Filed 12/28/07; pub. order 1/25/08 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Cynthia

Bashant, Judge. Reversed and remanded directions.

Sheena G., the maternal grandmother of Antonio G. and Shakira G., appeals

orders denying her request to have the children placed with her. Sheena contends the San

Diego County Health and Human Services Agency (Agency) violated her rights under

Welfare and Institutions Code1 section 361.3 by not evaluating her as a placement

option, and the juvenile court erred because it did not apply the relative preference

1 All statutory references are to Welfare and Institutions Code unless otherwise specified.
placement criteria under the statute. Sheena also contends she met the statutory
requirements of section 388 and, therefore, the court erred by denying her section 388
petition. Nina G., the children's mother, also appeals and joins Sheena's argument. (Cal.
Rules of Court, rule 8.200.)

FACTS

In May 2005 the Agency took Antonio, then seven years old, and Shakira, then

three years old, into protective custody because they were exposed to domestic violence

between Nina and her boyfriend Elijah. Elijah also had molested the children's 13-yearold

sibling; when Nina learned of the molestation, she slapped the older sibling. Agency

filed dependency petitions on behalf of Antonio and Shakira under section 300,

subdivisions (b) and (j). The court detained the children with Sheena in June and

formally placed them with her in July. The court ordered supervised visits for Nina.

At the six-month review hearing in December the social worker reported Antonio

and Shakira were doing well in Sheena's care. The court ordered Nina's services to

continue after finding she made only minimal progress.

3

In May 2006 Agency removed Antonio and Shakira from Sheena's home and filed

a section 387 petition alleging that Sheena had allowed Nina to have unsupervised visits

with the children and had left them unsupervised in the home. The petition also alleged

Sheena's home could no longer be approved because of licensing requirement violations.

Antonio reportedly had said he visited Nina every night but did not stay overnight with

her. Shakira said she slept with Nina and Antonio at Nina's house and Sheena was not

present. Antonio said sometimes when he returned to Sheena's home after school the

door was locked and he would wait for her to come home. Antonio related that once

when no one came to school to pick him up, he walked to his adult sister's home; she was

not there and Antonio played with friends. The school received information that Antonio

was late to school because he was staying with Nina. Sheena had not purchased beds for

the children as she was required to do.

The court sustained the section 387 petition. Sheena was not served with the

petition and did not attend the hearing. Subsequently, the court placed Antonio and

Shakira with Michelle. H., a non-relative extended family member, who was Shakira's

daycare provider.

In November 2006 Sheena filed a request for de facto parent status and also

indicated she was willing to be appointed the legal guardian of Antonio and Shakira. The

court denied Sheena's request for de facto parent status.

4

At the 18-month review hearing in January 2007 the court terminated Nina's

reunification services and set a section 366.26 hearing.

In April Agency filed a second section 387 motion after the children's caretaker

said she was no longer willing to continue in that role. Sheena contacted Agency and

asked if Antonio and Shakira could be placed with her. The social worker responded that

it was not possible because the children had been removed from her earlier for allowing

unsupervised contact between the children and Nina.

Sheena filed a section 388 petition, in pro per, requesting placement of the

children with her. The court ordered Agency to facilitate visits between Sheena and the

children. Nina also filed a section 388 petition seeking placement of the children with

her.

Agency recommended the children be placed in foster care. Antonio and Shakira

said they wanted to be placed with Nina or Sheena.

In her adoption assessment report, social worker Stefani Castro concluded that

Antonio and Shakira were likely to be adopted and recommended a permanent plan of

adoption for the children. Although there were no local families interested in adopting a

sibling group like Antonio and Shakira, the social worker believed that an adoption

agency in South Carolina, which specialized in placing African-American sibling groups,

could find an adoptive home for Antonio and Shakira.

At a hearing that began on May 23 to consider Agency's section 387 petition and

the section 388 petitions filed by Sheena and Nina, Antonio testified he loved his mother,

wanted to live with her and wanted more visits with her. Antonio was unhappy that he

5

and Shakira were in different foster homes. Antonio did not want to move away from

California because he thought that would prevent him from being able to live with Nina

or see her. His first choice was to live with Nina and his second choice was to live with

Sheena. Shakira testified that she missed living with Antonio. She wanted to live with

Nina, Sheena or Michelle, the daycare provider.

Sheena, who worked as a teaching assistant at Memorial Academy Charter School,

presented letters from her co-workers, who reported she was responsible and dependable

and rarely missed work. The letter writers also said Sheena was patient and nurturing

with the students, even the most challenging ones.

Jo Pastore, Sheena's sister-in-law, who had seen Sheena interact with Antonio and

Shakira on many family occasions, testified the children were well cared for when they

lived with Sheena. Sheena was a very capable parent and a kind person Pastore said.

The children would feel safe and comfortable if they were placed with Sheena.

Linda Mitchell, an Ohio resident who had known Sheena for 40 years, testified by

telephone. Mitchell related that when one of Sheena's grandchildren visited her father in

Ohio and was abused, Sheena immediately contacted her to pick up the grandchild and

care for her until Sheena arrived in Ohio to take her back home.

Susan McPhatter, who visited Sheena about once a week when Antonio and

Shakira were living with her, testified the children seemed safe and happy. McPhatter

never saw Nina in Sheena's home when she visited.

6

Counsel stipulated that if called as a witness, Nina would testify that if the

children were placed with Sheena, she would obey court orders for supervised visitation.

Further, Nina would testify she was moving to Dallas, Texas and planned to return to

California each week to visit.

Sheena, appearing in pro per, told the court she loved her grandchildren and would

always be there for them. She wanted to put Antonio and Shakira on the right path to

making good choices, to be somebody, and to go to school. Sheena, who lived alone with

her cat, did not drink alcohol or smoke cigarettes because she wanted to live longer.

When Antonio and Shakira were placed with Sheena earlier, she did not know the foster

parent rules. For example, when she let Antonio and Shakira stay overnight with her

adult daughter, Sheena did not know it was improper because her daughter had not

undergone a background check. If the children were placed with her again, Sheena

would not allow Nina to come to her home unless the court approved it. If Nina tried to

see the children, Sheena would call the police. She also would take the children to

therapy if they needed it.

Sheena said she did not purchase beds for the children because the social workers

told her Agency would provide the beds. Later, Sheena was told that Nina was going to

buy beds for the children. Sheena said the children were always comfortable. Sheena

bought a futon and some fold-up pillow type beds because her apartment was small and

there was not space for a lot of beds.

After Antonio and Shakira were removed from her home, Sheena did not see them

for almost a year except for Thanksgiving dinner. But Sheena frequently called Michelle

7

and requested visits. Michelle said she would check with the social worker, but she did

not call Sheena back. Sheena also sought visits directly through the social worker, who

did not return Sheena's calls.

Social worker Lashawn White testified that when she removed Antonio and

Shakira from Sheena's home, she believed Sheena could not protect the children from

Nina. An adult sibling of the children told personnel at Antonio's school that the children

were spending nights at Nina's home. White also was concerned by two incidents when

Antonio was unsupervised after school. One time Antonio walked home from school and

there was no one at home to let him in; he sat outside unsupervised for a period of time.

Another time, Antonio walked to an adult sibling's home after school; no one had picked

him up from school. Antonio went to a neighbor's house; the neighbor telephoned

Michelle and she picked him up. White acknowledged the school was only a couple of

blocks from Sheena's home. The social worker also acknowledged she had not told

Sheena that Antonio could not walk home from school.

When White first visited Sheena's home, there were a lot of boxes in the living

room; Sheena told White she would move the boxes into storage to make room for beds

for the children. Because of a problematic neighbor, White did not return to Sheena's

home after this visit. Instead, White visited the children at school and asked them where

they slept. White "got the impression that they did not have beds still."

White said when Antonio and Shakira were placed with their grandmother, she

explained to Sheena that Nina's visits had to be supervised and the children could not go

to Nina's home.

8

White said after the children were removed, Sheena called only one time to set up

a visit for Thanksgiving. Michelle did not tell White that Sheena had requested visits.

Adoption social worker Castro testified that she had concerns about Sheena's

ability to protect the children from Nina. Castro opined that the children needed stability

and a calm, peaceful, nurturing environment and was not sure that Sheena could provide

this. Castro had not visited Sheena's home. The social worker related that the children's

therapist believed they would benefit from being adopted and this would outweigh any

harm caused by their losing relationships with Nina and her family.

Castro said Sheena had a visit with the children in May 2007 and was appropriate

with them, and the children were happy to see her. However, Sheena made an

inappropriate comment about the children coming home. Castro had not told Sheena that

she should not discuss that subject with the children.

In rebuttal, Sheena told the court that the children were never unsupervised. When

Antonio walked to his adult sister's home, Sheena was home, waiting for him at the gate.

She had recently started to let him walk to and from school. Sheena and a neighbor were

looking for Antonio when Michelle called and said she had picked him up at the sibling's

home.

Michelle testified that when she picked up Antonio she asked him why he had

walked to his adult sister's home from school. Antonio said his sister had told him to

walk to her home.

Michelle said Sheena had a strong, loving, caring relationship with the children

and would do a good job of taking care of them.

9

The court denied Sheena's section 388 petition, finding there had not been a

change of circumstances. The court found Sheena had allowed Nina to have

unsupervised contact with Antonio and Shakira when the children were living with

Sheena. Although Sheena loved her grandchildren very much, the court concluded she

was not able to control Nina, who was very disruptive. Hence, the children would not be

safe with her. The court sustained Agency's section 387 petition and ordered the children

placed in a licensed foster home. The court found the children were difficult to adopt

because they were a sibling group and there was no identified home. The court continued

the section 366.26 hearing for 180 days to locate an adoptive placement. (§ 366.26, subd.

(c)(3).) The court ordered Agency to provide Sheena supervised visits and telephone

calls with the children.

DISCUSSION

Sheena contends Agency violated section 361.3 by not investigating and

evaluating her as a placement option after the children had to be removed from Michelle's

care. Sheena also contends the juvenile court erred by not applying the criteria listed in

section 361.3, subdivision (a) to her request that Antonio and Shakira be placed with

her.2

The relative placement preference, codified in section 361.3, provides that

whenever a new placement of a dependent child must be made, preferential consideration

2 As a threshold matter, we find Sheena, who appeared in pro per at the second 387

hearing, did not forfeit the section 361.3 issue by not raising it below.

10

must be given to suitable relatives who request placement. (§ 361.3, subds. (a) & (d).)

" 'Preferential consideration' 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

merely places the relative at the head of the line when the court is determining which

placement is in the child's best interests." (In re Sarah S. (1996) 43 Cal.App.4th 274,

286.)

" '[T]he statute express[es] a command 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 Stephanie M. (1994) 7 Cal.4th 295, 320;

see also Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.) Section 361.3

promotes a preference for foster placement with relative caregivers as set forth in Family

Code section 7950 and helps meet "the statutory requirement of Welfare and Institutions

Code section 16000 that a child live in the least restrictive and most family[ ]like setting

possible." (Stats. 2001, ch. 653, § 1, p. 4120.)

The relative placement preference statute identifies factors that the social services

agency and the juvenile court must consider in determining whether placement with a

particular relative who requests such placement is appropriate. (§ 361.3, subd. (a).) 3

3 Those factors are: "(1) The best interest of the child, including special physical,

psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent,

the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with

Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4)

Placement of siblings and half-siblings in the same home, if that placement is found to be

11

Section 361.3, subdivision (a)(8) requires the social services agency to investigate and

report on the ability of relatives seeking placement with respect to the enumerated

factors.

Agency did not evaluate Sheena as a possible placement for the children after they

were removed from Michelle's care. Agency claims it was not required to evaluate

Sheena because the statute carves out an exception for "relatives who have [] been found

to be unsuitable." (§ 361.3, subd. (d).) However, a prior removal under section 387 does

not necessarily constitute unsuitability. If it did, that would preclude a relative caretaker

from whom a child was removed for reasons unrelated to his or her appropriateness as a

caretaker — such as a temporary health infirmity — from seeking placement of the child

in the future if the need arose.

Moreover, the record in this case does not disclose that Sheena was found

unsuitable as a placement for the children at the first section 387 hearing. Rather, the

in the best interest of each of the children as provided in Section 16002. [¶] (5) The good

moral character of the relative and any other adult living in the home, including whether

any individual residing in the home has a prior history of violent criminal acts or has been

responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the

relationship between the child and the relative, and the relative's desire to care for, and to

provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability

of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment

for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶]

(C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from

his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents.

[¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate

implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the

child if reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as

necessary. [¶] (8) The safety of the relative's home. . . ." (§ 361.3, subd. (a).)

12

court sustained the petition, finding "the previous disposition is no longer effective for

the protection of the children." Sheena was not provided with a copy of the section 387

petition, and was not notified of the hearing or given the opportunity to appear at the

hearing even though Sheena had the right to contest the allegations of the section 387

petition. (In re Jonique W. (1994) 26 Cal.App.4th 685, 693.) Under these circumstances,

the first section 387 petition proceedings did not establish Sheena was unsuitable as a

placement for the children.

In Cesar V. v. Superior Court, supra, 91 Cal.App.4th 1032, the Court of Appeal

held a prior child protective history does not bar a relative from being evaluated and

considered for placement of a dependent child under section 361.3. We find the case

instructive. The juvenile court ordered the social services agency to evaluate the paternal

grandmother for possible placement. (Id. at p. 1027.) When the social worker learned of

a prior allegation of abuse involving the grandmother and her son, the worker abandoned

the assessment of the grandmother's home and began looking for another foster family.

"The record shows the social worker did not make significant efforts to gather the

required information before deciding [the grandmother] was unsuitable and abandoning

the assessment. Furthermore, the social worker began looking for another foster family

before [the grandmother] had even received the SSA forms." (Id. at p. 1033.) Noting

that the agency was required to give a "fair chance" to a relative seeking placement and

that the agency's approach had not been "within the spirit of the statute," the appellate

court ordered the juvenile court to reverse its order denying placement with the

13

grandmother and order the agency to complete its assessment of the grandmother as

required by section 361.3. (Id. at p. 1033.)

In essence, Agency's attitude toward Sheena was that she was disqualified from

consideration as a placement option because the children had been removed from her

home. This was not only legally incorrect, it also deprived Sheena of a "fair chance" to

be the children's caretaker. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at

p. 1033.) Further, it was not necessarily in the children's best interest. The linchpin of

placement of dependent children is their best interests. (Alicia B. v. Superior Court

(2004) 116 Cal.App.4th 856, 862-863.) Antonio and Shakira had lived together since

Shakira's birth. The need to place these two siblings together in the same home was

great. After being removed from Michelle's home, Antonio and Shakira lived in separate

foster homes, and the only foreseeable option for having them placed in the same

adoptive home was through an adoption agency in South Carolina. As the court

acknowledged, "finding a home halfway across the country for a nine-year-old and [a]

five-year-old who know their mother and don't want to leave their mother" was not an

optimal alternative. Further, the South Carolina option was speculative; Agency did not

know if the adoption agency could locate an adoptive family in South Carolina willing to

take both children.

Under all the circumstances presented here, we find that Agency should have

reevaluated Sheena and her home for placement after the children were removed from

Michelle's home, using the criteria set forth in section 361.3, subdivision (a). (§ 361.3,

subd. (d).)

14

Without a section 361.3 report before it, the court could not and did not follow its

mandate to properly assess Sheena as a placement option under the criteria set forth in the

statute. (§ 361.3, subd. (a).) In In re H.G. (2006) 146 Cal.App.4th 1, this court reversed

a removal order because the juvenile court had failed to consider the numerous factors set

forth in section 361.3, subdivision (a). (Id. at pp. 14-15.) We noted: "The Legislature

has determined that all these factors are important in determining whether placement with

a relative is not appropriate." (Id. at p. 16.)

In sum, Agency and the juvenile court essentially ignored their duty under section

361.3 to properly consider Sheena's request to have her two dependent grandchildren

placed with her. Agency did not reevaluate Sheena using the criteria set forth in section

361.3, subdivision (a), and the juvenile court did not consider these criteria in assessing

Sheena as a placement option. Accordingly, we reverse and remand for a new hearing.4

DISPOSITION

The order denying Nina's section 388 petition is affirmed. The disposition order

for the section 387 petition placing the children in foster care is reversed. The order

denying Sheena's section 388 petition is vacated. The case is remanded for further

proceedings with the following directions: The juvenile court shall order Agency to

prepare a section 361.3 assessment report. Upon receipt of the report, the court shall

conduct a new hearing in accordance with the views expressed in this opinion.

4 In light of this disposition, Sheena's assignment of error regarding the denial of her

section 388 petition is moot. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at

p. 1036.)

15

The stay of the section 366.26 hearing, previously scheduled for December 11, 2007, will

remain in force and effect until the relative placement issue is heard and resolved.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

Filed 1/25/08

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ANTONIO G. et al., Persons Coming

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

SHEENA G. et al.,

Defendants and Appellants.

D051079

(Super. Ct. No. J515810 D & E)

ORDER CERTIFYING OPINION

FOR PUBLICATION

THE COURT:

The opinion filed December, 28, 2007, is ordered certified for publication.

The attorneys of record are:

Linda M. Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant Sheena G.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for

Defendant and Appellant Nina G.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel,

and Katharine R. Bird, Deputy County Counsel, for Plaintiff and Respondent.

Andrea St. Julian, under appointment by the Court of Appeal, for Minors.

______________________________

NARES, Acting P.J.

Copies to: All parties