San Diego Cnty. Health & Human Servs. Agency v. Alejandro G. (In re Isabella G.)

• Decision Date: 30 March 2016
• Docket Number: D068718
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE ISABELLA G., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Alejandro G. et al., Objectors and Appellants.

246 Cal.App.4th 708

201 Cal.Rptr.3d 64

IN RE ISABELLA G., a Person Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.Alejandro G. et al., Objectors and Appellants.

D068718

Court of Appeal, Fourth District, Division 1, California.

Filed March 30, 2016

As Modified on Denial of Rehearing April 18, 2016

William D. Caldwell, under appointment by the Court of Appeal, for Objector and Appellant Alejandro G.

Serobian Law and Liana Serobian, Glendale, under appointment by the Court of Appeal, for Objectors and Appellants John and Myrna F.

Jamie A. Moran, San Diego, under appointment by the Court of Appeal, for Minor.

Thomas E. Montgomery, County Counsel, John E. Philips and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.

O'ROURKE

, J.

The child's father and paternal grandparents¹ appeal the denial of the grandparents' petition for placement of the child. (Welf. & Inst.Code,²

§ 388.) The father also appeals the order terminating parental rights. (§ 366.26.)

The Legislature "command[s] 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, 27 Cal.Rptr.2d 595, 867 P.2d 706

(Stephanie M .).) This case involves repeated requests by the child's grandparents for placement of the child, starting when the child was first detained in protective custody. The San Diego County Health and Human Services Agency (the Agency) did not conduct an assessment of the grandparents' home as required under section 361.3, governing relative placement. Instead, the Agency placed the child in the home of a nonrelative extended family member and secured the cooperation of the grandparents and other relatives by representing that the Agency could not change the child's placement for a year. After a year, the grandparents again requested placement. The Agency did not conduct an assessment of their home as required. After reunification services were terminated, the Agency disregarded the grandparents' new request for placement. The grandparents retained counsel and filed a section 388

petition. Only then did the Agency complete a relative home assessment, approving the placement in less than three weeks.

At the hearing on the petition, the juvenile court denied the grandparents' request to proceed under section 361.3, instead applying the caregiver adoption preference under section 366.26, subdivision (k). The Agency concedes the juvenile court erred in applying the adoption preference prior to terminating parental rights. The Agency maintains section 361.3 did not apply because the grandparents' request for placement was made after the reunification period ended and no new placement was necessary.

We conclude 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.³ Consequently, we reverse the juvenile court's orders denying the grandparent's request for placement under section 366.26, subdivision (k), necessarily reverse the orders terminating parental rights, and remand for a relative placement hearing under section 361.3.

FACTUAL AND PROCEDURAL BACKGROUND

Isabella G. is the daughter of Adriana B. and Alejandro G. Isabella was born in August 2011. The family lived with Isabella's paternal grandparents, John (Grandfather) and Myrna F. (Grandmother). When Isabella was three months old, Adriana moved out of the home, leaving Isabella in Alejandro's and Grandmother's care. Grandmother was Isabella's primary caregiver. Isabella spent weekends in the home of her maternal grandparents.

Adriana also lived in their home, but was in and out of jail, as was Alejandro.

Adriana had a history of methamphetamine and marijuana use, and drug-related criminal offenses. Alejandro was addicted to heroin and had a drug-related criminal history. The paternal and maternal grandparents were generally aware of the parents' substance abuse problems. In January 2013, Grandfather asked Alejandro to leave the home. Isabella remained in Grandmother's care.

In July 2013, Adriana and Alejandro took custody of Isabella, who was 23 months old. The parental and maternal grandparents objected but did not intervene. Approximately a week after the parents resumed caring for Isabella, police arrested Adriana on felony fugitive warrants. Police discovered heroin, a used heroin syringe, marijuana, and other drug paraphernalia within Isabella's reach in the home. Alejandro and Adriana were arrested and incarcerated.

On July 25, the Agency detained Isabella in protective custody at Polinsky Center. Grandparents asked the Agency to place Isabella in their care and provided information to allow the Agency to complete a home evaluation. Grandmother said she had raised Isabella like a daughter. Alejandro asked the Agency to detain Isabella with Grandparents.

The Agency was not able to immediately detain Isabella with the paternal or maternal grandmothers. The maternal grandmother's drug-related criminal conviction disqualified her for placement and unsupervised visitation. Grandmother provided documentation showing that her 1998 conviction for welfare fraud had been expunged, and that prosecutors had dismissed a 2002 charge of conspiracy to distribute marijuana shortly after it was filed. The Agency did not assess Grandmother's home for emergency detention or placement.

Isabella was not doing well at Polinsky Center. She was having trouble eating and sleeping. Out of concern for Isabella's well-being, the family identified Marisol O., whose sister was married to Alejandro's brother, as a caregiver. Marisol and her husband were licensed foster care parents. They had met Isabella at family events. On August 3, the Agency detained Isabella with Marisol as a nonrelative extended family member (NREFM).

On August 6, the Agency held a team decision meeting (TDM) with Marisol and Isabella's relatives. Citing health concerns, Marisol said she did not intend to care for Isabella permanently. The paternal and maternal grandparents and great-grandparents⁴ asked to be considered for placement. The social worker said a home evaluation would take from one to three months. The social worker told the family the Agency did not like to move a child more than twice in one year, and Isabella had already had two placements, one at Polinsky Center and one with Marisol. According the great-grandmother, the social worker said, "You'll have to wait a year until we can move Isabella again."

At the dispositional hearing on August 20, the social worker reported that the relatives had agreed that Isabella was doing well in Marisol's care and should not be moved to avoid any further trauma. A family visitation schedule was set up. Isabella would spend every other weekend (during the days) with Grandparents and alternate weekends with her great-grandparents.⁵ Alejandro told the juvenile court he believed it was in Isabella's best interest to be placed with Grandparents. The juvenile court placed Isabella in the NREFM home, and ordered a plan of reunification services.

In reports prepared for the six-month review hearing, the social worker said Isabella was a happy, cheerful two year old who enjoyed playing with other children. There were no concerns about her developmental, behavioral, or emotional well-being. Isabella loved all her family members. At bedtime, she sang a good night song to all her family members.

During the first review period, Alejandro was in local custody, pending sentencing on felony burglary and drug charges. He was unable to participate in reunification services. Adriana remained sober. She visited Isabella almost every day. At the six-month review hearing in March, the court terminated Alejandro's reunification services and continued Adriana's services.

Nine days after the review hearing, Adriana tested positive for methamphetamine and was arrested. She was released on house arrest in July. In August, the social worker reported to the court that Grandmother asked to be evaluated for placement and a home assessment was in progress. This assessment did not occur.

A second TDM was held on August 19, 2014. Grandparents and the great-grandparents requested placement. Adriana opposed changing Isabella's placement. The social worker did not recommend moving Isabella, and stated relative placement would only be considered if a change of placement became necessary. The participants agreed Isabella would remain in Marisol's care during the reunification period, with the goal of reunifying with Adriana, and the Agency would work to approve Grandparents for overnight visits and assess the relatives' home for contingent placement. This assessment did not occur.

In November, Adriana stopped visiting Isabella and participating in services. She did not contact the social worker or the caregiver. In December, the juvenile court terminated reunification services and set a section 366.26 hearing.

An adoptions social worker was assigned to the case in January 2015. Grandparents contacted her and requested placement. The social worker met with them, collected their information, and referred them for a relative home assessment. The Agency decided not to conduct a relative home assessment because Isabella was in a stable prospective adoptive home.

In May, Grandparents retained an attorney and filed a section 388

petition seeking Isabella's placement. The juvenile court ordered an evidentiary hearing on the petition. The Agency then conducted an assessment and approved Grandparents' home for placement in less than three weeks.

A trial on Grandparents' section 388

petition, trailed by the 366.26 hearing, was held over several days in June, July and August...