Opinion
No. H047633
02-21-2020
T. J. et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, SANTA CLARA COUNTY DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 118JD025292)
T. J. (father) and S. M. (mother) petition for writ relief from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing for their one-year-old son, Cody J. Mother contends that the juvenile court erred in finding that real party Santa Clara County Department of Family and Children's Services (the Department) had provided reasonable reunification services to her. Father asserts that the juvenile court's decision to deny paternal grandmother placement was erroneous because the Department failed to adequately assess the paternal grandmother as a relative placement under section 361.3. We reject their contentions and deny their petitions.
Subsequent statutory references are to the Welfare and Institutions Code.
I. Background
When mother gave birth to Cody in mid-July 2018, both she and Cody tested positive for methamphetamine, amphetamine, opiates, and THC. Mother reported that she had used drugs the day before Cody's birth and throughout her pregnancy. She had received no prenatal care and had made no preparations to care for Cody. Both mother and father were homeless and had extensive histories of substance abuse. Mother's prior attempts at treatment had been unsuccessful.
Cody suffered from serious withdrawal symptoms, required treatment in the Neonatal Intensive Care Unit (NICU), and could not be released from the hospital for an extended period of time. The social worker arranged for mother to enter a residential substance abuse program with the expectation that Cody could join her when he was discharged from the hospital, but mother left the treatment program after just a few days. After she left the program, the social worker was unable to locate her. The social worker contacted father, who desired custody, but he did not make himself available to meet with the social worker to be assessed. Father did visit Cody in the hospital, but he appeared to be under the influence of drugs during his visits.
Although the social worker contacted maternal relatives and paternal grandmother, none of them was "available for immediate placement of the child." The paternal grandmother offered to be a placement "if the mother and the father do not reunify," but the fact that she lived in Reno, Nevada made her an inappropriate placement during the reunification period. With both parents unavailable, the Department placed Cody, who remained in the hospital, in protective custody and filed a petition under section 300.
Neither parent nor the paternal grandmother appeared at the July 31, 2018 detention hearing, and the court ordered Cody detained. In mid-August 2018, the social worker discovered that both parents were in jail. Cody remained in the hospital, but the prospective foster parents began visiting him daily, spending at least 10 hours a day with him in the NICU. Father, who remained in custody, appeared at the August 2018 jurisdictional hearing and submitted on the social worker's report. Mother did not appear at the hearing. The court took jurisdiction over Cody.
Cody was released from the hospital on August 19, 2018, and placed in foster care with the prospective foster parents who had been visiting him in the hospital, and who were identified as nonrelative extended family members (NREFM). The foster parents, who knew Cody's maternal aunt, helped Cody with the thrice daily physical therapy exercises that he required as a consequence of in utero drug exposure. Cody bonded with the foster parents, who ensured that Cody had contact with his maternal relatives and kept paternal grandmother apprised of Cody's progress.
By early September 2018, mother had been released from jail, but she did not visit Cody or maintain contact with the social worker. Mother occasionally sent a message to the social worker but did not follow through on the social worker's requests to meet with her. Father was out of custody briefly in September 2018 but was back in custody by the end of the month.
In September 2018, the court authorized the Department to submit an Interstate Compact on the Placement of Children (ICPC) referral for paternal grandmother, and the court continued the disposition hearing to October 2018. The paternal grandmother started visiting Cody in October 2018. She had independently begun the process to have her Nevada home approved as a licensed foster home. In October, father asked the court to order a contested disposition hearing so that it could consider whether the paternal grandmother should be appointed Cody's legal guardian. Mother objected to an out-of-state placement. The court continued the matter to November to address these issues. The Department noted in a November 2018 report that the foster parents were "providing a concurrent home for Cody." Both paternal grandmother and the foster parents expressed their willingness to adopt Cody.
At the November 2018 hearing, the Department took the position that Cody could not be placed in Nevada without an ICPC, and an ICPC could not be initiated until after disposition. The Department believed that Cody's bonded relationship with the foster parents and the need for the parents to be able to visit him during the reunification period precluded placement of Cody in Nevada. Mother did not appear at the November hearing, but she told the social worker that she objected to a legal guardianship in Nevada. Cody's counsel also objected on Cody's behalf to a legal guardianship. The court denied father's request for a legal guardianship and continued the dispositional hearing to December.
Father asked the court to place Cody with paternal grandmother. He claimed that the Department had failed to assess paternal grandmother for placement. Father, who remained in jail, asserted that placement in Nevada would not interfere with reunification because he was willing to waive reunification services. The maternal relatives opposed placement with the paternal grandmother in Nevada.
In December 2018, the Department initiated an expedited ICPC assessment of paternal grandmother's Nevada home, and ICPC approval was achieved in mid-December. However, the social worker was informed by father that paternal grandmother was planning to move to San Jose. The Department then began to assess the home where paternal grandmother would be living in San Jose. Since paternal grandmother had not yet moved to San Jose, the process for her prospective San Jose home to become licensed could not begin.
Mother met with the social worker in early December but did not engage in any services or appear in court. At the December 17, 2018 disposition hearing, the court removed Cody from parental custody and ordered reunification services for both mother and father. Father, who remained in custody, appeared at the hearing as did paternal grandmother; mother did not.
Multiple Child Family Team (CFT) meetings were held in January 2019 to determine what was in Cody's best interest. Paternal grandmother, who had moved to San Jose, requested placement. She began visiting Cody every week for 2.5 hours and attended most of Cody's medical appointments. Father was released from jail in February and entered a residential substance abuse treatment program. In March 2019, paternal grandmother had an extended visit with Cody for seven hours. The Department was working on approving her San Jose home for placement. The court ordered that there would be no change in placement absent an agreement of all parties.
In late March 2019, the social worker learned from maternal grandfather that mother had been in jail since mid-March, and the social worker visited her in jail in early April to discuss her case plan with her. Mother, who said she had been in Oregon for a couple of months, told the social worker that she wanted Cody to remain with the foster parents. She was released from jail in early May and entered a residential substance abuse treatment program. Meanwhile, father was making good progress in his treatment program.
At this point in time, Cody had "significant medical issues" and suffered from "significant gross and fine motor delays." He had required weekly physical therapy and regular home exercises, but his physical therapy ceased in March 2019 as it was no longer required. Cody had also been suffering from severe gastroesophageal reflux disorder (GERD), which caused him to vomit multiple times a day, and it became worse if he did not maintain a regular schedule or was stressed. His doctor advised that Cody required a "stable home environment," and "extended daycare" would be inappropriate for him. This raised a concern as to possible placement with paternal grandmother because she worked during the day and would have to place Cody in daycare.
In late March 2019, paternal grandmother had two overnight visits with Cody, and her San Jose home was approved in mid-April. However, the foster parents reported that Cody was stressed after overnight visits and had difficulty adjusting back to his normal routine. In mid-April 2019, overnight visits ceased, and paternal grandmother switched to twice weekly daytime visits. Cody stopped having difficulty after visits.
By the end of April, the paternal grandmother had decided to move back to Nevada. Because she wanted to be considered as a concurrent placement for Cody, it was agreed at a CFT meeting that she would visit Cody for at least a few days every month and have weekly Skype visits to maintain her relationship with Cody. The parents agreed that Cody should remain with the foster parents until one of the parents reunified and possibly be placed with paternal grandmother only if both failed to reunify. The foster parents remained a concurrent home for Cody. The plan was to avoid multiple transitions for Cody. The Department was concerned that a change in Cody's placement before he was one year old could lead to an attachment disorder. In May 2019, a behavioral development specialist diagnosed Cody with an "Adjustment Disorder . . . ."
By June 2019, both father and mother were making progress on their case plans. Father had been visiting Cody since February 2019, and had progressed to twice weekly unsupervised visits. Mother had begun visiting Cody in mid-May 2019 and was having twice weekly supervised visits. The foster parents reported that Cody was experiencing stress from the parental visits and that his GERD had become aggravated.
In June 2019, a behavioral therapist began working with the parents during their visits to help Cody bond with the parents and to enable him to "cope with the new environments . . . ." The behavioral specialist observed a visit between father and Cody and had concerns about father's ability to properly care for Cody. She recommended that father participate in Parent Child Interactive Training (PCIT). In July 2019, a "First Five" therapist began trying to coach the parents on "how to interact with" Cody during their visits, but the parents, particularly mother, resisted the therapist's efforts. They refused to work with her. Cody was continuing to have "increased anxiety" after visits with the parents. The social worker asked the court to order both parents to participate in PCIT.
Father relapsed in July 2019, ceased drug testing, and stopped pursuing substance abuse treatment. He was also facing criminal charges for auto theft. His visits ceased to be unsupervised. A few days after the Department learned that father had relapsed, on the same day that father learned that his drug test was positive and that his visits would now be supervised, paternal grandmother contacted the Department seeking visits. The paternal grandmother had not followed through on the monthly in-person or weekly Skype visitation plan and had had no visits with Cody since April. She also had not contacted the social worker since late April. The paternal grandmother told the social worker that she had been too busy to visit Cody between April and August.
At the July 2019 six-month review hearing, reunification services were continued, and the court ordered the parents to participate in 10 weeks of PCIT or PACT. Father's visits were changed to supervised.
By the end of July 2019, Cody's GERD symptoms had abated, and he was on track developmentally. However, Cody continued to have anxiety and behavioral problems after visits with the parents. He was "strongly attached" to the foster parents, who were willing to adopt him, and called the foster mother "mama."
At some point the foster parents were designated Cody's de facto parents.
Mother consistently visited Cody. Mother told the social worker that she wanted paternal grandmother "to be 'plan B' " if neither parent could reunify with him. Mother's therapist told the social worker that mother was "very reactive to negative input" and saw the foster parents "as the enemy." Mother failed to attend her August 2019 intake appointment for PCIT, which resulted in a delay in the provision of services. Mother's PCIT sessions began in early September. Mother continued to consistently visit Cody and worked with a PCIT counselor once a week. However, Cody had a tendency to cry and turn away from her when she tried to make contact with him during her visits. And mother was easily frustrated during visits. At a September visit, she tried to give Cody a snack containing dairy, even though she had been told that he was lactose intolerant and could not consume any dairy products. In mid-October 2019, mother's visits were stepped down from supervised to monitored. Cody continued to seem uncomfortable in mother's presence.
Paternal grandmother visited Cody in August 2019, for the first time since April. During the first visit, Cody ran away from her when she tried to "engage him," and he "screamed" and reached for the foster mother when paternal grandmother tried to pick him up. During a second visit, Cody again screamed, cried, and ran away from paternal grandmother. A Skype visit in mid-August was unsuccessful because Cody did not want to engage with her. Neither father nor paternal grandmother attended a September CFT meeting. Father had not begun PCIT by early September due to his failure to respond to messages.
The 12-month review hearing was originally scheduled for September 2019, but it was continued to October for a contested hearing. Paternal grandmother visited Cody once in September and once in October. These visits were more successful, and she was able to engage with him. Paternal grandmother was willing to adopt Cody.
Father continued to visit Cody, but he was often late for his visits and made no effort to participate in PCIT. He missed about half of his visits. Paternal grandmother sometimes FaceTimed for a few minutes during father's visits and later began attending father's visits. Father did not drug test or participate in his case plan after his July 2019 relapse.
The Department recommended for the October 2019 12-month review hearing that reunification services be terminated for both parents. The social worker believed that delaying permanency was detrimental to Cody, who was experiencing stress that threatened his "secure attachment" to the foster parents. Cody showed increased aggression after his visits with the parents. Neither parent had made substantial progress or demonstrated that they would soon be able to parent Cody. The 18-month reunification period was due to expire in January 2020. Mother's absence from Cody's life for such a lengthy period, her failure to bond with Cody, and the early level of her substance abuse recovery made it improbable that she could reunify by then. As mother's therapist put it, mother "is far from achieving the level necessary to achieve the ability to parent as she wants to parent Cody."
In October 2019, father asked the court to rule on whether to place Cody with paternal grandmother before deciding whether to terminate reunification services. He argued that his "ability to appeal the relative placement issue would be prejudiced once reunification services are terminated." The court agreed to make the placement decision before the 12-month review decision, but it held the 12-month review hearing first and the placement hearing shortly thereafter.
At the October 2019 12-month review hearing, father did not contest the recommendation that his reunification services be terminated, but he supported mother's request for continued services. Mother did not seek immediate custody but asked for continued reunification services.
Cody's case manager testified as an expert on attachment. She explained that a child starts to form a secure attachment when the child is six weeks old. A child forms a secure attachment when a caregiver consistently meets the child's needs on a regular basis. Consistency is the key to a secure attachment. Based on her experience supervising some of Cody's visits with the parents, she believed that Cody's only secure attachment was to the foster parents. They were the people who Cody sought out for comfort. She had observed that Cody had begun to struggle with disorganized attachment recently, which threatened the stability of his secure attachment and risked damage to his ability to form relationships in the future. His struggles were worst on days when he visited the parents. There had been an increase in his frustration, aggression, and tantrums, which correlated with an increase in visits. When Cody perceived that he was being taken to a visit, he would "struggle" to avoid it. Cody was also unwilling to engage with mother during visits. Cody's "transitions" to the parents were more difficult than his transitions to other adults.
Cody's case manager testified that it would be in Cody's best interest to decrease visits with parents and grandparents so that he would have more consistency on a daily basis, which would help to reinforce his secure attachment to the foster parents. Cody "needs a lot of stability and security," and it was difficult for Cody to have five visits a week, two with mother, two with father, and one with grandparents. Both PCIT and First Five services were already being provided to support visits between Cody and the parents, and no other services existed that could help Cody form an attachment to the parents.
Mother testified that PCIT had been "incredibly helpful" in teaching her "how to connect" and "communicate" with Cody during her visits. She conceded that Cody "connects to [the foster parents] as parents more than he does to me . . . ." Mother admitted that she had not visited Cody for the first 10 months of his life, which she attributed solely to her substance abuse. She testified that she had been sober for seven months, but she admitted that, during a previous attempt at sobriety, she had been sober for 14 months before she relapsed.
The social worker testified that in October 2019 Cody usually cried when she picked him up to transport him to a visit with mother. He would calm down during the drive, but when he arrived and saw mother he would start crying again, "appeared to feel sort of fearful," and would hold on to the social worker. Cody's negative reactions before and after visits were "getting worse rather than better." He would cry, scream, and be inconsolable. She felt that this reaction was indicative of a disturbance in his secure attachment to the foster parents.
Mother argued that the Department had not provided reasonable services because, "despite Mother's repeated requests for PCIT, it was not started until September of this year." At the conclusion of the 12-month review hearing, the parties were ordered to submit their closing arguments by written briefs, and the matter was continued to December 3, 2019 for decision.
The placement hearing was held in November 2019. Father was not present because he was again in custody. The Department opposed a change of placement to paternal grandmother because she had failed to maintain contact with Cody between April and August, a period during which his attachment to the foster parents grew. The social worker believed that "breaking Cody's attachment to his foster parents, who have met his needs for 15 months and whom he believes are his parents, would disrupt his attachment and have long-term, negative implications for his mental health."
Cody's case worker, an expert on attachment who had attended the CFT meetings regarding Cody, testified that Cody had no attachment to paternal grandmother because she had not been his primary caregiver. In addition, Cody tended to be more agitated after visits with paternal grandmother than he was after visits with the maternal grandparents, who had been visiting Cody consistently throughout his life. Cody's case worker had observed that Cody "does better" when he spends his time with the foster parents than when he has visits with others. She testified that Cody "would really struggle" if he was placed with paternal grandmother and that such a placement would be detrimental to him. In her opinion, Cody would have trouble forming relationships in the future if his attachment to the foster parents was severed. He was currently struggling, and "removing the people he feels most comfortable" with would cause his behavior to further deteriorate.
The social worker testified that she had noticed that Cody experienced escalated aggression before and after visits with paternal grandmother, which had worsened in the last month. Paternal grandmother had had just five visits of her own with Cody from August to November 2019. The social worker recommended that Cody remain placed with the foster parents because that was in his best interests. She testified: "Cody has formed a secure attachment to his foster parents, and . . . if we were to move him at this late point, when he hasn't had consistent contact with the paternal grandmother, and has not had any overnight visits with her since the beginning of [2019], I don't think he has an attachment to her, and I think that it would be emotionally detrimental to move him at this time." While her primary concern was Cody's emotional well-being, she also had concerns about paternal grandmother being able to protect Cody from mother and father. The social worker explained that she and the prior social worker had made "a separate social worker assessment" of paternal grandmother as a potential placement, but that the assessment was not a "formal written assessment." "You know, we sort of assess as we go." She had completed her "ongoing assessment" of placement with paternal grandmother.
Paternal grandmother testified that she and Cody "Facetimed" during father's twice a week visits in May and June 2019. She admitted that she had no in-person visits with Cody between April and August, and she explained that she "had a lot of things" to do in her own life during that period. She testified that, in addition to her own visits, she had also been attending some of father's visits in October 2019 and had FaceTimed with Cody during a November 2019 visit.
At the conclusion of the multi-day placement hearing, the court reduced the parents' visitation to once a week and took the matter under submission with closing arguments to be made by written briefs.
The Department's closing brief on placement set forth and considered the factors identified in section 361.3 as relevant to a relative placement assessment. The Department argued that Cody was at risk of "shifting toward a disorganized style of attachment," which threatened to destroy his secure attachment and lead to relationship problems throughout his life. Hence, a change in placement would be detrimental to Cody. Father's brief on placement argued that the Department had failed to evaluate paternal grandmother "as they were mandated to do under 361.3 as evidenced by the fact that no social worker report goes through the 361.3 factors . . . ."
At the December 3, 2019 hearing, the court issued its decisions on both placement and the 12-month review. The court decided the placement issue first, and it expressly applied section 361.3, subdivision (a). Ultimately, its decision regarding paternal grandmother came down to one thing: "The primary concern of the court with respect to the paternal grandmother is simply that she has not shown the constancy required to develop a sufficiently strong bond with Cody to obtain placement of him at this time." The court found that "structure[,] constancy and consistency are particularly important for [Cody]." "Despite being family, this court finds that given the nature and duration of Cody's relationship to the paternal grandmother and his psychological, physical and emotional needs, it is not in his best interest to move Cody to the care of the paternal grandmother. To remove him from the only home he has known and to place him with the paternal grandmother, who has not been a consistent presence, is not in his best interest."
The court proceeded to its decision on the 12-month review. It found that mother was "still very early in her drug recovery" and "still at risk of a relapse," and it would be detrimental to return Cody to her care. The court observed that Cody "has not responded well" to visitation with mother and continued to have "a hard time transitioning to her." Her visits with Cody had not created "a strong positive bond that is getting better with each visit." Instead, Cody's "emotional dysregulation after [mother's] visits is increasing as time goes on." The court found that reasonable services had been provided because the need for PCIT was identified only in mid-July 2019, and mother was referred to PCIT just two weeks later. The reason mother did not start PCIT until September was that she missed her intake appointment, and there were scheduling conflicts outside the Department's control. The court found that the Department "did what it could to try to improve the bond between the mother and Cody, and despite its effort a strong bond has not yet formed." The court found "[b]y clear and convincing evidence, reasonable services have been offered or provided to [the parents] that were designed to aid them to overcome the problems that led to the removal of the child."
Since the 18-month period would expire on January 26, 2020, the court found that there was not a reasonable probability that mother would be able to assume custody of Cody by then since she was still very early in her recovery and had not made substantial progress yet. "Unfortunately, mother's failure to engage for the first ten months of this case has left her with insufficient time to become a capable parent for Cody, and has not allowed her the ability to form the strong bond that is necessary." "[T]he mother's progress has simply come too late and too slowly, and Cody cannot and should not have to wait any longer." The court terminated reunification services and set a section 366.26 hearing for March 24, 2020. Visitation was reduced to supervised visits twice a month. Father and mother each timely filed a notice of intent to file a writ petition.
II. Discussion
A. Mother's Petition
Mother challenges the juvenile court's reasonable services finding. She claims that the Department's case plan for mother was deficient because PCIT was not provided to mother until September 2019.
The juvenile court may set a section 366.26 hearing "only if . . . there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians." (§ 366.21, subd. (g)(4).) If reasonable services have not been offered or provided, the court has discretion to extend services for an additional period. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1212-1215.) "[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
"A proper service plan must be tailored to the specific needs of the dysfunctional family. However, to make the requisite findings, the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
Mother's initial case plan required her to address her substance abuse (complete a 12-step program, engage in random drug testing, and participate in an aftercare program), obtain counseling, attend parenting classes, and obtain a suitable residence. She was granted supervised visits with Cody twice a week. Mother's lack of a bond with Cody arose from her decision to be absent during the first 10 months of his life. The Department made numerous attempts to reach out to her and to try to persuade her to meet with the social worker and accept services, but she repeatedly declined to engage with the Department. It was only after the social worker tracked mother down in jail and arranged for her to enter a substance abuse program that mother began engaging in any of the services that the Department had been trying to provide to her since Cody's birth.
Extensive efforts were made to help mother form a bond with Cody. In June 2019, just a few weeks after mother began visiting Cody, a behavioral therapist began trying to work with mother during her visits to help Cody bond with her. In July 2019, a "First Five" therapist began trying to coach her on "how to interact with" Cody during their visits. Mother resisted and rebuffed these efforts. In mid-July, after these efforts failed, the social worker asked the court to order the parents to participate in PCIT. The court did so, and the Department made a timely PCIT referral for mother. It was mother who failed to cooperate and missed her intake appointment for PCIT, thereby herself delaying the provision of PCIT services.
This chronology demonstrates that the juvenile court's determination that reasonable services had been offered or provided to mother was supported by substantial evidence. The Department made prodigious efforts to persuade mother to engage in services throughout the reunification period and to nurture a bond between mother and Cody. Reasonable services were offered, and any delay in the provision of these services was due to mother's resistance. The Department was actually forced to get a court order for PCIT to try to get mother to participate in its efforts. Even then, mother delayed the provision of PCIT services. Her argument that it was the Department that delayed the provision of PCIT services lacks any support in the record. We conclude that the record amply supports the court's finding that the Department offered or provided reasonable services.
B. Father's Petition
Father challenges the juvenile court's order denying his request that Cody be placed with paternal grandmother. He claims that the juvenile court "was left with an insufficient basis for applying the relative preference" set forth in section 361.3 because the Department, in violation of section 361.3, "never assessed" paternal grandmother "at least not in a way that was ever documented in any of the social worker reports" as required by section 361.3.
We assume for the sake of argument that father may properly challenge the juvenile court's placement order, entered prior to the referral order, in this writ proceeding challenging the referral order. We also assume for the sake of argument that he has the requisite standing to challenge the denial of placement with paternal grandmother. --------
Section 361.3 provides: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative, regardless of the relative's immigration status. 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, unless that placement is found to be contrary to the safety and well-being of any of the siblings, as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (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. [¶] (E) Facilitate court-ordered reunification efforts with the 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 on an emergency basis, the relative's home shall first be assessed pursuant to the process and standards described in Section 361.4. [¶] (B) In this regard, the Legislature declares that a physical disability, such as blindness or deafness, is no bar to the raising of children, and a county social worker's determination as to the ability of a disabled relative to exercise care and control should center upon whether the relative's disability prevents him or her from exercising care and control. The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358 .1." (§ 361.3, subd. (a), italics added.)
Father relies heavily on the provision in section 361.3, subdivision (a)(8)(B) requiring that the social worker "document" the assessment of the relative "in the social study prepared pursuant to Section 358.1." He claims that the social worker failed to assess paternal grandmother as a placement option "in the social study" as required by that provision.
The social study "prepared pursuant to Section 358.1" is the social study prepared for the disposition hearing. In this case, the disposition hearing was held in December 2018, almost a year before the placement hearing. Father fails to acknowledge that this social study documented many of relevant factors identified in section 361.3, subdivision (a). The initial social study for the disposition hearing documented paternal grandmother's willingness to provide a placement for Cody "if the mother and the father do not reunify," and the social worker's assessment that paternal grandmother's location "in Nevada . . . would not support reunification" because the parents "need to be able to visit the child if they engage in reunification services." This documentation highlighted the factor set forth in section 361.3, subdivision (a)(7)(E).
A series of addenda to that report documented additional information that the social worker had acquired about paternal grandmother, and the social worker's assessment based on that information. One addendum documented that paternal grandmother was working to have her Nevada home approved for placement. Another documented further information about paternal grandmother relating to her ability to protect Cody from the parents and provided an update on the status of an assessment of paternal grandmother's Nevada home by Nevada authorities and of an ICPC referral by the social worker for paternal grandmother's Nevada home. These addenda documented factors identified in section 361.3, subdivisions (a)(5), (a)(6), (a)(7), and (a)(8). A later addendum documented the social worker's concerns about paternal grandmother's ability to provide consistency for Cody, which was relevant to the factor set forth in section 361.3, subdivision (a)(1).
Yet another addendum documented an update on the assessment of paternal grandmother's Nevada home and the news that paternal grandmother was moving to California. A subsequent addendum documented the information that paternal grandmother's Nevada home had received ICPC approval and that the social worker had done a preliminary assessment of paternal grandmother's prospective San Jose home in preparation for the licensing process to begin upon paternal grandmother moving to San Jose. These addenda were relevant to the factors set forth in section 361.3, subdivisions (a)(5), (a)(7), and (a)(8).
Thus, despite father's claim to the contrary, the social study prepared for the December 2018 dispositional hearing documented the relevant factors set forth in section 361.3, subdivision (a), precisely as that section requires, thereby providing the required documentation of the Department's assessment of paternal grandmother as a potential placement for Cody. We conclude that the Department did not violate section 361.3, subdivision (a) by failing to "document" its assessment of paternal grandmother "in the social study."
Father also argues that the Department "fail[ed] to conduct a 361.3(a) assessment" of paternal grandmother and instead based its placement recommendation solely on information provided by the foster parents. This argument conflates the Department's assessment of paternal grandmother as a potential placement with the Department's placement recommendation. The social worker's testimony at the placement hearing and the reports in the record establish that the Department thoroughly assessed paternal grandmother as a potential placement for Cody not only initially when she was in Nevada, but also after she relocated to California, and again at the time of the placement hearing. The Department did not fail to conduct a section 361.3 assessment of paternal grandmother, nor was its assessment of paternal grandmother based solely on information provided by the foster parents. The documentary and testimonial evidence presented to the juvenile court included information from a variety of sources, and the information provided by the foster parents was corroborated by other sources.
Father's disagreement with the Department's recommendation that Cody not be placed with paternal grandmother does not establish a violation of section 361.3. Father contends that paternal grandmother was statutorily entitled to be "the first placement" for Cody. This is a gross mischaracterization of the requirements of section 361.3. Section 361.3 does not "guarantee that the child will be placed with any person" but requires only that relatives be "the first placement to be considered and investigated." (§ 361.3, subds. (a)(8)(B) & (c)(1), italics added.) As we have already pointed out, the Department undertook a timely investigation and assessment of paternal grandmother as a placement for Cody after she requested consideration. The Department's initial consideration of her as a placement was not positive because one of the key considerations under section 361.3, whether the relative has the "ability" to "[f]acilitate court-ordered reunification efforts with the parents" and "visitation with the child's other relatives" (§ 361.3, subd. (a)(7)), weighed heavily against her as a placement due to her residence in Nevada. Despite the negative result of this initial consideration, the Department did not stop assessing or considering paternal grandmother as a potential placement. At multiple points in time, the Department considered whether a change of placement from the foster parents to paternal grandmother would be in Cody's best interest. The fact that the Department did not ultimately recommend placement with paternal grandmother was not a violation of section 361.3, as the statute requires only investigation, assessment, and consideration, not a recommendation for or a guarantee of placement. "[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. (1994) 7 Cal.4th 295, 321.)
Father claims that the Department failed to provide an assessment of "the actual relationship between [Cody] and his paternal grandmother." The record rebuts this claim. The social worker's reports and the testimony at the placement hearing reflected that the Department had closely monitored and assessed the nature of the relationship between Cody and paternal grandmother to the degree that it was able to do so. This assessment revealed that her relationship with Cody was very limited. She did not visit him at all until he was three months old, and she had just a few visits prior to her move to California in January 2019, at which point Cody was already six months old. Although she visited Cody regularly for a few months, paternal grandmother followed that brief appearance in Cody's life by virtually disappearing from his life for four months. When she reappeared, she had just monthly visits. On this record, the Department could reasonably conclude that the "actual relationship" between paternal grandmother and Cody was of very limited depth. She was mostly absent from his life, and, with the exception of a brief period when he was six to nine months old, her visits were few and far between. There was no evidence of a strong bond between paternal grandmother and Cody. The Department and the juvenile court could reasonably conclude from this evidence that Cody did not have a significant relationship with paternal grandmother.
Neither of cases relied upon by father contains any support for his contentions. Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 (Cesar V.) was a writ proceeding challenging the juvenile court's denial of father's request for placement of the child with the paternal grandmother. (Id. at p. 1026.) The children had been in foster care during the reunification period, but the foster parents were not interested in adopting the children. After reunification services were terminated, the father sought placement of the children with the paternal grandmother. Since a placement change was necessary, the court ordered an assessment of the paternal grandmother as a possible placement. (Id. at pp. 1026-1027.) However, "the social worker did not make significant efforts to gather the required information [for an assessment] before deciding [the paternal grandmother] was unsuitable and abandoning the assessment" after the social worker discovered an unsubstantiated child abuse report against the paternal grandmother. (Id. at p. 1033.) The social worker then placed the children in a prospective adoptive home. At the subsequent hearing on placement, instead of exercising its independent judgment, the juvenile court merely upheld the Department's decision on the grounds that it was not an abuse of the Department's discretion. (Id. at pp. 1033-1034.)
The Court of Appeal held that relief was merited because the social worker had not assessed the paternal grandmother and the court had not exercised its independent judgment in evaluating whether the children should be placed with the paternal grandmother. (Cesar V., supra, 91 Cal.App.4th at pp. 1033-1034.) The case before us is readily distinguishable. As we have already discussed, in this case, the social worker did assess paternal grandmother as a potential placement. Unlike the situation in Cesar V., the Department did not deem paternal grandmother's home unsuitable and forego any assessment. Instead, it conducted an assessment, approved her home for placement, but recommended against a change of placement from the foster parents to paternal grandmother because it believed that such a change would not be in Cody's best interest. This is not a case like Cesar V., where the juvenile court failed to make an independent determination of whether Cody's placement should be changed from the foster parents to paternal grandmother. The juvenile court's express consideration of the section 361.3 factors and its explanation for its decision reflected that the court had carefully exercised its independent judgment and found that a change in placement was not in Cody's best interest, which was well within its authority. (In re Stephanie M., supra, 7 Cal.4th at p. 321.)
Father's reliance on In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.) is equally misplaced. In Isabella G., the paternal grandmother had been Isabella's primary caregiver before the dependency proceedings commenced. (Id. at p. 712.) When Isabella was placed in protective custody, the paternal grandparents immediately sought placement, but the agency did not assess their home for placement. (Id. at p. 713.) Instead, the agency detained Isabella with a nonrelative extended family member (NREFM) who was a licensed foster parent. The NREFM told the agency that she did not intend to care for Isabella permanently. (Id. at p. 713.) The paternal grandparents continued to repeatedly seek placement, but the agency told them that they would have to " 'wait a year' " before two-year-old Isabella could be moved again. (Id. at pp. 713-714.) Throughout the reunification period, Isabella spent both days of every other weekend with the paternal grandparents, thereby maintaining their bond. (Id. at pp. 714, 716.) The paternal grandparents continued to seek placement, but the social worker did no assessment. (Id. at p. 714.) It was only after the paternal grandparents filed a section 388 petition that the agency did an assessment and approved the paternal grandparents' home for placement, but it recommended against a change of placement due to the bond that had developed between Isabella and the NREFM, who had now decided that she wanted to adopt Isabella. (Id. at p. 715.) The juvenile court held an evidentiary hearing on the section 388 petition, but it ruled that the relative placement preference did not apply because reunification services had been terminated. (Id. at p. 717.) The juvenile court applied the caregiver adoption preference in favor of the NREFM and denied the paternal grandparents' petition. (Id. at p. 717.)
The issue before the Court of Appeal was whether the juvenile court had erred in applying the caregiver adoption preference instead of the relative placement preference in light of the agency's delay in assessing the paternal grandparents' home. (Isabella G., supra, 246 Cal.App.4th at p. 718.) The agency conceded that it had failed to complete a timely assessment and that the court had erred in applying the caregiver adoption preference. It argued only that these errors were not prejudicial because the court's determination was based solely on Isabella's best interest. (Id. at p. 718.) The Court of Appeal held that where the relatives had invoked the preference before the dispositional hearing, the relative placement preference continued to apply even though the reunification period was over and no change in placement was required. (Id. at pp. 721-723.) It also held that the juvenile court had erred in failing to consider the factors set forth in section 361.3 in determining whether placement with the paternal grandparents was in Isabella's best interest, and instead considering only whether a change in placement was in Isabella's best interest. (Id. at p. 723.) Because consideration of those factors might lead to a different outcome, the Court of Appeal reversed the juvenile court's order denying the paternal grandparents' petition and remanded for a new hearing. (Id. at pp. 724-725.)
We do not have before us a case in which the Department failed to assess paternal grandmother's home as a placement for Cody. The Department repeatedly did so. Nor does this case involve a juvenile court that failed to apply the factors set forth in section 361.3 or applied the wrong preference at the placement hearing. In this case, the Department assessed paternal grandmother's home and approved it for placement. It recommended against placing Cody in her home. The juvenile court held a lengthy placement hearing, applied the relative preference, independently and carefully examined the factors set forth in section 361.3, and, giving due consideration to Cody's best interest, decided against placement with paternal grandmother. None of the flaws that led to reversal in Isabella G. occurred here.
III. Disposition
The petitions are denied.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.