San Diego Cnty. Health & Human Servs. Agency v. Y.M. (In re Maria Q.)

Decision Date23 October 2018
Docket NumberD073296
Citation239 Cal.Rptr.3d 375,28 Cal.App.5th 577
CourtCalifornia Court of Appeals Court of Appeals
Parties IN RE MARIA Q. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Y.M. et al., Defendants and Appellants.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant Y.M.

Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant V.C.

HUFFMAN, J.

Thomas E. Montgomery, County Counsel, John Philips, Chief Deputy and Jesica Fellman, Deputy County Counsel, for Plaintiff and Respondent San Diego County Health and Human Services Agency.

Gary S. Plavnick for Respondent N.Z.

This appeal concerns whether the relative placement preference under

Welfare & Institutions Code 1

section 361.3 applies to a relative's request for placement after the juvenile court has held a section 366.26 hearing and the child remains in foster care pursuant to section 366.26, subdivision (b)(7). Before we set out the arguments, we briefly describe the unusual procedural posture of this case.

Y.M. has four children who are dependents of the juvenile court: two daughters, Maria Q. and J.M., and two sons, W.Q. and J.Q. Maria and J.M. (the girls) were placed together in the foster care home of the Z.'s in August 2013, where they remained throughout the proceedings. W.Q. and J.Q. (the boys) had several foster care placements. Y.M. identified Aunt as a possible placement for the children in May 2014. The juvenile court terminated reunification services in December 2014. Various issues substantially delayed the section 366.26 hearing, which was not heard until July 2016.

Shortly before the section 366.26 hearing, issues arose concerning the viability of the Z.'s foster care license and their ability to adopt the girls. In view of the boys' lack of stability and the uncertainty about the Z.'s ability to adopt the girls, the juvenile court continued the children's placement in foster care with the goal of finding a permanency plan including adoption, guardianship, placement with a fit and willing relative, or return home.

In August 2017, V.C., the children's maternal great-aunt (Aunt), filed a section 388 petition asking the juvenile court to place the children in her care. The Agency supported Aunt's petition for the girls' placement but opposed placement of the boys, whose foster care parents wanted to adopt them. At a bifurcated hearing, the juvenile court declined to apply the relative placement preference under section 361.3, found that it was not in Maria's and J.M.'s best interests to be placed with Aunt, and continued their section 366.26 hearing. The court summarily denied Aunt's petition for placement of W.Q. and J.Q. In January 2018, at a second section 366.26 hearing, the juvenile court terminated parental rights to W.Q. and J.Q. and designated their foster parents as their prospective adoptive parents.

Y.M. and Aunt (together, Appellants) appeal the denial of Aunt's section 388 petition for placement of the children. They join in each other's arguments. Appellants rely on In re Isabella G . (2016) 246 Cal.App.4th 708, 201 Cal.Rptr.3d 64 ( Isabella G . ), in which this court held that when a relative made a timely request for placement of a dependent child and the social services agency did not properly respond to that request, the relative placement preference applies after reunification services have been terminated. Appellants argue the juvenile court erred when it applied a "generalized" best interest of the child standard under section 388 instead of evaluating the placement under the factors listed in section 361.3, subdivision (a). They further contend if the orders denying placement are reversed, this court must also reverse the orders terminating parental rights.2

In supplemental briefing,3 Appellants argue the juvenile court erred when it proceeded under section 388 instead of holding a post-permanency review hearing under 366.3 to determine whether continued foster care was appropriate for the children and to evaluate Aunt's request for relative placement under section 361.3. Appellants contend the procedural errors deprived them of their rights to a full and fair hearing under the appropriate statute, and prejudicially violated their due process rights.

Respondent Agency argues Appellants have forfeited any argument regarding the application of section 361.3 to Aunt's request for placement. The Agency submits when a child is in post-permanency foster care, sections 366.3and 366.26 govern the juvenile court's consideration of relative placement, and section 361.3 does not apply.

Minors W.Q. and J.Q. join in the Agency's arguments, and further state that even if the juvenile court was required to proceed under sections 366.26 and 366.3, any error in proceeding under section 388 in their cases was harmless in view of the legislative preference for adoption over relative placement.

Minors Maria and J.M. contend section 361.3 applies to a relative's request for placement of a child who is in a permanency plan of long-term foster care. They argue although the relative preference under section 361.3 still applies, it is subject to a mandatory preference for adoption by qualified current relative or foster caregivers. ( § 366.26, subd. (k)(1).)

Respondent N.Z., Maria's and J.M.'s foster father, asserts the juvenile court applied the correct legal standard to Aunt's request for placement of the girls and did not abuse its discretion in continuing the girls' placement in foster care.

In this issue of first impression, we conclude that the directive under section 361.3 to give preferential consideration to a relative seeking placement does not apply to relatives seeking placement of a child in continued foster care pursuant to section 366.26, subdivision (b)(7). A placement request by a relative after a permanency hearing is essentially a request to modify the child's permanency plan and must be heard under the statutory framework of sections 366.26 and 366.3. The Legislature favors a permanency plan of permanent placement with a fit and willing relative only if a child is in continued foster care and the preferred plans of adoption or guardianship are not available for the child. ( § 366.26, subds. (b) & (c)(1)(A).) In assessing a relative's request to permanently care for a child, the juvenile court is required to consider the agency's assessment report, which must include all of the factors specified in section 361.3, subdivision (a) and section 361.4. ( §§ 366.26, subd. (b), 366.3, subd. (i).)

We further hold that when a relative of a dependent child files a section 388 petition requesting permanent placement of a child in continued foster care, the juvenile court should determine whether the petition makes a prima facie showing that the relative is fit and willing to care for the child and if so, set a post-permanency review hearing under section 366.3. At that hearing, the court is required to consider all available permanency plan options for the child. The court must set a section 366.26 hearing unless it determines that holding a section 366.26 hearing is not in the best interest of the child, as defined in section 366.3, subdivision (h)(1). The procedures specified in section 366.26 are the exclusive procedures for selecting a permanency plan for a dependent child. ( § 366.26, subd. (a).)

Notwithstanding the procedural problems in this case, we conclude that any error in hearing the matter under section 388 was harmless. Because a permanency plan of adoption by W.Q.'s and J.Q.'s current caregivers was available, the juvenile court did not have any authority to order a different permanency plan. With respect to Maria and J.M., although the juvenile court declined to formally consider the relative placement factors under section 361.3, the record shows the juvenile court applied those factors in determining the children's best interests and did not make a "generalized" best interest finding. The juvenile court's findings are amply supported by the record. We therefore affirm the orders denying Aunt's request for placement of the children.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2011, Maria, W.Q., and J.Q., then ages four, three, and two years old, respectively, were removed from their parents' home due to inadequate supervision, parental substance abuse, domestic violence and physical abuse. In September 2012, the children were returned to the care of their mother, Y.M., under a family maintenance plan.4

In August 2013, the Agency substantiated reports that Y.M. was physically abusing the children and her boyfriend was sexually abusing six-year-old Maria. The Agency detained the children, including newborn J.M., in protective custody, and placed Maria and J.M. with the Z.'s. The boys were placed together in another foster care home.

Maria had small moon-shaped scars across her chest where her mother had pinched her with her fingernails. Maria said Y.M.'s boyfriend would touch her private parts until they were hurting and bleeding, and her mother knew and did not help her. The boyfriend forced W.Q. and J.Q. to watch pornography with him. Maria, W.Q. and J.Q. reported that Y.M. hit them with a belt and other objects.

Maria said she was afraid of Y.M. In November 2013, she urinated on herself when she realized her mother was on the telephone. Maria was diagnosed with posttraumatic stress disorder

(PTSD). She had thoughts of suicide and self-harm. In later reports, the social worker said Maria's feelings of safety were increasing in the Z.'s home. Maria insisted she did not want to see her mother and the court later suspended visitation.

As an infant, J.M. appeared to develop normally. At one year of age, she started to display unusually aggressive behaviors and intense tantrums. At age three, J.M. was diagnosed with pervasive developmental disorder

and autism spectrum disorder. She...

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