Opinion
D079420
01-31-2022
In re A.S., a Person Coming Under the Juvenile Court Law. v. M.H., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY Petitioner and Respondent,
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Lonnie J. Eldridge, County Counsel, CaitlinE. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. SJ12949, SJ12949C Rohanee Zapanta, Judge.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, CaitlinE. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel for Plaintiff and Respondent.
AARON, J.
I.
INTRODUCTION
M.H., de facto parent of 21-month old boy A.S. and his sole caregiver since birth, appeals from the juvenile court's order denying her petition under Welfare and Institutions Code section 388 to change his general foster placement to a specific placement with her. The court instead authorized placement with his maternal grandmother, M.Q.-N. (Grandmother). M.H. also contends that the court erred by excluding the testimony of her expert witness. The San Diego County Health and Human Services Agency (Agency) maintains that M.H. has not established any abuse of discretion. Although we conclude that the court did not err in excluding the expert testimony, we agree that the court abused its discretion in denying M.H.'s section 388 petition. We therefore affirm in part, reverse in part, and remand for further proceedings.
Further statutory references are to the Welfare and Institutions Code unless noted. A.S.'s parents (Mother and Father) are not parties to this appeal, and his older sibling and half-sibling are not part of the case.
II.
FACTUAL AND PROCEDURAL BACKGROUND A. Early case events
A.S. was born in April 2020. He tested positive at birth for methamphetamine and opiates, and exhibited mild withdrawal symptoms. The Agency detained A.S. and filed a petition under section 300, subdivision (b)(1).
The Agency's detention report reflected that a social worker spoke with Grandmother shortly after A.S.'s birth. She lived in Los Angeles, had last seen Mother in September 2019, and kept in touch with her grandchildren by phone. A.S. was detained in the foster home of M.H. when he was three days old.
The Agency filed its jurisdiction and disposition report in May 2020, recommending that Mother not receive reunification services and that a section 366.26 hearing be set. In early May, Grandmother told the social worker that she wanted A.S. to be placed with her. Later that month, she provided her information for a background check, and said that she would call back with information for the Agency concerning her two children who lived with her. She acknowledged that she smoked marijuana, but maintained that she had not done so "since the last worker called." M.H. reported that Grandmother contacted her for updates about A.S.
The jurisdiction and disposition hearing took place in September 2020. The juvenile court declared A.S. a dependent and placed him in foster care. The court authorized the Agency to evaluate Grandmother's home and gave it discretion to place A.S. with Grandmother, if the Agency deemed such placement more appropriate. The court also denied reunification services and set a section 366.26 hearing. In November 2020, adoptions social worker Veronica Nerz was assigned to the case.
In January 2021, M.H. filed a de facto parent request. That same month, the Agency filed its section 366.26 report and requested a continuance to identify a permanent placement for A.S. The report stated that M.H. and Grandmother were both interested in adoption, and that the Agency had no concerns about placement with M.H., but noted that Grandmother was "entitled to . . . consideration due to her relation to [A.S.]." The report further stated that Grandmother was in the process of obtaining an emergency RFA (resource family approval).
A child and family team meeting was held in mid-January, attended by M.H., Grandmother, social worker Nerz, her supervisor, and a facilitator. The team agreed that M.H. "has provided [A.S.] with a loving and safe environment. . . ." The group discussed a transition period, during which M.H. and Grandmother would arrange video visits and facilitate in-person visits between Grandmother and A.S. M.H. and Grandmother "agreed to do this, and they sounded enthusiastic about getting [A.S.] acclimated to [Grandmother] over time." M.H. noted that A.S. experienced separation anxiety when M.H. left the room, but she did not think that this warranted services or intervention. Grandmother was planning to move to a new home in the same city where she had been living, and agreed to be in contact to ensure timely evaluation of her home.
B. M.H. 's Section 388 petition and the Agency's planned transition to Grandmother
In March 2021, the Agency filed a notice for a special hearing on a "change of placement." M.H. then filed a section 388 petition requesting that the court modify the foster care placement to a specific placement with her. She alleged that there was a change in circumstances, because the Agency planned to remove A.S. from her and place him with Grandmother. She referenced her pending de facto parent request, and stated that she had cared for A.S. since birth, including getting him through withdrawal as an infant. As for A.S.'s best interests, M.H. alleged that Grandmother "works full time and has 2 jobs" and that A.S. "will be in daycare all day" if placed with Grandmother. M.H. had explained in a separate caregiver information form that she works from home. She further contended that A.S. was "extremely bonded" to her, that he would suffer "emotional damage" if removed from her, and that it would be in his best interests to remain with her. In a supporting brief, M.H. argued that the relative placement preference should not apply, given the stage of the case, and that it was in A.S.'s best interests to stay with her regardless.
M.H. also filed a request for access to the juvenile court file under section 827. "Section 827 governs the granting of access to confidential juvenile records by individuals and the public." (In re Elijah S. (2005) 125 Cal.App.4th 1532, 1541-1542 (Elijahs.).)
In its March addendum report, the Agency recommended that the juvenile court deny M.H.'s section 388 petition and grant the Agency discretion to begin overnight visits with Grandmother. The Agency sought another continuance to monitor the transition and identify a permanent plan. The Agency also addressed the relative placement preference. As we discuss post, section 361.3 requires that requests by relatives for placement be accorded preferential consideration. (In re Isabella G. (2016) 246 Cal.App.4th 708, 719 (Isabella G.).) The factors that the juvenile court is to consider in assessing possible placement under section 361.3 include:" 'The best interest of the child, . . . [t]he wishes of the parent, . . . [t]he good moral character of the relative, . . . [t]he nature and duration of the relationship between the child and the relative, '" and" '[t]he ability of the relative to . . . [p]rovide a safe, secure, and stable environment. . . [p]rotect the child from his or her parents. . . [f]acilitate visitation with the child's other relatives. . . [p]rovide legal permanence.. . [and] [a]rrange for appropriate and safe child care ....'" (Id. at p. 719, fn. 9; see § 361.3, subd. (a)(1)-(8).)
The Agency believed that it was in A.S.'s best interests to be placed with Grandmother. The Agency acknowledged that A.S. was "doing well" with M.H., that he had met "medical and developmental challenges" with her support, and that she "has provided a loving, stable home." It also noted M.H.'s position that she was the "only primary caregiver" A.S. had known, that he had separation anxiety, and that she was "uniquely able to meet his needs" because she could stay home with him. However, the Agency ultimately concluded that because A.S. was just 10 months old, there was no evidence that he "would not . . . overcome the trauma" of changing placements with Grandmother's "support and love"; and that "trauma. . . does not outweigh the benefits of being placed with a relative."
With respect to other factors, the Agency had no concerns about Grandmother's moral character. Discussing the nature and duration of her relationship with A.S., the Agency said that Grandmother and M.H. had communicated weekly by text from May 2020 until October 2020. They agreed to reestablish contact at the January 2021 team meeting, an in-person visit had taken place in early February, and another was scheduled for March. Regarding A.S.'s needs, the Agency said that Grandmother could "provide a safe, secure, and stable" home; would not allow contact with the parents before consulting with the Agency; and could reduce her work hours if needed, but also had arranged for day care. In addition, Grandmother could facilitate contact with A.S.'s family. As for legal permanency, Grandmother was reportedly "confident" that her estranged husband would sign a necessary form so that she could adopt A.S., and if not, she was willing to pursue legal guardianship.
Grandmother's phone had apparently broken. She said that she got a new phone, tried to contact M.H., and received no response. M.H. said that she responded in October 2020, and did not receive a reply.
In the Agency's concluding assessment, it stated that Grandmother "ha[d] relative preference" and was "cleared for placement. . . via emergency RFA," and reiterated that placement with her was in A.S.'s best interests.
The Agency's April addendum report stated that Grandmother had three in-person visits in late March and early April, which went well, but there was concern that M.H. was "creating barriers" to expanded visits. Grandmother was also "making efforts to contact her husband" to sign the form to permit adoption, and the Agency indicated that the outcome of these efforts would "determine how [it] proceeds in recommending adoption versus guardianship with [Grandmother]." At a hearing in April, the juvenile court deemed M.H. a de facto parent and granted the Agency discretion to allow overnight visits with Grandmother. The court also found that M.H. had established a prima facie showing on her section 388 petition and set a contested hearing for June 11, noting in part that A.S. "has been placed with [her] for close to a year, since birth" and "there is a strong bond." The court subsequently granted M.H.'s section 827 request for access to the juvenile court file.
The Agency provided further addendum reports in May and June 2021. Grandmother and A.S. had two overnight visits, each lasting two nights, in April; M.H. cancelled a third visit due to a medical issue. Visits expanded in May to three or four consecutive nights each week, and continued to go well. Grandmother said that if A.S. were placed with her, she would allow video visits with M.H. and possibly in-person visits as well. Grandmother also indicated that she had heard from her husband, reporting he "told my daughter for me to figure out my problems" and "to file for divorce, if I really need to." A.S. had a development evaluation and reportedly had an appropriate attachment to M.H. and no delays, but he was referred to services and occupational therapy for irritability, self-regulation issues and hyperactivity, and stiffness in his legs. The Agency acknowledged M.H.'s concern that removing A.S. from her would be detrimental to him, but stated,
" [T]he benefits of placement and permanency with a fit relative (knowledge of family history, knowledge of medical and psychological information, relationships with extended family, and connection to the child's identity) outweigh the impact of a change of placement."
C. Section 388 hearings
On June 4, M.H.'s attorney sent an email to counsel for A.S., his parents, and the Agency, indicating that his witnesses for the June 11 section 388 hearing included psychologist Dr. Yanon Volcani. The email stated," [He] will be testifying to the bond and the importance of secure attachment in infants generally. Sorry-he did not draft a report, so I have nothing to provide you. But I can tell you that he will testify that the child has a very positive attachment to my client-the de facto mom."
At the June 11 hearing, Dr. Volcani testified about the importance of a child having a secure attachment. He then stated that he had met with and observed M.H. and A.S. on two occasions, including watching A.S. after M.H. left the room and seeing M.H. interact with her family. He "did not do an attachment study in the formal sense," but rather, conducted "an observation relevant to attachment of a child." The other attorneys objected to Dr. Volcani s testimony, citing the lack of prior disclosure of his in-person observation of A.S. The court sustained the objection, citing Code of Civil Procedure sections 2034.210 and 2034.260, but continued the matter for an interim hearing on whether Dr. Volcani would be permitted to testify about any of the information that he had collected during his observation of M.H. and A.S. After addressing this issue and acknowledging the impending retirement of Agency counsel, the court declared a mistrial and reset the contested hearing for August 27.
At the August 6 interim hearing and pre-trial status conference, the juvenile court heard further argument regarding the admissibility of Dr. Volcani's testimony. The court excluded his testimony, stating that it was "clear that there was confidential information of the represented client within the realms of [section] 827 and that there was no prior authorization to disclose that confidential information to any outside third party." The court also stated that it "doesn't find that [the] additional information would provide specific and distinguishable insight that would lend itself to the actual specific legal issues in this case."
The court noted that California Rules of Professional Conduct 4.2(a) bars communication with represented parties, without their lawyers' consent, but declined to make a finding on the issue.
An Agency addendum in early August reflected that extended visits between Grandmother and A.S. had continued in June and July, and Grandmother brought one of A.S.'s siblings to the pick-up for one visit. She reported that she was waiting for her tax return and planned to file for legal separation after receiving it, so that she could adopt. A.S. was seen by an attachment therapist, and M.H. shared with the therapist her concerns about A.S.'s increased irritability after visits with Grandmother and his attention span and sleep. The therapist attributed A.S.'s irritability to frustration from delayed speech, and concluded that his attention span and sleep habits were normal. The Agency still felt that M.H. was creating barriers to visitation between Grandmother and A.S. A further addendum in late August stated that M.H. had cancelled overnight visits for the prior five weeks, stating that she was ill. Grandmother had a few video visits with A.S. during this period.
The juvenile court held the contested section 388 hearing in late August. At the hearing, the court stated that it had reviewed the Agency's reports. The court heard testimony from social worker Nerz, M.H., and Grandmother.
Nerz testified that it was in A.S.'s best interests to be placed with Grandmother. Consistent with the June 2021 report, she believed that benefits of placement with Grandmother would include knowledge of family history and medical information, family relationships, and connection to A.S.'s identity. She noted that Grandmother had initiated visits with A.S. and his siblings. She also testified that Grandmother was "willing to file for separation, which would eliminate [her] marriage as a factor preventing permanency, specifically adoption." Nerz acknowledged that M.H. had been A.S.'s "primary parent for . . . his entire life thus far"; he had a good, secure attachment to her, and bond with her; and he was "thriving" in her care. Nerz also acknowledged that it was possible that A.S. would suffer some trauma from the proposed change in placement, such as decreased ability to regulate his emotions and increased anxiety, if mitigating factors were not implemented. She explained that those mitigating factors would include using a transition plan from one dependable caregiver to another, and Grandmother's willingness to maintain contact between A.S. and M.H.
M.H. testified that she "love[d] [A.S.] very much," he was "very much bonded" to her, and he looked to her when seeking comfort. She described a typical day with him, and said that she kept up with his medical appointments and that he was meeting developmental milestones. She explained that A.S. had withdrawal symptoms as an infant, and maintained that he still had issues with irritability, night tremors, and anxiety, despite the attachment therapist's input. She also noted that she had been sick with flu symptoms during the previous several weeks, and that it was the social worker who had suspended visits between Grandmother and A.S.
Grandmother testified that she wanted A.S. to be placed with her because he was her grandson and she loved him. She described their daily routine during visits, and said that she could sense his needs. She had not attended his medical or other appointments, but also had not been invited. She stated that she had only one job at this point, and that it was possible that she would work only on weekends, with her son assisting her financially. She also stated that she lived with two of her children, other relatives lived nearby, and the extended family celebrated holidays together. When asked about her husband, she said that they were separated and she planned to divorce him.
After hearing argument from counsel, the juvenile court stated its ruling. The court began by stating, "I think we're here . . . based on the argument of relative preference and where [A.S.] should live." The court said that it recognized that there had been argument as to whether section 388 was the appropriate way for M.H. to raise her "agenda"; it "respected this strategy"; and it was prepared to rule.
The court proceeded to address whether the relative placement preference applied. The court commented that the "overarching" issue in the cases addressing the relative placement preference was whether the relative had an opportunity to make a request, and whether there had been a delay or barrier. The court found that it was clear that Grandmother had requested placement and that she had not done anything to thwart the process, so the preference applied. The court did note that there had been a delay in Grandmother's RFA approval process, and that as a result, A.S. had "developed" and "continued strengthening" a "clearly secured attachment" with M.H.
The juvenile court then stated that the relative placement preference required "weighing . . . whether or not there is any detriment and/or what is in the best interest of [A.S.]." The court first found that A.S. had "healthy, safe, and positive options ... as far as home environment," with Grandmother and also with M.H. The court confirmed that he had a secure attachment with M.H., and that the development of this attachment "ran. . . alongside" the RFA process delay. The court then stated that" [w]ith regard to that attachment," the court next looks at whether there is any evidence of "detriment to [A.S.]" if placed with Grandmother. The court said that it had considered the "potential risk factors" and "delay in the transition." The court also said that it was mindful of A.S.'s ability to receive therapy to address issues such as self-regulation and night terrors. The court stated that it did not find evidence of "detriment for [A.S.] should he be placed with a relative" and/or "risk of the delay in a transition process . . . ." The court concluded that "[f]or those reasons," it was denying M.H.'s placement request and "authorizing] discretion to place . . . with. . . [Grandmother]," conditioned on a therapeutic assessment. The court's minute order states that the section 388 petition was denied.
On August 30, 2021, M.H. filed a notice of appeal from the orders dated June 11, August 6, and August 27, 2021.
III.
DISCUSSION
A. The juvenile court did not abuse its discretion by excluding the expert's testimony
M.H. argues that the juvenile court abused its discretion by excluding the testimony of her expert, Dr. Volcani. We disagree.
1. Legal standards
The juvenile court "is vested with broad discretion in ruling on the admissibility of evidence" and its rulings"' "will be upset only if there is a clear showing of an abuse of discretion."'" (In re Jordan R. (2012) 205 Cal.App.4th 111, 121 (Jordan R.).) We will not disturb the court's exercise of discretion unless the court has made"' "an arbitrary, capricious, or patently absurd determination."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.); id. at pp. 318-319 ["' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."' "].)
Further, the improper exclusion of evidence is not reversible unless it is prejudicial, meaning," '" 'it is reasonably probable a result more favorable to the appellant would have been reached absent the error.'" '" (Jordan R., supra, 205 Cal.App.4that p. 134; see In re Celine R. (2003) 31 Cal.4th 45, 59-60 (Celine R.) [reasonable probability standard generally applies in dependency matters].)
2. Analysis
M.H. contends that the juvenile court abused its discretion by excluding Dr. Volcani's testimony based on inapplicable statutory provisions, and that the error was prejudicial. We conclude that even if the court erred in relying on certain inapplicable statutes, the court nevertheless reasonably determined that the testimony did not provide additional relevant information. We further conclude that any error in excluding the testimony was harmless.
We disagree with the Agency that the June 11 hearing is not before us, because M.H. purportedly did not timely appeal from that hearing within 60 days. (Cal. Rules of Court, rule 8.406(a)(1).) The juvenile court sustained an objection to Dr. Volcani s testimony at the June 11 hearing, but continued the admissibility issue to the August 6 hearing and issued its order excluding his testimony at the latter hearing. She timely appealed from the August 6 hearing.
First, M.H. does not establish that the juvenile court abused its discretion. As a preliminary matter, we share her doubts as to the propriety of the court's reliance on Code of Civil Procedure sections 2034.210 and 2034.260 and Welfare and Institutions Code section 827. The Code of Civil Procedure generally does not apply to dependency matters (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711), and it is not at all clear that Dr. Volcani's testimony implicated section 827 because there is no evidence that he was provided with any records from the juvenile court. (See Elijah S., supra, 125 Cal.App.4that pp. 1541-1542 [§ 827 lists categories of persons with the right to inspect juvenile records, and lets others petition the juvenile court for disclosure].)
However, the juvenile court also found that the information that Dr. Volcani would offer in his testimony would not provide the court with specific insight into the legal issues in the case. This finding was reasonable, and is supported by the record. Dr. Volcani planned to testify about the importance of secure attachment in infants, A.S.'s "very positive" attachment to M.H., and the potential effects of severing that attachment. But the Agency had already acknowledged in its reports that A.S. had a secure attachment to M.H. and that removing him from her could have a negative impact on him. The court could fairly conclude that Dr. Volcani would not provide nonduplicative, material evidence on these issues. (Evid. Code, § 352 [court can exclude evidence if "probative value is substantially outweighed" by probability of "undue consumption of time"]; In re Nada R. (2001) 89 Cal.App.4th 1166, 1177 [affirming exclusion of expert testimony that was of "minimal importance" and would entail delay, citing section 352]; see also In re Alexandria P. (2016) 1 Cal.App.5th331, 360-361 [juvenile court did not abuse discretion by denying request to cross-examine social worker, where testimony "would be cumulative"].)
M.H. maintains that a "juvenile court can only benefit by having available to it all relevant information," citing In re Tabatha G. (1996) 45 Cal.App.4th 1159. She also quotes a footnote from in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) that states, "Trial courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony." (Id. at p. 633, fn. 4.) These cases do not assist her. Both involved actual bonding studies and the beneficial parental relationship exception to adoption, not observations for a de facto parent opposing a relative placement. (Caden C, at p. 627 [bonding study was part of record; no apparent disclosure issue]; In re Tabatha G., at pp. 1166-1168 [juvenile court did not err in release to agency of bonding study, arranged by mother's attorney without notice to court or other parties; study was relevant to beneficial relationship issue and mother's arguments based on attorney work product and psychotherapist-patient privilege lacked merit].) In any event, the court's duty to consider relevant evidence does not require allowing cumulative or otherwise unnecessary testimony. (Cf. In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843-1844 [disagreeing that § 706, which directs court in wardship disposition proceeding to receive "such other relevant. . . evidence as may be offered," mandates presentation of "all relevant evidence"; "such a literal construction would lead to absurdity" and Evid. Code, § 352 was necessarily implied therein].)
In re Rachael C. (1991) 235 Cal.App.3d 1445, also cited by M.H. here, is distinguishable for different reasons. (Id. at p. 1452 [juvenile court erred in denying de facto status; noting that courts benefit from having all relevant information, including from de facto parents as daily caretakers], disapproved on other grounds in In re Kieshia E. (1993) 6 Cal.4th 68, 80.)
Second, we are not persuaded by M.H.'s assertion that the juvenile court's "application of the wrong law was prejudicial. . . and led to the child, A.S., being removed from her care." Again, the court did not exclude Dr. Volcani's testimony solely on statutory grounds, but also because the court reasonably found that the testimony would not provide the court with additional, relevant insight. Social worker Nerz subsequently confirmed at the contested hearing that A.S. and M.H. had a good, secure attachment, and that moving A.S. posed a risk of negative (if mitigable) impacts. In turn, the court found that there was a "clearly secured attachment" between A.S. and M.H. and considered the risk posed by the proposed move. M.H. does not establish that the admission of Dr. Volcani's testimony, which would have covered similar, essentially conceded points, would have resulted in a more favorable outcome. (Jordan R., supra, 205 Cal.App.4th at p. 134; Celine R., supra, 31 Cal.4th at pp. 59-60.)
B. The juvenile court abused its discretion by denying the section 388 petition
M.H. also contends that the juvenile court abused its discretion by denying her section 388 petition. We agree.
1. Legal standards
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re A.A. (2012) 203 Cal.App.4th597, 611 (A.A.).) Once reunification services are terminated or denied (and they were denied here)," 'the focus shifts to the needs of the child for permanency and stability.'" (Stephanie M., supra, 7 Cal.4th at p. 317; accord, In re K.C. (2011) 52 Cal.4th231, 236.)
Here, in addition to M.H.'s section 388 petition, the relative placement preference was also effectively at issue. M.H. filed her section 388 petition in anticipation of the Agency's removal of A.S. from her care and placement with Grandmother, and argued that the relative placement preference either should not apply or that placement with M.H. remained in A.S.'s best interests, regardless. We thus describe the applicable standards.
Under section 361.3, subdivision (a), preferential consideration is to be given to a request by a relative of the child for placement of the child with the relative. Relatives are to" '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.'" (Isabella G., supra, 246 Cal.App.4th at p. 719 (italics omitted); see id. at p. 720, citing § 361.3, subd. (d) [after disposition, "whenever a new placement. . . must be made, consideration. . . shall again be given as described in this section"].) The court must "apply the placement factors," which we summarized ante, as well as "any other relevant factors," and "exercise its independent judgment concerning the relative's request for placement." (Id. at p. 719; see § 361.3, subd. (a)(1)-(8).) The " 'best interests of the child' is the linchpin of the analysis." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1068, italics added.)
In Isabella G., which involved a section 388 petition by grandparents who were seeking placement, this court held that the relative preference can still apply after the reunification period, even when a new placement is not necessary. (Isabella G., supra, 246 Cal.App.4th at p. 723; id. at pp. 711-712 [juvenile court erred by declining to apply preference to grandparents who promptly and repeatedly requested placement, and were not assessed by Agency until after reunification when they filed § 388 petition].) We 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 noted that the Legislature did not limit relative requests to this time period. (Id. at pp. 719-720; see Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.) [Legislature "did not intend to limit the purpose of the relative placement preference to reunification efforts"]; In re Joseph T. (2008) 163 Cal.App.4th 787, 793 (Joseph T.) ["new placement" language in statute intended to expand, not limit, preference].)
But see In re Lauren R. (2007) 148 Cal.App.4th 841, 845-846 (Lauren R.) (stating relative placement preference did not apply because new placement was not necessary, and matter was set for adoption.) The relative placement preference does not apply after parental rights are terminated and the child is freed for adoption. (Cesar V., supra, 91 Cal.App.4th at p. 1031.)
But we also recognized that, even when the relative preference applies, a relative is not guaranteed custody and the focus must remain on the child's best interests. (Isabella G., supra, 246 Cal.App.4th at p. 723; see Stephanie M., supra, 7 Cal.4that p. 321 ["[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"]; Stephanie M., at p. 320 [§ 361.3 does not "supply an evidentiary presumption that placement with a relative is in the child's best interests"]; Joseph T., supra, 163 Cal.App.4that p. 798 ["The relative placement preference ... is not a relative placement guarantee"]; In re M.H. (2018) 21 Cal.App. 5th 1296, 1303-1304 [" '[t]he overriding concern of dependency proceedings ... is not the interest of extended family members but the interest of the child'"].)
Thus, to resolve M.H.'s section 388 petition under the particular circumstances of this case, the juvenile court had to consider M.H.'s request to maintain A.S.'s placement with her; whether and how the relative placement preference applied to Grandmother's request for placement of A.S.; and, ultimately, given that both section 361.3 and section 388 require that the court determine the child's best interests, which placement would "assure [A.S.'s] best interests." (Stephanie M., supra, 7 Cal.4th at p. 317.)
We review the juvenile court's decision to deny a section 388 petition for abuse of discretion. (In re J.C. (2014) 226 Cal.App.4th 503, 525.) A court abuses its discretion when, inter alia, "it applies incorrect legal standards." (In re Shannon M. (2013) 221 Cal.App.4th 282, 289 (Shannon M.).)
2. Analysis
We conclude that the juvenile court abused its discretion in denying M.H.'s section 388 petition requesting to maintain placement of A.S. with her. Under M.H.'s section 388 petition, the court was required to determine whether placement with her was in A.S.'s best interests. Similarly, in applying the relative placement preference, which was also at issue, the court was required to consider whether placement with Grandmother was in A.S.'s best interests. However, rather than addressing these issues, the court appeared to focus solely on whether there would be detriment to A.S. if he were removed from M.H. and placed with Grandmother. In focusing solely on detriment, the court not only applied an incorrect standard to the issue of A.S.'s placement, but also failed to address the critical issue before the court, i.e., which placement would be in A.S.'s best interests. The court's errors are not harmless.
It does not appear that the juvenile court meaningfully considered M.H.'s section 388 petition, despite indicating that she could present her position on placement with this "strategy." The court did not address changed circumstances, possibly because the parties seemed to agree that this prong was met with A.S.'s anticipated move to Grandmother. (See A.A., supra, 203 Cal.App.4th at p. 611.) But the court also did not address the second prong, which was very much in dispute: whether A.S.'s best interests would be served by remaining with M.H. (See ibid.)
M.H.'s section 388 petition squarely raised this issue, alleging that she had cared for A.S. since birth, that he was "extremely bonded" to her, and that it would be in his best interests to remain with her. M.H. testified to this effect at the hearing, and social worker Nerz acknowledged that M.H. and A.S. had a good, secure attachment and that A.S. was "thriving" in her care. The court did recognize that A.S. had a "clearly secured attachment" to M.H., which had developed over time while Grandmother's approval process was delayed. However, the court did not appear to consider whether remaining with M.H. would be in A.S.'s best interests-the key issue raised by her section 388 petition. The court also did not appear to consider A.S.'s need for" 'permanency and stability, '" which should have been the court's focus after denial of reunification services. (Stephanie M., supra, 7 Cal.4th at p. 317; In re KC, supra, 52 Cal.4th at p. 236.) Instead, the court focused on potential placement with Grandmother (apparently pursuant to the relative placement preference), and specifically, whether a change in placement from M.H. to Grandmother would be detrimental to A.S. While the court properly concluded that the relative placement preference under section 361.3 applied, the court again failed to focus on A.S.'s best interests (or on other relevant section 361.3 factors) and instead focused on potential detriment to A.S., if his placement were changed. The record thus reflects that the court failed to properly exercise its discretion by applying an incorrect standard. (See Shannon M., supra, 221 Cal.App.4that p. 289 [court "abuses its discretion when it applies incorrect legal standards"].)
As an initial matter, we disagree with M.H. that the late stage of the dependency case rendered the relative placement preference inapplicable. As noted, the preference can apply even after the reunification period ends, including where, as here, the relative promptly requested placement and delays were attributable mainly to the Agency. (Isabella G., supra, 246 Cal.App.4that pp. 721-723.) Grandmother sought placement in May 2020, shortly after A.S.'s birth, but the Agency did not indicate that Grandmother had received her emergency RFA until its March 2021 report. The Agency also requested multiple continuances to assess the proposed transition. Grandmother may have contributed in part to the delay, including by failing to have ready for the Agency the information concerning the children who lived with her and by planning to move her residence, but she did timely come forward and her request had not been resolved as of the section 388 hearing. The cases cited by M.H. involve matters that were already set for adoption, or that are otherwise distinguishable. (See, e.g., In re Sarah S. (1996) 43 Cal.App.4th274, 276-277, 282 [juvenile court did not abuse discretion by placing minor for adoption with foster parents; relative preference "does not apply to a placement made as part of a permanent plan for adoption"]; accord, In re MM. (2015) 235 Cal.App.4th 54, 63; id. at pp. 56, 59-61 [caregiver and prospective adoptive parent was entitled to notice and hearing before minor was removed and placed with aunt].)
However, the juvenile court did err in its consideration of the relative placement preference. The preference required the court to consider whether placement with Grandmother was in A.S.'s best interests. (Isabella G., supra, 246 Cal.App.4th at p. 723; § 361.3, subd. (a)(1).) This factor was particularly critical here, where the court also had to consider whether remaining with M.H. was in A.S.'s best interests. Although the juvenile court mentioned best interests once, in passing, the court clearly focused on whether the proposed change of placement from M.H. to Grandmother would be detrimental to A.S.-and expressly relied on a finding of a lack of detriment to deny M.H.'s petition and authorize placement with Grandmother. The court made no finding as to A.S.'s best interests. This was error. Indeed, the court inverted the applicable test: rather than assessing whether placement with Grandmother would be best for A.S., the court focused on whether placement with Grandmother would not be harmful to him. Even if potential detriment is a concern in a particular case, it cannot supplant the court's "fundamental duty ... to assure the best interests of the child . . . ." (Stephanie M., supra, 7 Cal.4th at p. 321.)
The record also leaves doubt as to whether the juvenile court considered other relevant section 361.3 factors in assessing potential placement with Grandmother. We normally presume that a court performs its regular duty and considers all relevant matters. (Evid. Code, § 664; cf. In re Julian R. (2009) 47 Cal.4th 487, 498-499.) Here, however, the court not only focused on potential detriment to A.S. rather than on his best interests, but it made few other findings relating to section 361.3 factors-and those findings were either neutral as to Grandmother as a placement for A.S. or addressed only M.H.'s relationship with him. The court found that A.S. had "healthy, safe, and positive" home options with both Grandmother and M.H., and that A.S. had a long, secured attachment to M.H. (See § 361.3, subd. (a)(7)(A) [ability of relative to provide "safe, secure, and stable environment"].) The finding regarding A.S.'s attachment to M.H. could be relevant to whether keeping A.S. with her was in his best interests, but, again, there is no indication that the court considered the issue. As for Grandmother, the court did not discuss other potentially significant issues, such as the duration of her relationship with A.S. or whether she could provide legal permanence. (§ 361.3, subd. (a)(7)(H) [legal permanence]; § 361.3, subd. (a)(6) ["nature and duration of the relationship" with relative].) On this record, we cannot conclude that the court adequately considered A.S.'s best interests in relation to placement with Grandmother, either.
The juvenile court's failure to focus on whether each placement was in A.S.'s best interests also meant that it did not resolve the ultimate issue: which of the two placements was in his best interests. Although reductive comparisons of potential households are discouraged at various points in the dependency process, assessing a minor's best interests may still properly involve a reasoned, comparative analysis. (See In re M.H., supra, 21 Cal.App.5that pp. 1300-1301, 1305-1306 [affirming decision that it was in
(See, e.g., In re Kimberly F. (1997) 56 Cal.App.4th 519, 530 [best interests prong under § 388 does not contemplate "one-dimensional," simple comparison between households]; Caden C, supra, 11 Cal.5that p. 634 [§ 366.26 hearing is "decidedly not a contest of who would be the better custodial caregiver" ].)
14-month old minor's best interests to remain with foster parents, who had cared for him since birth and wanted to adopt, rather than move to great-aunt who could also provide loving home; court had "two good options"]; In re L.M. (2019) 39 Cal.App.5th 898, 900-901, 911 [no error in removing 10-month old minor from foster parents, when placing her with sister was in her best interests; with "two good competing placements, determining whether removal is in the child's best interest necessarily requires the court to evaluate which placement best serves these goals."].) The procedural posture of this case, in particular, required such a comparison: M.H.'s section 388 petition sought to retain placement; Grandmother's placement request had not yet been resolved under section 361.3; and each request involved considering whether the particular placement was in A.S.'s best interests. (Cf. Isabella G., supra, 246 Cal.App.4that p. 724 ["Focusing on the history and quality of [the minor's] relationship with [the grandmother] instead of on the quality of [the minor's] relationship with her caregiver may lead to a different outcome"].)
To be clear, we recognize that M.H. appeals from the denial of her section 388 petition, not from the court's application of section 361.3, and that courts normally focus solely on whether the request at issue advances the minor's best interests. However, as we have explained, the court had to address both section 388 and section 361.3, and thus was effectively required to determine which of the two placements was in the child's best interests.
The Agency's arguments for affirmance lack merit. The Agency contends that its March 2021 report addressed the section 361.3 factors in assessing Grandmother; the juvenile court "carefully considered the evidence"; and its "decision to award custody to [Grandmother], in light of the section 361.3 factors, was proper . . . ." The Agency then contends that the "evidence demonstrated that granting the section 388 petition . . . was not in [A.S.'s] best interests," explaining that the evidence "as to why it was in [A.S.'s] best interests to be placed with [Grandmother]. . . need not be repeated," and that the "court gave careful consideration to the evidence . . . and properly denied the [section 388] petition. . . ." As an initial matter, the Agency appears to conflate the best interests analyses under sections 388 and 361.3 by stating that the evidence as to Grandmother "need not be repeated" as to M.H., but, as explained ante, the posture of this case required that the placement requests be considered separately and then compared. The Agency also identifies nothing in the court's ruling to suggest that the court focused on best interests under either section 388 or section 361.3, or on any of the other section 361.3 factors, or the evidence pertinent to any of these matters. Rather, as discussed above, the court focused on potential detriment from the proposed move.
Finally, we observe that the record presents a close case, and we cannot conclude that the juvenile court's errors and omissions were harmless. (Celine R., supra, 31 Cal.4th at pp. 59-60; Shannon M., supra, 221 Cal.App.4th at p. 302 [reviewing court could not conclude "reliance on the wrong legal standard . . . was harmless"]; cf. Isabella G., supra, 246 Cal.App.4th at p. 724 [failure to properly apply relative placement preference was prejudicial error].) To aid the court on remand, we elaborate on our concerns with the record.
We begin with the central issue: A.S.'s best interests. There was evidence that maintaining A.S.'s placement with M.H. would promote his best interests, including his lifelong, loving care by her; his secure attachment with her; and the long-term stability that she offered. (See Lauren R., supra, 148 Cal.App.4that p. 855 ["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 her best interests."].) The juvenile court acknowledged some of these facts, but, as discussed ante, never appeared to meaningfully consider whether it would be in A.S.'s best interests to remain with M.H.
As for Grandmother, the Agency's position, as first stated in its March 2021 report, was essentially conclusory: that placement with Grandmother was in A.S.'s best interests because she was his relative. But the relative preference is not a presumption or guarantee of placement, and numerous cases have held that the child's best interests may supersede a relative's desire for placement. (See Stephanie M., supra, 7 Cal.4that p. 321; ibid. [child's "bond with foster parent may require that placement with a relative be rejected"]; Joseph T., supra, 163 Cal.App.4that p. 798; Isabella G., supra, 246 Cal.App.4that p. 724; see In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1098, 1100 [affirming denial of grandmother's request for placement under section 361.3 where, inter alia, the child "had lived with her foster family for almost a year-almost her entire life"], superseded by statute on other grounds as stated in Cesar V., supra, 91 Cal.App.4that p. 1032.) The Agency did add to its analysis in its June 2021 report, citing general benefits of relative placements such as knowledge of family history, and social worker Nerz confirmed these benefits in her hearing testimony. However, even if there was specific evidence that placement with Grandmother was in A.S.'s best interests, there is no indication that the court focused on best interests or made any finding on the issue. Rather, as noted, the court focused only on whether the proposed change in placement would be detrimental to A. S.
Next, M.H. contends that she has no barriers to adoption, while Grandmother likely does in that Grandmother cannot adopt unless either her estranged husband consents, which he has refused to do, or she obtains a legal separation or divorce. While the issue under section 361.3 is the ability to provide legal permanence, not necessarily adoption, the ability to adopt is still a consideration generally and the record raises questions. (§ 361.3, subd. (a)(7)(H); see In re Jose V. (1996) 50 Cal.App.4th 1792, 1799 [adoptionis "the most permanent, and thus the best, plan"]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [guardianship" 'is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature'"].) The Agency initially reported that Grandmother was confident that her husband would sign the necessary form so that she could adopt, but later stated that her ability to get her husband to sign the form would determine the Agency's recommendation as to "adoption versus guardianship with [Grandmother]." It later became apparent that Grandmother's husband would not cooperate. By the time of the section 388 hearing in late August, social worker Nerz testified that Grandmother was willing to seek a legal separation so that she would be able to adopt, consistent with the Agency addendum earlier that month-but Grandmother herself testified that she was separated, and planned to file for divorce. Meanwhile, the Agency did not seem to consider the possibility of M.H. adopting after March 2021.
The record implicates other issues as well, such as the duration of Grandmother's relationship with A. S. (See § 361.3, subd. (a)(6).) Although Grandmother requested placement in May 2020, visits did not start until February 2021-a month before the Agency recommended placement with her in March 2021, and approximately seven months before the section 388 hearing. The Agency opined that A.S. was very young, but the brief length of that relationship still stands in contrast to his lifelong, then 16-month relationship with M.H. (Cf. Lauren R., supra, 148 Cal.App.4that p. 855 [the longer the placement continues, the more important the "need for continuity and stability" becomes].) At the same time, some issues may favor Grandmother, such as her ability to facilitate visitation with A.S.'s relatives. (See § 361.3, subd. (a)(7)(F).) Our discussion is not intended to be exhaustive, and we express no opinion as to what the court's placement decision should be; our point is simply that the record presents a close case.
In sum, we conclude that the juvenile court abused its discretion by failing to address the issues raised in M.H.'s section 388 petition, and in particular, whether placement with her was in A.S.'s best interests, and also failing to determine, in its consideration of the relative placement preference, whether placement with Grandmother was in A.S.'s best interests, and instead applying an incorrect standard, i.e. whether placement with Grandmother would be detrimental to A.S. We must reverse and remand for further proceedings on the section 388 petition, including a determination of whether placement with Grandmother is in A.S.'s best interests, or instead, whether placement with M.H. is in his best interests. We are mindful that time has passed and that the circumstances may have changed. (See In re B.C. (2011) 192 Cal.App.4th 129, 150-151.) In making its decision on remand, the court must consider A.S.'s current circumstances in assessing his best interests.
DISPOSITION The juvenile court's order excluding expert testimony is affirmed. The juvenile court's order denying the section 388 petition is reversed, and the matter is remanded for further proceedings on the section 388 petition.
WE CONCUR: McCONNELL, P. J. HUFFMAN, J.