28 Cal. App. 5th 577
Cal. Ct. App. 5th2018Background
- Four siblings became dependents and were placed in foster care; two girls (Maria, J.M.) lived with the Z. family for years, two boys (W.Q., J.Q.) had unstable placements and later with Caregivers.
- Reunification services ended in Dec 2014; delays postponed section 366.26 permanency hearings until 2016–2018; the court ordered long-term foster care pending a permanency plan.
- Aunt (maternal great-aunt) sought placement via a Welfare & Inst. Code § 388 petition in Aug 2017; Agency supported Aunt for the girls but opposed placement of the boys (their foster parents sought adoption).
- The juvenile court heard Aunt’s petition under § 388, declined to apply the relative-preference provision of § 361.3 to post-permanency placement, denied Aunt’s petition for the girls (continued their 366.26), summarily denied Aunt’s petition for the boys, and later terminated parental rights for the boys and then the girls.
- Appellants argued § 361.3 (relative placement preference) applied post-reunification per In re Isabella G.; Agency and foster parents argued §§ 366.26/366.3 govern post-permanency placement and § 361.3 does not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 361.3 relative-placement preference apply when a relative seeks placement after a § 366.26 permanency order that leaves the child in foster care? | § 361.3 still applies post-reunification (Isabella G.) where relative made a timely request and agency failed to act. | Post-permanency placement requests are governed by §§ 366.26 and 366.3; § 361.3 preferential consideration does not apply after a permanency plan is selected. | Held: § 361.3 preferential consideration does not apply to requests to place a child who remains in foster care under § 366.26(b)(7); such requests must be handled under §§ 366.26 and 366.3. |
| What procedure must a juvenile court follow when a relative files a § 388 petition seeking post-permanency placement? | Court should apply § 361.3 factors and Isabella G. reasoning to protect relative requests. | Such petitions request modification of the permanency plan and must be evaluated for prima facie fitness under § 388 and then processed under § 366.3 (post-permanency review) and, if appropriate, a § 366.26 hearing. | Held: Court should (1) determine if § 388 petition makes prima facie showing that the relative is fit and willing; (2) if so, set a § 366.3 post-permanency hearing and, unless there is a compelling reason, a § 366.26 hearing; assessment reports must include § 361.3 factors. |
| If the court proceeds under § 388 rather than §§ 366.3/366.26, is that error reversible per se? | Proceeding under § 388 deprived parties of required statutory process and due process. | Any procedural error is harmless where the statutory preferred permanency plan (e.g., adoption) was available or the record shows the right outcome. | Held: Any error in using § 388 here was harmless. Boys were adoptable (adoption preferred), and for the girls the court effectively considered § 361.3 factors and reasonably denied placement with Aunt. |
| What is the role of § 361.3 factors at permanency hearings? | § 361.3 factors govern assessment of relative placements at all stages. | § 361.3 preference is inapplicable post-permanency, but its factors must be included in assessment reports under §§ 366.21/366.22 when considering guardianship or relative permanent placement. | Held: Although the preferential rule of § 361.3 does not apply post-permanency, the court must consider the § 361.3 factors in assessments and at § 366.26 hearings when relative placement or guardianship is at issue. |
Key Cases Cited
- In re Isabella G., 246 Cal.App.4th 708 (court held relative-preference may apply post-reunification where relative timely sought placement and agency failed to assess)
- In re William B., 163 Cal.App.4th 1220 (discusses best-interest goal of dependency system and relative consideration)
- Stephanie M. v. Superior Court, 7 Cal.4th 295 (Legislature commands relatives be assessed and considered favorably)
- In re Autumn H., 27 Cal.App.4th 567 (adoption is preferred permanency plan; lesser plans considered only when adoption not possible)
- In re Nolan W., 45 Cal.4th 1217 (statutory provisions must be read in context of entire dependency scheme)
- People v. Watson, 46 Cal.2d 818 (harmless error standard)
- In re Joseph T., 163 Cal.App.4th 787 (agency duty to seek relatives during reunification period)