In re N.J., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES v. C.J.
B326007 consolidated with B331343 (Los Angeles County Super. Ct. Nos. 21CCJP03756, 21CCJP03756A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 8/12/24
Lisa A. Brackelmanns, Judge Pro Tempore
CERTIFIED FOR PUBLICATION
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
INTRODUCTION
The California Legislature has expressed a strong preference to place children who have been detained from their parents with family members whenever possible. To that end, there is a detailed statutory scheme setting forth the duties of the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court, including requiring DCFS to promptly, and diligently assess any interested
Child N. was removed from mother C.J. immediately after her birth in August 2021, due to mother‘s substance abuse and mental health issues. Shortly thereafter, DCFS placed her with a foster caregiver (the caregiver) who, according to DCFS, was a “trial attorney for the County Counsel‘s office, Dependency Division.” At the same time, maternal aunt (aunt) requested assessment for N.‘s placement. DCFS did not do this assessment then, nor did it do so for the following year, despite repeated requests by mother‘s counsel, N.‘s counsel, and aunt herself. Instead, DCFS repeatedly reported to the court that it was continuing to assess aunt, without further explanation; the court, in turn, repeatedly ordered DCFS to assess aunt and to report on the status, ignoring DCFS‘s failure to do so and the pleas by mother and others that there had been almost no visitation and no movement toward placing N. with aunt. DCFS provided no explanation for the delay, but nevertheless failed to place N. with aunt on an emergency basis during the seven months aunt was waiting for resource family approval, or during the seven months between approval of aunt‘s home and termination of mother‘s reunification services.
Meanwhile, almost no visitation occurred between N. and her family members. DCFS deferred to the caregiver and allowed her to dictate entirely when N. would visit with aunt. The caregiver limited these visits to once per month, and would not allow weekend visits because that was the caregiver‘s “quality time” with N. After aunt was finally approved for placement and the caregiver was provided notice that N. would be moved, DCFS deferred to the caregiver‘s objection and did not move the child. Ultimately, by the time DCFS and the court “considered” aunt for placement, over a year had passed since N. was placed with the caregiver. Although the record indicates that aunt took full advantage of the visitation she was given, the unexplained and unreasonable limitations on visitation imposed by the caregiver and sanctioned by DCFS and the court left her without a meaningful opportunity to establish a deep bond with N. As a result, at the section 361.3 hearing in December 2022 (one year and four months after aunt first requested placement), the court found it was too late to apply the relative placement
In this consolidated appeal, mother challenges the court‘s order denying her request to place N. with aunt and the order terminating her parental rights. She also argues that DCFS and the court failed to properly serve aunt, mother‘s appointed conservator, with notice of all dependency proceedings, failed to appoint either a guardian ad litem or aunt to speak for mother, and failed to advise aunt and mother of mother‘s right to file a writ after the court terminated mother‘s reunification services. We conclude that DCFS‘s inexplicable delays in fairly evaluating aunt for placement and the lackluster response by DCFS and the court to the pleas by mother, aunt, and N. (through counsel) to provide supportive services to this family compels reversal. The lengthy fallout of these failures is particularly egregious—the longer DCFS and the court delayed in properly assessing aunt for placement, the more N. became bonded to the caregiver and the more disruptive any replacement would be for a young child who had experienced disruption and trauma since her birth. Under the circumstances here, DCFS cannot shut a family almost completely out of the process for over a year and then point to the passage of time and failure to form a bond as the reasons for denial of placement.
We therefore conclude that the juvenile court erred by failing to apply the relative placement preference under section 361.3, and that the error was prejudicial. We find that the failures in providing proper notice to aunt and in providing reasonable services to mother require reversal as well. We reverse the order terminating mother‘s reunification services, the order denying mother‘s section 361.3 motion, and the order terminating her parental rights and remand for further proceedings. On remand, we also direct DCFS and the court to ensure compliance with the inquiry and notice requirements of the Indian Child Welfare Act (
BACKGROUND
I. Petition
N. was born on August 9, 2021 and is mother‘s only child. According to the DCFS detention report, mother was admitted to the hospital several days before N.‘s birth and placed on a psychiatric hold as a danger to herself or others. She was violent toward hospital staff and “acutely psychotic.” Mother
The court ordered N.‘s detention on August 10, 2021. The same day, aunt called the DCFS children‘s social worker (CSW) asking to be considered for placement. She told CSW that she was available for a home assessment after 4:30 pm. No assessment was done at this time. Maternal grandmother (MGM) also asked to be considered and told DCFS that she and aunt planned to be caregivers together as they both worked. However, DCFS stated that MGM‘s possible criminal history precluded her from emergency placement. N. was placed with the caregiver, who DCFS reported was a “trial attorney for the County Counsel‘s office, Dependency Division.” N. remained with the caregiver throughout the proceedings.
DCFS filed a dependency petition on August 16, 2021 on behalf of newborn N. under
At the August 17 detention hearing, N.‘s counsel asked DCFS to assess all relatives for placement, including MGM and aunt. The court ordered N. detained from mother and gave DCFS discretion to place the child with any appropriate relative. The court ordered DCFS to “continue to assess family members for placement.” The court also ordered family reunification services for mother, including visitation for a minimum of nine hours per week with a written visitation schedule. Mother had been accepted into a substance abuse program after she was discharged from the hospital. The court further ordered DCFS to assess whether mother‘s facility would allow N. to live with her and provide that information in the next report.
II. Adjudication and disposition
DCFS filed its jurisdiction/disposition report on September 29, 2021, reporting that mother remained in a mental health facility with the goal of
At the next hearing on September 30, 2021, mother remained in an inpatient facility but appeared by phone. Mother‘s counsel and N.‘s counsel both requested that DCFS assess aunt for placement. The court ordered aunt‘s assessment and again gave DCFS discretion to place N. with any appropriate relative. The court again ordered visitation for mother if allowed by her facility, and for DCFS to facilitate those visits, if not in person, then at least by video. There was no information in the record at this point that any visitation had occurred.
On October 12, DCFS reported in a last-minute information that aunt was “currently in the process of being assessed by RFA [resource family approval] as possible placement.” On October 14, mother submitted to the jurisdictional allegations. The court sustained the allegations, found jurisdiction over N., and continued disposition. Mother‘s counsel requested a referral to a dual diagnosis program for mother; the court ordered DCFS to assess whether such a program would be appropriate. At mother‘s counsel‘s request, the court also ordered DCFS to provide an update on the placement with aunt in the next report.
In November 2021, DCFS filed a first amended petition, which it ultimately dismissed and refiled as a subsequent petition under
On December 1, 2021, the court set disposition for February 24, 2022. The court also found father was N.‘s biological father. There was no update as to placement with aunt.
DCFS reported on February 10, 2022 that mother was participating in an inpatient treatment program and was waiting for placement in a long-term care and treatment facility. The last-minute information provided no updates as to aunt or visitation by mother or aunt.
With respect to aunt, mother‘s counsel again asked the court for N. to be placed with aunt, noting, “I understand that the department isn‘t really looking into her for placement. She is requesting that relatives’ preference placement should be [sic] at this time.” She noted that mother had made this request “throughout the case” and that aunt was currently being assessed as a possible placement, with a possible issue being maternal uncle who lived in the same home. Mother‘s counsel requested “more information in regards to the department‘s efforts and placement with maternal aunt.” For a third time in six months, the court ordered DCFS to continue to assess relatives, including aunt, for placement and to update the court at the next hearing. Mother‘s counsel asked the court to set a progress hearing regarding relative placement. The court denied that request but ordered DCFS to “continue to make efforts to place the child with a relative and to give the court an update.”
III. Period of Review
Aunt‘s home received resource family approval in March 2022. As recounted by DCFS in a later report, on March 29, 2022, the CSW called the caregiver to inform her that DCFS intended to serve a 14-day notice to place N. with aunt. Caregiver “expressed concerns regarding maternal aunt‘s protective capacity to ensure the mother would not have access to the child.” The CSW explained that DCFS had reviewed with aunt the terms and conditions of mother‘s visitation plan for her monitored visits with N. Caregiver stated that “she would take the full 14 days and would be appealing.” On April 1, aunt told DCFS that she had a caretaker action plan, including someone to take care of N. while aunt was at work, and a “circle” of support. aunt “expressed concerns” to the CSW that the caregiver “has developed a strong bond with the minor, and is not in agreement with having N[.] be placed under her care. [Aunt] raised these concerns once the caregiver expressed her plan to file a grievance to prevent a placement change.”
On May 17, 2022, the foster agency, DCFS, the caregiver, and aunt participated in a child and family team (CFT) meeting to discuss “the possibility” of having N. placed with aunt now that her home was resource family approved. As later reported by DCFS, “[o]ne of the areas discussed is [aunt] not having consistent or sufficient face-to-face visits with the minor due to her work schedule. The Department, the caregiver, and the maternal aunt attempted to develop a consistent visitation schedule; however, due to scheduling conflicts, a visitation agreement could not be reached. Another matter discussed was that minor had developed a very strong bond with the current caregiver, and thus, a concern was raised as to whether it would be in the minor‘s best interest to remove her from the current caregiver. It was recommended4 a bonding study be ordered prior
to any changes in placement to ensure minor‘s best interest are [sic] prioritized when making any placement recommendations.”
DCFS filed a status review report on August 10, 2022, reporting that N. was doing well with the caregiver who was a “strong advocate of the child‘s needs.” DCFS also reported that the caregiver “has also facilitated visits for the mother by monitoring mother‘s visit [sic] with the minor via zoom and as well for the maternal aunt . . . in-person. [The caregiver] wants to ensure the child remains connected with the family in order to establish a good social-emotional relationship.” Mother was currently in an inpatient behavioral health center and the CSW was coordinating with her social worker to “resume virtual visits” with N. once per week.
The caregiver reported that N. was scheduled for an intake assessment at the regional center. She was not receiving mental health services at that time. Regarding visitation, the caregiver reported that mother had virtual visits through zoom, lasting 15 to 20 minutes. The caregiver stated that mother was appropriate during visits. The caregiver also stated that she was only available to facilitate virtual visits with mother from 1 to 2 p.m. As for aunt, the caregiver reported that she monitored in-person visits with aunt and MGM once per month. Aunt was appropriate, loving, and attentive toward N. during visits. The caregiver told DCFS that it would be detrimental to remove N. from her home.
DCFS concluded that N. would be at high risk of harm if returned to mother and recommended that N. remain with the caregiver or aunt. DCFS reported that “[d]espite the caregiver[ ] working remotely from home the
At the next status hearing on September 1, 2022, N.‘s counsel asked to set the matter for contest because DCFS‘s report did not have a formal recommendation regarding whether to order additional reunification services for either parent. The court stated it would continue the matter to allow DCFS to clarify its recommendations. The court also noted that aunt had been approved and asked for input from counsel about placement. N.‘s counsel requested a formal assessment from DCFS in the next report, stating “I don‘t believe that this report gives enough information regarding the maternal aunt, and I‘m also requesting a bonding study between [N.] and the current caregiver.” The court stated that N.‘s counsel‘s office would have to pay for the bonding study. Mother‘s counsel stated that she thought there was a bonding study already done but it was not attached to the last report. The court also gave DCFS discretion to allow aunt unmonitored visits with N.
In a September 29, 2022 last-minute information, DCFS reported on mother‘s progress at the behavioral health center, where mother had recently moved. DCFS also reported that it spoke with the caregiver regarding the bonding study, but the caregiver stated “she did not feel a need to move forward with a bonding study . . . as she feels it obvious [sic] the minor has established a strong bond and has well-adjusted in her home and care.” The caregiver also stated that recently N. had been through “several invasive medical appointments and [she] believes adding another psychologist appointment will overwhelm” N. N. was a client of the regional center and was receiving services once a week. The caregiver also stated that N. “has been identified as at high risk for mental illness” by her pediatrician “as it runs in [N.‘s] family, therefore providing a current stable and stimulating environments [sic] is in the best interest for the minor as any changes could cause the minor trauma.” According to the caregiver, mother had not seen N. in person since N. was discharged from the hospital after she was born. The caregiver stated that N. had referred to her as “mom” since N. was 11 months old (approximately two months prior).
The CSW spoke with aunt regarding “establishing a consistent visitation plan.” Aunt stated that she worked in the afternoons and understood that the
In October 2022, the caregiver filed a caregiver information form, attaching a letter in which she stated that N. was “deeply bonded” to her, had called her “mom” and “mama” since she was 11 months old, and “shows a strong preference for me over all others.” She stated that a social worker approached her in May 2022 about doing a bonding study to assist DCFS in assessing N.‘s best interest, but the idea was “only briefly discussed.” She stated that she “really wanted the bonding study in May,” but did not believe it was necessary now that N. was 14 months old and “undoubtedly even more deeply bonded to me . . . and no reasonable psychologist would be likely to conclude otherwise.”
At the review hearing on October 7, 2022, mother‘s counsel told the court that mother was not in attendance but “her conservator, maternal aunt” was present. Summarizing DCFS‘s position, the court stated that DCFS was recommending terminating reunification services for mother because mother had not addressed her substance abuse and mental health issues. The court also noted that aunt was mother‘s conservator and had been resource family approved for placement, but that DCFS had reported on N.‘s strong bond with the caregiver. N.‘s counsel stated that mother had not shown any progress in her case plan. She argued that it would not be in N.‘s best interest to give mother additional services. Mother‘s counsel asked for more time to allow mother to stabilize, stating that mother was in a facility getting psychiatric help, but there had been difficulty getting her into a dual enrollment program.
Counsel for DCFS stated that the caregiver “is saying that she does not see a need for a bonding study at this juncture.” As for visits, DCFS counsel noted that there had been “a conflict as to scheduling,” and that DCFS “will continue to work with the family,” but that it “requires flexibility on everyone‘s side.” The court questioned whether the family was “entitled by law to a 361.3 hearing” and noted that in the last report DCFS had stated that aunt was approved but that DCFS believed it was “in this child‘s best interest to remain with her current caregiver, given their strong bond and the length of time the child has been with the current caregiver.” However, the court concluded that it would set the matter for a section 361.3 hearing “in an abundance of caution.” The court asked N.‘s counsel to weigh in, and counsel noted that aunt was not RFA approved until N. was six months old, at which time she had “created a very strong bond to her current caretaker,” and that aunt had not been given consistent visitation. The court ordered DCFS to work with aunt and the caregiver in coordinating a written visitation schedule for unmonitored visits with aunt, to be provided to aunt within one week.
The court found that the required notice had been given, that continued jurisdiction was necessary, and that mother‘s progress with her case plan had not been substantial. The court found by clear and convincing evidence that DCFS “provided or offered reasonable services that were designed to aid the parents to overcome the problems that led to the initial removal and continued custody of the child.” The court terminated mother‘s reunification services and set the matter for a
IV. Section 361.3 Hearing
DCFS filed a report on November 3, 2022 for the section 361.3 hearing. Aunt told DCFS that she wanted to provide N. with permanency through
On November 7, 2022, the caregiver filed a de facto parent request. She attached a letter from a regional center provider which had been providing developmental services to N. once per week since July 29, 2022. The provider reported that N. had made good progress in her development and demonstrated good social-emotional skills.
DCFS filed a brief recommending that N. remain placed with the caregiver. DCFS noted that mother “continues to be under LPS conservatorship.” In the brief, DCFS focused on the caregiver and her relationship with N.; it provided no additional information regarding aunt. DCFS also attached a new caregiver information form, with a new statement by the caregiver. The caregiver stated that at the May 2022 CFT meeting, “DCFS gave Aunt every benefit of the doubt,” but some of the foster agency social workers “brought up some of their ongoing concerns about Aunt‘s ability if the case closed to protect from Mother.” According to the caregiver, DCFS then told her several weeks later that “they [sic] decided not to move N[.] as they were not sure it was” in her best interest. At the time, the caregiver stated that N. was “suffering from separation anxiety and fear of strangers” and that N.‘s mental health was in question. She also stated that she was “all for” the bonding study when it was proposed by a foster agency social worker during the CFT, but DCFS “felt very strongly there was no point to such a study,” and that “there was no question for them N[.] was bonded to me.”
The caregiver stated that she was “surprised” when DCFS brought up the bonding study “many months later,” but said “if the judge ordered it that would be fine, I was just getting worried N[.] had now been put through a lot over the past year.” She also attached a letter from the owner of N.‘s preschool, opining that separating N. from the caregiver would be “damaging to her mental health” and could further set back her developmental milestones. The caregiver attached a letter from N.‘s pediatrician with similar statements.
Both aunt and the caregiver attended the section 361.3 hearing on November 16, 2022. Counsel for DCFS argued that placing N. with aunt at that point
Mother‘s counsel agreed with N.‘s counsel, arguing that DCFS “does not get to break the rules throughout and then come back and say that it‘s too late to have placement with the maternal aunt.” She noted that the “department never gave a reason why N[.] was not placed” with aunt after RFA approval, even though aunt “checks off all of the requirements. She has a safe home. She is willing to provide permanent placement for N[.]. Everything that she has been asked to do, she has qualified to do.” The court continued the hearing to December. The court also asked about the caregiver‘s de facto parent motion, then set for hearing on February 3. The caregiver asked the court if it could be heard in December so that she could “weigh in on the 361.3 hearing.” The court denied that request.
At the continued hearing on December 1, 2022, the caregiver appeared with counsel, who noted the “request for de facto status on file.” The court agreed to proceed with hearing the de facto motion. The court found that the caregiver had been caring for N. since she was two days old, had been meeting N.‘s “medical, educational, psychological needs on a daily basis and going above and beyond what is required. The child seems well bonded to the caregiver, and the caregiver is aware of the child‘s special needs and is accessing all the needed services from regional center and other providers.” The court therefore granted de facto parent status to the caregiver.
Turning to the section 361.3 hearing, DCFS argued that it would be in N.‘s best interest to remain in the caregiver‘s home. The parties and the court discussed whether the relative placement preference applied post-disposition. The court agreed with DCFS that the preference did not apply and also stated that “even if I could exercise my discretion, is it in the best interest of this child at this point when the child is extremely bonded to the caregiver . . . and the child seems to be thriving in her care.” The court stated that it “wasn‘t like [DCFS] just delayed, delayed, delayed” in terms of completing the assessment for aunt. The court also cited the opinion by the pediatrician opposed to moving N.
The court found that the relative placement preference did not apply, because the case “does not fall into one of the designated categories under which the preference would apply after disposition.” The court stated that even if it exercised its discretion, it “does not find it would be in this child‘s best interest to be placed with the maternal aunt,” given N.‘s strong bond with
the caregiver and N.‘s “special psychological and emotional needs.” The court therefore denied the motion under
V. Termination of Parental Rights
On April 6, 2023, the court ordered adoption as the permanent plan. The court held the
Mother timely appealed from the December 2022 order denying placement pursuant to
VI. ICWA Proceedings
Mother submitted an ICWA-020 Parental Notification of Indian Status form on September 29, 2021. She stated that maternal great-grandfather said he “may be partially Native American.” No additional information was provided. Father submitted a form indicating no Native American ancestry.
DCFS contacted aunt, who confirmed that there was Native American ancestry in the family, but she did not know which tribe. Aunt then spoke to Debra D. and reported to DCFS that Debra D. did not have further information but offered to contact paternal great-aunt to inquire further. Aunt contacted DCFS a few days later and relayed that according to paternal great-aunt, a maternal great-grandfather had Native American ancestry through the Ute Colorado tribe. DCFS mailed ICWA notices on October 5, 2021 to Sioux and Ute tribes, listing names for mother and MGM, and well as maternal great-grandfather‘s name, but placed in the section for maternal great-grandmother. No information was provided for father.
In November 2021, DCFS reported receipt of ICWA responses from several tribes, indicating that N. was ineligible for enrollment. At the disposition hearing in February 2022, DCFS reported to the court that it had provided notices to the Sioux and Ute tribes and had received responses that N. was not eligible or had received no response. The court found that there was no reason to know ICWA applied.
On October 7, 2022, the court asked aunt about possible Native American heritage. She responded that she was told by Debra D. that the family was part of the Ute tribe in Colorado. Aunt stated that Debra D. was now deceased, but she identified a maternal great-aunt named Lisa who might have additional information. Aunt provided Lisa‘s phone number. Counsel for DCFS also noted that it had previously noticed the Ute Mountain tribe and the Southern Ute tribe and had been notified that N. was not a member. The court found that notice had been provided and ICWA did not apply.
On February 2, 2023, counsel for DCFS informed the court that it had become aware of deficiencies in the ICWA report and was looking into them. Maternal grandmother responded to the CSW‘s inquiry and stated that a maternal great-grandfather, Aurelio, had mentioned being a part of the Mescalero Apache Indian tribe but had never registered. Aurelio was deceased. Maternal grandmother agreed to call the CSW back with Aurelio‘s date of birth and date of death. In March 2023, DCFS mailed out ICWA notices to Apache and related tribes. DCFS received several response letters indicating that N. was not eligible.
DISCUSSION
Mother raises two notice issues in this appeal. Her first argument is that the court failed to provide proper notice of proceedings to aunt, who was mother‘s conservator. Mother also contends she did not receive proper notice of the necessity to seek writ review to preserve a challenge to the court‘s order terminating reunification services. We conclude that the court erred in both respects. The court‘s failure to provide notice to mother and its inattention to her incapacity were also prejudicial, requiring reversal of the termination of reunification services and parental rights. Substantively, mother argues that the court erred in denying her request for relative preference pursuant to
I. Notice to Conservator
Mother contends that DCFS failed to serve notice of all proceedings on aunt, as mother‘s appointed conservator, and that the court failed in its duty to appoint a guardian ad litem (GAL) for mother or to order her conservator to appear on mother‘s behalf. She asserts that these errors require reversal of the order terminating her parental rights.
Mother argues that DCFS and the juvenile court knew that aunt had been appointed as her conservator at least as of November 2021, and that the corresponding duty to involve aunt in the dependency proceedings flowed from that point onward. DCFS counters that apart from a few “scattered unsupported verbal representations,” the record does not contain evidence of mother‘s conservatorship or whether DCFS or the court was advised of it. What DCFS ignores, however, is that several of the references in the record to mother‘s conservatorship come from DCFS and the court. In November 2021, DCFS reported that it had been informed by mother‘s social worker that aunt was appointed as conservator for mother. Then, at a hearing in October 2022, N.‘s counsel stated that aunt was present as mother‘s conservator, a fact later echoed by the court. A month later, DCFS reported that
Given aunt‘s status as conservator, mother contends that DCFS was required to serve aunt with notices of all dependency proceedings but failed to do so. Specifically, mother asserts that aunt was not notified of the disposition in February 2022, several review hearings in June 2023, or the
Mother also complains that the juvenile court was required to appoint a GAL or order aunt to appear on behalf of mother as her conservator. “In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court.” (In re James F. (2008) 42 Cal.4th 901, 910, citing
The errors here were prejudicial to mother under either standard. DCFS and the court knew that mother was repeatedly and extensively hospitalized for mental illness and that she lacked capacity to the extent that aunt was appointed as her conservator. But the court failed to order aunt to appear in the dependency proceedings on mother‘s behalf. While aunt was present at many of the proceedings, she was not advised that she could speak for mother. Similarly, although aunt received some of the notices of proceedings that were sent to her address for mother, they were not addressed to aunt as mother‘s conservator. Without knowing she had the ability to appear on mother‘s behalf, aunt had no opportunity to voice the family‘s concerns regarding the numerous failures by DCFS and the court, including the lack of visitation given to either mother or aunt and the delays in assessing aunt for placement of N. Although some of these issues were raised by mother‘s and N.‘s counsel, aunt could have provided further information as to the severity of the issues (information that DCFS should have provided in its reports but did not) and could have urged the court to act. Certainly, with proper notice, aunt could have been present on mother‘s behalf for key hearings such as the disposition and
II. Writ Notice
Mother next seeks to challenge the court‘s October 7, 2022 order terminating her reunification services and setting the matter for a
When a juvenile court orders a hearing pursuant to
Mother was not present at the October 7, 2022 hearing, but aunt was. Moreover, mother‘s counsel expressly informed the court that aunt was present as mother‘s appointed conservator. As we previously discussed, the court was therefore required to provide aunt with the oral writ advisement on mother‘s behalf. The court‘s failure to do so was error. (
As a result of the failure to advise mother and aunt of the writ requirement, mother has good cause to excuse her failure to timely seek an extraordinary
Mother contends that the order terminating her reunification services must be reversed because the juvenile court failed to make the proper finding by clear and convincing evidence and DCFS failed to provide her with reasonable services prior to termination.
“A finding that reasonable reunification services have been provided must be made upon clear and convincing evidence. ‘When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact.‘” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971 (Alvin R.); see also Serena M. v. Superior Court of Fresno County (2020) 52 Cal.App.5th 659, 674; In re Monica C. (1995) 31 Cal.App.4th 296, 306.) “When applying the substantial evidence test, however, we bear in mind the heightened burden of proof. [Citation.] ‘Under this burden of proof, “evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.” [Citation.]‘” (Alvin R., supra, 108 Cal.App.4th at p. 971, quoting In re Monica C., supra, 31 Cal.App.4th at p. 306.)
Here, when terminating reunification services, the court found by clear and convincing evidence that DCFS “provided or offered reasonable services that were designed to aid the parents to overcome the problems that led to the initial removal and continued custody of the child.” The court further found that mother‘s compliance with the case plan was not substantial and mother‘s visits had been “inconsistent.” We cannot conclude that substantial evidence supports the finding that the services provided by DCFS were reasonable.
Services are reasonable if the Department has “identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.” (Alvin R., supra, 108 Cal.App.4th at pp. 972-973, quoting In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted.) “Visitation is an essential component of any reunification plan.” (Alvin R., supra, 108 Cal.App.4th at p. 972, citing In re Mark L. (2001) 94 Cal.App.4th 573, 580.) “To promote reunification, visitation must be as frequent as possible.” (Alvin R., supra, 108 Cal.App.4th at p. 972, citing In re Luke L. (1996) 44 Cal.App.4th 670, 679.)
DCFS
“Time [is] critical. The longer parent and child live with no visitation, the less likely there will ever be any meaningful relationship.” (Alvin R., supra, 108 Cal.App.4th at p. 973, citing In re Monica C., supra, 31 Cal.App.4th at p. 307.) DCFS‘s failure to assist mother with any visitation for the first year of N.‘s detention, followed by its continuing failure to provide an adequate amount of visitation, was unreasonable. The court‘s conclusion to the contrary was not supported by substantial evidence and the order terminating mother‘s reunification services must be reversed.
III. Relative Placement Preference
Mother contends that DCFS and the juvenile court failed to apply the relative placement preference under
A. Statutory Framework
The Legislature has unequivocally declared the purpose of dependency law is “to preserve and strengthen a child‘s family ties whenever possible.” (
The statutory framework accordingly sets forth a series of duties and preferences to assist families, DCFS, and the court in considering placement of a detained child. Within 30 days of detention, the social worker must conduct “an investigation in order to identify and locate” all grandparents, parents of a sibling of the child, and other adult relatives of the child, and must provide those relatives with notification of the removal, a relative information form, and their “options to participate in the care and placement of the child and support for the child‘s family.” (
The relative placement preference is set forth in
“[A] timely request for placement, made in open court, is sufficient to trigger the investigation and evaluation required by
DCFS must document its efforts to assess relatives for placement in the social study prepared pursuant to
B. Applicability of Relative Placement Preference
Despite the family‘s numerous requests that N. be placed with aunt, the juvenile court first considered mother‘s request to place N. with aunt pursuant to the
The shifting preferences applicable to a child‘s placement are subject to some dispute. On one end, it is settled that until disposition, the relative placement preference applies. (
Some courts have concluded that the relative placement preference applies after disposition only when “a new placement of the child must be made.” (M.H., supra, 21 Cal.App.5th at p. 1303, quoting
A number of courts have also applied the relative preference to the period between termination of reunification services and termination of parental rights, in circumstances like those present here, where the relative requested placement early in the process and the delay in assessing placement was due to failures by DCFS and the court. In Isabella G., for example, the child‘s paternal grandparents sought custody immediately after detention. The agency failed to assess their home and told the grandparents that there was a mandatory one-year waiting period before the child could be moved from the foster family with whom she had been placed. (Isabella G., supra, 246 Cal.App.4th at p. 711.) The agency ignored another request for placement by grandparents a year later, at which point the parents’ reunification services were terminated. (Id. at p. 712.) After the grandparents filed a
Here, aunt did everything she could do to seek relative placement. She immediately requested placement of N. and when her initial request to share custody with MGM was rejected due to a possible issue with MGM‘s background, aunt promptly requested placement on her own and set up a plan to care for N. while she was at work. She maintained contact with DCFS, made herself available for a home assessment, and offered to have maternal uncle move out if his background was an issue.7 She sought visitation with N. and took advantage of the limited visitation she was given. Moreover, aunt‘s request for placement, or at least a diligent assessment of possible placement, was echoed repeatedly by mother‘s counsel and N.‘s counsel throughout the proceedings, along with complaints that DCFS was failing to do so.
DCFS did not comply with its duty of due diligence in assessing aunt for possible placement. DCFS has never provided any explanation as to why it did not assess and/or approve aunt for emergency placement prior to resource family approval, why it provided no information to the parties or the court in the first seven months of the case other than to repeat that the approval process was pending (despite multiple orders from the court), or why it did not place N. with aunt immediately upon detaining N. or in March 2022 after she finally received resource approval and DCFS indicated its intent to issue a 14-day notice to the caregiver. It also provided no information to suggest that aunt would not have been appropriate for placement.
The juvenile court compounded these failures—it failed to hold DCFS accountable for its lack of diligence, instead repeatedly issuing orders for DCFS to assess aunt and provide further information in the next report (which DCFS never did). The court also violated its own duty to assess aunt under the relative caregiver preference at the disposition hearing at the latest. (See
We therefore conclude that the juvenile court erred in finding that the relative placement preference did not apply.
C. Prejudicial Error
We must also determine whether the court‘s error was prejudicial. In assessing whether an error is prejudicial, we ask whether there is a reasonable probability of a different result absent that error. (In re Celine R. (2003) 31 Cal.4th 45, 59-60; see also Isabella G., supra, 246 Cal.App.4th at pp. 723-724.) DCFS contends that any error in failing to apply the relative placement preference was harmless, as the court also found that it was in N.‘s best interests to remain with the caregiver due to their strong bond. Thus, DCFS contends there is no reasonable probability
DCFS‘s focus remains almost completely on the relationship between N. and the caregiver. It points to the evidence, almost entirely supplied by the caregiver and letters submitted on her behalf, that she and N. were strongly bonded, that the caregiver provided N. with a loving, stable home and made sure N. had access to the medical care and regional center resources she required, and that N. might suffer “stress, trauma, anxiety, and confusion” if taken away from the caregiver. The juvenile court similarly focused on this relationship, as well as concerns expressed by N.‘s pediatrician about moving N.8 However, DCFS ignores a number of factors that DCFS and the court were required to consider under
In assessing the relative placement preference for aunt, the court was required to conduct not a generalized “best interest inquiry,” but an “independent assessment of the relevant statutory criteria under section 361.3” (Isabella G., supra, 246 Cal.App.4th at p. 722, fn. 11 citing R.T., supra, 232 Cal.App.4th at p. 1300), bearing in mind that “preferential consideration shall be given” to a request for relative placement (
In addition, the juvenile court‘s determination that keeping N. with the caregiver was in the child‘s best interest is undermined by the host of failures by DCFS and the court leading up to it. As we have discussed above, for more than a year the court ordered DCFS to promptly evaluate aunt‘s home for placement, and DCFS repeatedly failed to comply. Instead of enforcing its prior orders, the court simply repeated them, only to have DCFS again fail to do its duty. As a result, aunt apparently was never considered for placement prior to resource family approval, and she did not receive that approval for more than seven months. At that point, DCFS indicated it was planning to move N. to aunt‘s care but withdrew that plan due to the caregiver‘s objection. DCFS provided no other basis for its sudden about-face and the court did nothing to provide aunt with the relative preference assessment to which she was entitled. DCFS continued to defer to the caregiver, allowing her to reject the recommended bonding study out of hand. These failures were compounded by the unreasonably limited visitation given to aunt and N. Despite aunt‘s requests for additional visitation, echoed by counsel for N. and mother, DCFS allowed the caregiver to unilaterally determine that visits between aunt and N. for two hours once a month were sufficient and to reject weekend visits entirely because the caregiver stated that she was busy using that time to solidify her bond with N. DCFS also failed to provide aunt with unmonitored visits, without giving any reason for doing so and despite all of the evidence indicating that aunt‘s visits were appropriate. Once the court ordered DCFS to provide aunt with a written visitation schedule, aunt finally began having unmonitored visits twice per month in October 2022, more than a year after she first requested placement of N.
This series of events—repeated violations of DCFS‘s duty to follow the law and the court‘s failure to enforce its own orders—resulted in a complete failure to honor the clear legislative mandate to give early and prompt priority to placement with family members. As a result, N.‘s family was shut out of the process and N. and her family were wrongly deprived of the opportunity provided to them by statute for placement within the family. This also violated N.‘s rights to placement with her close relative and, at a minimum, her right to visit and bond with aunt and aunt‘s daughter (her first cousin). (See
DCFS and the juvenile court cannot completely abdicate their duties in applying the legislative preference of placing detained children with a family member, to the detriment of the child and the family, and then later rely on the passage of time caused by their own failures to preclude that relative from seeking placement of the child as a finding based on the child‘s best interests. (See, e.g., In re Mia M. (2022) 75 Cal.App.5th 792, 811 [finding, in the context of parental notification, that “[a]llowing a child‘s best interests to act as a counterbalance to the agency‘s due diligence obligations would turn one of the key goals of the dependency statutory scheme on its head, reducing the chance of family reunification while simultaneously rewarding inadequate efforts” by DCFS].)
We recognize that “[t]he relative placement preference . . . is not a relative placement guarantee.” (In re Joseph T., supra, 163 Cal.App.4th at p. 798.) In addition, “[t]he 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 her best interests.” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) However, mother and aunt are entitled to a full and fair assessment of the relative placement preference and N.‘s best interests, following additional reunification services for mother and a meaningful chance at visitation for aunt. It is reasonably likely that such an assessment could lead to a different result upon remand. (See Isabella G., supra, 246 Cal.App.4th at p. 725.)
Thus, the court‘s failure to apply the relative placement preference was not harmless.9
We reverse the juvenile court orders terminating mother‘s reunification services and her parental rights and designating the caregiver as N.‘s prospective adoptive parent. The matter is remanded for further proceedings, including a hearing on aunt‘s placement request pursuant to
CERTIFIED FOR PUBLICATION
COLLINS, ACTING P. J.
We concur:
MORI, J.
ZUKIN, J.