In re H.O. CA3

Filed 1/31/23 In re H.O. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
In re H.O., a Person Coming Under the Juvenile Court C095838
Law.
PLACER COUNTY DEPARTMENT OF HEALTH (Super. Ct. No. 53-005046)
AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
A.F.,
Defendant and Appellant.
A.F., paternal grandmother (grandmother) of the minor, H.O., appeals from the
juvenile court’s order denying her request that the court place the minor with her. (Welf.
& Inst. Code, §§ 361.3, 388, 395.)1 We will affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL HISTORY
Following H.O.’s birth in August 2019, she was placed in the neonatal intensive
care unit for the first month of her life to detox from the methadone her mother, C.O.
(mother), was taking during pregnancy. When H.O. was seven and a half months old, she
ingested mother’s fentanyl, was hospitalized, and removed from mother’s care. For a
two-month period, during which mother was actively using fentanyl and
methamphetamine, grandmother would visit H.O. and mother for hours at a time,
reportedly unaware that mother was using substances. On March 28, 2020, H.O. was
released from her second hospitalization due to drug exposure, removed from mother’s
care by the Placer County Department of Health and Human Services (the Department),
and placed into emergency foster care with her current foster family. Following the
jurisdiction and disposition hearing, H.O. was moved into relative placement with her
maternal great-aunt after mother requested this placement. At the time of the hearing,
paternity had yet to be established, so grandmother was not considered for relative
placement.
From March 2020 through October 2020, grandmother did not see H.O. In
September of 2020, the maternal great-aunt became overwhelmed in caring for H.O. and
gave notice that she could no longer serve as placement for her. H.O. returned to her
initial foster family at the end of September 2020, where she has remained since. There
were no other family members who were Resource Family Approval (RFA) approved
and available to take placement of H.O. at the time. Grandmother requested placement
and was referred to complete the RFA process. The Department began considering
grandmother for placement. However, grandmother lived in the Bay Area and mother
was still receiving reunification services, and the distance between mother and H.O., if
she were placed with grandmother, was considered a barrier to reunification. Around this
time, H.O.’s father, J.F. (father), was released from custody, and mother expressed
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concerns that father was living with grandmother and about father’s substance use.
Father had told the social worker that he was living with grandmother. Due to these
factors, the Department reported that it was in H.O.’s best interest to remain placed with
the foster family who had previously cared for her from March through July 2020.
Grandmother continued to pursue RFA approval but was not approved until January
2021. On June 8, 2021, mother reported to the social worker that if she were unable to
reunify with H.O., she would like H.O. to stay with her foster parents.
On October 1, 2021, mother filed a request to change court order, pursuant to
section 388, requesting that H.O. be placed with grandmother. On November 17, 2021, a
contested 18-month review hearing was held, and reunification services were terminated
as to mother.
Prior to the hearing on mother’s section 388 motion, on November 18, 2021, the
Department filed a “361.3 Placement Report,” recommending that the juvenile court find
that placement with grandmother was not appropriate at that time and that it was in
H.O.’s best interest to remain placed with her current foster family. The report set forth
that H.O. has lived in her current placement, at the time, for more than 16 out of the 19-
months-long dependency proceedings. H.O. had a strong bond with her foster family and
looked to them for nurturance and to meet her daily needs, and the Department contended
it would be disruptive to H.O.’s current attachments and could cause undue confusion,
stress, and anxiety were a change in placement to occur. H.O. suffered from
developmental delays and sensory issues, and the foster family had demonstrated specific
attention to H.O.’s needs by advocating for services in these areas. Additionally, the
report set forth concerns about placing H.O. with grandmother, including lack of firm
boundaries with father, who had struggled with substance abuse and has a history of
criminal activity and incarceration. The report noted that there was uncertainty regarding
grandmother’s ability to properly assess for safety and risk and protect H.O. from her
biological parents.
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At the contested hearing on January 13, 2022, counsel for the Department
submitted on the recommendations in its section 361.3 placement report. Counsel for
H.O. joined with the recommendations and statements contained within the report.
Grandmother joined in mother’s section 388 motion and in the contested 361.3 placement
request. Grandmother testified she travelled about two hours and 15 minutes each way
(from Redwood City to Placer County) for her visits with H.O. every other week, and she
never missed a visit. The social worker testified that in June and August of 2021, she had
discussed with mother, mother’s wishes with respect to H.O.’s placement. Mother
indicated that if she were unable to reunify with H.O., she wanted H.O. to remain with
the current foster parents.
At the conclusion of the contested hearing, counsel for H.O., counsel for the
Department, counsel for grandmother, and counsel for mother presented argument to the
juvenile court specifically addressing factors set forth in section 361.3. In taking the
matter under submission, the juvenile court advised that it would “have to look at the
factors under 361.3.”
At the continued hearing on January 26, 2022, the juvenile court indicated that it
had reviewed the cases referenced in the parties’ arguments, specifically citing cases
addressing section 361.3 factors. The court noted that grandmother was not considered
for placement at the time of disposition because paternity had not been established. The
court then reasoned that while mother and grandmother contend the court failed to make
findings under section 361.3, the court was never requested to make these findings until
mother filed the section 388 motion following her August 2021 arrest, when it was clear
reunification services would be terminated. The court noted that mother had submitted
on the recommend placement for H.O. at all prior hearings and did not raise the issue of
placement with grandmother until this late juncture.
When assessing the section 361.3 analysis, the juvenile court reasoned: “This
[c]ourt is tasked with assessing placement with [grandmother] under [section] 361.3, and
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as the parties have discussed, [section] 361.3 has multiple prongs. First, it has to
determine the best interest of the minor including special physical, emotional and
psychological needs. . . . [¶] Next, the [c]ourt has to consider the wishes of the parents
and the child and also the very specific list of factors under Section 6.” The court noted it
found no issues with grandmother as a potential placement, stating, “I have no concern
about her willingness or ability to care for H.O.” The court observed: “[T]he parties
have waited over a year to bring the issue to the [c]ourt. Multiple hearings have passed in
which mother submitted to the plan. . . . [H.O.] has lived with her resource parents for 20
out of the 29 months of her life. . . . [¶] The [c]ourt has not received any evidence how it
is in [H.O.’s] best interest to be placed with grandmother other than the overriding
argument that it is best for [H.O.] to live with family.” The court considered mother’s
wishes but concluded that it was not in H.O.’s best interest to disrupt her life again after
she had been in a stable placement for 15 months. The court denied the placement
request.
Grandmother filed a timely notice of appeal.
DISCUSSION
Grandmother contends the juvenile court erred in denying placement of H.O. with
her. She argues it was an abuse of the juvenile court’s discretion to deny her placement
under section 361.3 and find that placement with her was not in H.O.’s best interest.
Specifically, she contends the court failed to examine each of the factors in section 361.3,
instead focusing on a “ ‘generalized best interest test,’ ” and this was reversible error.
We reject her claims of error.
The section 361.3 relative placement preference requires “preferential
consideration” be given to a relative’s request for placement of a dependent child.
(§ 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
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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 interests 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.)
“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
492, 498.) It is less clear whether, and under what circumstances the relative placement
preference applies after reunification services have been denied or terminated but 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 at p. 795; In re Isabella G. (2016) 246 Cal.App.4th 708, 723.) We note
that H.O. returned to her foster family at the end of September 2020, where she has
remained since, and grandmother had not completed the RFA process at the time of that
placement change.
Here, after reviewing the Department’s report, considering grandmother’s and the
social worker’s testimony, and hearing argument from counsel, the juvenile court found
placement with grandmother was not in H.O.’s best interest at that time. We review that
decision 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.)
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In assessing a request for 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. (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 noted mother’s and grandmother’s wishes to
have H.O. placed with grandmother. The court also observed that it had no concerns
about grandmother’s willingness or ability to care for H.O. The court also noted facts
relevant to grandmother’s moral character, including that “[s]he presented herself in a
very forthright manner,” participated in all visits, and wanted to be involved in H.O.’s
life. The court also discussed facts regarding grandmother’s ability to provide a safe and
stable home environment and protect H.O. from the parents, noting it was not “concerned
about her ability to keep boundaries with her son.” While these 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.) Here, the court noted that H.O. had already
suffered significant trauma and disruption in her young life because she was removed
from mother’s care under life-threatening circumstances, briefly moved from the foster
family to a relative placement, and then moved back to the foster family again when the
relative placement failed. The court found that it was not in H.O.’s best interest to
disrupt her placement again where she had been in stable placement with the foster
parents for 15 months, and a total of 20 out of 29 months of her life. Further, the court
observed that while grandmother’s visits with H.O. were positive, H.O. had never spent
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an overnight with grandmother, and grandmother did not act in a parental capacity or as a
day-to-day caregiver. Finally, there was testimony from the social worker that if H.O.
were to be placed with grandmother, there could be an approximate 120-day lapse in
H.O. receiving her developmental services. This testimony supported the court’s
findings.
Further, we disagree with grandmother’s argument that the juvenile court
“neglected to address the egregious failure of the Department to comply with its
obligation to assess [g]randmother in a timely manner.” The record shows that at the
time of the disposition hearing, paternity had yet to be established, so grandmother was
not considered for relative placement. H.O. was instead placed with another relative and
when that placement failed, no other relatives—including grandmother—were RFA-
approved and available to take placement of H.O. at the time. Subsequently,
grandmother was referred to complete the RFA process, and the Department began
considering grandmother for placement. However, while mother was still receiving
reunification services, the geographic distance between mother and H.O., if H.O. were to
be placed with grandmother, was considered a barrier to mother’s reunification with H.O.
Additionally, there were concerns at that time that father was living with grandmother.
As the court noted, it was never requested to make these findings until mother filed the
section 388 motion. Indeed, mother was supportive of H.O.’s placement with the foster
parents up until that time, submitted on the Department’s placement recommendation
during the prior hearings, and did not raise the issue of placement with grandmother until
shortly before the 18-month review hearing.
As set forth above, the juvenile court found that it was not in H.O.’s best interest
to be placed with 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 duty of the
court is to assure the best interests of the child, whose bond with a foster parent may
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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.) We find no abuse of discretion.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HOCH, J.*
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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