability permitting her central feeding tube to be removed. Her pediatrician reported that at that time Jade was "thriving."
On September 23, 2009, the date originally scheduled for the six-month review hearing, Tiffany was present in court. Debra requested a contested hearing, and the matter was continued to October 27, 2009. Kenny and Latisha were granted de facto parent status on September 30, 2009.
In her report for the six-month review hearing, the social worker advised the court of Tiffany's request for placement and her favorable home inspection. She indicated, however, that CWS would not be recommending placement of Jade with her. CWS recommended that family reunification services for Debra be terminated and that the permanent plan for Jade be adoption.
On October 27, 2009, following the contested review hearing, the court terminated Debra's reunification services for failing to comply with her case plan. In making its orders, the court stated: "[W]e need to set a [§ 366].26 hearing; and as suggested by the Status Review Report, in order to pursue adoption of Jade in this case."
On January 5, 2010, Tiffany filed a de facto parent request and a request to change court order, seeking placement of Jade with her. CWS and Jade opposed the de facto parent request on the ground that Tiffany had not had day-to-day care of Jade. They opposed the modification request on the ground that Tiffany had not met her burden of showing a change of circumstances. The court disagreed and scheduled an evidentiary hearing. The hearing began on January 27, 2010, and continued intermittently until June 23, 2010. At the hearing, CWS social worker Katrina Vogt, Tiffany, Kenny and Latisha testified.
Vogt testified she became Jade's case worker in June 2009. She summarized her various contacts with Tiffany, stating that CWS assessed Tiffany for placement on two occasions--in November 2008 and in July 2009. Tiffany's initial request for placement was made before Jade was detained and was premature. Tiffany was denied placement in June because she had a conflictual relationship with Debra and lived in Riverside County, which would impede ongoing reunification efforts between Debra and Jade. Vogt also stated she refused Tiffany's second request because Jade was doing well in her current placement and changing her placement would not be in Jade's best interests. She testified that she told Tiffany in June 2009 that she had concerns about moving Jade again due to the numerous placement changes that had occurred. Vogt said: "I... let [Tiffany] know right away that we would assess her, but we would be looking at if that was really in Jade's best interest and weren't considering a placement change at that time." She stated that because of the length of time it took to do a home visit and a fingerprint check, Tiffany's home was not approved for placement until September 2009.
Vogt testified that Jade was doing very well in her current placement. She had gained height and weight and advanced a grade in school. She has a close relationship with Kenny and his wife and looks to them for comfort. She stated that Jade's doctor commented that Jade was doing remarkably well in her current foster home.
Tiffany testified that she lives in Corona, owns her own home, is a widow, works part-time as a paralegal, and has successfully raised four children. There are several medical facilities near her home. She visited Jade several times when she was hospitalized. On each occasion, she brought her children to the hospital. Jade's maternal grandfather, who lived 10 minutes from Tiffany, also frequently visited Jade when she was in the hospital. Tiffany believes Jade is bonded with her, her children and Jade's grandfather.
Tiffany contacted CWS on September 2, 2008, after she returned from a visit to Debra and Jade's home because "the conditions... were deplorable and very shocking the way my niece was being taken care of." At the end of September 2008, she was contacted by Jade's school because Jade had not been picked up. Tiffany was not able to pick up Jade herself so she called CWS for help. She stated that Jade was hospitalized in October and again in November 2008. She said CWS contacted her on November 17, 2008, and asked her if she would be a placement for Jade once she was released from the hospital. Tiffany agreed and filled out a relative placement application and faxed it to CWS that day.
Tiffany participated by telephone in the TDM held on November 21, 2008. After that meeting, she did not contact CWS until June 2009 because CWS told her that Debra would be involved in a six-month reunification plan. She was not contacted by anyone when Jade was detained in February 2009 or when she was placed in foster care. She first learned of Jade's placement in foster care from Jade's grandfather who had talked to Debra. She was never told that she would not be approved for placement. CWS told her in June 2009 that Jade would not be placed with her at that time because reunification services with Debra were ongoing, a conflicting relationship existed between Debra and Tiffany, and CWS did not wish to move Jade out of the county. Tiffany said she was puzzled by this response because Debra had moved from Santa Barbara County sometime in July 2009 and was not available for reunification services for several months.
Tiffany made repeated telephone calls to CWS that were not answered. When she and her family visited with Jade in July 2009 Jade appeared happy to see her. She has not seen Jade since that time because CWS has not allowed further visits. She had telephone contact with Jade through October, but then the foster parents told her not to call. In December 2009, she gave Christmas and birthday gifts to CWS to deliver to Jade, but CWS did not give them to her until the end of January 2010.
She said the CWS home inspector told her "[y]ou pass with flying colors." She admitted to having a conflictual relationship with Debra, as follows: "Debra and I have lived very different lifestyles and... I'm aware of her faults and her insecurities and different things that she's done and we disagree on a lot of that." She stated this conflictual relationship would not pose a problem if Jade were placed with her. She said that even though CWS told her they did not want to place Jade with her because she lived outside Santa Barbara County, the current foster parents also live outside of Santa Barbara County. She said that if Jade were placed with her "[s]he would have her own bedroom. She would attend a Christian school. She would have cousins who love her and an aunt and a grandma and everyone who loves her and who would like to spend time with her."
Tiffany visited Jade in the hospital frequently after she was born. Jade and Debra came to live with her in September 2003. However, from January through June 2004, Debra spent most of her time in Santa Barbara because Jade's doctors were there. During that time, she saw Debra and Jade once or twice a month. She helped Debra and Jade move to Goleta in July 2004. After that, she would visit four to eight times a year for two to three days at a time. She admitted she was not familiar with the medical treatment Jade currently requires for her medical conditions. Prior to her September 2008 visit with Debra and Jade, she had not seen them for about nine months.
Kenny testified he has been a registered nurse since 1996. He was an emergency room nurse for 10 years and currently is the director of a home health agency. He was Jade's admitting nurse. He developed a plan of care for her and contacted physicians for orders regarding her medical care.
He explained that gastroschisis is a condition in which the intestines of a child are formed outside the abdominal wall. Sometimes they can be placed back into the abdomen without surgery. Jade, however, required several surgeries to shorten her intestines and, currently, she has about one meter of small intestine. A portion of her large intestine was also removed as well as her duodenum.
Currently, Jade has a G-tube which provides her with nutrition and connects the outer abdominal area to her stomach. Feeding through the G-tube occurs every night for about 11 hours. The feeding pump is programmed to administer the correct dose of food at the correct rate. Jade is getting over a food aversion and has begun eating orally during the day, so the night feeding is varied depending on her intake of food during the day.
Jade has had no medical complications since being placed in Kenny's care. However, when she was in prior foster placements, she would not eat orally, had asthma attacks and explosive diarrhea during the night. Since she has been living in Kenny's home she has had no asthma attacks. Since she has been in Kenny's care, she has had a central line removed which connected outside the body directly into the bloodstream. Kenny testified that receiving nutrition directly into the bloodstream was dangerous and damaging to the liver. That device kept her from participating in many activities, made her prone to infections, and was the reason for many of her past hospitalizations. Removal of the central tube was a big step in improving Jade's health and her future prognosis.
In response to the question, "[w]hat type of procedures occur in your care that you're able to do given your background and training that would otherwise require a hospitalization or trip to a clinic, " Kenny responded: "The G-tube... can fall out or come out and needs to be replaced on a regular basis.... [W]hen it does come out, if it's not replaced immediately it can cause complications requiring hospitalization or surgery to have it [replaced.]... [W]hen Jade requires blood to be sent in to the hospital for analysis, I'm able to procure that in the home setting and take that to the hospital for her." Jade requires blood work every two or three months. Her G-tube needs to be reinserted at least once a month, and sometimes more frequently as she becomes more active.
Initially, Jade was fearful of any treatments that were performed on her. The dressing changes on her central line and the G-tube placement were especially traumatic for her. Now, however, she lets Kenny do whatever needs to be done without fear or resistance. He has taken care of several children with Jade's condition. If they are not cared for in a consistent and appropriate manner, they can spiral downward and lose weight. They have trouble absorbing nutrients and any emotional trauma can affect their health. If children with Jade's condition do not receive proper medical care, malnourishment, weight loss, infections, skin conditions and cognitive delays can result. Improper care and treatment could result in intensive care hospitalization and even death. When Kenny first began caring for Jade, she had profound cognitive and growth delays. She was so malnourished and underweight that she was below the zero percentile for her age. She has since grown to the 25th percentile in both height and weight.
Jade's daily care requires administering medications through her G-tube each morning, inspection of the G-tube to check for any malfunction, and constant monitoring of her nutritional intake. At night, she is administered more medications and is fed through the G-tube. It is very important that consistency in treatment be maintained because a lapse in consistency could "throw her whole gastric system into a tail spin and [would require] start[ing] all over again from square one." Jade's care requires about a half hour to an hour in the morning. The feeding process must be constantly monitored during the night to ensure no malfunction occurs.
Kenny explained how Jade was placed in his home. When the foster mother in Jade's fourth placement, which was supposedly a home certified for critical care children, indicated Jade's medical condition was too severe for her to care for, Kenny suggested to the social worker that Jade come live with him since he was driving two hours each day to provide care for her. He said he loves Jade like he loves his other three daughters, hopes that Jade will remain in his home, and wants to adopt her.
On June 28, 2010, the trial court issued its ruling granting Tiffany's modification petition on the ground that she was a relative entitled to preference under section 361.3 and that Jade's best interest would be served by a change in placement. The court granted Tiffany's de facto parent request, revoked the foster parents' de facto parent status, and ordered that Jade be removed from the foster parents' home and placed with Tiffany after a period of transition.
CWS and Jade filed notices of appeal. CWS also filed a petition for writ of supersedeas and temporary stay. We granted the stay and expedited oral argument on the appeals.
DISCUSSION
Standard of Review
A trial court has broad discretion in resolving a petition to modify a prior order. Generally, its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The trial court's failure to apply the appropriate statute amounts to an abuse of discretion and reversal is required regardless of whether substantial evidence supports the judgment. (Washington Mutual Bank, F A v. Superior Court (2001) 24 Cal.4th 906, 914; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436; Paterno v. State of California (1999) 74 Cal.App.4th 68, 85.)
Statutory Framework
Section 361.3 states in part: "(a) In any case in which a child is removed from the physical custody of... 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. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors:
Section 361.3, subdivision (a), provides that in any case in which a child is removed from the physical custody of his or her parents because of the initiation of dependency proceedings, "preferential consideration" shall be given to a request by a relative of the child (including an aunt, subd. (c)(2)) for placement of the child with the relative, and that several factors shall be considered in determining whether such placement is appropriate. "'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Section 361.3 "assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application." (See In re Sarah S. (1996) 43 Cal.App.4th 274, 285-286 [the statute puts the relative "at the head of the line when the court is determining which placement is in the child's best interests"].)
Section 388Section 388 states in part: "(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court...."
A relative who seeks placement of a dependent minor after the reunification period has ended may file a petition pursuant to section 388. (In re Stephanie M., supra, 7 Cal.4th at pp. 316-317.) A juvenile court is authorized to change a dependent child's placement upon a showing of change of circumstances if it is in the child's best interests. (Id. at p. 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 ["It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child"].)
"At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re M.V. (2006) 146 Cal.App.4th 1048, 1059.)
Section 366.26, Subdivision (k)
Section 366.26, subdivision (k) states in part: "Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child's emotional well-being."
The Trial Court Abused its Discretion by Applying the Relative Placement Preference
Section 361.3 governs in two situations: (1) At the dispositional hearing when the child is removed from parental custody (subd. (a)), and (2) when "a new placement... must be made." (Subd. (d); Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) The policy consideration underlying the relative placement preference at the disposition stage is to find a temporary caretaker who will meet the child's physical and psychological needs while cooperating in reunification efforts. "A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1064.)
The relative placement preference applies throughout the family reunification period. (In re Joseph T. (2008) 163 Cal.App.4th 787, 795, 797-798.) "During the reunification period, the preference applies regardless of whether a new placement is required or is otherwise being considered by the dependency court." (Id. at p. 795.) The relative placement preference continues to apply "while reunification efforts are still ongoing" because "relative caregivers are more likely to favor the goal of reunification and less likely than nonrelative caregivers to compete with the parents for permanent placement of the child."(Id. at p. 797.) However, the relative placement preference "is not a relative placement guarantee, " and the preference may be overridden in a given case. (Id. at p. 798.)
Where the court has determined that reunification is no longer possible and that the child should be freed for adoption, the reason for the preference disappears. (See In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855 ["There is no relative placement preference for adoption"].) At that point in the dependency proceeding, the overriding concern is to provide a stable, permanent home where the child can develop a lasting emotional attachment to her caretakers. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. (Id. at p. 310.)
Where custody has continued over a significant time, the need for stability may be controlling. In In re Stephanie M., supra, 7 Cal.4th at page 317, our Supreme Court stated: "'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.'" A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child. After termination of reunification services, when the intent is to place the child for adoption and a new placement is not necessary, the preference is for continued care by the foster parents who are interested in adoption. (§ 366.26, subd. (k); In re Lauren R., supra, 148 Cal.App.4th at p. 856.) Evidence that severing a bond with the foster parents, with whom a child has lived for a substantial period, will cause the child long-term, serious emotional damage is highly significant in determining the child's best interests after reunification has failed. (In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.)
The section 388 order under review was made after reunification services had been terminated and Jade was freed for adoption.As the moving party, Tiffany had the burden of showing that the proposed order was in Jade's best interest. (See In re Stephanie M., supra, 7 Cal.4th at p. 325 ["[T]he standard the juvenile court was to apply at the hearing on change of placement did not require that it place the child with the [relative] unless such a placement would be detrimental to the child. Rather, the court was to decide whether the parents had carried a burden of showing that the proposed change of placement was in the best interests of the child"].)
The record shows that Jade was thriving in her current placement with her foster parents. The juvenile court recognized this fact when it said in its opinion, "By every standard the placement with [Kenny and Latisha] has been an extremely successful placement with the family providing to Jade a wonderfully nurturing setting with both love and expert medical care being provided in generous doses.... [¶] Over the past approximately fourteen months [Kenny and Latisha] have provided a loving, caring, and stable environment for the minor child, Jade. They have painstakingly provided wonderful medical care to the minor and have accepted Jade into their home as one of their own children." In support of these findings, there was evidence at the hearing that changing Jade's placement would be detrimental to her and that her best interests would be served by the permanency of adoption by the foster parents, to whom she was most attached.
Tiffany's evidence focused on her desire to adopt Jade and the benefits of Jade being cared for by her relatives. Much of Tiffany's testimony focused on her perceived disregard by CWS. Tiffany did not provide evidence that disruption of Jade's current placement with the foster parents was in Jade's best interest. Evidence that Tiffany would be a good caretaker, had a large home, and wanted to adopt Jade simply indicated the existence of a placement equivalent, in the material sense, to the one she currently enjoys.
Despite the evidence that Jade was thriving with her foster parents, the court ordered that this beneficial relationship be terminated and Jade placed with Tiffany. It appears from the ruling that the juvenile court did not give proper weight to Jade's best interests or Jade's bond with her foster family, but instead seems to have focused on Tiffany's interest and CWS's perceived failure to give Tiffany preference at the proper time. More than half of the trial court's 27-page ruling was devoted to describing Tiffany's attempts to file an application with the agency and the agency's perceived inattention to her efforts. The court said, "[t]he Court should not discount the determined dedication of [Tiffany] in her efforts toward having Jade placed with her. In what had to often be a daunting and frustrating effort for her, not to mention the financial sacrifice that she undertook, [Tiffany] steadfastly pursued her goal of reuniting with Jade. She indicated to the Court that the reason this goal was so important to her was that '... my family is Jade's family.'"
The trial court erred in applying the relative placement preference because the section 388 petition seeking change of placement was filed after family reunification services had been terminated. Nor was it proper for the court to grant the petition because of errors it perceived in CWS's handling of Tiffany's application. Although CWS should have given Tiffany preference prior to termination of reunification services, that was no longer the posture of the case, and "[t]he overriding concern of dependency proceedings... is not the interest of extended family members but the interest of the child." (In re Lauren R., supra, 148 Cal.App.4th at p. 855.)
At the time Tiffany submitted her initial application for placement, Jade had not been detained. At the time Tiffany submitted her second application for placement, family reunification services were being provided to mother. During the reunification period the first priority is family reunification. In this case the best chance of reunification was with a foster family living in or near the county where mother lived. Placing Jade with Tiffany in Riverside County would have frustrated that goal by separating Jade from her mother. The refusal by CWS to place Jade with Tiffany during the period reunification services were being offered to Debra was consistent with section 361.3, which requires CWS to evaluate a relative seeking placement to determine whether the relative will "[f]acilitate court-ordered reunification efforts with the parents." (§ 361.3, subd. (a)(7)(E).)
At the hearing on the motion for change of placement, Tiffany had the burden of showing that "the change was in the best interests of the child at that time. Evidence that at earlier proceedings the court had not sufficiently considered placement with the [relative] was not relevant to establish that at the time of the hearing under review, placement with the grandmother was in the child's best interests." (In re Stephanie M., supra, 7 Cal.4th at p. 322, fn. omitted.)
It is important to accord relatives a "fair chance" to obtain custody, but the fundamental duty of the juvenile court is to assure the best interests of the child. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1033; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) "[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M., supra, 7 Cal.4th at p. 321.) This is true even where a relative who seeks a change of placement has been prejudiced by a failure on the part of the responsible agency or the juvenile court to facilitate the placement preference of section 361.3 in his or her favor. (See Stephanie M., at p. 317 ["'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child'"].) The juvenile court may not rectify mistakes made by the agency when considering a change in placement. For sound policy reasons, the children are not required to pay the price for others' mistakes.
Jade argues that the caretaker preference applies here. Unlike the relative placement preference, the caretaker preference applies specifically to applications for adoption. Section 366.26, subdivision (k) sets forth alternative bases for the application of the caretaker preference: It applies to a person who is caring for a child "for whom the court has approved a permanent plan for adoption, or who has been freed for adoption." When parental rights are terminated at a section 366.26 hearing, the juvenile court is directed to "order that the child be placed for adoption" unless one of the statutory exceptions applies. (§ 366.26, subd. (b)(1).) With such an order, the juvenile court effectively frees the child for adoption. (In re Lauren R., supra, 148 Cal.App.4th at p. 856.)
By its terms, the caretaker preference in section 366.26, subdivision (k), applies when the court has approved a permanent plan for adoption or has freed the child for adoption. "[T]he circumstance that triggers the application of the caretaker preference is the intent to place the child for adoption, not necessarily the termination of parental rights or the termination of reunification services." (In re Lauren R., supra, 148 Cal.App.4th at pp. 855-856.) In Lauren R., this intent was established when the juvenile court continued the section 366.26 hearing, approved a permanent plan of adoption, and ordered the county to find an adoptive family within six months. (In re Lauren R., at p. 856.)
The record in this case is similar to the one in Lauren R. At the six-month review hearing on October 27, 2009, the trial court terminated reunification services, freed Jade for adoption, and set a section 366.26 hearing. It does not appear the court formally declared adoption the permanent plan at that time. However, the case had reached the permanency planning stage, and the court's actions unquestionably demonstrated it intended adoption to be the permanent plan. As reunification services had been terminated, the public policy underlying the relative placement preference no longer applied.
If Kenny and Latisha were entitled to the caretaker preference, they should have received preferential consideration. And if they were not so entitled, then at least they should have been evaluated for adoptive placement on a level playing field with Tiffany. This is not what occurred. The juvenile court mistakenly applied the factors to be considered in a temporary relative placement to a determining of which person would be the better adoptive placement. Tiffany's standing as a relative clearly influenced the court, as indicated by its comments when making findings.
Should the trial court determine that the caretaker preference applies, it must review CWS's decision to maintain Jade in her current placement under the abuse of discretion standard. In subdivision (k) of section 366.26, the Legislature specifically designated the agency as the entity to determine if the child has substantial emotional ties to her caretaker and removal from the caretaker would be seriously detrimental to the child's emotional well-being. (In re Lauren R., supra, 148 Cal.App.4th at p. 859.) Under this statute, the trial court does not exercise its independent judgment but reviews the agency's decision for abuse of discretion. (See In re Harry N. (2001) 93 Cal.App.4th 1378, 1397 ["'Absent a showing that DSS's placement decision is patently absurd or unquestionably not in the minor's best interests, the court may not interfere and disapprove of the minor's placement'"]; see also Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 724-725, 733-734 [same]; accord, Los Angeles County Dept. of Children Etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 10-11; see also In re Shirley K. (2006) 140 Cal.App.4th 65, 72 ["The court cannot substitute its independent judgment for that of the Agency; rather, the court is limited to reviewing whether the Agency 'abused its discretion in placing the minor or in determining that the placement, once made, remains appropriate'"].)
We note that a somewhat similar provision is contained in subdivision (n) of section 366.26. Subdivision (n) applies when the Department proposes to remove a child from the home of a caretaker not, as here, where the court has made an order for removal.
Conclusion
We conclude the order directing Jade be removed from the custody of the foster parents was a decision beyond the allowable scope of the juvenile court's discretion. The trial court gave too great a weight to the interest of the aunt, at a point when the interest of the child to stability had become paramount. The trial court based its order on Tiffany's status as a family member and her statement that she was willing to adopt Jade. The juvenile court mistakenly applied the factors to be considered in a temporary relative placement to a determination of which person would be the better adoptive placement.
Given the applicable law, we must reverse the juvenile court's decision. The court is directed to conduct a new hearing in accordance with the views expressed in this opinion. On remand, the court may consider the evidence presented at the initial modification petition hearing plus newly discovered evidence, including events which may have arisen following the filing of these appeals. (In re Vincent M. (2008) 161 Cal.App.4th 943, 960; In re Arturo A. (1992) 8 Cal.App.4th 229, 244.)
We concur: GILBERT, P.J., COFFEE, J.
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"(8)... This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them....
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"(c) For purposes of this section:
"(1) 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated.
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"(d) Subsequent to the hearing conducted pursuant to Section 358 [disposition hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child."