Filed 4/18/18 In re Christopher T. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re CHRISTOPHER T., JR., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

HEATHER B. et al.,

Defendants and Appellants.
D072557


(Super. Ct. No. J519062)

APPEAL from an order of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendants and Appellants.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Heather B. and Gregory B. appeal an order denying their petition under Welfare and Institutions Code section 388 in the juvenile dependency case of their nephew Christopher T., Jr. (Christopher). In their petition, Heather and Gregory argued that the San Diego County Health and Human Services Agency (the Agency) failed to follow the relative placement preference under section 361.3, subdivision (d) when the Agency changed Christopher's placement after his parents' parental rights were terminated. Heather and Gregory sought an order placing Christopher at their home in Virginia. The juvenile court denied the petition on the grounds that (1) the relative placement preference did not apply and (2) even if it did apply, the court would not place Christopher with Heather and Gregory because it was not in Christopher's best interest.
In this appeal, Heather and Gregory primarily contend that the juvenile court misinterpreted the relative placement preference. They do not persuasively address the court's alternative best interest finding. We therefore conclude that even if the court misinterpreted the relative placement preference, Heather and Gregory have not shown prejudice because the court expressly found that it would not have placed Christopher with Heather and Gregory even under Heather and Gregory's preferred legal standard. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.) Because Heather and Gregory raise only issues relating to placement, our discussion of the other issues in Christopher's dependency case will be brief.
On September 4, 2014, the Agency petitioned the juvenile court under section 300, subdivision (b) on behalf of two-week-old Christopher. The Agency alleged that Christopher had tested presumptively positive for amphetamine or methamphetamine at birth and that Christopher's mother, Shelby B., had a history of using illegal substances. Christopher's biological father, Christopher T., Sr. (Christopher Sr.), was incarcerated. The Agency concluded that Christopher had suffered or was at substantial risk of suffering serious physical harm or illness as a result of his parents' inability to supervise or protect him and their inability to provide regular care for him due to substance abuse.
At Christopher's detention hearing, the juvenile court found that the petition stated a prima facie case and ordered that he be detained in out-of-home care. He was placed in the foster home of Jamie B. and Thomas B. The court later sustained the allegations of the petition, removed Christopher from his parents' custody, and ordered reunification services for Shelby. (Christopher Sr. was merely a biological father, not a presumed father, and therefore not entitled to services.)
Christopher remained placed with Jamie and Thomas. They later said they would care for him permanently if reunification efforts failed. The Agency contacted a paternal aunt, R.T., who expressed interest in placement. It also contacted Heather, who expressed interest but said she would need to speak to her husband, Gregory.
Heather and Gregory eventually decided to pursue placement, and the Agency ordered an evaluation of their home in Virginia under the Interstate Compact on the Placement of Children (ICPC). The juvenile court continued its six-month review hearing to await the results of the ICPC. Jamie and Thomas sought and obtained de facto parent status.
In advance of the continued six-month review hearing, Heather and Gregory petitioned the juvenile court for placement. They had contact with Christopher over Skype and one in-person visit in California. They said they had verbal confirmation that their ICPC evaluation was approved. They argued that Christopher would benefit from placement with his biological relatives and stated their willingness to adopt him.
Almost 11 months after the Agency's petition was filed, Shelby died in a house fire. Heather and Gregory traveled to California again to attend Shelby's funeral. They had two visits at the Agency's offices with Christopher and then brought him with them to the funeral. Christopher had difficulty warming up to Heather and Gregory, but he was apparently able to attend the funeral with them without incident.
In the meantime, R.T. had regular visitation with Christopher, which progressed to unsupervised. An Agency social worker observed one visit at R.T.'s home. Christopher appeared happy and interacted well with R.T., his paternal grandmother, and his cousin (R.T.'s son).
In an addendum report, the Agency recommended that Christopher be placed with R.T. The Agency acknowledged that it was a "difficult" decision, but it was persuaded by R.T.'s ability to maintain a connection with Christopher's California relatives and his foster parents (Jamie and Thomas). The juvenile court agreed and ordered that Christopher be placed with R.T. It further found, based on Shelby's death, that reunification services should be terminated. It set a selection and implementation hearing under section 366.26.
The court denied Heather and Gregory's petition seeking placement. It found that R.T. had a stronger relationship with Christopher and it was not in his best interest to be placed with Heather and Gregory in Virginia. They set up weekly Skype calls to remain in contact with him.
At the selection and implementation hearing on January 19, 2016, the court found that Christopher was likely to be adopted and terminated Shelby's and Christopher Sr.'s parental rights. Christopher remained placed with R.T., whom the court designated as his prospective adoptive parent.
Approximately nine months after Christopher was placed with R.T., but before the adoption was finalized, the Agency notified the juvenile court that it intended to place Christopher back with his former foster parents, Jamie and Thomas, whom the Agency now considered nonrelative extended family members. R.T. had moved in with her sister, and the Agency was unable to approve the new home for placement. No party objected to the move, and the court approved it without a hearing.
Four months later, at the next review hearing, the juvenile court expressed concern that Heather had not been notified about Christopher's change in placement. It continued the hearing in order to obtain her response to the change.
In an e-mail, Heather wrote that the Agency had not notified her of Christopher's need for a new placement. She learned about Christopher's change in placement from R.T. approximately two weeks after the move. She tried to contact the Agency, but she did not receive a call back until four days later. According to Heather, an Agency social worker told her that she was not entitled to notice because the court had terminated parental rights already. Heather said the social worker told her there was nothing she and Gregory could do to obtain placement. Heather and Gregory also contacted their attorney, who told them they could not challenge the placement because they had not filed an appeal. Heather and Gregory wrote heartfelt letters to the court requesting placement.
In an addendum report, the Agency explained that it had placed Christopher in his former foster home because Jamie and Thomas continued to maintain a relationship with Christopher while he was placed with R.T. They provided respite care when needed, including during weekends and on overnight visits. The Agency believed that Jamie and Thomas would allow continued contact between Christopher and R.T. and other relatives in California. The Agency social worker acknowledged talking with Heather after the change in placement, but she claimed she told Heather to talk to her attorney about challenging placement. The social worker had not heard from Heather in the months since that contact.
At the next hearing on February 2, 2017, the juvenile court continued to express concern about the Agency's handling of Christopher's placement with Jamie and Thomas. The court set a trial to determine whether the Agency abused its discretion by making that placement. At the pretrial conference, the Agency acknowledged that it had not notified Heather and Gregory about Christopher's need for a new placement. Soon afterwards, Heather and Gregory filed another petition under section 388 seeking placement.
It appears that Heather and Gregory's prior ICPC approval was no longer valid and had to be renewed. The Agency sought an expedited ICPC reevaluation of Heather and Gregory's home, but the Virginia authorities could not comply with the request to expedite the reevaluation. Two months later, Heather and Gregory's home was again approved.
The juvenile court found that Heather and Gregory's petition made a prima facie showing of a change in circumstances justifying a change in placement and that Christopher's best interest might be promoted by the change. It set a contested evidentiary hearing to consider placement.
In advance of the hearing, the Agency recommended in a report dated May 10, 2017, that Christopher remain in Jamie and Thomas's care. It noted that Christopher had been placed with Jamie and Thomas for the first 13 months of his life and he continued to have "constant" contact with them while he lived with R.T., including overnight visits. When Christopher needed a new placement because R.T. had moved to an unapproved home, the Agency considered placement with Heather and Gregory. But it believed placement with Jamie and Thomas was in Christopher's best interest, based on his attachment and bond with them. For the past nine months he had lived with Jamie and Thomas, for a total of 22 months in their care. At the time of the hearing, Christopher was approximately 32 months old. The Agency reported that Christopher Sr., R.T., and other paternal family members supported continued placement with Jamie and Thomas. They saw Christopher often and did not believe that would continue if he were placed far away in Virginia.
Heather and Gregory maintained weekly Skype calls with Christopher and frequently texted his caregivers to find out about his life and monitor his development. Their family visited Christopher in person for Shelby's funeral, and Gregory visited twice when he was in San Diego for work. They consistently demonstrated interest in Christopher and his care.
The Agency believed both families would be able to provide for Christopher and were committed to his permanent plan of adoption. Both families were also committed, to the extent possible, to maintaining contact with relatives, although the Agency was concerned about Heather and Gregory's willingness to continue contact with paternal relatives, including Christopher Sr.
Considering all of the circumstances, the Agency believed that Christopher's interest would best be served by continued placement with Jamie and Thomas. They had a long history of providing excellent care to Christopher, and he was bonded and attached to them. Christopher referred to them as mom and dad. Continued placement with Jamie and Thomas would also allow Christopher to maintain his relationships with relatives in California, as well as continue contact with Heather and Gregory. Although Heather and Gregory sought placement multiple times during Christopher's dependency case, they had not built the same relationship with Christopher as Jamie and Thomas had.
On June 12, 2017, after a continuance, the court began a four-day evidentiary hearing on Heather and Gregory's request for placement. Heather, Gregory, Jamie, R.T., two Agency social workers, a Virginia social worker, and an investigator for Christopher's counsel all testified in person, and the court received stipulated testimony from a number of others. Various Agency reports, Skype and text message records, the Virginia ICPC evaluation, and other documentary evidence were admitted as well.
Heather and Gregory argued that the relative placement preference should have applied to Christopher's placement with Jamie and Thomas because he needed a new placement at that time. They believed they fulfilled all of the relative placement criteria and could provide Christopher with a stable and loving home. They had maintained as much contact as possible given the distance and were committed to Christopher's well-being. They criticized the Agency's handling of Christopher's placement and claimed it put them at a disadvantage. They contended that Christopher would enjoy the benefits of living with relatives if he were placed with them.
The Agency asked the court to maintain placement with Jamie and Thomas. It claimed that the relative placement preference did not apply because parental rights had been terminated. It argued that it would not be in Christopher's best interest to move him to Heather and Gregory's home in Virginia. It believed that Christopher had a secure attachment to Jamie and Thomas, as well as strong relationships with R.T. and his paternal grandmother, that would all be disrupted if he were moved. The Agency's counsel stated, in closing argument, that "we are asking the court to find, based on the relationships that Christopher has, that it is in his best interest to stay here, to not be traumatized by a move, and to be able to maintain family connections, both locally and through Skype and visitation with his out-of-state relatives, as well."
Christopher's counsel supported the Agency's position. She argued, "Even if, however, the court considers the [relative placement] factors, the fact remains that it is not in [Christopher's] best interest to move from [Jamie and Thomas's] home. At this stage, in light of the circumstances and history of this case, [Christopher] needs to remain with [Jamie and Thomas]." She pointed to the testimony of an Agency social worker, who opined that it would be detrimental to Christopher to remove him from Jamie and Thomas's home.
In rebuttal, Heather and Gregory argued that it was in Christopher's best interest to be placed with them because he would have better connections with family, he would have better identification with his heritage, and better self-awareness about his origins. They pointed to evidence that relative adoptions are more likely to succeed than other adoptions, and they maintained that Christopher could continue his relationships with the important people in his life even from Virginia.
In comprehensive statements on the record, the court denied Heather and Gregory's request for placement. The court began by acknowledging that both families were "exceptional" and would provide a good home for Christopher. The court said, "[They are both] equal in terms of who is the better parent for [Christopher]. They are both equal in my eyes, based on their backgrounds and the information that I have before me."
Based on its assessment of the statutes governing placement, and the authorities interpreting those statutes, the court found that the relative placement preference did not apply to placements made after termination of parental rights as part of a permanent plan of adoption. While the court found that the Agency acted "negligently" in failing to consider Heather and Gregory for placement, it could not find that placement with Jamie and Thomas was an abuse of discretion.
Moreover, the court found "by clear and convincing evidence it is the best interest of the minor to remain placed with [Jamie and Thomas]." Throughout Christopher's life, they had been "either caretaker[s] or coparents in many ways for this minor. . . . [T]here is a clear, strong bond and attachment between [them], based upon all of the evidence in this case." Removal from Jamie and Thomas would be "seriously detrimental to the child's emotional well-being."
The court also made the following alternative finding: "It is clear to this court that, by statute and legislative intent, . . . the Legislature does find that the relative placement preference and placement with relatives is important for the health and well-being of children. In this particular case, although I'm very familiar with the relative placement preference factors, I have found that they do not apply at this stage of the proceedings. But even if that statute did apply, I have made it clear that it is not in the best interest of the minor to be placed with [Heather and Gregory] at this time." The court therefore denied Heather and Gregory's petition seeking placement. They appeal.
DISCUSSION
As noted, Heather and Gregory primarily argue that the court erred by finding that the relative placement preference under section 361.3, subdivision (d) did not apply. We note that a number of authorities have held, in similar though not identical contexts, that the relative placement preference does not apply after parental rights have been terminated and a minor has been freed for adoption. (See, e.g., In re K.L. (2016) 248 Cal.App.4th 52, 65-66; In re Lauren R. (2007) 148 Cal.App.4th 841, 855, 861; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031; In re Sarah S. (1996) 43 Cal.App.4th 274, 285-286.) However, we will assume for purposes of this appeal that Heather and Gregory are correct and the relative placement preference should apply here.
As the appellants, Heather and Gregory bear the additional burden of showing prejudice based on this error. Reversal is warranted only if it is reasonably probable the result of the challenged proceeding would have been more favorable to the appealing party but for the error. (In re Celine R. (2003) 31 Cal.4th 45, 60; People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, we have the benefit of the juvenile court's alternative finding that, even if the relative placement preference applied, it still would not be in Christopher's best interest to place him with Heather and Gregory. The court stated that it was familiar with the factors to be considered in connection with relative placement, but they would not have swayed its decision. It is not logical to believe that the court would have made a different finding had it applied that standard in the first instance, rather than in the alternative. Unlike In re R.T. (2015) 232 Cal.App.4th 1284, 1301, where the reviewing court found prejudice because the juvenile court did not consider whether relative placement was appropriate under the applicable statutory standards, the juvenile court here did make an alternative finding under those standards. In light of this alternative finding, any error was not prejudicial.
Heather and Gregory do not acknowledge the court's alternative finding. They simply claim they were prejudiced by the court's failure to apply the relative placement preference because "it resulted in incorrect findings that the Agency had not abused its discretion and that the caretaker preference for adoption applied." But, in addition to those findings, the court also found that placing Christopher with Heather and Gregory would not be in Christopher's best interest even if the relative placement preference applied. Heather and Gregory do not show how the court would have changed its best interest analysis if the court believed the relative placement preference applied in the first instance, rather than simply as an alternative finding.
Heather and Gregory have not attempted to show the juvenile court's best interest finding was in error. The relative placement preference does not supply an evidentiary presumption that placement with a relative is in the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 320.) "[T]he court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child." (Id. at p. 321.) It therefore provides a valid basis on which to deny placement.
We do not excuse the Agency's actions in this matter, which the juvenile court described as "negligent" and as raising "grave concern[s]" about its compliance with the law. However, the focus of juvenile dependency proceedings is at all times on the best interest of the dependent minor. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) If, as the juvenile court here found, it would not be in the minor's best interest to change placement, the court should not order a change in placement—against the minor's interest—simply because the Agency previously acted negligently. (See In re Stephanie M., supra, 7 Cal.4th at p. 322.)
DISPOSITION
The order is affirmed.



HALLER, J.

WE CONCUR:




HUFFMAN, Acting P. J.




IRION, J.