Opinion
E066375
03-10-2017
In re L.K. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.F., Defendant and Appellant.
Law Offices of Vincent W. Davis & Associates, and Stephanie M. Davis for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J261330 & J261769) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Law Offices of Vincent W. Davis & Associates, and Stephanie M. Davis for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant R.F. is the maternal grandmother (MGM) of six-year-old L.K. and one-year-old L.J.K. MGM appeals from the juvenile court's order denying her a full evidentiary hearing related to her Welfare and Institutions Code section 388 petition requesting placement of the children in her care and custody. On appeal, MGM argues that (1) the juvenile court erred in denying her section 388 petition without an evidentiary hearing; and (2) the juvenile court erred in failing to conduct a relative placement preference hearing pursuant to section 361.3 when it denied her section 388 petition. We reject MGM's contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The parents are not parties to this appeal.
I
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) after H.H. (Mother) and L.J.K. tested positive for benzodiazepines, opiates, and oxycodone at L.J.K.'s birth. Mother reported that she received Norco from P.K. (Father), who took the medication after he was shot in the face with a defective shotgun when he was a teenager. L.J.K. was showing signs of withdrawal including a high-pitched cry and stiff legs. L.J.K. received morphine to ease her withdrawals. The parents reported that they were from Alaska, having been in the Yucca Valley area for only six months; and that they also had a five-year-old daughter, L.K., who was visiting family in Alaska. The parents denied illegal drug use, and hospital staff believed the parents were trying to leave with L.J.K.
To protect L.J.K., CFS detained her and on July 28, 2015, filed a petition on behalf of L.J.K. pursuant to section 300, subdivision (b), due to her parents' substance abuse. The following day, the court formally removed the baby from parental custody and ordered assessment of relative placement as requested by father.
Further investigation revealed that Mother had also tested positive for opiates and oxycodone following L.K.'s birth in April 2010 and that child protective services (CPS) in Alaska had intervened for a period of one month. The parents resided with MGM off and on in Alaska, and last did so in September 2009. Alaskan CPS deemed L.K. a vulnerable child, and according to Alaskan CPS workers, L.K. resided with MGM since July 2, 2015, but left Alaska on August 22, 2015 at Father's request. Father would not provide MGM paperwork to enroll L.K. in school. MGM acknowledged Father was a drug user who was sneaky about passing drug tests.
CFS confirmed that L.K., then age five, was living with MGM and that both parents had a history of abusing drugs. The paternal grandfather believed that L.J.K. would be well-cared for by the paternal second cousin, K.D., who resided in California. Mother, however, desired L.J.K. be placed with MGM in Alaska. MGM pressured the social worker to place L.J.K. in her care, even though it would interfere with the parents' visitation and reunification. A paternal aunt reported that MGM was supposed to bring L.K. to her home for overnight visits, but MGM refused, stating she was afraid she would not get L.K. back. MGM intended to move to North Dakota, and as such CFS would not initiate the Interstate Compact on Placement of Children (ICPC) with Alaska or North Dakota until MGM actually moved. CFS assessed K.D. for placement of L.J.K.
On August 25, 2015, CFS received a referral indicating L.K. was living with her parents in San Bernardino County and was at risk of harm due to her parents' substance abuse. The parents had MGM send L.K. to California On August 22, 2015, but withheld that fact from CFS, knowing CFS would likely detain L.K.
CFS detained L.K., and on August 27, 2016, filed a petition on behalf of L.K. pursuant to section 300, subdivisions (b) and (j). L.K. was detained the following day and placed in K.D.'s home with her sister.
CFS recommended that the children remain in their paternal cousin K.D.'s home. The relative home had been approved, and Father agreed with the placement. K.D. and her spouse had their own children, who were then ages two and nine. There was no mention of CFS placing the children with MGM.
The jurisdictional/dispositional hearing was held on September 14, 2015. At that time, the juvenile court found the allegations in the petitions true and declared the children dependents of the court. The children were maintained in K.D.'s home and the parents were provided with reunification services and ordered to participate. The court found the children's placement with K.D. appropriate and necessary. Mother did not object to the placement and Father endorsed the children's placement with K.D.
In a minute order dated November 4, 2015, it was reported that the children were residing in a concurrent planning home. The relative was incorrectly identified as the children's paternal aunt. The children remained in the home of K.D. The minute order also stated that MGM resided in Dickenson, North Dakota and was requesting consideration as a back-up placement. CFS asked for the court's approval to initiate an ICPC with North Dakota, which was granted.
On November 18, 2015, MGM filed motions, requesting the court to set a relative placement preference hearing pursuant section 361.3, and consider her, as well as other relatives living in her home, for immediate placement. MGM also asked to be considered L.K.'s de facto parent. In addition, MGM filed section 388 petitions, requesting placement of both girls in her home. The juvenile court set all matters for a hearing.
CFS recommended continued placement of the children with K.D. and her family, and denial of MGM's requests. The parents resided in California, where they received services and visits, and MGM lived out of state. MGM also made inappropriate statements to the children, telling them she would soon get them because Mother was going to sign over her parental rights, and undermined the children's placement with K.D. MGM also failed to follow the visitation rules by FaceTiming L.K. for over an hour rather than the 15 minutes allotted time, resulting in L.K. not wanting to call MGM. K.D. reported that the parents had sent L.K. to MGM's home prior to L.J.K.'s birth; that MGM had sent L.K. back to the parents' home around August 15, 2015, despite knowing about the parents' drug use; and that the parents were trying to hide L.K. from CFS.
Minors' counsel suggested that K.D. limit conversations with MGM to five to 10 minutes, and cease FaceTime visits.
K.D. informed the social worker that she offered to have MGM come to their home and visit the children, but MGM stirred up problems between the parents and K.D. MGM also kept talking about the case with L.K., and complained K.D. limited her calls. She told L.K. not to get in trouble, telling her " 'auntie [K.D.] holds the gun.' " In addition, MGM admitted that she sent L.K. to Father, who promised MGM that CPS would not take L.K. K.D. described how the children had adjusted well to their home and were part of the family. L.K. was doing great in school and was starting ballet classes soon.
The matters were heard on December 11, 2015. After hearing argument, the court denied MGM's de facto parent request as well as her section 388 petitions, finding there was no prima facie evidence of a change in circumstances and changing the children's placement was not in their best interest. The court renewed its order for an ICPC to investigate MGM as a back-up placement and to authorize unsupervised visits if appropriate and established K.D.'s home as the concurrent planning home.
On February 8, 2016, K.D. and her husband D.D. (the D.'s) filed a de facto parent request. A hearing on the request was held on March 1, 2016. The parents were not present. After no counsel objected to the request, the court granted the de facto parent request.
By the time of the March 14, 2016 six-month review hearing, CFS reported neither parent was complying with their court-ordered case plan and recommended terminating family reunification services and setting a section 366.26 hearing. In addition, the parents would often miss visits, show up late for visits, appear to be under the influence during visits, and had inappropriate conversations with L.K.
There were also problems associated with MGM's visits with the children. When L.K. referred to K.D. as "mom," MGM scolded L.K. and told her that she was " 'NOT your mom, she is your Aunt.' " Thereafter, the telephone disconnected. MGM called back, and blamed it on her " 'stupid phone,' " and then reminded L.K. how she felt about L.K. calling someone else "mom." K.D. tried to reign in MGM's inappropriate conversations, to no avail. After the call, L.K. told K.D. that MGM was mad at them and " 'I don't think my grandma loves me.' " K.D. reassured L.K. that MGM loved her.
L.K. had a difficult time regulating her emotions before and after parental visits and required counseling and a mental health assessment. L.K. had emotional indicators of sadness, depression, and mood swings. L.K. had a history of being emotionally abused, enduring changes of placements, separation from family, and parental substance abuse. A nurse assessed L.J.K. and noted that she had some abnormal facial features and a blank stare with interaction and recommended that the D.'s inquire about genetic testing. Nonetheless, the children were residing together and thriving in the D.'s home.
On March 14, 2016, at the six-month review hearing, Mother arrived with a retained attorney and the court set a settlement conference and trial for April 1, 2016.
At the April 1, 2016 settlement conference, the case was resolved with CFS recommending to continue reunification services. The attorney representing both Mother and MGM requested that the court order an expedited ICPC assessment of MGM's home. The court denied the request, reminding counsel that MGM was a back-up placement. Following some visitation amendment requests by CFS, the juvenile court continued reunification services and set a 12-month review hearing for August 18, 2016.
On April 5, 2016, Mother filed section 388 petitions requesting placement of the children with MGM or family that L.K. "is more familiar with." On April 11, 2016, the juvenile court summarily denied the petitions.
On May 5, 2016, Mother filed a motion to hold a relative placement preference hearing as to MGM pursuant to section 361.3. The motion noted that MGM had received ICPC approval; that MGM could facilitate services and could provide a permanent home if reunification efforts failed; and that K.D. thwarted reunification efforts by cancelling visits with the parents and MGM. The ICPC home study by North Dakota was attached to the motion, and stated that at the beginning of the ICPC process, MGM lived with relatives, but she had established her own residence, a three-bedroom trailer, and was attending school to become an instrument sterilization technician. MGM reported that she had no history of arrests or drug use or current drug use; and that after the father of her three children was murdered, she began taking an antidepressant.
CFS recommended that the court deny the request for placement with MGM and that the children be maintained with the D.'s. Although Mother claimed that the D.'s thwarted reunification efforts, medical documents demonstrated two visits in March were cancelled because L.J.K. was ill and received hospital treatment for breathing problems. Also, the parents could not be advised the visits would not occur, as their phones were disconnected and they failed to confirm visits as required. The parents accused K.D. of not permitting visits, but the parents admitted they were often not available, as they changed phones, or had defective phones.
The social worker also noted MGM's acrimonious behavior towards CFS and the relative caretakers. During a visit on March 11, 2016, MGM brought the children gifts and sarcastically told them K.D. would not like it if they had ice cream before dinner. The social worker concluded MGM tended to undermine the D.'s when she could. Additionally, MGM yelled at L.K. for calling K.D. "mom"; MGM failed to comply with the visitation center rules; and accused and confronted K.D. of being a spy when K.D. sat in the lobby monitoring issues. L.K. told K.D. that she was not allowed to call the D.'s " 'mom and dad.' "
Before another visit, on April 2, 2016, MGM brought a birthday cake and complained to L.K. that the D.'s made L.K. miss her birthday. D.D. asked MGM to commence visiting inside, as required, and MGM told him " 'I am grandma!' . . . 'I will fight till the day I die.' " MGM also told the D.'s if they were Christians, " 'I don't see it' " and accused the D.'s of only wanting " 'that paycheck' " for the children.
The social worker spoke to MGM, and advised against her "face phone time" with L.K., believing phone visits during L.K.'s therapy may be better, or the parents may contact MGM by telephone when they visited. MGM responded by yelling " 'this is not over with!' " She complained CFS took L.K. from her. When the social worker reminded MGM that MGM gave L.K. back to Mother knowing the parents abused substances, MGM argued about the children being removed, and continually yelled at the social worker, who repeatedly urged her to stop. Ultimately, the social worker terminated the phone call.
The social worker also noted the D.'s tried to arrange visits for Saturdays, because Thursday visits conflicted with school and work schedules, and the parents were not available Wednesdays. The visitation center put them on the waiting list for Saturday visits, and the D.'s offered to facilitate visits at church on Saturdays. The D.'s tried to convey this by texting the parents, however, the parents' phone numbers had been changed, which the visitation center also determined.
On April 19, 2016, K.D. reported that MGM dragged her " 'through the mud' " and played " 'dirty' " to get what she wanted. MGM had such disdain for the D.'s that she referred to them as " 'the fosters.' " Despite such difficulties with MGM, K.D. began calling MGM to facilitate phone visits with the children. In a recent phone visit, MGM and the children sang songs for about 12 minutes, although L.K. wanted to get off the phone about halfway through the visit.
L.K. began therapy in March 2016. L.K.'s therapist believed it would be detrimental to remove L.K. from the D.'s and noted that L.K. appeared to be adjusting well with the D.'s. When the social worker spoke with L.K., L.K. stated that she wanted to stay with the D.'s forever. L.K. also stated that she liked the D.'s home and that she did not want to live with MGM.
K.D. recalled Father objecting to placement with MGM, referring to MGM as " 'bipolar' " and " 'f***ing crazy.' " Father felt MGM could not provide a good environment for the children. MGM also shared with K.D. that MGM suffered short-term memory loss due to her involvement in a car accident about a year prior. In addition, according to K.D., Father stated MGM once told L.K. to yell racial insults out the car window to a man. MGM also recently told L.K. that she would be on "walks with Grandma real soon." MGM also complained the children should be with the parents, stating " 'This is why I didn't want the state involved.' " K.D. reported that the children had a lot of family locally, including 10 cousins, who were then ages two to nine years old; and that the children saw the family regularly. K.D. further reported that the girls had "strong bonds" with the D.'s and "are truly loved by our whole family" and that "[We] will continue to protect them and have their best interest as our first priority!"
The social worker also described a visit she observed on June 11, 2016, when a paternal aunt was visiting. The parents and MGM arrived late. MGM had an "unfriendly look" and ignored the social worker. The paternal aunt saw MGM, politely inquired who she was, and Father introduced them. MGM scowled and said " 'Hi,' " but she later accused the paternal aunt of glaring at her, and threatened to photograph the paternal aunt as evidence. The paternal aunt calmly told the social worker, " 'I don't want pictures taken of me,' " and MGM yelled " 'Too late! I already did it!' " The social worker's repeated requests for MGM to stop seemed to fuel MGM's inappropriateness in front of the children. Eventually, MGM "childishly sat with her hands across her and stared" at the paternal aunt. When MGM began to leave, L.K. turned her head to avoid getting kissed by MGM. L.K. later stated " 'Grandma was mad' " and " 'I was scared and . . . getting ready to cry.' "
On June 14, 2016, MGM filed a section 388 petition requesting immediate placement of the children with her or, in the alternative, out of state visitation with her in North Dakota, unsupervised visitation in California, and regular video visits. The petition stated MGM was challenging the court's order placing the children "with someone else other than me." The petition also stated that the requests would serve the children's best interest, as MGM had previously cared for L.K. for extended periods, and would facilitate services and provide the children legal permanence if needed. The petition also contended that the D.'s obstructed reunification efforts by cancelling visits, and they were not permitting her telephonic visits and that MGM and L.K. were deeply bonded, and she loved L.K. and L.J.K. dearly. The petition included proof of the ICPC approval for MGM. The court set the matter for hearing on the same day as Mother's motion for a relative placement preference hearing.
The social worker's responsive report recommended denial of the petition and supervision of MGM's visits, and reiterated concerns stated in the prior CFS report filed in June 2016 in response to Mother's motion for relative placement.
On June 30, 2016, the court heard argument from all counsel about whether a full evidentiary hearing should be held on MGM's section 388 petition, as well as the requests for placement of the children with MGM. Counsel retained by MGM and Mother argued MGM sought placement of the children before the detention hearing, and "[f]or whatever reason" CFS placed the children with "distant relatives" and "did not want to initiate ICPC." Counsel asked the court to "extend" the Isabella "ruling even further," and claimed CFS does not "pay attention" to priority placements and finds a distant relative they think is better and asserted, "I think this is driven by money." Counsel claimed CFS received federal and state funds for a child placed in the county.
Counsel was apparently referring to In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.).
CFS's counsel refuted the argument that CFS would receive a windfall by keeping the children in the county and pointed out that MGM resided in Alaska when the case commenced. CFS's counsel also argued that CFS communicated with MGM; that MGM admitted she was moving to North Dakota shortly; and that MGM sent L.K. to the parents and now blamed CFS for not placing the children with her. CFS's counsel further noted that in August 2015, the children were placed with relatives, and were doing exceptionally well with the caregivers; that MGM had said inappropriate things to the children; and that MGM believe she has a right to the children " 'no matter what.' " CFS's counsel asked the court not to grant a hearing on the section 388 petition.
The court denied a further evidentiary hearing on the section 388 petition, noting it "kind of" had an evidentiary hearing with extensive documents provided to the court by both sides. The court found no change in circumstance, noting CFS had been working with MGM from the inception of the case and the court had been aware of MGM's desires from the beginning. The court also found the requested orders and change in placement were not in the children's best interest.
On June 30, 2016, MGM filed an appeal from the court's order denying her section 388 petition.
II
DISCUSSION
A. Denial of Section 388 Petition without an Evidentiary Hearing
MGM contends the juvenile court abused its discretion in denying her most recent section 388 petition without an evidentiary hearing. We disagree.
We reject CFS's request to strike MGM's opening brief for failure to abide by briefing rules as the brief contains sufficient citations to the record and summary of facts and we are able to discern the legal arguments. We also reject CFS's claim that MGM forfeited most of her arguments by failing to raise the issues in a prior appeal, i.e., by failing to appeal from the dispositional orders or failing to appeal from the denial of MGM section 388 petition in December 2015.
The juvenile court is given broad discretion to deny a hearing if the section 388 petition fails to state a change of circumstances or new evidence or demonstrate the requested modification is in the best interest of the minor. (Cal. Rules of Court, rule 5.570(d)(1), (2); In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) We review an order denying a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We will not disturb the juvenile court's decision unless the juvenile court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Angel B., supra, 97 Cal.App.4th at p. 460.)
MGM incorrectly argues the standard of review is de novo. In fact, the case cited by MGM, In re Angel B. (2002) 97 Cal.App.4th 454, specifically states "We review such a summary denial for abuse of discretion . . , and resolve the constitutional issue as a matter of law." (Id. at p. 460, citing In re Anthony W. (2001) 87 Cal.App.4th 246, 250; see In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413 [also cited by MGM].) MGM also incorrectly asserts that the heightened constitutional standards apply in this case.
Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence. The person seeking modification must "make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) A prima facie showing requires (1) a genuine change of circumstances or new evidence, and (2) that revoking the previous order would be in the best interests of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
"The petition [is] liberally construed in favor of its sufficiency." (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) To be entitled to a hearing, the petitioner "need[] only . . . show 'probable cause'; [the petitioner is] not required to establish a probability of prevailing on [the] petition." (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) Nonetheless, if the allegations fail to show changed circumstances such that the children's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G., supra, 77 Cal.App.4th at pp. 806-807 ["the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order"]; see In re Edward H. (1996) 43 Cal.App.4th 584, 593 [" 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited"].)
The juvenile court did not abuse its discretion in denying MGM's petition without a further full evidentiary hearing. As to the first prong, under section 388, the " 'new evidence [or change of circumstance] must be of such significant nature that it requires a setting aside or modification of the challenged order.' " (In re D.B. (2013) 217 Cal.App.4th 1080, 1093, italics omitted.) The evidence presented in MGM's section 388 petition did not meet this standard as it was part of the record and the court had already considered it. (See In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) It thus does not require reversal of the prior order.
Moreover, MGM did not establish that a change in placement would be in the children's best interest. When assessing relatives, CFS and the court are required to consider criteria stated in section 361.3, such as the parents' wishes about the children's placement, the moral character of the relative, and the caregivers' ability to meet the child's needs, protect the child, and facilitate reunification services. (§ 361.3, subd. (a).) As the record shows, change in the children's placement with MGM was not in the best interest of the children. While it appears MGM cared for and loved her granddaughters, MGM discussed the case with and in front of L.K.; she acted childishly in front of the children; she disregarded L.K.'s emotional needs; she undermined the D.'s; she stirred up problems in attempts to disrupt the placement; she previously failed to protect L.K. from the parents, knowing they abused drugs; and she resisted CFS's efforts and intervention by the court. Moreover, the children, who required stability and permanency, were stable and thriving in the D.'s home. L.K. recognized the D.'s as parental figures, and desired to remain with them. L.K.'s therapist also noted that L.K. was adjusting well with the D.'s and opined that it would be detrimental to L.K. to remove her from the D.'s. Furthermore, the children's change in placement with MGM in North Dakota would hinder the parents' reunification efforts, which were still ongoing, and thwart the parents' visitations.
In sum, it is in the children's best interest to be maintained with the D's, their defacto parents, than being placed with MGM, who failed to act protectively with the children, and seemed to be in a state of flux, due to her repeated recent moves and changes of household, and pursuit of further education for a different career. As the court In re Angel B., supra, 97 Cal.App.4th 454 stated, "stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers." (Id. at p. 465.) The court did not abuse its discretion in denying MGM's petition without a further full evidentiary hearing.
B. Relative Placement Preference
MGM also argues that the juvenile court erred in denying her petition and thereby failed to conduct a relative preference hearing pursuant to section 361.3. We disagree.
As previously noted, to prevail on a section 388 petition, the party must show: (1) new evidence or changed circumstances; and (2) the proposed change would promote the child's best interest. (In re D.B., supra, 217 Cal.App.4th at p. 1089.) Additionally, when the section 388 petition seeks to move a child to a relative's custody, this two-prong test must be considered in conjunction with the statutory relative placement preference set forth in section 361.3. (Isabella G., supra, 246 Cal.App.4th at pp. 719- 723.) Under section 361.3, the Legislature intended " '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.'. . . [¶] . . . When considering whether to place the child with a relative, the juvenile court must apply the [section 361.3] placement factors, and any other relevant factors, and exercise its independent judgment concerning the relative's request for placement." (Isabella, at p. 719, italics omitted.) Section 361.3 seeks to implement the public policy goal of preserving families during the dependency process. (See In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.)
Section 361.3 states in relevant part: "(a) In any case in which a child is removed from the physical custody of his or her parents . . . , 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: [¶] (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 7950) 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. [¶] . . . [¶] (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. [¶] (ii) However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) [¶] (A) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section . . , the relative's home shall first be assessed pursuant to the process and standards described in subdivision (d) of Section 309." --------
In Isabella G., a case relied upon by MGM, our colleagues in Division One recently recognized that the section 361.3 relative preference applies when making the initial placement decision and during the subsequent dependency period. (Isabella G., supra, 246 Cal.App.4th at pp. 719-723; see Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032; In re Joseph T. (2008) 163 Cal.App.4th 787, 793.) Specifically, the court held the relative preference rules govern even if the reunification period has ended and a new placement is not "necessary" (i.e., there would be no placement change considered except for a relative's placement request). (Isabella G., at p. 723.) The court explained that "[i]deally, the statutory scheme contemplates the Agency has identified and approved the child's relatives for placement before the dispositional hearing," but the Legislature did not intend to limit to this time period the obligation to consider a relative's custody request. (Id. at p. 719.)
Nevertheless, our colleagues in Isabella G. also recognized that despite the strong relative preference rules, a relative is not guaranteed custody and the focus must remain on the child's best interest. (Isabella G., supra, 246 Cal.App.4th at p. 723; see In re Stephanie M., supra, 7 Cal.4th at pp. 317-320, 322; In re Joshua A. (2015) 239 Cal.App.4th 208, 218-219; In re Lauren Z., supra, 158 Cal.App.4th at pp. 1112-1113.) When considering a relative's placement request, the child's best interests are paramount, and the court must consider the statutory factors that seek to ensure the child's interests are promoted and protected. (§ 361.3, subd. (a)(1); In re Stephanie M., supra, at p. 320 [even if the relative preference applies, it does not "overcome the juvenile court's duty to determine the best interests of the child"]; see In re Lauren Z., supra, 158 Cal.App.4th at p. 1112; see also In re Joshua A., supra, at pp. 218-219.) "[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, at p. 321.)
Accordingly, when a party brings a section 388 motion seeking to move a minor's custody to a relative's home after the disposition hearing or after a section 366.26 reference, the court must give preferential consideration to the request, but this consideration must include an assessment of the child's current circumstances and whether the new placement would be in the child's best interest. (Isabella G., supra, 246 Cal.App.4th at p. 723; see In re Stephanie M., supra, 7 Cal.4th at pp. 317-320, 322.) A juvenile court has broad discretion in making these determinations. (In re Stephanie M., supra, at p. 318; accord, In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
In the present matter, as explained above, a careful review of the entire record shows that it would not be in the children's best interest to change their placement from the D.'s home to MGM's home in North Dakota. The evidence shows that the children were thriving in the D.'s home; that the children were strongly bonded to the D.'s and their children; and that the children were well cared for and the D.'s were meeting the children's needs while also assisting in reunification efforts by the parents. Based on all of the evidence before it, the court could properly conclude that it was not in the children's best interest to be moved from the D.'s, who are the children's relatives and defacto parents, to MGM's custody in North Dakota. (See In re Stephanie M., supra, 7 Cal.4th at p. 325.)
In asserting the juvenile court erred, MGM believes CFS "never gave [MGM] a good faith consideration, viewing her as only a backup placement" with the children being maintained "in the home of distant relatives." The court recognized MGM's desire to seek placement from the inception of the case and ordered CFS to assess the relatives. CFS assessed MGM, among other relatives, for placement of the children before disposition. However, MGM was not prepared to take custody of the children as she resided in Alaska and planned to move to North Dakota. The evidentiary record supports this finding. The fact that MGM was not approved until after she moved to North Dakota and an ICPC could be completed did not affect the court's best interest finding. Moreover, even assuming the delay in approving MGM's home through ICPC, the focus at the section 388 hearing must be on the child's best interest and not the agency's past actions or inactions. (In re Lauren R. (2007) 148 Cal.App.4th 841, 855; see In re Stephanie M., supra, 7 Cal.4th at pp. 322, 324.) "The overriding concern of dependency proceedings . . . is not the interest of extended family members but the interest of the child." (In re Lauren R., supra, at p. 855.)
MGM also argues we must reverse the judgment because the court disregarded the legislative intent to provide preference to a relative seeking placement of a dependent child and failed to hold a relative preference hearing. (See § 361.3, subd. (a).) MGM's argument is factually unsupported because the record shows the court properly considered the relative preference rules. CFS assessed MGM as a potential relative placement, the court permitted argument on the issues, and repeatedly made the placement determination. The court's findings reflected that the court understood it was required to give preference to MGM's custody request. The fact that the court ultimately found (supported by substantial evidence) that the children's best interest would not be served by a custody change does not show the court misapplied the relative preference rules.
We also find immaterial the fact that the court did not specifically refer to section 361.3 in denying MGM's section 388 motion. Absent any indication to the contrary, we are required to presume the court understood and applied the statutory factors. (See Evid. Code, § 664.) In this regard, we find this case distinguishable from Isabella G., in which the court reversed the juvenile court's denial of a section 388 motion seeking to change custody to the grandparents' home. (Isabella G., supra, 246 Cal.App.4th at pp. 719-725.) In Isabella G., the juvenile court expressly found the statutory relative preference rules "did not apply" because reunification services had been discontinued (id. at p. 717); the grandparents had a strong relationship with the dependent child and had been part of her life since she was born; the social services agency had misled the grandparents into believing they had preserved their rights earlier in the process; and the grandparents had the ability and strong desire to care for the child (id. at pp. 713-717, 724).
These factors were not present in this case. The juvenile court here did not find the relative preference rules were inapplicable, and instead expressed its understanding that MGM was entitled to custody if the placement was in the children's best interest. In addition, CFS did not ignore MGM's request for placement and CFS initiated a relative home assessment of MGM once she moved to North Dakota. Unlike in Isabella G., the evidence thus supported that the court addressed the critical issue—whether the children's best interest would be served by placement with the relative who was entitled to preference.
MGM's reliance on In re R.T. (2015) 232 Cal.App.4th 1284 (R.T.), for the proposition the juvenile court erred in not considering the relative preference privilege under section 361.3, is also misplaced. In R.T., the court reversed the juvenile court's order terminating parental rights on the ground the court and the agency failed to apply the relative placement preference and consider the child's aunt and uncle for placement. (R.T., at pp. 1293-1294.) After termination of reunification services, the aunt and uncle filed a section 388 petition, seeking to set aside the disposition order and modify placement on the ground they were denied preferential consideration for placement. The juvenile court denied the section 388 petition. The court in R.T. held the juvenile court's failure to apply the relative placement preference under section 361.3 constituted prejudicial error. (R.T., at p. 1300.) The R.T. court concluded the relative placement preference could be considered postdisposition because the aunt invoked the preference by filing her section 388 petition for modification of placement before the dispositional hearing.
R.T. is inapposite. Unlike in R.T., the record shows that CFS assessed MGM's home once she moved to North Dakota. Nothing in the record suggests that CFS or the court did not consider MGM's home as a possible placement for the children or that the court failed to apply the relative placement preference. Rather, it was determined that it would not be in the children's best interest to change their placement and place them with MGM.
" '[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 [relative] parent may require that placement with [another] relative be rejected.' [Citation.] Section 361.3 does not create an evidentiary presumption that relative placement [or in this case with a grandparent] is in a child's best interests. [Citation.] The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of [his or] her best interests." (In re Lauren R., supra, 148 Cal.App.4th at p. 855; see R.T., supra, 232 Cal.App.4th at p. 1295.) MGM has failed to demonstrate CFS or the juvenile court erred in not applying the relative placement preference to MGM.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.