Opinion
C088387
03-13-2020
In re N.T., a Person Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.T., Defendant; Y.T., Movant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JVSQ-17-123)
Y.T., maternal grandmother (grandmother) of the now three-year-old minor N.T., appeals from the juvenile court's postdisposition order denying her request for placement of the minor following termination of parental rights. (Welf. & Inst. Code, §§ 361.3, 395.) We affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2017, the minor was removed from mother at birth after both mother and the minor tested positive for illegal drugs. Grandmother and the maternal aunt (aunt) were both present with mother at the hospital after the birth and both indicated they would be interested in placement of the minor.
The Yolo County Health and Human Services Agency (Agency) filed a dependency petition pursuant to section 300, subdivision (b), alleging failure to protect the minor due to mother's ongoing substance abuse issues, her failure to obtain prenatal care for the minor, and her failure to provide support for the minor. The petition also alleged the minor's half-sibling, A.T., had previously been placed in the care of grandmother under a legal guardianship due to mother's instability and drug use.
The minor's half-sibling A.T. is not a party to this appeal.
The detention report stated the minor remained hospitalized under protective custody and the Agency was working with grandmother and the aunt to complete an emergency resource family approval program (RFA) assessment, noting that, should the maternal relatives be approved as an emergency placement, they would be required to complete the full RFA process by participating in trainings and psychosocial interviews, attaining CPR certification, and submitting all required documentation. The report stated, "Placement under an emergency assessment does not equate to full approval." The report also stated mother indicated she had Indian ancestry with the Mono tribe. Mother identified three possible fathers, none of whom had contact with the Agency.
Detention
On March 21, 2017, the juvenile court ordered the minor detained and placed in the Agency's care. The court's order noted the minor may be an Indian child under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
Initial Jurisdiction Hearing
The jurisdiction hearing was initially held on March 29, 2017. Mother, grandmother, and aunt were all present. The Agency noted the minor was in a confidential foster placement and the court ordered supervised visitation for mother. Mother's counsel requested placement with either the grandmother or the aunt and requested visitation for them as well. The court ordered one supervised visit for each relative prior to the next court date. Mother's counsel stated the grandmother and the aunt had "already live-scanned and it already checked out." Grandmother complained that the social worker was not returning her telephone calls. The court directed the social worker to contact grandmother and continued the jurisdiction hearing to April 12, 2017.
The Agency subsequently documented its efforts to contact grandmother and aunt prior to the March 29, 2017 hearing. For example, on March 20, 2017, then-RFA social worker Atheena Cabiness left a voicemail for grandmother stating the social worker was attempting to contact her regarding potential placement of the minor. On March 21, 2017, Cabiness completed an RFA in-home assessment of aunt's home. That same day, Cabiness discussed the emergency RFA assessment of grandmother with social worker Juliana Kier and together they determined there were too many concerns regarding the prescribed use of narcotic drugs by grandmother which could prevent her from being fully alert to the needs of the minor, who was medically fragile at the time. On March 22, 2017, aunt called Cabiness to obtain updates in the RFA process. The following day, Cabiness consulted with social worker Barbara Fisher regarding the potential RFA placement with aunt. Fisher noted placement with aunt would be appropriate. Cabiness e-mailed aunt with an update and requested that she submit the health screening form as soon as possible. Cabiness also noted the receipt of RFA documentation and informed aunt of the upcoming hearing.
Initial ICWA Notices
On April 3, 2017, the Agency prepared ICWA notices based on information provided by mother and mailed those notices to the Bureau of Indian Affairs (BIA), the Secretary of the Interior, and various Indian tribes. The notices included information related to grandmother, including the identity of the tribe (the Mono tribe) and her tribal membership or enrollment number. April 11 , 2017 Memorandum Report
The memorandum report filed April 11, 2017, stated the social worker attempted to contact mother via telephone on five different occasions in March 2017 but was unable to speak with mother. On April 4, 2017, the social worker supervised a visit between grandmother, aunt, and the minor. Grandmother and aunt had numerous complaints and suspicions. They claimed the hospital was overmedicating mother, questioned the hospital's documented reports about mother's behavior and their behavior while at the hospital, criticized the Agency's intervention with the family, questioned the veracity of mother's positive drug tests, and further questioned the information contained in the detention report. The social worker reported she confirmed grandmother received two messages left for her in late March 2017 and worked at length to try to help the family members understand the Agency's process and the reasoning for the Agency's involvement.
During a visit with the minor, grandmother made various complaints related to the foster parent's care of the minor, some of which were confirmed by the social worker and some of which were determined to be unfounded. The social worker validated the family's concerns and assured them the foster mother would be directed to rectify any problems. Nonetheless, the aunt phoned the Agency's hotline the next day to report the concerns expressed to the social worker the previous day. She also alleged the foster parent sped out of the parking lot following the visit and could have injured the minor and provided the make and model of the foster parent's car. The social worker determined the only way grandmother and aunt could have identified the foster parent's car was if they waited for the foster parent to leave. In that regard, the foster parent reported that, when she left the office after the visit, she observed the two maternal relatives sitting in a car on the street and, as soon as she pulled out of the parking lot onto the street, the two women began to follow her. The foster parent became fearful so she drove to the police station and sat in the parking lot because she did not feel safe returning to her home, and she was concerned the maternal relatives might attempt to discover her confidential residence address. This information caused the Agency to have serious concerns regarding the maternal relatives' suitability for placement.
At a hearing on April 12, 2017, the court ordered the maternal relatives not to follow the foster parent. The record is unclear as to whether the maternal relatives' visits were suspended by the court.
Continued Jurisdiction Hearing
On April 26, 2017, minor's counsel informed the court that the maternal family members were requesting placement and had been reaching out to the RFA social worker but had not received a response. The court directed the Agency to follow-up with social worker Cabiness and contact the maternal relatives before the next hearing.
Again, the Agency documented its efforts to contact grandmother and aunt during the relevant period, including numerous e-mails and discussions between social worker Cabiness and grandmother or aunt regarding emergency RFA placement. The Agency noted a discussion between Cabiness and social worker Kier regarding their continued concerns related to grandmother's significant prescribed use of narcotics to treat two herniated discs. The Agency also noted that, on April 20, 2017, Cabiness met with both maternal relatives, who both submitted documentation for the RFA assessment and inquired about the next steps in the process. Cabiness answered their questions and provided guidance for the next steps.
Additional ICWA Notices
The social worker interviewed aunt in March 2017 to obtain family background information and, on June 15, 2017, sent out additional ICWA notices to all three Mono tribes and the BIA based on that information. However, unlike the initial notices, these notices did not include grandmother's tribal enrollment number.
Jurisdiction Hearing
On June 28, 2017, the court sustained the allegations in the petition, as amended, took jurisdiction over the minor, and confirmed the existing plan for visitation.
Disposition Report
The disposition report filed July 12, 2017, stated the Agency received ICWA responses from two tribes confirming the minor was not eligible for tribal membership. A third tribe had yet to respond.
Social worker Cabiness began emergency home assessment for grandmother and aunt but, due to her concerns that grandmother did not appear able to follow through on the foster requirements, she determined aunt was better suited for placement. The Agency had also learned about the concerning behavior of both maternal relatives as outlined in the April 11, 2017 memorandum report. Aunt followed through with some of the paperwork for the RFA process but, given the Agency's concerns, the Agency required her to begin attending RFA classes. As of the date of the disposition report, aunt had yet to complete all the requirements for RFA placement.
Dispositional Hearing
Grandmother was present for the dispositional hearing on July 20, 2017. The court ordered reunification services to mother, who was not present. The minor was reportedly doing well in foster placement. The court found the minor's current placement was appropriate and appointed a court-appointed special advocate (CASA) for the minor. Pursuant to grandmother's request, the court ordered a minimum of two supervised visits per month.
Return receipts from the BIA, the Secretary of the Interior, and a Mono tribe were filed with the court on October 23, 2017.
Status Review Report
As of January 9, 2018, the minor remained in foster placement where the caregivers expressed their desire to provide permanency via adoption. One of the tribes was provided with ICWA notice but 60 days had elapsed with no response from that tribe. Grandmother and aunt again expressed their desire to provide long-term placement for the minor and were reportedly still being evaluated by the RFA staff.
CASA Report
The CASA report filed January 16, 2018, stated grandmother and aunt had visited the minor just once (on Oct. 4, 2017) despite the July 20, 2017 court order for twice-monthly visitation and had not yet completed the RFA kinship classes. The minor was reportedly thriving in her foster placement and had a strong attachment to her foster parents and siblings.
Six-month Review Hearing
Mother was not present at the January 18, 2018 six-month review hearing. Mother's counsel inquired about the status of placement of the minor with the maternal family, which was reportedly still in progress. The court directed the Agency to investigate the status of the RFA assessment and report back. However, minor's counsel requested that the RFA not proceed, noting the minor had been in the current placement for nine months and was "very comfortable and should not be moved." The court stated its desire that the maternal relatives be properly considered and assessed, directed the Agency to report back to the parties on the RFA placement issue, and set the matter for a contested hearing.
Continued Six-month Review Hearing
At the continued hearing on February 1, 2018, the court terminated mother's reunification services and set the matter for a section 366.26 hearing. Aunt withdrew her request for placement, but grandmother was still under review in the RFA process. The court again ordered twice-monthly visitation for the maternal relatives. The foster parents filed a de facto parent statement on April 2, 2018, and a prospective adoptive parent designation request on April 4, 2018. Section 366.26 Report
According to the section 366.26 report, filed May 21, 2018, grandmother continued to complain about phone calls not being returned and not getting placement due to " 'mix-ups.' " The report detailed contacts between the Agency and the maternal relatives (much of which is previously set forth above) including that grandmother completed the required RFA classes on August 13, 2017. The Agency acknowledged there were significant changes in the Agency and the RFA process but reminded grandmother that she had not been approved for emergency placement due to concerns about her medication, her behavior in court and during visits, and her delay in completing the RFA application and taking the required classes.
Grandmother finally completed her RFA psychosocial interviews in mid-February 2018 and was officially approved for RFA placement on February 27, 2018. The Agency determined grandmother was committed to caring for the minor long-term, was family-centered, was part of the Mono tribe, and had worked diligently to get placement of the minor. On March 8, 2018, Cabiness and social worker Colin Williams discussed the issue of placement and determined it was in the minor's best interest to be placed with grandmother. On March 13, 2018, social worker Williams informed grandmother that the Agency intended to place the minor with her. Williams also informed the foster parents of that plan. On March 19, 2018, grandmother informed the Agency of her enrollment with the Mono tribe and provided documentation for ICWA noticing purposes.
During several child and family team (CFT) meetings between March 2018 and May 2018, the parties discussed a plan to increase grandmother's visits with the minor to one overnight the first week and two overnights the following week. During a final CFT meeting, the foster mother stated the minor was unusually clingy after an eight-hour visit with grandmother and had shown separation anxiety and night terrors and was hitting her head on the wall. The foster family expressed concern about disrupting the minor's attachment to them as the minor had no relationship with the maternal relatives and requested that the court make its placement decision soon. Minor's counsel requested that visits with grandmother be decreased so the social worker could investigate the foster family's claims. The visitation schedule was modified to four to five hours, twice weekly.
The Agency requested a 90-day continuance of the section 366.26 hearing to allow for proper ICWA noticing with "updated information" after grandmother reportedly informed the Agency on March 19, 2018, that she was a registered member of the Mono tribe. The report noted the California Department of Social Services (CDSS) had also requested a 90-day continuance to complete the preliminary adoption assessment.
Adoption Assessment
The May 15, 2018 adoption assessment concluded the current foster parents and grandmother both appeared suitable for adoption of the minor.
CASA Report
The CASA report, filed May 29, 2018, stated the minor was happy and well-adjusted in the foster home placement. The minor had been introduced to the maternal relatives and started a "new, heavy visitation schedule." The report noted that grandmother had visited once during the minor's first 11 months and that visits were suspended early on due to "inappropriate conduct" (as detailed in the April 11, 2017 report). Visits were reinstated on January 18, 2018; however, no other visits were scheduled until March 27, 2018, despite the court's order for twice monthly visitation. When visits were increased to twice weekly for 10 hours, the minor began to show signs of significant stress after visiting grandmother. The CASA noted she had observed the minor's anxiety during a visit when the minor was dropped off at grandmother's home. As of May 31, 2018, twice weekly visits had taken place for the past four weeks.
The CASA recommended that the 14-month-old minor remain with the foster family, with whom she had been since birth. The CASA noted the minor was thriving and well-bonded with the foster family and likely considered them as her family. The CASA also noted that the minor would benefit from a continued relationship with her maternal relatives, something the foster mother supported.
Additional ICWA Noticing
On May 18, 2018, the Agency resent ICWA notices to all three Mono tribes regarding the upcoming section 366.26 hearing. The new notices contained the same tribal enrollment information for grandmother as the initial notices sent on April 3, 2017. Section 366.26 Hearing
The section 366.26 hearing commenced on May 31, 2018. The Agency echoed its written request for a 90-day continuance to allow for additional ICWA noticing, arguing it received updated information from grandmother not provided earlier in the proceedings. It appeared that all counsel and the court were acting under the same belief that the information regarding grandmother's tribal affiliation was not provided to the Agency until March 19, 2018, despite that the initial ICWA notices sent in April 2017 contained that information. After expressing significant concern that mother and grandmother failed to timely communicate the ICWA information, the court found good cause to continue the matter.
Regarding the placement issue, the court noted, "One of the big issues on placement is what was the Agency doing and who's responsible for the delay, and what impact the delay has on the case. [¶] So I think what I will do is - I don't want to further delay. The second issue of placement really needs to be properly addressed before the next hearing and so I'm going to issue some orders to clarify that. . . ." While the Agency argued the report detailed its efforts to assess grandmother for RFA placement, the court referenced section 361.3 and stated that the "delay" needed to be addressed "as to what impact that has on the relative placement issue." When the Agency asked if the court was referring to the ICWA delay, the court said, "No, not ICWA. The delay in approving the grandmother which happened, I guess, according to the report, February 27, 2018, when she had applied April 20, 2017. So it's hard to understand if the grandmother is the cause of the delay, then that will have to be resolved factually. If the Agency is the cause of the delay, then what impact does that have on the Court's decision-making. [¶] When you've got an RFA April 20th, which is less than one month after protective custody, and then you don't get approval until February the next year, that's a problem."
The Agency continued to recommend placement with grandmother. However, the court stated it was "not there," and added: "So we're not doing that today. I'm not saying that I've made a decision or anything, we're a long way away from making a decision to place a child with grandma unless the parties are a hundred percent stipulated. It's an issue before the Court and it will be fairly considered under the law and facts." The court expressed concern regarding the rapid increase in visits with grandmother causing stress to the minor, and regarding placement with grandmother one year after the minor had been placed in the home of the current caretakers. The court ordered twice-monthly visitation between the minor and grandmother and gave the Agency authority to increase visits. The parties were ordered to file briefs addressing the issue of placement. Section 366.26 Report
The report, filed August 10, 2018, recommended termination of parental rights and placement of the minor with the current caregivers under a permanent plan of adoption. The Agency reported the initial ICWA notices sent to the tribes were compiled from information provided by mother but, after receiving subsequent ICWA information provided by grandmother on March 19, 2018, it sent new ICWA notices to the three Mono tribes on May 18, 2018, which included the updated information provided by grandmother. The Agency had not received a response from any of the tribes and therefore recommended that the court find the minor was not an Indian child pursuant to the ICWA.
The report noted the minor had been placed in her current foster home since March 21, 2017, and she appeared to be well-adjusted and well-bonded to her caregivers.
Grandmother was reportedly approved as a potential substitute care provider through the RFA process on February 27, 2018. However, the Agency and the CDSS concluded the minor was likely to be adopted and it was in the minor's best interest to terminate parental rights and identify a permanent plan of adoption in the home of the current caregivers.
Minor's Brief on Placement
Counsel for the minor filed a brief on August 14, 2018, requesting that the minor remain in her current placement and that her current caretakers be designated the prospective adoptive parents. The brief noted the minor had been in her current placement since just after birth and that grandmother was not approved for placement until nearly a year later.
CASA Report
The CASA report also recommended that the minor be placed with her current caregivers.
Maternal Grandmother's Relative Information Form
On August 22, 2018, grandmother filed a relative information form requesting placement of the minor. She argued the Agency failed to assign her a social worker "for 6-9 months." She further argued she called social workers Cabiness and Williams "for months" but did not receive a response until she called their supervisor. Finally, she argued social worker Alma Lopez finally conducted an RFA home assessment in February 2018 and approved her home that same month.
Grandmother claimed the Agency was aware of her Mono tribe ancestry as of March 19, 2017, when mother reported it to a social worker via her ICWA documentation. She felt she had been treated unfairly since the inception of the dependency case, arguing she finished her RFA classes on August 3, 2017, but was told there was no RFA social worker available to assign to her case. She further complained that her first eight-hour overnight visit with the minor was cancelled due to the foster mother's concerns over negative impacts on the minor. Grandmother also complained of injuries suffered by the minor in foster care, including a smashed finger and splinters in both feet.
Addendum Report
In its addendum report filed September 24, 2018, the Agency detailed its ICWA inquiry and investigation efforts and recommended that the court find the ICWA did not apply. Hearing on Request for Placement and Continued Section 366 .26 Hearing
At the September 26, 2018 continued placement and section 366.26 hearing, grandmother testified she first filled out the paperwork for RFA placement on May 3, 2017, when the RFA social worker came to her home. The social worker instructed her to purchase "all the stuff you need for the baby," so she and aunt purchased cribs and baby items for both of their homes. She stated she worked with four social workers in an effort to get placement of the minor. Two social workers inspected her home and certified it for placement. She completed the RFA classes and then just waited. She claimed she was told she would "get the baby" but she never did. The parties stipulated that grandmother had been approved for RFA placement.
Grandmother testified her initial visits with the minor were for eight hours, but the foster family said the minor was traumatized and scared, so the visits were decreased to four hours. She visited the minor "a couple times when she was born" and then visits stopped. The Agency would not return her calls and did not have workers for "six to nine months."
When asked why it would be in the minor's best interest to be placed with her, grandmother answered, "Because we love her. We miss her. We miss seeing her grow up since birth. She's missing her grandmother, her great grandmother, her grandfather, and all her cousins and uncles and aunts." She admitted the minor had been in the same foster home since birth and acknowledged it would be traumatic for the minor to be removed from that home, but stated, "[S]he's missing her family. She has family that love her. She has a sister, and I'm her blood grandmother."
The Agency argued that application of the relative placement preference pursuant to section 361.3 would require consideration of several factors, including the best interests of the minor. In that regard, the Agency argued the minor had been placed in the same foster home for approximately 18 months and was very closely bonded to her caregivers, visitation with grandmother was much more recent, and removal from the foster parents would be traumatic for the minor. The court noted that the best interests of the minor under section 361.3 focused on continuity, stability, and attachment to the caregivers. Minor's counsel cited In re M.H. (2018) 21 Cal.App.5th 1296 (M.H.), arguing that, while both the Agency and grandmother played a role in the delay in RFA placement, M.H. dictated that the minor's best interests here would be to maintain stability and continuity by remaining in her current foster placement.
Mother's counsel argued grandmother had regular unsupervised contact with the minor and provided the minor with access to "her whole village of family." Acknowledging the minor had been with her current caregivers since birth, counsel argued the minor could be placed with grandmother and still maintain contact with the foster family. Counsel further argued grandmother worked diligently to get placement, and the relative placement preference should be applied. The court noted that the relative placement preference gave relatives preference in the assessment process, not preference in placement.
Following a break in the proceedings, the court referred to M.H. as the applicable law. Construing grandmother's relative information form requesting placement as a section 388 motion for change of placement, the court noted the burden of proof was on grandmother as the moving party to show there was new evidence or changed circumstances that demonstrated a change of placement was in the minor's best interest. The court further noted that, because the hearing was after the termination of services, the parents' interests were no longer paramount, and the focus shifted to the needs of the minor for permanency and stability, and that there was a rebuttable presumption that continued foster care was in the minor's best interest. The court stated it had the power and duty to make an independent placement decision and, in doing so, should consider the biological family connection as well as the relative bond the minor had with the foster parents. The court remarked that it was uncontroverted that the minor was thriving in her current placement and there was a strong bond between the minor and the foster family.
Applying section 361.3, the court focused on the "history of the grandmother's application for RFA and placement," including the Agency's concerns regarding grandmother's inability to follow through with the foster requirements and her troubling behavior as detailed in the April 11, 2017 report. The court noted that the Agency decided at that time that aunt was "better suited for placement," but by the time of the July 20, 2017 disposition report, aunt reportedly failed to follow through with the required paperwork and the required foster care classes. Given aunt's failure to follow through, the Agency confirmed placement of the minor with the foster family, who subsequently became de facto parents.
With that history as a backdrop, the court focused on the best interests of the minor, noting the minor's first 18 months with the foster family resulted in a bond that was critical such that "a change of circumstances would be more harmful to the child if you were to take the child out in these important bonding years." The court determined "[t]his is an overwhelming case in support of denying the motion for change of placement." The court praised grandmother for showing up and completing the RFA process but noted that was not enough to outweigh the bond the minor had with the foster family.
Concluding that the ICWA did not apply, the court found the minor was likely to be adopted, terminated parental rights, found the minor's current placement was appropriate, and designated the foster parents as prospective adoptive parents. The court ordered that grandmother have visitation at the discretion of the Agency and the caregivers.
Grandmother's Appeal
On November 19, 2018, grandmother filed a notice of appeal of the court's September 26, 2018 order denying her request for placement of the minor.
Proceedings Following Termination of Parental Rights
On December 24, 2018, grandmother filed a motion for an order for a relative placement assessment and a hearing pursuant to section 361.3. Grandmother's counsel was present for the hearing on the motion on January 24, 2019, at which time the juvenile court continued the hearing and ordered the parties to brief the issue of the procedural viability of the motion.
The continued hearing was held on February 25, 2019. The court denied the motion on the grounds that the court had already held a placement hearing on September 26, 2018, grandmother was not prepared to proceed, and there had been no change in placement that would have triggered a section 361.3 assessment.
DISCUSSION
1.0 The Resource Family Approval Process
Grandmother contends the juvenile court erred in denying her request for placement of the minor by failing to properly or timely apply the "RFA laws," which she argues were intended to supersede all other provisions of placement, and by disregarding her eventual RFA approval. She argues at length that the Agency's delay in the RFA assessment and approval process was, in large part, the reason the minor was not ultimately placed with her.
The Agency argues that, while it was responsible for some of the delay in grandmother's RFA approval, it eventually approved her and recommended her for placement, but the court was not required to place the minor with grandmother.
As we will explain, grandmother's claims lack merit.
1.1 Applicable Legal Authorities
Effective January 1, 2017, the Legislature replaced the former system of "certifying foster homes" with a new system of "approv[ing] resource families." (Legis. Counsel's Dig., Assem. Bill No. 403 (2015-2016 Reg. Sess.), Stats. 2015, Summary Dig., ch. 773; see § 16519.5, subds. (a), (c)(5), (p), (q).) As relevant here, a resource family is defined as "an individual or family that has successfully met both the home environment assessment standards and the permanency assessment criteria adopted . . . necessary for providing care for a child placed by a public or private child placement agency by court order . . . ." (§ 16519.5, subd. (c)(1).) The new approval process applies not only to foster families, but also to relative caregivers, nonrelative extended family members, and prospective adoptive families. (§ 16519.5, subd. (c)(5).)
In determining where to place a child removed from the physical custody of her parents, preferential consideration is given to relatives. A " '[r]elative' " is defined as "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship." (§ 361.3 (c)(2); id., subd. (a); see also § 319, subd. (h)(2).) However, placement with a relative is neither required nor guaranteed. (§ 16519.5, subd. (c)(6).)
" 'Section 361.3 gives "preferential consideration" to a relative's request for placement, which means "that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).)' [Citation.] 'When considering whether to place the child with a relative, the juvenile court must apply the [section 361.3] placement factors, and any other relevant factors, and exercise its independent judgment concerning the relative's request for placement.' [Citation.]" (In re A.K. (2017) 12 Cal.App.5th 492, 498 (A.K.); accord, In re Isabella G. (2016) 246 Cal.App.4th 708, 719 (Isabella G.).)
"The relative placement provisions in section 361.3 apply when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible. [Citation.] The relative placement preference also applies to placements made after the dispositional hearing, even when reunification efforts are no longer ongoing, whenever a child must be moved. (§ 361.3, subd. (d); [citation].)" (A.K., supra, 12 Cal.App.5th at p. 498.)
Relying on the Resource Family Approval Written Directives (Cal. Dept. of Social Services, Resource Family Approval Written Directives Version 4 (rev. Jan. 6, 2017, eff. Feb. 6, 2017; hereafter RFA Written Directives), grandmother claims she was qualified for emergency placement pursuant to sections 309 and 361.45 "even before the RFA process [was] initiated" and based on the " 'compelling reason' " that the minor's sibling was already under her care pursuant to a legal guardianship. Grandmother misconstrues the relevant law.
As a preliminary matter, the RFA Written Directives upon which grandmother relies almost exclusively, and to which she repeatedly refers, are guidelines derived from the applicable statutes governing relative placement contained primarily in the Welfare and Institutions Code. Contrary to grandmother's assertion, nothing in the RFA Written Directives states the directives preempt or supersede all other provisions of relative placements. Instead, pursuant to its own stated purpose, the directives were intended to "implement a unified, family-friendly, and child-centered resource family approval process to replace the existing multiple processes for licensing foster family homes and approving relatives . . . as foster care providers, and approving families for legal guardianship or adoption." (RFA Written Directives, § 1-01(a), p. 6; see § 16519.5, subd. (a).) As also stated, the authority for the directives lies in section 16519.5, which itself makes no mention of preemption and indeed refers to other relevant statutory provisions including sections 309 and 361.45 of the Welfare and Institutions Code. (§ 16519.5, subds. (a) & (c)(3).)
Further, we review the interpretation and application of a statute de novo. (In re Dakota J. (2015) 242 Cal.App.4th 619, 627 (Dakota J.).) " 'In construing a statute, our role is to ascertain the Legislature's intent so that we may effectuate the purpose of the law. [Citation.] We consider the words of the statute first, because they are normally the most reliable indicator of legislative intent.' " (Isabella G., supra, 246 Cal.App.4th at p. 718, quoting Dakota J., at pp. 627-628.) Section 16519.5, upon which the directives rely, provides, "There is no fundamental right to approval as a resource family. Emergency placement of a child pursuant to Section 309 [or] 361.45 . . . does not entitle an applicant approval as a resource family." (§ 16519.5, subd. (c)(3).) Section 309, subdivision (d)(1), requires that the Agency "initiate an assessment of the relative's . . . suitability for emergency placement pursuant to Section 361.4" by conducting "an in-home inspection to assess the safety of the home and the ability of the relative . . . to care for the child's needs." (§ 361.4, subd. (a)(1).) "Upon completion of the assessment pursuant to Section 361.4, the child may be placed in the home on an emergency basis. Following the emergency placement of the child, the county welfare department shall evaluate and approve or deny the home pursuant to Section 16519.5. . . ." (§ 309, subd. (d)(2), italics added.) These provisions are consistent with, and provide the foundation for, the RFA Written Directives.
Moreover, nothing in the RFA Written Directives or the relevant statutes provides for mandatory emergency placement of a child with a relative who requests placement, whether with or without RFA assessment or approval. Emergency placement is permissive regardless of the relationship of the person seeking placement of the child or the existence of a sibling relationship.
Against that backdrop, we turn to the merits of grandmother's claims.
1.2 Analysis
Here, it is undisputed that grandmother expressed her desire for placement of the minor at the inception of the dependency proceedings in March 2017. The Agency properly initiated an assessment of grandmother's suitability, inspected and approved her home, and worked with her to complete the emergency RFA assessment. Completion of the emergency RFA assessment, however, did not guarantee placement of the minor with grandmother on an emergency basis. (§ 309, subd. (d)(2).) On March 21, 2017, the minor was ordered detained and placed temporarily in the care of the Agency pending a jurisdiction hearing. (§ 319, subd. (g).) We infer from the court's detention order that grandmother was not approved at that time for emergency RFA placement pursuant to section 309, 361.4, or 361.45. At the March 29, 2017 initial jurisdiction hearing, the Agency informed the court that the minor had been placed in a confidential foster home. The court ordered visitation for grandmother and continued the jurisdiction hearing. We infer from that order that grandmother was still not approved for emergency placement pursuant to those same sections or section 319, subdivision (h).
Section 361.45, subdivision (b), provides in relevant part: "Upon completion of the assessment pursuant to Section 361 .4, the child may be placed in the home on an emergency basis. Following the emergency placement of the child, the county welfare department shall require the relative or nonrelative extended family member to submit an application for approval as a resource family and initiate the home environment assessment no later than five business days after the placement. Thereafter, the county welfare department shall evaluate and approve or deny the home pursuant to Section 16519.5." (Italics added.)
Section 319, subdivision (h)(1)(A) provides in relevant part that if, at the initial jurisdiction hearing, the juvenile court does not return the minor to the parents, the court "may order the temporary placement of the child in . . . [¶] . . . [¶] . . . [t]he approved home of a resource family, as defined in Section 16519.5 . . . ."
Grandmother claims, without any analysis, that the Agency could easily have investigated and favorably resolved its concerns about her health in short order, rendering emergency placement a foregone conclusion. To avoid forfeiture of her claim of error, grandmother had the burden to support her argument with analysis and citation to evidence in the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in appellate brief must be supported by argument and, if possible, by citation of authority]; People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136.) She did not do so.
Grandmother raises a number of claims regarding the fact that the minor was not placed with her on an emergency basis prior to RFA assessment and approval. However, the time for raising those claims was long ago when they arose, at which time the juvenile court could have considered her concerns and made a determination early in the minor's foster placement before the passage of time solidified the bond between the minor and her foster family. Notwithstanding grandmother's appearance at numerous hearings and her frequent and repeated complaints regarding the Agency's handling of the RFA assessment process (some of which may well have been justified), grandmother failed to formally raise the placement issue in the juvenile court by filing a motion pursuant to section 361.3 or section 388 or by any other available means. She further failed to seek appellate review of the placement-related issues at any point in the lengthy process. As a consequence, the minor remained in foster placement where she bonded with her foster family. Indeed, it was not until August 2018 when termination of parental rights was imminent that grandmother finally filed her relative information form requesting placement of the minor and formally raised the issues she had been complaining about since the inception of the proceedings.
Grandmother also argues at length that the Agency's undue delay in completing the RFA assessment process and approving her for placement contributed in large part to the court's order depriving her of placement of the minor. It is indisputable that there was, during grandmother's RFA assessment, a lengthy period of delay. The record reveals the responsibility for the delay lies with both the Agency and grandmother. From the time of the minor's removal in March 2017 through the dispositional hearing in July 2017, grandmother complained that the Agency failed to return her calls or communicate with her about the RFA process. The Agency's documentation defied that claim, showing instead that the Agency made a number of attempts to contact grandmother without success; spoke with her by telephone or met with her in person a number of times and discussed the RFA process; and met with her during visits with the minor. Acknowledging the delay was partly attributable to significant changes within its own organization and in the RFA process in particular, the Agency also attributed the delay to its concerns about grandmother's suitability for placement, due not only to her use of narcotic drugs for pain, but also her troubling behavior as described in the April 11, 2017 report, which earned her an admonishment from the court. Further, by the time of the dispositional hearing on July 20, 2017, grandmother had submitted her RFA documentation but had yet to complete her RFA classes, and the court issued its dispositional order finding the minor's placement with her foster family was appropriate.
Regardless of who was responsible for the delay in grandmother's RFA assessment between the inception of the proceedings and the dispositional hearing, at no point did grandmother formally seek relief in the juvenile court or in this court. For example, grandmother was present at the dispositional hearing and requested visitation but did not otherwise contest the court's placement findings. Nor did she appeal from the court's dispositional order. " ' "The first appealable order in the dependency process is the dispositional order. [Citation.]" ' " (In re Athena P. (2002) 103 Cal.App.4th 617, 624.) And, failure to take a writ from a nonappealable dispositional order "waives any challenge to it." (Id. at p. 625.) In the absence of an appeal from the dispositional order, and in order to affirmatively seek a change in the minor's placement following the dispositional order, grandmother's remedies were to file a motion pursuant to section 361.3, subdivision (d) (see A.K., supra, 12 Cal.App.5th at p. 498 ["The relative placement preference also applies to placements made after the dispositional hearing, even when reunification efforts are no longer ongoing, whenever a child must be moved"]), or to file a petition pursuant to section 388 requesting a change in the court's previous order. " 'Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .' (§ 388, subd. (a)(1).)" (In re R.T. (2015) 232 Cal.App.4th 1284, 1299.) Grandmother did not file a section 361.3 motion. Similarly, she did not file a section 388 petition, nor could she have in the absence of a change of circumstance or new evidence.
Grandmother finally completed her RFA classes in August 2017 and was not RFA-approved until seven months later in February 2018. She claims the Agency continued to drag its feet in placing the minor with her and "conjured one pretext after another" to extend the time the minor remained in the care of the foster family without explaining the delay in approval. She also claims the Agency used the need to clarify the minor's ICWA status to drag out the placement issue and excuse its unexplained delay in placing the minor with her despite her RFA approval.
As a preliminary matter, grandmother received RFA approval in February 2018 and soon thereafter the Agency recommended the minor be placed with grandmother. That recommendation did not change until attempts to transition the minor to grandmother via longer visits resulted in the minor suffering bouts of serious trauma and anxiety, at which point minor's counsel, the CASA, and eventually the juvenile court, expressed concern about the repercussions of removing the minor from her current placement with her foster family. In any event, as previously discussed, RFA approval, whether it be for emergency or permanent placement, is not a guarantee of actual placement. The RFA laws require preferential consideration of a relative; however, placement with a relative is neither required nor guaranteed. (§§ 16519.5, subd. (c)(6), 361.3, subd. (c)(1); In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Thus, no matter what the circumstance, grandmother's RFA approval did not require the court to place the minor with her.
While grandmother laments the Agency's undue delay after her RFA approval in February 2018 and until the court's denial of her placement request on September 26, 2018, she again failed to seek appellate review or assert her rights in the juvenile court until she filed her relative information form on August 22, 2018, requesting placement of the minor, just one month before the section 366.26 hearing when termination of parental rights was imminent. " 'A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture . . . applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.' " (In re Maria Q. (2018) 28 Cal.App.5th 577, 590, citing In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Where, as here, grandmother was seeking a change in the minor's placement following the unchallenged dispositional order, her remedy was to file a petition pursuant to section 388 requesting that the court change its previous order. Although grandmother's RFA approval provided just the change of circumstance necessary to file a section 388 petition, no such petition was filed.
While these circumstances are unfortunate in that grandmother sincerely wanted the minor to be placed with her and was determined to be an acceptable relative placement, it was the minor's best interests that controlled. "The overriding concern of dependency proceedings . . . is not the interest of extended family members but the interest of the child. '[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.' [Citation.] Section 361.3 does not create an evidentiary presumption that relative placement is in a child's best interests. [Citation.] The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of her best interests. [Citation.]" (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)
We conclude the juvenile court did not err in denying grandmother's request for placement of the minor.
2.0 Relative Information Form Treated as Section 388 Petition
Next, grandmother contends the juvenile court erred by applying section 361.3 and treating her relative placement request as a section 388 petition, thereby shifting the burden of proof to her without giving her prior notice, and then relied on scant evidence, speculation, and distinguishable caselaw (M.H., supra, 21 Cal.App.5th 1296) in deciding it was in the minor's best interest to remain in the current placement. She also relies on Isabella G., supra, 246 Cal.App.4th 708 for the proposition that no section 388 petition was required to resolve her request for placement at the section 366.26 hearing. The claim lacks merit.
Grandmother again argues, without citation to authority, that the "California RFA law" was "intended to supersede the other provisions of placement," including section 361.3. As discussed in part 1.0 of this opinion, grandmother is incorrect. --------
" 'When considering whether to place the child with a relative, the juvenile court must apply the [section 361.3] placement factors, and any other relevant factors, and exercise its independent judgment concerning the relative's request for placement.' [Citation.]" (A.K., supra, 12 Cal.App.5th at p. 498; Isabella G., supra, 246 Cal.App.4th at p. 719.) A hearing under section 361.3 requires that the court consider, among other things, the best interest of the child. (§ 361.3, subd. (a)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 320 [the intent of the relative placement preference is "that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child" (italics omitted & added)].)
In Isabella G., the appellate court concluded that, "when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Isabella G., supra, 246 Cal.App.4th at p. 712, fn. omitted.)
We need not labor under an exhaustive discussion whether section 361.3 was the appropriate vehicle for the court to utilize in making its placement determination. We conclude that, given the posture of the proceedings and grandmother's relative information form requesting placement of the minor, it was. We further conclude that the court's treatment of grandmother's relative information form as a section 388 petition was also appropriate in that the minor had been in her current placement since the inception of the proceedings and grandmother's relative information form specifically requested that the minor be placed with her.
In any event, whether the issue should have been determined by way of sections 361.3 and 388 or, as grandmother argues, under "the provisions of the RFA laws . . . (§ 16519.5, et sec.)," it is a distinction without a difference. Again, section 361.3 requires that the court consider a number of factors, the first of which is "[t]he best interest of the child." (§ 361.3, subd. (a)(1).) Section 388 similarly requires consideration of the minor's best interests. (§ 388, subd. (d).) After carefully considering the history of the case, the juvenile court found grandmother's participation in the RFA process did not outweigh the fact that the minor had spent the first 18 months of her life with her foster family with whom she formed a critical bond such that changing placement would be harmful and would not be in her best interest. We conclude the court did not err in applying sections 361.3 and 388 in making that determination.
3.0 Bias in Favor of the Foster Parents
Grandmother claims neither the Agency nor the court ever addressed her claim of bias in favor of the foster mother who, according to the maternal grandmother, was employed by the RFA program and received preferential consideration. She further claims the court erroneously faulted her for failing to timely reveal her membership in the Mono tribe despite evidence to the contrary in the record. She contends these problems revealed the court's "ongoing bias" against placement of the minor with her and resulted in a predetermined decision not to place the minor with her. The claims lack merit.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.]" (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.) Grandmother failed to assert her claim of bias at any point during the dependency proceedings. Therefore, she has forfeited her right to raise any such claim on appeal.
While grandmother does not assert a claim regarding ICWA compliance, to the extent she is claiming the juvenile court's apparently misguided criticism of her for not timely providing ICWA information was a basis for its ultimate placement decision, the claim is untenable.
The record reveals that, at the May 31, 2018 hearing, counsel for all parties (including grandmother) relied on what appeared to be incorrect information that specific details regarding grandmother's tribal affiliation, namely her tribal enrollment number, had not been provided to the Agency prior to March 2018. The court, also relying on that incorrect information, criticized grandmother for failing to timely communicate the ICWA information to the Agency. Four months later, on September 26, 2018, the court rendered its placement decision based on the best interests of the minor, stating in part that its placement consideration included both the "biological family connection" and the minor's bond with the foster parents. The court made no mention of the ICWA other than to conclude that it did not apply. Contrary to grandmother's assertions, nothing in the record suggests the court predetermined its placement decision or harbored any bias toward grandmother.
4.0 Cumulative Error
Finally, grandmother contends the cumulative errors in failing to place the minor with her despite having been RFA-approved resulted in prejudice to her which cannot be remedied without reversal and remand for further proceedings. We need not address grandmother's claim given our conclusion, as set forth at length above, that her other claims of error lack merit.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Butz, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hoch, J.