Filed 6/18/26 In re I.C. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re I.C., a Person Coming Under the
Juvenile Court Law.
SOLANO COUNTY HEALTH &
HUMAN SERVICES DEPARTMENT,
A173641
Plaintiff and Respondent,
v. (Solano County
Super. Ct. No. J45610)
Monica R. et al.,
Objectors and Appellants.
I.C., who will soon be four years old, was removed from parental
custody shortly after his birth. In June 2024, the juvenile court terminated
the parental rights of I.C.’s parents and ordered a permanent plan of
adoption. This appeal pertains to an unsuccessful petition filed by I.C.’s
paternal grandmother and aunt (appellants) after parental rights were
terminated, which requested that the court change its prior order approving
I.C.’s placement with his prospective adoptive parents. (Welf. & Inst. Code,
§ 388; statutory references are to this code.) The juvenile court found that
the Solano County Health & Human Services Department (the Department)
failed its obligation to give priority consideration to placing I.C. with family.
1
However, it concluded that maintaining I.C.’s placement in the only home he
had ever known, with the family who intends to adopt him, serves the best
interest of the child. We agree on both points and will affirm.
BACKGROUND
Proceedings Prior To Termination of Parental Rights
Facts culminating in the order terminating the parental rights of I.C.’s
parents are set forth in In re I.C. (Jan. 31, 2025, A170828, A170916) [nonpub.
opn.] (IC I). We briefly summarize those facts to provide context for our
review.
When I.C. was born in July 2022, his mother C.C. (Mother) tested
positive for fentanyl and cocaine. I.C. was removed from his parents’ custody
and placed in the foster care home where he would remain throughout the
dependency. In February 2023, I.C. was declared a dependent after the court
sustained allegations that Mother’s substance abuse impaired her ability to
care for I.C. and put him at substantial risk of harm. The court also found it
would be detrimental to place I.C. with F.O. (Father). Reunification services
were ordered for both parents.
At the six-month status review in August 2023, the court terminated
Mother’s reunification services and continued services for Father. By that
time, I.C. had been referred to the North Bay Regional Center because he
was experiencing developmental delays. When the 12-month review was held
in October 2023, Father was unemployed, living in his car, and had refused
service referrals intended to assist him in meeting I.C.’s developmental
needs. In November 2023, the court terminated Father’s services and set the
matter for a section 366.26 hearing.
According to the Department’s section 366.26 report, in May 2024,
Father was unemployed and living temporarily with his mother, Monica R.
2
(Grandmother). Father informed the Department that he opposed placing
I.C. with Grandmother. He said that she was financially unstable, would not
have time for I.C., and would put “ ‘pressure’ ” on him to take the child. Two
weeks before the contested section 366.26 hearing was to occur, Father filed a
section 388 petition requesting additional reunification services. The court
denied the petition, concluding Father did not show changed circumstance or
that providing him more services would benefit I.C.
On June 27, 2024, the juvenile court terminated the parental rights of
Father and Mother, and ordered a permanent plan of adoption.
Proceedings Following Termination of Parental Rights1
Both parents appealed the order terminating parental rights,
contending the Department failed to comply with the Indian Child Welfare
Act (ICWA). Father also appealed the order denying his section 388 petition
without a hearing.
Appellants’ Section 388 Petition
In November 2024, a section 388 petition was filed on behalf of
Grandmother and I.C.’s paternal aunt Ashley O. (Aunt), appellants in the
present appeal. Appellants’ trial counsel requested that the court change a
May 7, 2024 order that ostensibly found I.C. was in a “suitable” foster care
placement by ordering instead that I.C. be placed with one his clients.
According to the petition, a change of I.C.’s placement was warranted because
appellants came forward at the time of I.C.’s birth but were “systematically
denied notice and [the] opportunity to be heard on the subject of placement.”
1 The six-volume Clerk’s Transcript on Appeal was not provided to
appellants, who instead received a much shorter Clerk’s Transcript
containing documents to which they had access in the lower court. (See
§ 827.) Without explanation, the Department cites and relies on the six-
volume transcript. We review only the record provided to appellants.
3
Facts in support of the petition were set forth in appellants’ unsigned
declarations.
Grandmother stated she was at the hospital when I.C. was born, and
she knew the Department was taking him from his parents. Having no prior
experience with a social services agency, Grandmother asked a person she
thought was a social worker for placement of I.C., but was told she could not
take him because Mother did not approve of I.C. living with Grandmother.
Grandmother stated she was often the primary caregiver of I.C.’s nine-year-
old sister, and she wanted the children to have a relationship, but the
Department took no steps to facilitate that relationship despite her repeated
requests. Grandmother stated further that Father resented her for setting
appropriate boundaries with him, but Mother supported placing I.C. with his
paternal relatives. Grandmother had completed the resource family approval
(RFA) process, and she wanted I.C. placed in her care.
Aunt stated she was estranged from Father, who did not know where
she lived. She became aware of I.C.’s foster care placement shortly after his
birth, but the Department did not “reach out” to her until 2024. Aunt stated
that if the Department had reached out, she would have “immediately”
requested placement. Once Grandmother expressed her intention to take
placement of I.C., Aunt assumed a “backup role.” She anticipated completing
the RFA process in the near future.
Appellants argued they were entitled to relief under section 388
because the Department failed properly to present the issue of relative
placement to the court when parental rights were terminated. According to
appellants, the Department always knew about Grandmother, but Father
objected to her having I.C., and the Department failed its obligation to
evaluate Grandmother for placement. Appellants argued the juvenile court
4
was required to apply the statutory placement preference afforded to family
members under section 361.3 and to immediately place I.C. with them.
Department’s Response
In a December 2024 response to the section 388 petition, the
Department provided background information about contact it had had with
appellants and its reasons for maintaining I.C.’s placement with the
prospective adoptive parents.
The Department reported its first contact with Grandmother occurred
in early August 2022, the week after I.C. was born. During an absent parent
search, an emergency response investigator called a contact number for
Father and reached Grandmother, who reported that Father did not know
Mother and was not expecting a baby. Later that day, however, Father
contacted the Department, and during the ensuing investigation, the
Department learned that Father and Mother had lived together at
Grandmother’s home prior to I.C.’s birth. Father confirmed Grandmother
was his mother, but he did not want her involved in I.C.’s case and refused to
provide contact information for any relatives.
The Department reported it initiated “Family Finding” and the results
“came in on or about September 18, 2023.” In October 2023, Grandmother
came forward to request placement and reported she was estranged from
Father. The Department initiated the RFA process, and it assessed
Grandmother’s home in April 2024. During the home visit, the social worker
discovered Father was staying there and that Grandmother had also allowed
Mother to stay at her house for a brief period. Grandmother was told Father
could not stay at the house if I.C. was placed there, but Father reacted so
negatively to that news that Grandmother reported she would move to a
different home. Around that time, Aunt decided to pursue placement after
5
learning I.C. was going to be put up for adoption. Grandmother was sent a
letter denying her placement request in September 2024, a month before her
RFA application was approved.
According to the Department, Grandmother and Aunt were always
aware of I.C.’s birth and his out-of-home placement, and yet they did not
request placement or visitation until they learned I.C.’s parents were not
going to reunify. The Department also maintained it had made multiple
requests for family contact information, which Father refused to provide. It
opined further that Grandmother would not have been eligible for placement
prior to disposition because Father was living with her at that time. Finally,
the Department reported I.C. was building a relationship with paternal
relatives through visitation, which the Department supported.
Court Proceedings
At a December 2024 permanency plan review hearing, the Department
opposed appellants’ petition, and the matter was continued for a
determination whether a hearing was necessary.
At a January 7, 2025 hearing, appellants accused the Department of
providing inaccurate information in its response to their petition and
requested either that I.C. be immediately placed with them or that the court
hold an evidentiary hearing. The Department in turn disputed appellants’
factual allegations, and the Department and Minor’s counsel both objected to
the request for an immediate change of placement, emphasizing I.C. was
settled and happy in the foster home where he had lived for two and a half
years. The court ruled that it would set the matter for an evidentiary
hearing. However, the Department filed a trial brief requesting that the
court reconsider that ruling. The Department argued the section 388 petition
was factually unsupported, as appellants had always known about I.C.’s
6
dependency but waited until reunification services were being terminated to
pursue placement. The Department also argued the section 361.3 relative
placement preference did not apply at that stage in the case, when Father’s
“reunification services were on the eve of being terminated.” According to the
Department, I.C.’s foster parents and prospective adoptive parents were the
preferred placement under section 366.26, subdivisions (k) and (n). And it
would be detrimental to, and not in the best interest of, I.C. to remove him
from his prospective adoptive family, where he had lived his entire life, the
Department argued.
At a February 2025 hearing, the court stated that after holding two
meetings with the parties in its chambers it had determined that it needed
additional information to make an informed decision about how properly to
proceed. Specifically, the court wanted to know when appellants were given
notice about I.C.’s dependency and the procedure for requesting placement.
The Department was slow to respond and information it provided was not
satisfactory to the court.
In April 2025, the court contemplated granting appellants discovery.
The Department and minor’s counsel objected and argued that disclosure of
confidential child welfare records required a section 827 petition. Appellants
objected to having to file a section 827 petition, but ultimately did. They
requested all service logs and reports containing evidence of contact between
the Department and paternal relatives. The Department continued to object.
Meanwhile, on January 31, 2025, this court issued our decision in IC I.
We affirmed the denial of Father’s section 388 petition, but found the
Department’s ICWA inquiry inadequate. Accordingly, the order terminating
parental rights was conditionally reversed and remanded for the Department
to comply with its ICWA obligations.
7
On May 6, 2025, the court found the Department had complied with the
ICWA, and reinstated findings and orders from the earlier section 366.26
hearing. At the May 6 hearing, the Department provided redacted
documents responsive to appellants’ section 827 petition. Implicitly
overruling objections to that petition, the court found that any disclosure
would be preceded by an in camera review and limited to evidence of contacts
between appellants and the Department. On May 13, the court signed an
order after judicial review, granting appellants access to redacted
Department records, which were released subject to a standard juvenile
protective order. The court issued essentially the same order as to a section
827 petition filed by I.C.’s caregivers who had by that juncture been granted
de facto parent status.
The Redacted Records
More than 400 pages of records were disclosed, although the material
was heavily redacted. Based on our review, we note these relevant facts.
On August 5, 2022, the Department submitted a Family Finding
referral. For reasons not disclosed by the record, the Department did not
receive the results of that search until September 18, 2023.
Meanwhile, however, the Department obtained specific information
about Grandmother, including her name and address. In early August 2022,
an investigator searching for I.C.’s father made phone contact with
Grandmother, who denied any connection to I.C. However, by the end of
August, the Department had learned that Father and Mother lived together
in the garage of Grandmother’s home before I.C. was born. And at a CFT
meeting in April 2023, Father reported Grandmother was the only family in
his life, although he did not want her involved in raising I.C.
8
On October 6, 2023, Grandmother requested that the Department place
I.C. in her care because she did not want him to be with strangers.
Grandmother told the social worker she was estranged from Father, who told
her not to get involved; she tried to meet I.C. at the hospital where he was
born, but Mother objected; and she attempted to follow up after I.C.’s birth by
leaving a message for a person she (mistakenly) believed was a social worker.
The social worker provided Grandmother with information to begin the RFA
process, and subsequently followed up to confirm the RFA referral was made.
The worker also arranged supervised visitation for Grandmother.
Later in October 2023, Grandmother attended a CFT meeting, held in
advance of the 12-month status review. Father objected to Grandmother
participating, and renewed his objection to having I.C. placed with
Grandmother in the event he should fail to reunify. Nevertheless,
Grandmother elected to proceed with her RFA application, which she
completed on November 13, 2023.
On April 5, 2024, the social worker conducted a home visit at
Grandmother’s home as part of the Department’s relative placement
assessment. During the visit and follow-up calls, concerns arose about
Father’s access to Grandmother’s home and Grandmother’s decision to permit
Mother to stay there on a recent occasion when Mother was “clearly under
the influence.” Father continued to object to placing I.C. with Grandmother
or any of his relatives. On April 26, Aunt expressed her interest in placement
and adoption, sharing that she decided to come forward after learning I.C.
was going to be put up for adoption.
In the May 2024 section 366.26 report, the Department reported that
Father continued to oppose placing I.C. with his family members, including
Grandmother. The report included information about appellants’ RFA
9
applications, and discussed concerns about Grandmother’s “lack of
boundaries” with I.C.’s parents. The Department also reported that I.C.’s
paternal relatives and resource parents both expressed a desire to provide
permanency for I.C. in the form of adoption.
On July 8, 2024, a couple of weeks after parental rights were
terminated, a social worker told I.C.’s caregivers that the “paternal relatives
were denied placement.”
On July 11, 2024, the Department held a CFT meeting attended by
appellants and I.C.’s caregivers. One purpose of the meeting was to discuss
visitation for appellants should I.C. remain in his current placement.
Appellants stated that it was unfair to place I.C. with the caregivers because
he was not an orphan and had family that had been fighting for him, and
Grandmother felt she had completed everything asked of her by the
Department. In expressing how the process had been unfair, Aunt referred to
the caregivers’ relationship with I.C. as “just a job.”
After the July 2024 CFT meeting, the social worker followed up with
Aunt about her remark, which had been perceived as insensitive, and about
the Department’s desire for I.C. to have a relationship with appellants
regardless of the placement decision. The social worker also sent an email to
the Foster Family Agency service provider, stating that she wanted to assure
the caregivers that the Department did not intend to change I.C.’s placement,
but wanted to be sure it was on “strong legal ground,” especially if Father
appealed the order terminating parental rights. The social worker reiterated
the Department’s goal was for visits with the biological family to continue.
On August 8, 2024, the Department finally sent letter notices of I.C.’s
dependency to more than 30 relatives, including appellants. The letter stated
that IC was temporarily removed from his parents and may have been placed
10
in foster care. The letter invited input, suggested ways for relatives to
support the family, including by requesting placement, and enclosed material
containing “ ‘Important Information for Relatives.’ ”
On September 20, 2024, the Department notified Grandmother it did
not recommend that I.C. be placed in her care. The Department’s letter
discussed a two-part assessment of Grandmother’s home and her ability to
meet the needs of I.C. Part One was to be completed by the RFA unit, and
was still pending. But the social worker who completed Part Two determined
that the placement was not a good match and did not recommend that I.C. be
placed with Grandmother for several reasons. First, the court had
terminated parental rights and ordered a permanent plan of adoption.
Second, the social worker had concerns about Grandmother’s judgment and
ability to set limits with the biological parents in order to provide a safe
environment for a child, as evidenced by her decision to allow Mother to stay
in her home while Mother was displaying signs of substance abuse. Third,
Grandmother’s RFA application failed to disclose that Father had been
staying in her home, and her belief this information was unimportant was
said to be an indication of her inability to set limits to protect I.C. Finally,
I.C. had been in his placement since he was discharged from the hospital and
had an established parent/child-type relationship with caregivers who
ensured his safety and wellbeing.
As of October 8, 2024, Grandmother’s RFA application was “fully”
approved by the RFA unit. The following month, appellants filed their
section 388 petition requesting that I.C. be placed with them.
The Order Denying Appellants’ Section 388 Petition
A hearing was set for June 3, 2025, for the court to rule on the section
388 petition. Prior to ruling, the court stated this case was difficult because
11
the dependency system focuses on reunifying families and it appeared that
efforts to make sure the family stayed connected did not occur early on in this
case. The court stated that it was important to acknowledge “out loud” that
mistakes were made and to be transparent about them. With that caveat,
the court stated that it would deny appellants’ petition.
As a preliminary matter, the court expressed doubt as to whether
appellants’ request raised a section 388 issue or a section 366.26 issue. The
court opined appellants were attempting to request a placement hearing after
their placement request had been denied, and observed there was confusion
in the case law as to what to call this type of request made at a stage of the
proceeding after parental rights had been terminated. Turning to the
particular facts of this case, the court then made a series of findings in
support of its decision to deny appellants’ petition.
First, between August 2022 and October 2023, the Department failed to
conduct an adequate inquiry regarding the identity of I.C.’s paternal
relatives. Despite Father’s refusal to disclose information about his family,
the Department failed to use the information it had to make any meaningful
attempt to discover I.C.’s paternal relatives. The court also found that
although the Department initiated a family finding inquiry in August 2022, it
did not receive the results of that inquiry until a year later, which was not
“due diligence.” Moreover, the court should have inquired at every status
hearing about efforts to locate relatives, but failed to do so.
The court recognized that Grandmother knew I.C. was in foster care,
but it found that Grandmother had no responsibility to come forward sooner
because once the government took custody of the child, it was the
responsibility of the government to locate appellants and give them notice of
the dependency. This was an important obligation because “early on” in the
12
proceeding, relatives have the right to come forward, request visitation,
request placement, and share information, and these things did not happen
for the paternal family, the court found.
Next, the court found that when Grandmother did come forward to
request placement in October 2023, the Department failed to give her request
full and fair consideration, as required by the relative placement preference.
As evidence of that failure, the court observed that the Department waited
until April 2024 to assess Grandmother’s home. In addition, although Aunt
also requested placement, records produced by the Department failed to show
that her application received preferential consideration, the court observed.2
The court was particularly troubled by a service record indicating that
before Grandmother was advised her placement request was denied, a social
worker told the caregivers Grandmother’s request would be denied. In the
court’s view, the social worker was “essentially saying, you know, ‘Don’t
worry. We’re denying placement with the paternal grandmother.’ ” That this
message was delivered almost three months before Grandmother was notified
her request was denied was not “indicative” to the court “of relative
preference.”
The court found that the Department’s case notes revealed it had an
established relationship with the foster parents and was grateful for the care
they provided I.C., but also that the social workers were “very much
interested in maintaining this placement and did not provide paternal
relatives with a fair assessment.” In this regard, the court found it necessary
to “acknowledge” that delays in locating paternal relatives and providing
2 Aunt’s request that this court “accept new evidence” regarding the
RFA unit’s approval of her application is denied. Since the juvenile court
found the Department failed to properly assess Aunt’s placement request, her
new evidence is not relevant.
13
notice of the dependency had cost the family time they could not get back:
they did not have the opportunity to get to know I.C. as an infant; and they
did not have the opportunity to establish a relationship with the Department
and “prepare themselves for placement.” The court believed that the
Department’s errors, and the court’s own errors, were indicative of a “lack of
understanding . . . regarding how a relative placement should be exercised.”
And in part because of this case, the superior court had hosted training
sessions for judges, attorneys, and social workers regarding the relative
placement preference and the assessment of family members who request
placement.
Next, the court found that the Department did ultimately complete an
assessment of Grandmother’s placement request, and “the denial at the time
was a fair denial.” There were “at least two factors that had to be considered
that went against the placement,” the court found: Father adamantly
opposed placing I.C. with Grandmother; and Father had ongoing access to
Grandmother’s home, which indicated there could be safety concerns if I.C.
was placed there. (See § 361.3, subds. (a)(2), (a)(7)(A) & (D).)
Finally, I.C. had been in the de facto parents’ home “all of his life,” and
the court, as well as the Department, was grateful for the care they gave the
minor. The de facto parents also took the time to get to know I.C.’s paternal
relatives and allowed them to know I.C. as well.
Considering all these circumstances, the court concluded that granting
appellants’ petition would not be in the best interest of I.C. As support for
this conclusion, the court relied on authority establishing that the
“ ‘overriding concern of dependency proceedings’ ” is “ ‘not the interest of
extended family members, but the interest of the child. Regardless of the
relative placement preference, the fundamental duty of the Court is to assure
14
the best interest of the child whose bond with the foster parent may require
that placement with a relative be rejected.’ ” (Quoting In re Lauren R. (2007)
148 Cal.App.4th 841 (Lauren R.).)
DISCUSSION
Appellants contend the juvenile court abused its discretion by denying
their section 388 petition. They reason that once the court found the relative
placement preference had been violated, the court had no choice but
immediately to place I.C. with one of them. We conclude the court did not
abuse its discretion under the circumstances presented here.
“We start with the fundamental premise that the underlying purpose of
dependency law is to protect the welfare and best interests of the dependent
child.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1424–1425.) “Although a
parent’s interest in the care, custody and companionship of a child is a liberty
interest that may not be interfered with in the absence of a compelling state
interest, the welfare of a child is a compelling state interest that a state has
not only a right, but a duty, to protect.” (In re Marilyn H. (1993) 5 Cal.4th
295, 307.) Thus, throughout the dependency proceeding, “the focus” is always
on the child. (Cf. Serena M. v. Superior Court (2020) 52 Cal.App.5th 659,
672.)
This focus on the wellbeing of the child is manifest in the procedure for
changing an out-of-home placement. A motion to change or reconsider the
minor’s placement may be brought pursuant to section 388 by any person
with an interest in the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317
(Stephanie M.).) The burden is on the moving party to show that the change
of placement is in the best interest of the child. (Ibid.) And although a
section 388 petition can be used to request a placement change at any time,
the best interest inquiry must reflect the stage of the proceeding at which the
15
change is being sought. After reunification services have been terminated,
the paramount goal is not family reunification but providing the child with
“ ‘permanency and stability.’ ” (Stephanie M., at p. 317.)
The juvenile court’s determination of what placement best serves the
interest of a dependent child is reviewed for abuse of discretion. (Stephanie
M., supra, 7 Cal.4th at p. 318.) Here, the record shows that the court
considered the pertinent facts before concluding it would not be in the best
interest of I.C. to change his placement from the home of the de facto parents,
who had provided him safety and stability for his entire life and were
committed to providing him permanency through adoption. We conclude this
was no abuse of its discretion. (Stephanie M., at pp. 318–319 [when more
than one inference can reasonably be deduced from the facts, appellate court
has no power to substitute its decision for that of trial court].)
Appellants contend the court did abuse its discretion because it failed
to give dispositive weight to the relative placement preference codified in
section 361.3. This argument fails at multiple levels.
“Section 361.3 gives ‘preferential consideration’ to a request by a
relative of a child who has been removed from parental custody for placement
of that child. ‘ “Preferential consideration” means that the relative seeking
placement shall be the first placement to be considered and investigated.’
(Id., subd. (c)(1).) The preference applies at the disposition hearing and
thereafter ‘whenever a new placement of the child must be made.’ (Id.,
subd. (d).)” (In re M.H. (2018) 21 Cal.App.5th 1296, 1302–1303 (M.H.).)
Section 361.3 contains a nonexclusive list of factors for the social worker and
the court to consider when determining whether placement of the child with a
relative is appropriate, the first of which is “[t]he best interest of the child.”
(§ 361.3, subd. (a)(1).) Other factors include the “wishes of the parent, the
16
relative, and child, if appropriate” (id., subd. (a)(2)), and the “ability of the
relative” to provide a safe and stable environment (id., subd. (a)(7)(A)), and to
“[p]rotect the child from their parents” (id., subd. (a)(7)(D)).
Some courts have found that the relative placement preference applies
throughout the reunification period without regard to “whether a new
placement is required or is otherwise being considered by the dependency
court.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 795 (Joseph T.); but see
M.H., supra, 21 Cal.App.5th at p. 1303 [“preference is applicable after
disposition only when a new placement is necessary”].) However, “it is well
settled section 361.3 does not apply after termination of parental rights.”
(Amber G. v. Superior Court (2022) 86 Cal.App.5th 465, 492, italics omitted
(Amber G.); accord, In re Sarah S. (1996) 43 Cal.App.4th 274, 277 [relative
preference “does not apply to a placement made as part of a permanent plan
for adoption”]; see also In re Maria Q. (2018) 28 Cal.App.5th 577, 583
[preference does not apply to placement request for minors whose permanent
plan is long-term foster care].)
In this case, appellants filed their section 388 petition four months
after parental rights were terminated and I.C. was freed for adoption. At
that stage, the relative placement preference does not apply. “There is no
relative placement preference for adoption.” (Lauren R., supra, 148
Cal.App.4th at p. 855; accord, Amber G., supra, 86 Cal.App.5th at p. 492.)
During the permanency phase of a dependency case involving a child freed for
adoption, “[s]ection 361.3 is replaced by the caretaker preference (§ 366.26,
subd. (k)) and prospective adoptive parent preference (§ 366.26, subd. (n)).”
(Amber G., at p. 492; accord, In re Sarah S., supra, 43 Cal.App.4th at p. 277.)
Appellants contend timelines for applying the relative placement
preference are not set in stone. Indeed, when a relative requests a placement
17
hearing after the reunification period but before termination of parental
rights, the juvenile court may be required to evaluate the relative under the
placement preference statute if the record shows that the relative sought
placement during the reunification period and the agency failed properly to
apply the relative placement preference. (Cesar V. v. Superior Court (2001)
91 Cal.App.4th 1023, 1027 (Cesar V.); In re Isabella G. (2016) 246
Cal.App.4th 708, 712 (Isabella G.).)
In this case, although there is evidence appellants waited to see if
Father would reunify before they came forward to request placement,
Grandmother did make that request of the Department the month before the
court terminated Father’s reunification services. However, appellants waited
until after parental rights were terminated to request a court order placing
I.C. in their custody, and we find no authority applying the relative
preference after parental rights have been terminated. Regardless, the
record shows that the juvenile court did apply the relative placement
preference when it analyzed the Department’s response—or lack thereof—to
Grandmother’s request in October 2023 that I.C. be placed in her care.
Substantial evidence supports the juvenile court’s findings that the
Department failed diligently to search for family members and to provide
timely notice of the dependency, and that the Department failed to give
Grandmother’s belated request the full and fair consideration it deserved, but
also that the Department’s eventual denial of that request was fair in light of
Father’s opposition to the request, Father’s ongoing access to Grandmother’s
home, and the good care I.C. had all his life received in the de facto parents’
home. These aspects of the court’s analysis appear sound. They reflect that
the court did take account of relative preference issues when assessing
whether a change in placement would be in the best interest of I.C.
18
Importantly, the relative placement preference was not the only
relevant statutory preference at issue when appellants filed their petition.
Section 366.26, subdivision (k) provides: “Notwithstanding any other law,
the application of any person who, as . . . foster parent, has cared for a
dependent child for whom the court has approved a permanent plan for
adoption, or who has been freed for adoption, shall be given preference with
respect to that child over all other applications for adoptive placement if the
agency making the placement determines that the child has substantial
emotional ties to the . . . foster parent and removal from the . . . foster parent
would be seriously detrimental to the child’s emotional well-being.” This
statutory preference applied at the time appellants requested that the court
change I.C.’s placement because they filed their section 388 petition after I.C.
had been freed for adoption and his foster parents wanted to adopt him.
Although it is not clear the court was sufficiently cognizant of this fact, any
error in failing to consider the caretaker preference would have benefited
appellants.
Regardless of what preference did or did not apply, the juvenile court
was on sound legal ground by basing its decision on the best interest of I.C.
(Lauren R., supra, 148 Cal.App.4th at p. 855 [“overriding concern of
dependency proceedings . . . is not the interest of extended family members
but the interest of the child”]; Amber G., supra, 86 Cal.App.5th at pp. 493–
494 [same]; In re L.M. (2019) 39 Cal.App.5th 898, 911 [best-interest standard
drives whether to remove child from prospective adoptive placement under
§ 366.26, subd. (n)].) Appellants insist, as they did below, that the only
remedy for the Department’s failure to apply a relative preference earlier in
this case is to place I.C. with them. Appellants cite no authority supportive
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of this view, which we find difficult to reconcile with settled law focusing
always on the best interest of the child.
It is equally well settled that the relative placement preference “is not a
relative placement guarantee.” (Joseph T., supra, 163 Cal.App.4th at p. 798;
Amber G., supra, 86 Cal.App.5th at p. 492.) The juvenile court was clear in
its view that the Department erred by failing to afford preferential
consideration to Grandmother. For purposes of this appeal, we accept the
court’s finding in light of the Department’s delays in locating and noticing
paternal relatives about this dependency, and in evaluating appellants’
homes for placement. But other factors were also at play by the time the
court was asked to weigh in. Appellants waited to see if Father would
reunify before they requested that the Department place I.C. with them, and
they were candid about their motivation that I.C. be raised by biological
family. Appellants waited until after parental rights were terminated and
I.C. was freed for adoption before they filed their petition requesting that the
court override the Department’s decision. Meanwhile, I.C. continued to live
and thrive in the home of caregivers with whom he had a child/parent-like
bond. Considering all these factors was a daunting and difficult task for the
court, and we find no abuse of discretion in its decision.
In their reply brief, appellants appear to contend that the juvenile court
had no discretion to deny their petition under section 388—that it could not
allow “the passage of time” to be the reason that changing I.C.’s placement
became contrary to his “best interests.” According to this argument (1)
appellants were entitled to a hearing under section 361.3, without even
having to file a section 388 petition; and (2) the juvenile court was required
by law to base its decision on an independent assessment of the section 361.3
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factors, whether or not appellants could show that placing I.C. with them was
in the child’s best interest. We reject both prongs of this argument.
To support the contention they were not required to file a section 388
petition, appellants mistakenly rely on Isabella G., supra, 246 Cal.App.4th
708. That case holds 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.” (Isabella G., at p. 712.) In announcing this rule, the
Isabella G. court explicitly declined to address whether a section 388 petition
would be required to remove a child from a placement after parental rights
have been terminated. (Isabella G., at p. 712, fn. 3.) Isabella G. is inapposite
because (1) appellants did not request placement of I.C. prior to the
dispositional hearing; and (2) appellants requested a hearing on I.C.’s
placement several months after parental rights were terminated. We decline
to extend Isabella G. to reach this late stage in the dependency process. (See
Amber G., supra, 86 Cal.App.5th at p. 489 [“following termination of parental
rights, the statutes become laser focused on quickly facilitating adoption”].)
The second prong of appellants’ argument is similarly flawed; their
contention the juvenile court was required to base its ruling on an
independent assessment of the section 361.3 factors assumes erroneously
that section 361.3 applies to a potential placement change after parental
rights have been terminated. Appellants mistakenly rely on Cesar V., supra,
91 Cal.App.4th 1023. The issue in that writ proceeding was “whether the
relative placement preference applies when a new placement becomes
necessary after reunification services are terminated but before parental
rights are terminated and adoptive placement becomes an issue.” (Id. at
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p. 1032.) The appellate court concluded that the preference does apply in
that discrete situation and therefore the juvenile court should have exercised
independent judgment when evaluating an agency’s decision not to place the
children with their grandparents. (Id. at p. 1034.) By contrast, the case
before us does not involve a change of placement that became necessary
before parental rights were terminated. Appellants sought to change I.C.’s
placement after parental rights were terminated because they did not want
I.C. to be raised by nonbiological family. They made their request by filing a
petition under section 388 for an order removing I.C. from his prospective
adoptive parents. The court denied the petition as not in the best interest of
I.C. We find no error in that ruling.
DISPOSITION
The order is affirmed.
TUCHER, P. J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
In re I.C. (A173641)
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