Jennifer R. v. Super. Ct. CA1/4 filed
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Filed 3/3/11 Jennifer R. v. Super. Ct. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR JENNIFER R., Petitioner, v. A130672 THE SUPERIOR COURT OF SAN MATEO COUNTY, (San Mateo County Super. Ct. No. 77762) Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY, Real Party in Interest. Jennifer R. (petitioner), the de facto parent of three-year old J.B., seeks extraordinary writ relief (Welf. & Inst. Code, § 366.28;1 Cal. Rules of Court, rule 8.456) from the juvenile court s order removing J.B. from her home and placing him with his paternal relatives, and denying her application for prospective adoptive parent status. Finding no error, we deny the writ petition. 1 All further undesignated statutory references are to the Welfare and Institutions Code. 1 I. PROCEDURAL AND FACTUAL HISTORY A. Initial Proceedings (November 2007) J.B. was initially detained by the San Mateo County Human Services Agency (Agency) shortly after his birth in November 2007,2 when he tested positive for in utero exposure to methamphetamines. J.B. s mother, C.B., admitted to testing positive for methamphetamines and admitted to using methamphetamines on a regular basis. She also admitted that she had not obtained any prenatal care because she did not want to disclose her drug use. The Agency s investigation revealed that J.B. s family included his mother and three other siblings, K.V. (age 6), J.V. (age 5), and M.R., Jr. (10 months old). The father of the two oldest children had been deported to Mexico for domestic violence against C.B. M.R., Sr., the father of J.B. and M.R., Jr., resided in the home. On January 31, 2008, the juvenile court sustained the Agency s petition pursuant to section 300, subdivision (b) and assumed jurisdiction over J.B. and his three siblings.3 After spending the first two months of his life as a medically fragile infant in emergency foster care, J.B. was returned to his parents home with family maintenance services. B. First Supplemental Petition (July 2008) On July 25, 2008, after being in his parents care for less than six months, the Agency removed eight-month old J.B. from his parents home after the infant sustained a nonaccidental fracture to his left arm and four other suspicious fractures. The Agency filed a supplemental petition (§ 387) and placed J.B. in petitioner s home. On August 28, 2008, the supplemental petition was sustained, and J.B. was committed to the care, custody, [and] control of [the Agency] for placement in . . . [¶] [] a suitable, licensed foster home, an approved relative or nonrelative extended family 2 J.B. was born five weeks premature. 3 J.B. s siblings are not part of the instant writ proceedings. During the pendency of the instant dependency proceedings, C.B. gave birth to another child in December 2009. 2 member home, or private institution. J.B. s parents were provided with six months of reunification services. J.B. continued in his placement in petitioner s home, where he would remain for the next 12 months. In a November 6, 2008 interim review report, the Agency noted that J.B. was in good health and that there were no current health concerns. According to the report, a neurologist praised petitioner for her care of J.B. The Agency concluded that upon clearance of the child s fracture and neurology screenings, as well as other services, the child may then safely transition into the home of a relative once they are cleared. Following this course of intended action, the Agency noted that on July 31, 2008, the parents signed a release regarding potential relative caregivers, and on October 21, 2008, two paternal relatives, G.R. and O.F., submitted their fingerprints. At the time of the report, the Agency had not yet received the fingerprinting results. During this review period, the Agency reported that the mother and the father have been compliant with the court orders and their case plan. Indeed, the Agency opined that the parents were receptive to services and [had] actively engaged in services. However, since the case involved serious injury to a child under age three, the Agency protocol required the parents to participate in mental health assessments before J.B. could be returned home. At the interim review hearing, the juvenile court ordered the parents to participate in mental health assessments. The court also gave the Agency discretion to increase visitation between J.B. and his parents, and confirmed the six-month review hearing for February 19, 2009. In the six-month review status report, the Agency noted that J.B. had bonded with petitioner. The Agency reported that J.B. had been medically cleared, and that it was assessing a second potential placement with J.B. s paternal uncle Y.R. and his wife, O.C., who lived in Delhi, California. Y.R., however, expressed his preference for the Agency to explore placement with his sister first. It was further noted that if the relatives did not follow through with fingerprinting, the Agency would have no other alternative but to place J.B. in a fost/adopt home. According to the report, one set of paternal relatives was no longer being considered for placement. The Agency, however, was 3 waiting for Y.R. and O.C. to submit their fingerprints. When the social worker spoke with O.C. about permanency for J.B., O.C. said she and her husband would be willing to provide a permanent home for the child. Unfortunately, there was a delay in getting O.C. s fingerprints due to her not having appropriate identification; O.C. was in the process of obtaining the necessary documentation from the Mexican Consulate. The six-month review status report noted that the parents continued to make progress in their case plan. However, given the ongoing needs of the parents, the Agency did not recommend returning J.B. to their care at that point. The Agency set the goal for reunification by July 21, 2009, or other appropriate permanent placement by that date. In the 12-month status review report, the Agency noted that J.B. had had some minor medical conditions, but otherwise he was developmentally on target. As for placement, the Agency reported that paternal uncle Y.R. s home in Delhi, California, had received an exemption for a prior domestic violence charge, and that the Agency had approved J.B. s placement in this home on April 17, 2009. However, at a subsequent Agency meeting on May 27, 2009, it was determined that J.B. s placement with petitioner in San Mateo County should not be changed. The Agency considered the fact that the goal of the case plan was reunification and that the move, given the distance of Y.R. s home, would have had a negative impact on the family s regular visits with J.B. and their therapy sessions with him. At the 12-month status review hearing on July 21, 2009, following a request by the Agency, the juvenile court ordered that J.B. gradually be returned to his family. The transfer was complete on August 25, 2009. A six-month family maintenance review hearing was set for January 19, 2010. C. Second Supplemental Petition (January 2010) On or about January 23, 2010, the Agency again removed J.B. from his parents custody. In a declaration in support of the custody order, the Agency reported that it had received confirmation of physical abuse. Thereafter, the Agency filed a supplemental petition (§ 387), seeking a more restrictive placement for J.B. 4 In the report for the January 27, 2010 detention hearing, the Agency noted that J.B. s mother had no explanation for his bruises and no explanation for why she had not sought medical help earlier for his injuries.4 The Agency also noted that on the day of removal the social worker spoke with Y.R., who indicated that he and his wife, O.C., could care for the three youngest siblings, but that they were unable to care for the two oldest children, as the couple had five children of their own. The juvenile court detained J.B. and his four siblings.5 J.B. was once again placed in petitioner s home. A jurisdictional hearing was set for February 18, 2010, and later continued to March 4, 2010, due to the recommendation of one of J.B. s treating physicians, who opined that it was a critical time to get J.B. back on track medically, and, as such, J.B. should not be released from foster care any time soon. Nevertheless, the Agency, on February 19, 2010, forwarded a referral for placement of J.B. with his paternal uncle, Y.R.; the referral process was anticipated to take several weeks. In the March 4, 2010 first addendum to the jurisdiction/disposition report, the Agency recommended that no reunification services be provided and that a section 366.26 hearing be set within 120 days. The March 2010 case plan called for J.B. to be adopted by September 2010. The case was continued to May 20, 2010 for a contested jurisdiction/disposition hearing. In the May 20, 2010 second addendum to the jurisdiction/disposition report, the Agency noted that it was closing the case on the issue of relative placement as Y.R. had not responded to the relative assessment social worker. The Agency continued to recommend adoption as the permanent plan for J.B. and extended the proposed adoption date to November 20, 2010. The case was continued to July 6, 2010. The July 6, 2010 third addendum to the jurisdiction/disposition report referenced a May 13, 2010 letter from Marie Clemente, J.B. s therapist, who provided the Agency 4 J.B. had numerous nonaccidental injuries, including abdominal bruises, bruises to his upper thighs and buttocks, as well as a finger laceration. A medical evaluation also revealed that J.B. was malnourished and had head lice and alopecia. 5 J.B. s four siblings were detained in various out-of-home placements. 5 with an updated assessment and clinical impression of J.B. Ms. Clemente reported that J.B. was doing well in his foster home, but it had taken a lot of time to stabilize him. She noted that J.B. displayed dysregulated and disorganized behaviors and emotional states. He was also highly anxious and appeared to become angry and scream[ed] using a very loud tone to express frustration beyond what is expected of a child his age. Ms. Clemente further reported that [w]henever he hears the door bell[,] he runs, hides and throws tantrums involving yelling [and] screaming that can last up to 20 or 30 minutes. Given his difficulty with transitions, he needs a calm, quiet adult presence to assist him. Ms. Clemente opined that [i]t is clear . . . that there are attachment concerns to be addressed. This will require a significant amount of time to address in the hopes of repair. She recommended that J.B. continue in play therapy and then in dyad treatment with his future caretakers whomever that may be. Ms. Clemente concluded that J.B. was currently in the best possible placement to support his traumatic responses and be provided with focused, one to one, calm and attuned interactions he receives on a continual basis. In the third addendum report, the Agency also noted that Y.R. had come forward as a potential placement for J.B. The relative assessment social worker was waiting for Y.R. to submit additional paperwork before completing a physical assessment of Y.R. s home. The Agency noted that upon approval of Y.R. s home, it would assess whether placing J.B. with Y.R. would meet the child s needs for permanency. D. Reunification Services Denied and Section 366.26 Hearing Set (July 2010) At the contested jurisdiction hearing, the juvenile court sustained the Agency s supplemental petition on July 7, 2010. And at the contested disposition hearing on July 8, 2010, the court denied further reunification services and set a section 366.26 hearing for November 1, 2010. 1. Petitioner Granted de facto Parent Status (October 21, 2010) On October 8, 2010, petitioner filed a request to be named J.B. s de facto parent. In her statement, petitioner declared that J.B. had lived with her from July 25, 2008 until 6 August 25, 2009, and from January 22, 2010, until the date of the request. The juvenile court granted the request on October 21, 2010, and petitioner was provided with appointed counsel on November 1, 2010. 2. Section 366.26 Report (November 1, 2010) In the November 1, 2010 section 366.26 report, the Agency reported that J.B. s therapist, Ms. Clemente, had diagnosed him with posttraumatic stress disorder. Ms. Clemente also felt that it would not be appropriate for J.B. to be placed with the relatives who had been approved for placement because she believed he was at risk of developing reactive attachment disorder if he were moved from petitioner s home. She also expressed concern that the relatives might have a criminal history. Ms. Clemente emphasized that J.B. needed to be in a home that was calm and that he would benefit from having a stay-at-home parent. Social worker Lee Baker met with Ms. Clemente on September 30, 2010, and explained that the relatives had been further assessed and that placement with them was likely to occur. At Ms. Baker s request, Ms. Clemente agreed to meet with the relatives and support them in helping J.B. transition to their home. While acknowledging that J.B. had a very positive relationship with petitioner, Ms. Baker recommended that J.B. be placed with his relatives. Specifically, she wrote: Relative caregivers have been identified and approved for placement. These relatives would like to provide [J.B.] with a permanent home through adoption. The Agency believes that it is in [J.B. s] best interest to be placed with the relatives in order to support his continued connection with his biological family. Given [J.B. s] struggles with transitions, it will not be easy for him to move to a new home. Therefore, great care will be taken to assist [J.B.] with this transition . . . . Given [J.B. s] stable health, engaging personality and ability to form a positive relationship with his current caregiver, [J.B.] is considered to be adoptable. Ms. Baker further reported that pre-placement visits with the uncle and aunt had been scheduled and were about to begin. Ms. Baker visited Y.R. and O.C. at their home in the Central Valley. She noted that Y.R. runs his own business and his wife is a stay-at-home parent to their five 7 children, ages 12 to four. Ms. Baker observed that the children were respectful, that they got along well with each other, and liked to help their parents around the house. She reported that the relatives appeared to have a stable, loving relationship based on mutual respect. Ms. Baker noted that Y.R. had one arrest in 2002, which was thoroughly assessed and determined not to pose a risk to J.B. or any of Y.R. s family members. Indeed, the Agency granted Y.R. an exemption, and the home was approved a second time for placement of J.B. Ms. Baker further noted that although the relatives had not been able to visit J.B. in the past due to scheduling conflicts, they advised her that they wanted to provide J.B. with the stability of a permanent home through adoption. E. Placement and Permanency Hearings (November 2010) 1. November 5, 2010 Hearing The section 366.26 hearing was called on November 1, 2010, and then continued to November 5, 2010. At the November 5, 2010 hearing, while the fifth pre-placement visit between J.B. and his relatives was occurring, petitioner requested that she be considered for adoption of J.B. The Agency opposed petitioner s request, and asked the court to approve the relative placement before holding the section 366.26 hearing on the grounds that if the parental rights are terminated that would make section 366.26(n) come into play, that would be the prospective adoptive parent designation. [¶] Which, again, would further delay these proceedings. Petitioner s counsel vigorously opposed the purported reorganization of the proceedings to reach the outcome the Agency desired, which counsel claimed was at the expense of petitioner s entitlement to prospective adoptive parent status. The juvenile court adopted the Agency s position that the placement issue needed to be decided before the termination of parental rights. The matter was then continued to November 19, 2010. 2. Prospective Adoptive Parent Designation Request (November 10, 2010) On November 10, 2010, petitioner filed a request for prospective adoptive parent designation. (§ 366.26, subd. (n).) In the request, petitioner declared that she had taken the following steps in furtherance of adoption: (1) applied for an adoptive home study; 8 (2) participated in a bonding/attachment study; (3) provided excellent care for the child for nearly two years; (4) investigated available services for the child following adoption; (5) agreed to sibling and relative visitation to strengthen the familial bonds; (6) discussed adoption with her children and others; and (7) expressed a willingness to sign an adoptive placement agreement and cooperate with an adoptive home study, as well as overcome any identified impediments to adoption. 3. Addendum Report (November 17, 2010) In its first addendum to the section 366.26 report, the Agency detailed the six preplacement visits between J.B. and his paternal uncle s family. Ms. Baker reported that she had observed many of the visits and found J.B. to be quite calm and well-regulated, that the relatives seemed very attuned to [J.B. s] cues, and that their interaction with each other was very positive and calm. She also thought that the interaction between J.B. and his cousins was very encouraging. Ms. Clemente had made a referral to the relatives county of residence for psychotherapeutic services for J.B. and his relatives, and the family reported that they were prepared to participate in the sessions. Ms. Baker noted that Y.R. and O.C. felt well-equipped to handle [J.B. s] behavior. She also commented that [i]n all of the Agency s contacts with [Y.R. and O.C.] from February 2009 [] to the present, they have consistently stated that they are firmly committed to providing [J.B.] with a permanent home through adoption. However, petitioner was reported to be ambivalent and wavering about whether she wanted to adopt J.B. Indeed, Ms. Baker noted that she had been told by multiple parties that it was unclear whether petitioner was interested in providing J.B. with a permanent home. Similarly, Ms. Clemente did not know for sure if petitioner wanted to pursue adoption. According to the addendum report, petitioner told J.B. s attorney that she felt good about the decision to adopt J.B. and that her older children had talked her into adopting [J.B.]. Ms. Baker did not dispute that petitioner took excellent care of J.B. However, given petitioner s long history of ambivalence regarding whether she is willing and able to provide [J.B.] with permanency and the stark contrast to the 9 relatives long-standing clarity on this issue, the Agency was requesting that the juvenile court place J.B. with his relatives with a permanent plan of adoption. 4. Bonding Report (November 18, 2010) On November 18, 2010, petitioner filed a report by David Brodzinsky, Ph.D., a bonding and attachment expert, regarding the best interests of J.B. In the report, Dr. Brodzinsky opined that J.B. was strongly attached to petitioner, but it was not, as yet, a highly secure relationship. Rather, he characterized the relationship as one in which there was emerging security. He further noted that J.B. had problems with attachment and was only now developing some degree of security with petitioner. Dr. Brodzinsky concurred with Ms. Clemente s assessment that J.B. was at risk for developing reactive attachment disorder if he were moved to yet another placement. Dr. Brodzinsky concluded: In short, from a mental health perspective, there is absolutely no reason to disrupt this placement and every reason to maintain it. 5. November 19, 2010 Hearing a. Evidence At the contested hearing on November 19, 2010, the juvenile court heard testimony from Ms. Baker, Ms. Clemente, and Dr. Brodzinsky regarding the best interests of J.B. Ms. Baker testified that J.B. had had seven pre-placement visits with his relatives, and that he was currently in the middle of a two-night overnight visit with them. She testified that petitioner took excellent care of J.B., but reiterated her concerns about petitioner s commitment to adopting J.B. Ms. Baker explained that after J.B. s birth, his relatives were offered visits during business hours, but because they lived over two hours away and had work obligations, they were unable to attend those visits. She testified that based upon the file, the relatives had expressed a consistent interest in adopting J.B. as early as February 2009. Ms. Baker discerned no hesitancy from the relatives regarding their desire to adopt J.B. In contrast, petitioner demonstrated equivocal interest in adopting J.B., vacillating from not wanting to adopt to being unsure if she wanted to adopt due to family and personal issues. 10 Ms. Baker testified that she was clear with petitioner that the goal of the pre-placement visits between J.B. and his relatives was to move forward with a relative adoption. Ms. Baker testified that she was not recommending petitioner for adoption due to her lack of commitment, as well as due to J.B. s connection to his extended family. Ms. Baker was also concerned that petitioner s estranged husband had untreated alcoholism. Ms. Baker believed that it was in J.B. s best interest for his uncle and aunt to adopt him. She described J.B. s relatives, as being more than one hundred percent committed to providing him with a permanent home through adoption. Having observed J.B. s interaction with his aunt and uncle on several occasions, Ms. Baker opined that the family was insightful and very sensitive about J.B. s needs for a slow and steady transition. She further opined that they will do an unusually good job of having a balance between maintaining relationships with the birth parents . . . and the siblings, while also having really good boundaries with the parents. From a practical perspective, she also thought J.B. would benefit from being raised by his uncle and aunt, whose primary language is Spanish, as they would be able to help facilitate J.B. s ability to communicate with his birth parents. In Ms. Baker s experience, children J.B. s age are able to successfully transition to a new home, if the process is done carefully and gradually . . . . Similarly, Ms. Clemente testified that although any transition is difficult, the detriment could be minimized with the type of thoughtful and careful transition that had been taking place in the instant case. Ms. Clemente explained that J.B. s emerging connections with his relatives were indicative of a good transition. She further explained that the signs and symptoms of reactive attachment disorder had subsided; she also saw no increased observable signs of posttraumatic stress disorder. Ms. Clemente testified that petitioner had shared with her historically an ambivalence about adoption. The first Ms. Clemente had heard of any final decision on this issue was at the November 5, 2010 hearing. Ms. Clemente explained that she was initially opposed to changing J.B. s placement because she had not met the relatives yet, and this recommendation was more of a protective statement. However, after visiting 11 J.B. s relatives and seeing his interaction with them, Ms. Clemente changed her position and was in agreement with the transition to relative placement. When questioned further about whether J.B. would do better in petitioner s home or in his relatives home, Ms. Clemente said she thought that J.B. would do well equally in either setting. Dr. Brodzinsky testified that keeping J.B. in his current placement with petitioner would be the least detrimental alternative. Dr. Brodzinsky, however, had never observed J.B. with his relatives. As for petitioner s commitment to adopting J.B., Dr. Brodzinsky explained that petitioner was experienced in dependency proceedings and knew that any discussion about adoption would be premature before the termination of parental rights. He also explained that petitioner had been dealing with personal issues related to her pending divorce. As for petitioner s estranged husband, Dr. Brodzinsky noted that, although he did have an alcohol problem, he was not confrontational, and he had very limited interaction with J.B. during the first placement and had been out of the home since before J.B. s second placement with petitioner. b. Juvenile Court s Ruling After hearing argument by counsel, the juvenile court ruled as follows: I ve heard all the evidence. And again, as these cases . . . present very difficult decisions for the Court in terms of deciding what s in the best interest of the child. After reviewing the evidence, the court stated that in this case I think the tipping point is that the transition visits have gone well. Subsequently, the court adopted the Agency s recommendations, placing J.B. in the home of his paternal relatives and terminating parental rights. In response to a question by petitioner s counsel regarding whether the court understood that there was no family preference for placement decisions, the court responded as follows: No, no, this is not family preference. I haven t cited to the Welfare & Institutions Code section. And I am familiar that if we are in [the] reunification stage and services are being offered then you might have this relative placement because it facilitates reunification. [¶] But because services were terminated I don t consider that. [¶] But I see nowhere in the case law or in the statute that says I cannot consider relatives. And a lot of these cases, what I m getting, is that as long as a 12 child is somewhere, then we shouldn t be looking at relatives. And I still think there is a benefit to relative placement. (Italics added.) Thereafter, the court designated adoption as the permanent plan and ordered that J.B. be placed with Y.R. and O.C., and set an adoption review hearing for May 19, 2011. The instant writ followed. II DISCUSSION Petitioner challenges the juvenile court s order placing J.B. with his relatives, which effectively denied her request for prospective adoptive parent status. A. Standard of Review The juvenile court is given wide discretion in its placement determinations, and we will not overturn its orders absent an abuse of discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) Discretion is abused only if we find that under all the evidence, viewed most favorably in support of the juvenile court s decision, no judge reasonably could have made the order that he or she did. (Ibid.) Thus, we must indulge all inferences in favor of the juvenile court s decision. (Ibid.) Where substantial evidence supports the order, there is no abuse of discretion. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796, superseded by statute on other grounds as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448, 449-450; In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.) B. Propriety of Writ Review Although the parties appear to be in agreement that writ review is appropriate in the instant case, we pause to briefly address the propriety of writ review under section 366.28. Orders in juvenile dependency proceedings may be appealed, starting with the dispositional order (§ 358), which constitutes the judgment. (§ 395, subd. (a); Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Any subsequent order may be appealed as an order after judgment (§ 395) with two exceptions. In particular, after parental rights have been terminated pursuant to section 366.26, an order by the court that a dependent 13 child is to reside in, be retained in, or be removed from a specific placement, is not appealable at any time unless extraordinary writ review is first sought. (§ 366.28, subd. (b).) Additionally, a court order issued after a hearing pursuant to section 366.26, subdivision (n), which authorizes the juvenile court to designate a child s current caretaker, at the section 366.26 hearing or thereafter, as the child s prospective adoptive parent shall not be appealable except as provided in section 366.28, subdivision (b), which establishes the review-by-writ process. (§ 366.26, subd. (n)(5).) Here, it appears that the juvenile court contemporaneously terminated parental rights and changed J.B. s placement. The exact timing of the juvenile court s rulings, however, is somewhat unclear. In any event, because the juvenile court s order effectively denied petitioner s request for prospective adoptive parent status, we conclude, based on the language of section 366.26, subdivision (n)(5), that the juvenile court s order is the proper subject for review by writ under section 366.28. C. Preferential Consideration of Relatives In arguing the juvenile court erred in placing J.B. with his relatives, petitioner contends the juvenile court improperly relied on the section 361.3 relative placement preference, which she asserts is not applicable here. Section 361.3 gives preferential consideration to a relative request for placement, which means that the relative seeking placement shall be the first placement to be considered and investigated. (§ 361.3, subd. (c)(1).) Preferential consideration does not create an evidentiary presumption in favor of a relative, but commands that relatives be assessed and considered favorably, subject to the juvenile court s consideration of the suitability of the relative s home and the best interests of the child. (In re Antonio G. (2007) 159 Cal.App.4th 369, 377, quoting In re Stephanie M. (1994) 7 Cal.4th 295, 320. Relatives desiring placement shall be considered according to the factors enumerated in subdivision (a). (§ 361.3, subd. (b).) These include the best interest of the child, the wishes of the parent, the good moral character of the relative, the nature and duration of the relationship between the relative and the child, the relative s ability to provide a secure and stable environment, and so on. (Ibid.) 14 Section 361.3 governs in two situations: (1) at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)); and (2) when a new placement . . . must be made . . . . (§ 361.3, subd. (d); see also Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) The second situation is not just limited to when reunification services are being offered. The relative placement preference also applies when a new placement becomes necessary after reunification services are terminated, but before parental rights are terminated and adoptive placement becomes an issue. (Ibid.) However, the provision does not apply after parental rights have been terminated and the child has been freed for adoption. (Id. at p. 1031-1032, citing In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) Here, the juvenile court expressly stated that it was not applying the relative placement preference. The court further explained that it was not considering the relative placement preference because reunification services had been terminated and the facilitation of reunification was no longer the goal. However, the court stated it had found no authority that prohibited it from considering relatives, especially where a benefit from relative placement can be discerned. We agree. [R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child . . . . [Citation.] (In re Lauren R. (2007) 148 Cal.App.4th 841, 855 (Lauren R.); see In re Stephanie M., supra, 7 Cal.4th at pp. 320-321.) The concept of best interests in the dependency context has been described as an elusive guideline that belies rigid definition. (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Its purpose is to maximize a child s opportunity to develop into a stable, well-adjusted adult. (Ibid., accord State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 286.) Notwithstanding its vague contours, the California Supreme Court has described the goal of assuring stability and continuity as a primary consideration in determining the child s best interests (Stephanie M., supra, 7 Cal.4th at p. 317) and has instructed, at a hearing to consider a change in placement, that the court must consider the child s current circumstances (id. at p. 322). That is what occurred here. 15 Thus, contrary to petitioner s contention, we discern no fundamental misunderstanding by the juvenile court regarding the scope of its discretion and applicable standards. As we shall discuss, from our review of the record, we find that the juvenile court s decision placing J.B. with his paternal relatives was well within the court s discretion. D. The Juvenile Court Properly Denied Petitioner Prospective Adoptive Parent Status and Properly Placed J.B. with his Relatives The juvenile court was required to review the Agency s placement decision by considering the difficult question of what was in J.B. s best interest. The court reasonably determined that removing J.B. from petitioner s care, notwithstanding their strong bond, was in the child s best interest, as J.B., in the course of his pre-placement visits with Y.R. and O.C., had formed a bond with his paternal relatives, who were prepared to adopt him. Petitioner contends remand is required in order to enable the juvenile court to properly exercise its discretion and to exercise an informed decision . . . as to whether she is entitled to prospective adoptive parent status and to give [her] application for adoption the preference it is entitled and without giving preference to Y.R. and O.C. due to their status as relatives. We disagree. Section 366.26 subdivision (k) provides that when the court has approved a permanent plan of adoption for a dependent child, a foster parent s application for adoptive placement shall be given preference if the Agency determines the child has substantial emotional ties with the foster parent, and removal from the foster parent would be seriously detrimental to the child s well being. The statutory foster parent preference requires the trial court to process the foster parent s application for adoption first and give it serious and . . . preferential consideration ; it does not mean the foster parent is automatically entitled to adopt. (Lauren R., supra, 148 Cal.App.4th at p. 860; In re Harry N. (2001) 93 Cal.App.4th 1378, 1396-1397.) By its terms, the caretaker preference in section 366.26, subdivision (k) applies when the court has approved a permanent plan for adoption or freed the child for 16 adoption. [T]he circumstance that triggers the application of the caretaker preference is the intent to place the child for adoption, not necessarily the termination of parental rights or the termination of reunification services. (Lauren R., supra, 148 Cal.App.4th at pp. 855-856.) Relying on Lauren R., supra, 148 Cal.App.4th 841, petitioner contends the caretaker preference applies here because the biological parents were denied further reunification services, the Agency formed the intent to have the minor adopted, and petitioner was interested in adopting J.B. and had taken various steps in furtherance of this goal. Lauren R., however, is readily distinguishable from the instant case. There, the trial court erroneously used the factors for preferential relative placement under section 361.3 in placing the minor with a maternal aunt for adoption. (Lauren R. at p. 845.) Unlike here, neither the agency nor the trial court adequately considered whether removal from the foster parent would be seriously detrimental to the child s emotional well being. (Id. at pp. 859-860.) Instead, the agency and court erroneously favored removal and placement with the aunt solely due to her status as a relative. (Id. at p. 860.) The appellate court refused to find this error was harmless, reasoning that if the caretaker preference had been applied, the foster parent s application [w]ould have been processed and a home study done before [the agency] even considered [the aunt.] (Ibid.) The court further concluded that on the record before it, it was likely [the agency] would have approved [the foster parent] for adoption if she had been fairly evaluated without being compared to [the aunt.] (Ibid.) The court added that at the very least the foster parent should have been evaluated for adoptive placement on a level playing field with the aunt. (Ibid.) Here, in contrast to Lauren R., supra, 148 Cal.App.4th 841, there is no indication that the juvenile court favored Y.R. and O.C. solely due to their relative status. Rather, the record reflects that the court focused on the quality of the pre-placement visits, as well as the paternal relatives consistent and sincere commitment to adopting J.B. Although J.B. s bond with petitioner was not disputed nor was the fact that she provided exemplary care to J.B., the juvenile court was concerned that [petitioner] did not step 17 forward until November 5th. While acknowledging the personal issues affecting petitioner s decision, the juvenile court explained that a big factor in this case was finding a family [that would] be there for [J.B.] forever. The court added: [W]e would be in a very different position if [petitioner], on July 5th, or whenever they ha[d] the jurisdiction hearing, had stepped up to the plate right then. And I understand that she had other things that were going on in her life. [¶] But I m sorry, I have to make a decision with the facts that I have. Nothing in the record supports the conclusion that petitioner was not evaluated for adoptive placement on a level playing field with Y.R. and O.C. Moreover, even if petitioner was entitled to the caretaker preference, section 366.26 subdivision (k) gives preference in time for processing the application [for adoptive placement] but does not necessarily mandate that other applications will not be considered. (In re Harry N., supra, 93 Cal.App.4th at p.1397 [reversing decision that did not adequately consider agency s recommendation choosing paternal relatives over foster parents].) In other words, even if the juvenile court should have processed petitioner s application first, it was not prohibited from considering the application from J.B. s paternal relatives. Petitioner also contends the juvenile court erred in finding that she was not entitled to prospective adoptive parent status under section 366.26, subdivision (n), which authorizes the juvenile court at a permanency planning hearing, or anytime thereafter, to designate a child s current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services or licensed adoption agency. (§ 366.26, subd. (n)(1).) 18 [S]teps to facilitate the adoption process include, but are not limited to, the following: (A) Applying for an adoption home study[;] [¶] (B) Cooperating with an adoption home study[;] [¶] (C) Being designated by the court or the licensed adoption agency as the adoptive family[;] [¶] (D) Requesting de facto parent status[;] [¶] (E) Signing an adoptive placement agreement[;] [¶] (F) Engaging in discussions regarding a postadoption contact agreement[;] [¶] (G) Working to overcome any impediments that have been identified by the State Department of Social Services and the licensed adoption agency[;] [¶] (H) Attending classes required of prospective adoptive parents. (§ 366.26, subd. (n)(2).) Section 366.26, subdivision (n) is written in permissive rather than in mandatory terms. The court may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. (§ 366 .26, subd. (n)(1), italics added.) Furthermore, [i]n determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment . . . as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services or licensed adoption agency. (§ 366.26, subd. (n)(1), italics added.) Likewise, subdivision (n)(2) of section 366.26 refers to various, nonexclusive steps to facilitate the adoption process. Therefore, according to the express language of section 366.26, subdivision (n), whether to designate a current caretaker as a prospective adoptive parent is a matter within the juvenile court discretion. Also, petitioner overlooks the juvenile court s authority to consider in its decisionmaking the positions taken by the department and the licensed adoption agency. (§ 366.26, subd. (n)(1).) Consequently, a caretaker who meets the threshold requirements is not necessarily entitled to a prospective parent designation. Here, based on petitioner s historic ambivalence about adopting J.B. and the belated request for prospective adoptive parent status as compared with Y.R. s and O.C. s consistent and sincere desire to adopt J.B., the Agency did not consider petitioner for 19 such a designation. Regardless of the fact that J.B. had lived with petitioner for the majority of his young life, that she had expressed recently an interest in adopting J.B., and had taken various steps to facilitate the adoption process, the juvenile court was entitled to consider the Agency s position, which was that it was in J.B. s best interest to be placed for adoption with Y.R. and O.C. (§ 366.26, subd. (n)(1).) On this record, we conclude the juvenile court did not abuse its discretion by denying petitioner s request for prospective adoptive parent status. E. Constitutional Claims Petitioner argues that the disruption of [J.B. s] home and family, subjecting him to the very real possibility of reactive attachment disorder . . . violated [J.B. s] and [petitioner s] fourteenth amendment rights. (Boldface and unnecessary capitalization omitted.) This contention is without merit. First, J.B. has been represented by counsel since the original detention hearing. Tellingly, J.B. s counsel has chosen not to challenge the placement order. Second, and more importantly, petitioner has no standing to raise this constitutional claim either on J.B. s or on her own behalf, as her role was limited to that of a de facto parent. A person granted de facto parent status gains only the right to be present at the dependency hearing, to be represented by counsel, and to present evidence. (In re Crystal J. (2001) 92 Cal.App.4th 186, 191.) While de facto parents are given an opportunity to participate in the proceedings, that status does not give them rights accorded to a parent or legal guardian. (In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) Consequently, petitioner had no right to custody or continued placement (ibid.) and, a fortiori, she had no standing to raise a Fourteenth Amendment challenge to the order changing J.B. s physical custody. 20 III. DISPOSITION The petition for extraordinary writ is denied. This decision is final immediately. (Cal. Rules of Court, rules 8.456 (h)(5), 8.490 (b)(3).) _________________________ Sepulveda, J. We concur: _________________________ Reardon, Acting P.J. _________________________ Rivera, J. 21
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