In re A.J. CA3 ( 2021 )

Filed 12/27/21 In re A.J. CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re A.J., a Person Coming Under the Juvenile Court C093149
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD238820)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
J.J.,
Defendant and Appellant.
Appellant, J.J., father of the minor, appeals from the juvenile court’s order
denying his Welfare and Institutions Code section 388 petition for modification, which
sought placement of the minor with the paternal grandmother. (Welf. & Inst. Code,
1
§§ 388, 395.)1 He contends the juvenile court erred in denying the request. He also
attempts to challenge the jurisdictional findings, which had been the subject of his
previous notice of appeal.2 We decline to address his challenge to jurisdiction and affirm
the juvenile court’s order denying his petition for modification.
I. BACKGROUND
On February 15, 2018, Sacramento County Department of Child, Family, and
Adult Services (the Department) filed a section 300 petition, subdivisions (a), (b), and
(e), on behalf of the then five-month-old minor after the minor was found to have a
subdural hematoma, consistent with an abusive head trauma, severe retinal
hemorrhaging, and significant amounts of blood behind his eyes. Several physician
specialists stated that the minor’s condition was of the nature as would ordinarily not be
sustained except as a result of unreasonable or neglectful acts or omissions of the
appellant. The minor was in appellant’s care when the trauma occurred and appellant
failed to provide a plausible explanation for the minor’s injuries. The court ordered the
minor detained. It also ordered the Department to evaluate the home of the paternal step-
grandmother for placement, as well as any other relatives who come forward requesting
placement. The paternal grandmother, who lived in Georgia had requested she be
considered for placement, although she had never met the minor.
The jurisdiction hearing was continued several times. During that time, minor’s
counsel requested the minor be placed with the paternal step-grandmother, who appellant
had indicated was also his placement preference. On May 15, 2018, appellant’s counsel
noted the paternal grandmother had requested an expedited Interstate Compact on the
Placement of Children (ICPC). The juvenile court ordered the Department to
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 We previously ordered incorporation by reference of the record in case No. C088645.
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immediately initiate an expedited ICPC for the paternal grandmother. The expedited
ICPC order was issued on June 6, 2018.
The jurisdiction hearing took place on December 4, 2018. Mother waived her
right to trial and appellant requested a trial without witnesses. The juvenile court
sustained the section 300, subdivisions (a), (b), and (e) allegations, finding that appellant
was responsible for the minor’s injuries and set the matter for a disposition hearing.
The disposition hearing took place on December 18, 2018. Appellant had been
arrested for felony child abuse the week before the hearing. The juvenile court ordered
the minor removed from appellant and placed with the mother under a family
maintenance plan. Appellant was denied reunification services.
On March 14, 2019, a section 387 petition was filed due to mother’s failure to
comply with court orders, failing to inform the Department of the minor’s whereabouts,
failing to update the Department on her residence, and failing to apprise the Department
of the minor’s medical condition. The minor was detained from mother’s care. The
juvenile court found there were no relatives who had yet been approved for placement
and ordered the Department to evaluate the paternal grandmother’s home.
In its section 387 reports, the Department explained that the paternal
grandmother’s ICPC had been originally referred in June 2018, but the paternal
grandmother had not completed the process and it was closed on February 25, 2019,
because the minor had been placed with mother. Another ICPC referral was initiated on
April 10, 2019, after the minor was detained from mother. On May 6, 2019, the social
worker had received an e-mail from the ICPC supervisor in Georgia indicating proof of
paternity was required before Georgia would move forward with the relative home study,
and that the minute order and birth certificate were not sufficient documentation. The
referral was sent back for proof of paternity and the social worker requested the referral
remain open so the documentation could be submitted—which the social worker worked
on obtaining, as detailed in the report, throughout the month of June. The social worker
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forwarded the necessary proof of paternity to the ICPC supervisor in Georgia on July 8,
2019, and a response was pending.
The juvenile court sustained the section 387 petition on August 23, 2019, and
ordered out-of-home placement with reunification services to be provided to mother, but
not appellant. The juvenile court also set a relative placement hearing for November 19,
2019.
On November 19, 2019, the Department filed a progress report with an update on
services, visits, and the ICPC of the paternal grandmother. It was reported that on
September 24, 2019, the social worker received a message from the ICPC coordinator
supervisor stating she would be sending a request to the state of Georgia for an update on
the ICPC. The social worker then later called Georgia’s ICPC director on November 14,
2019, requesting an update. On November 18, 2019, the social worker received a
message from the ICPC supervisor in Sacramento stating she was sending another request
for an update from Georgia as the ICPC was sent in July, and it was over the 60-day
timeframe. The juvenile court continued the relative placement hearing to December 10,
2019.
On December 9, 2019, a relative placement hearing report was filed which
included information that on November 18, 2019, the Sacramento ICPC supervisor sent a
follow up request for an update to Georgia. On November 20, 2019, the social worker e-
mailed and left a message for the Georgia ICPC administrator, who indicated she sent a
request to the local office for additional information. On the same date, the social worker
called the paternal grandmother and left a message for her to call the social worker back
regarding the ICPC. On December 5, 2019, the social worker e-mailed the ICPC
administrator in Georgia for an update and was informed that she had reached out to the
local office and would call the social worker back. On the same date, the social worker
spoke with the paternal grandmother who stated she had to complete a physical
examination, and a home evaluation or interview had yet to be conducted. The social
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worker also contacted the Georgia ICPC worker on the same date and left an e-mail
requesting an update, and subsequently, on December 6, 2019, left a voicemail for the
ICPC worker in Georgia.
On December 10, 2019, the juvenile court addressed the relative placement report
with the parties and ordered the Department to provide updated information regarding the
status of the pending ICPC for the next scheduled hearing, which was the permanency
hearing set for February 4, 2020.
The Department’s January 24, 2020 report, prepared for the February 4, 2020
hearing, stated the ICPC of the paternal grandmother was still pending and on January 15,
2020, the social worker received an e-mail from the Georgia ICPC case manager who
reported the paternal grandmother was still pending her Child Safety Plan, drug screen
and medical paperwork, and the home evaluation would be conducted after all the
paperwork had been submitted. The Department was recommending the juvenile court
terminate mother’s reunification services.
The parties appeared on February 4, 2020. Mother requested removal of her court
appointed counsel and that the review hearing be set for trial. The record does not reflect
that the subject of relative placement was addressed at the hearing. The juvenile court set
the hearings on mother’s request to remove counsel, a de facto parent request, and the
review hearing, with pretrial for the review hearing on April 7 and the combined hearing
on April 21, 2020. Due to the COVID-19 pandemic, however, the trial was continued out
until July 21, 2020.
On July 21, 2020, an addendum to the permanency report was filed containing
additional information on mother’s progress in services and the ICPC of the paternal
grandmother. It was reported on February 10, 2020, that the social worker received a
letter from Georgia ICPC Central with information that the ICPC request remained
pending for a drug screen and medical information, and the paternal grandmother had
changed insurance and could not get the items completed until February 2020. On March
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19, 2020, the home study in Georgia was completed, and on March 23, 2020, the ICPC
supervisor informed the social worker that the ICPC was completed and approved for the
paternal grandmother. The social worker reported she informed the paternal grandmother
that due to COVID-19 and the shelter-in-place order, all visitation was limited to virtual
visitation and that the juvenile court would be informed of the approval at the next
hearing. That information was shared on June 23, 2020, due to the court closure as a
result of the COVID-19 pandemic. Also, due to the COVID-19 pandemic, the trial was
again continued and set for September 1, 2020.
On September 1, 2020, the Department prepared and filed its report for the review
hearing. There had been a Child Family Team Meeting (CFT) on July 31, 2020, on
behalf of the appellant, to discuss the minor’s placement with the paternal grandmother.
CFT discussed the minor’s attachment to his caregivers and his relationship with the
paternal grandmother. The paternal grandmother expressed her frustration over feeling as
if she had not been given a chance to have placement of the minor, and concerns were
raised over the paternal grandmother’s relationship with the appellant, and lack of
contact. It was noted that the minor was appropriately situated and appeared to have a
significant bond with the caregivers and all other children in the home. The caregivers
reported having an open line of communication with all maternal and paternal family
members and had been insistent on having a referral sent to consortium to ensure that the
minor stayed connected with relatives and parents, if deemed appropriate.
Appellant reported at the meeting he had a good relationship with the minor’s
caregivers, and he recognized the minor’s attachment to them. Appellant also reported he
knew that the minor would be safe with the paternal grandmother and found it difficult to
choose one placement over the other, but stated he was not thrilled with the idea of the
minor being moved again and residing out of state. It was decided that the caregivers
would work together with the paternal grandmother to arrange virtual visits on the
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weekends, separate from the appellant’s visits, and that the minor would be available if
the paternal grandmother could come to California for a visit.
The report also contained a full assessment of placement with the paternal
grandmother pursuant to section 361.3. It was reported the paternal grandmother was
approved through Georgia’s ICPC process on March 19, 2020, and the evaluation
included obtaining criminal background/child abuse clearances on all adults living in the
home, a home environment assessment, and an assessment on their ability to provide
basic care and supervision. The social worker indicated that the minor had been in
placement with the current resource parents since March 12, 2019, and had developed a
significant bond with his caregivers and the other children in the home. The minor had
been able to maintain virtual and in-person visits with both parents, as well as the
paternal and maternal grandparents, and the caregivers were supportive to maintaining
family connections.
As to the parents’ wishes regarding placement, it was reported mother expressed
on multiple occasions that if the minor were unable to be returned to her care, she would
prefer that he remain placed with the current caregivers. Mother expressed her
observations of the minor’s attachment with the caregivers and the other children in the
home and felt that if the minor were placed with the paternal grandmother, she would not
be permitted to see him. Appellant expressed that he was conflicted with his wishes for
placement of the minor and felt that the minor would be well cared for if placed with the
paternal grandmother but did not feel it was in the minor’s best interest to be moved
again and taken out of the home, where he had developed a significant bond with the
caregivers. Appellant had a good relationship with the caregivers and liked being able to
visit the minor in person.
There were no concerns noted about the paternal grandmother and grandfather’s
criminal history, good moral character, cultural continuity, or their ability to exercise
proper care and control of the minor. The paternal grandmother also indicated she was
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able to provide permanency in the form of adoption of the minor, and she had a
consistent support system. Nonetheless, the Department assessed that placement of the
minor in the home of the paternal grandmother was not in the best interest of the minor,
as he had been placed in the current caregivers’ home for approximately 18 months and
had a significant attachment to them and the other children in the home. While the
paternal grandparents had the resources, support, and commitment to provide care for the
minor, the Department noted the significant distance and the fact that the grandparents
had not seen appellant for over five years. The Department was concerned that
maintaining visitation with parents and the maternal grandparents would be difficult if the
minor were to be placed with the paternal grandparents in Georgia.
Also, on September 1, 2020, appellant filed a section 388 petition for modification
requesting that, should the court not place the minor with mother, the minor be placed
with the paternal grandmother in Georgia.3 At appellant’s request, the juvenile court set
appellant’s petition for modification for a contested hearing to be heard in conjunction
with the upcoming review hearing.
Trial began on September 16, 2020. All parties agreed to first conduct the section
366.21, subdivisions (e) and (f) review hearings and then, should the court not place the
minor with mother, proceed with appellant’s section 388 petition for modification. At the
conclusion of mother’s testimony, the juvenile court terminated mother’s reunification
3 Confusingly, as prepared and filed, the petition states the order it seeks to modify is the
December 18, 2018 disposition order removing the minor from appellant and placing him
with mother under supervision and states the new order it was requesting was “[i]f the
child is removed from the mother[, appellant] is requesting the court to place his son in
the care of the paternal grandmother.” By the time the petition was filed on September 1,
2020, however, the minor had been ordered removed from mother since August 2019,
based on the March 2019 section 347 petition. Thus, we construe the petition as it was
presented to the juvenile court to request placement with the paternal grandmother if the
minor was not to be returned to mother.
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services, continued the minor in out-of-home placement, and set the matter for a section
366.26 hearing to determine the appropriate permanent plan for the minor. The court
then conducted the contested hearing on appellant’s petition for modification.
After hearing testimony from the paternal grandmother, the juvenile court ruled on
appellant’s petition for modification. The juvenile court went through the history of the
case and noted that, after agreement by all parties, the court heard the section 388 petition
regarding placement of the minor with the paternal grandmother after the review hearing
regarding mother’s reunification services. The minor could not have been placed with
the paternal grandmother prior to the original disposition in 2018, because she did not
have a completed ICPC. The minor was placed with mother after the jurisdiction hearing
and, at that point, the ICPC for the paternal grandmother was put on hold. Subsequently,
after the minor was again detained and the Department requested another ICPC of the
paternal grandmother from Georgia on July 12, 2019, which was not completed until
March 2020. The juvenile court discussed whether the relative placement preference
applied after disposition and/or after termination of reunification services, and it
determined that the relative placement preference does not apply after reunification
services are terminated.
The juvenile court then noted that the paternal grandmother had no prior
relationship with the minor, had never met him in person, and had only recently begun
virtual visits. It also noted she had not known the juvenile court had found by a
preponderance of the evidence that her son was responsible for the minor’s injuries and
expressed concern that the minor could be exposed to more violence by appellant if the
paternal grandmother cared for him and allowed appellant around the child. The juvenile
court then found that, even if the relative placement preference did apply, the court would
have concerns about placing the minor with the paternal grandmother because the
parents’ ability to visit the minor would be frustrated if the minor resided in Georgia.
The juvenile court further noted that all parties were in universal agreement that the
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current caretakers had provided the minor with stability and continuity for the last 18
months and that the passage of time was a significant factor in a minor’s life. Having
emphasized that the overriding concern was not the relatives’ interests, but the interest of
the minor, the juvenile court found it was not in the minors’ best interest to be placed
with the paternal grandmother at that time. It noted, however, that the court would
reconsider placement should new facts be presented.
II. DISCUSSION
A. Jurisdictional Challenge
Appellant contends there was insufficient evidence to support the juvenile court’s
initial jurisdictional findings. We do not address the merits of this challenge to the
sufficiency of the evidence because the issue is not properly raised in the instant appeal.
Appellant acknowledges that he had filed a previous appeal from the jurisdictional
and disposition orders—case No. C088645. That case was dismissed after appellant
failed to file an opening brief and the remittitur was issued on July 2, 2019. Appellant
now requests this court address and consolidate the instant appeal from the juvenile
court’s October 20, 2020 order denying his section 388 petition for modification with his
previously dismissed appeal and address his challenge to the juvenile court’s December
4, 2018 jurisdictional findings. He argues we should address the merits of his argument
relating to jurisdiction in the instant appeal because this court denied him due process in
his previously dismissed appeal by not appointing appellate counsel to represent him, as
he had initially requested on his notice of appeal.
We directed the parties to file supplemental briefs “addressing whether the proper
remedy for any failure to be appointed counsel in case number C088645 is not to
consolidate case number C088645 with the instant appeal, or to permit appellant to raise
issues relating to jurisdiction and/or disposition in the instant appeal, but rather by a
motion to recall the remittitur in case number C088645 based on an evidentiary showing,
with declarations by appellant and Central California Appellate Program (CCAP) staff,
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that appellant was neither served with notice of the impending dismissal of his appeal in
case number C088645 by this court nor notified by CCAP of the right to, or opportunity
for, appointment of counsel.”
Appellant’s supplemental brief did not present any authority or argument that the
appropriate remedy for a due process violation as alleged in his opening brief is to
consolidate the dismissed appeal with the instant appeal or address here the arguments he
failed to raise in his previous appeal. Instead, appellant attached evidence to his
supplemental brief, in the form of declarations by appellant and CCAP staff, purporting
to establish that he was neither notified by CCAP of the right to, or opportunity for,
appointment of counsel nor served with notice of the impending dismissal of his appeal in
case No. C088645 by this court.
First, we note that, as we suggested in our order directing supplemental briefing,
the appropriate remedy for any due process violation caused by the failure to be
appointed counsel in case No. C088645 is not to consolidate case No. C088645 with the
instant appeal, or to permit appellant to raise issues relating to jurisdiction and/or
disposition in the instant appeal, but rather by a motion to recall the remittitur in case No.
C088645, based on an appropriate evidentiary showing.
The time for appeal of an order made in a dependency case is 60 days from the
date of the order’s pronouncement in open court. (In re Alyssa H. (1994) 22 Cal.App.4th
1249, 1253-1254.) If no timely appeal is taken from a dependency order, the order is
final and binding, the issues determined by the order are res judicata, and the order may
not be attacked on appeal from a later appealable order. (In re S.B. (2009) 46 Cal.4th
529, 532; In re Matthew C. (1993) 6 Cal.4th 386, 393.) The dismissal of appellant’s
previous appeal for failure to file an opening brief is akin, in this regard, to the failure to
appeal. If that appeal was improvidently dismissed, appellant should file a motion to
recall the remittitur in that case, not file evidence in connection with a brief in this case.
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In the alternative, appellant asks this court to treat his supplemental brief as a
motion to recall the remittitur in case No. C088645, based on the declarations attached.
Significantly, he did not file the motion in case No. C088645, which is where it must be
filed for consideration in that case. But even if we were to consider it in that regard, we
reject it on its merits.
Appellant submitted a declaration from a staff attorney and panel manager for the
Central California Appellate Program (CCAP), a nonprofit organization that aids this
court in the appointment of counsel for indigent appellants. She declared that, according
to the CCAP case file, appellant’s previous appeal was filed on January 3, 2019. CCAP
sent notices to appellant on January 16, January 29, and March 11, 2019, to the address
listed on the notice of appeal and supporting documentation list, which was the same
address appellant’s trial counsel had provided in background information received by
CCAP on February 15, 2019. On March 12, 2019, CCAP records indicate it was
informed of a new address. It then sent two separate notices to that address on March 12
and 18, 2019. Those notices were returned to sender due to an insufficient address and
being unable to forward, respectively. On March 27 and April 30, 2019, CCAP sent
notices to the second address it had received, this time including an apartment number
not previously included. CCAP records do not indicate any response or returned mail
from the March 27 and April 30 notices.
Appellant’s declaration states that he did not receive any communications in his
prior appeal (case No. C088645) regarding the need to file paperwork. He stated that
during the dependency case, he had moved several times and provided his current
address, which we note is not the same as either address referenced in the declaration
provided by CCAP’s attorney (but is the same address he put on his change of address
filed in the instant case on January 27, 2021).
It is clear from the declarations provided by appellant that recall of the remittitur
in case No. C088645 based on a violation of appellant’s due process and right to
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appointed counsel is not warranted. The supporting declarations appellant provides do
not, as alleged, support his position that he was improperly denied appointment of
counsel in case No. C088645. Instead, they establish that appellant, not CCAP or this
court, failed to do what is required in order for appellant to be represented by appointed
counsel on appeal. Specifically, after CCAP sent numerous notices to appellant at the
address both he and his trial counsel provided for appellant to request appointed counsel.
Appellant did not respond to those notices.
That appellant may have “moved several times” without notifying this court as
required by law does not transmute his failure to receive the notices from CCAP or this
court into a violation of his due process rights. Appellant had a duty to file and serve
written notice of his change of address with this court pursuant to California Rules of
Court, rule 8.32 (b)(2).4 This he did not do. The docket in case No. C088645 reflects no
change of address filed by appellant. Appellant’s due process rights were not violated
and recall of the remittitur is not warranted. Appellant’s contentions of error relating to
the juvenile court jurisdictional findings are not properly before us in this appeal and we
do not address them.
B. Relative Placement Request
Appellant contends the juvenile court erred in denying his section 388 petition for
modification, which requested that, should the court order the minor’s continued removal
4 California Rules of Court, rule 8.32 provides: “(a) In any case pending before the
court, the court will use the mailing address, telephone number, fax number, and e-mail
address that an attorney or unrepresented party provides on the first document filed in
that case as the mailing address, telephone number, fax number, and e-mail address of
record unless the attorney or unrepresented party files a notice under (b). [¶] (b) (1) An
attorney or unrepresented party whose mailing address, telephone number, fax number, or
e-mail address changes while a case is pending must promptly serve and file a written
notice of the change in the reviewing court in which the case is pending.”
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from mother, that the minor be placed with the paternal grandmother. We reject his
claim of error.
Appellant’s opening brief accuses the juvenile court of having “purposefully
circumvented the relative placement preference by holding [appellant’s] section 388
petition after it terminated reunification services.” He argues doing so was unfair,
improper, and frustrated the entire purpose of the relative placement preference. But
appellant ignores the fact that he filed the section 388 petition on the day set for the
review hearing and it was at his request that the juvenile court set the contested hearing to
be heard in conjunction with the continued review hearing. He also ignores the
significant fact that he expressly agreed to holding the review hearing before the hearing
on his petition. Thus, he cannot now be heard to complain about the order of the
hearings. (In re Brandon M. (1997) 54 Cal.App.4th 1387, 1401; People v. Hines (1997)
15 Cal.4th 997, 1040; People v. Booker (2011) 51 Cal.4th 141, 161.)5
We now address argument that the juvenile court erred by failing to order
placement of the minor with the paternal grandmother pursuant to his section 388 petition
for modification. The section 361.3 relative placement preference requires “preferential
consideration” be given to a relative’s request for placement of a dependent child.
5 We are concerned about the briefs filed by appellant’s counsel in this case. In addition
to the unfounded accusation that the court “purposefully circumvented the relative
placement preference,” appellant’s opening brief accuses the juvenile court of “willful
ignorance of the laws” and “willful ignorance of the facts clearly set forth in the record,”
and purports to support these assertions with more accusations such as “the court
pretended that it didn’t know the paternal grandmother had applied for placement prior to
[the minor’s] detention.” Review of the court’s remarks fails to substantiate appellant’s
accusations. Instead, it shows the court, in considering whether the relative placement
preference applied, noted that the minor could not be placed with the paternal
grandmother prior to the original disposition because the ICPC was not approved until
March 2020. Disparaging the trial court, by asserting it deliberately chose not to follow
the law, without evidentiary support is potentially contemptuous. (In re White (2004)
121 Cal.App.4th 1453, 1478.)
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(§ 361.3, subd. (a).) “ ‘Preferential consideration’ means that the relative seeking
placement shall be the first placement to be considered and investigated.” (§ 361.3, subd.
(c)(1).) “Preferential consideration ‘does not create an evidentiary presumption in favor
of a relative, but merely places the relative at the head of the line when the court is
determining which placement is in the child’s best interests.’ ” (In re Antonio G. (2007)
159 Cal.App.4th 369, 376.) “[T]he statute express[es] a command 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 interest of the child.” (In re Stephanie M.
(1994) 7 Cal.4th 295, 320.) But this command is not a guarantee of relative placement.
(In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
Appellant argues that he was entitled to a relative placement hearing under section
361.3, based on the fact that the juvenile court set a relative placement hearing back on
August 23, 2019, and it was never heard.6 He also argues he was entitled to
consideration of his relative placement request pursuant to his later filed section 388
petition—which of course, he received. The thrust of his contention appears to be that
the juvenile court was required to consider whether to place the minor with the paternal
grandmother in accordance with section 361.3, despite the fact and timing of his section
388 petition.
“The relative placement provisions in section 361.3 apply when a child is taken
from [his or] 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.” (In re A.K. (2017) 12 Cal.App.5th
6 Appellant complains that this hearing was dropped from the calendar without
explanation on February 20, 2020, but we note that he did not seek timely relief in the
juvenile court or in this court.
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492, 498.) It is less clear whether, and under what circumstances the relative placement
preference applies after reunification services have been terminated and when no new
placement of the child is required. (See In re Stephanie M., supra, 7 Cal.4th at p. 321; In
re R.T. (2015) 232 Cal.App.4th 1284, 1300; In re Joseph T., supra, 163 Cal.App.4th 787,
795; In re Isabella G. (2016) 246 Cal.App.4th 708, 723.)
Whether consideration of placement with the paternal grandmother in this case is
properly determined by way of the relative placement preference in section 361.3 or
pursuant to section 388, as filed by appellant, is a distinction without a difference here.
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).) Here, after reviewing the
Department’s report, listening to the paternal grandmother’s testimony, and hearing
argument from counsel, the juvenile court found placement with the paternal
grandmother was not in the minor’s interest at that time. We review that decision under
either subdivision for abuse of discretion, and we will not disturb the decision unless it
exceeds the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re
Robert L. (1993) 21 Cal.App.4th 1057, 1067; In re A.S. (2009) 180 Cal.App.4th 351,
358.)
In any event, while the juvenile court did not believe the relative placement
preference to apply at this stage of the case, it is evident it nonetheless considered the
statutory factors in making its decision. In assessing a relative placement under section
361.3, the statute provides for several factors to be considered by the Department and
juvenile court. These criteria include, but are not limited to: the child’s best interest
(§ 361.3, subd. (a)(1)); the wishes of the parent and the relative (id., subd. (a)(2)); the
good moral character of the relative and any other adults living in the home (id., subd.
(a)(5); the nature and duration of the child-relative relationship, and the relative’s desire
to care for the child and provide permanency if reunification is unsuccessful (id., subd.
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(a)(6)); the relative’s ability to provide a safe, secure, and stable home environment, as
well as the necessities of life; to protect the child from the parents; and to facilitate
reunification, relative visitation, and implementation of the case plan (id., subd. (a)(7)-
(8)).
Here, the juvenile court specifically mentioned the nature and duration of the
minor’s relationship with the paternal grandmother—noting that she did not have a prior
relationship with the minor, had never met the minor in person, and had only recently
begun visitation. It also expressed concern that, even if the relative placement preference
applied, placement of the minor in Georgia would frustrate the parents’ ability to visit the
minor. The remaining factors were undisputed and all analyzed in the Department’s
report, which noted: (1) mother preferred the minor remain placed with the caretakers
over the paternal grandmother (appellant was reported to be conflicted until the filing of
his section 388 petition on September 1, 2020); (2) no concerns surrounding the moral
character of the paternal grandmother or anyone in her home; and (3) no concerns with
cultural continuity or with the paternal grandmother’s ability to care for and control the
minor.
Yet, although the section 361.3 statutory factors are important, the “linchpin” is
always the best interests of the child. (In re Robert L., supra, 21 Cal.App.4th at p. 1068.)
And here, the parties were in “universal agreement that the current caretakers have
provided [the minor] with stability and continuity in the last 18 months.” It was reported
that the minor had been placed in the caretakers’ home since he was removed from
mother on March 12, 2019, was well-adjusted, and had developed a significant bond with
the caretakers and the other children in the home.
As set forth above, the juvenile court found that it was not in the minor’s best
interest to be placed with the paternal grandmother at this time. “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
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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 [his or] her best interests.” (In re
Lauren R. (2007) 148 Cal.App.4th 841, 855.) While appellant argues that the paternal
grandmother’s home was appropriate and the minor “would adjust to his family,” we find
no abuse of discretion.
III. DISPOSITION
The orders of the juvenile court are affirmed.
/S/
RENNER, J.
We concur:
/S/
MURRAY, Acting P. J.
/S/
KRAUSE, J.
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