IN RE: VIVIAN F. (1997)

A baby was born addicted to cocaine.   The child's aunt, who already had custody of four of the baby's siblings, asked that the baby be placed with her.   The Department of Children and Family Services said no, failed to inform the dependency court of the aunt's request, and placed the child in a foster home.   Over the course of two years, the aunt continued her efforts to bring her niece into her home.   For all the wrong reasons, the court denied her requests.   We reverse.

FACTS

Five siblings born between 1984 and 1992 were declared dependents of the juvenile court and four were placed with their maternal aunt, Patsy F.¹ Vivian F., a sixth sibling, was born on February 7, 1994, suffering from cocaine withdrawal (a condition shared by three of her elder siblings).   DCFS promptly filed a petition to bring Vivian within the jurisdiction of the court and, on February 18, Vivian was detained.   DCFS was ordered to determine whether any relative was available to care for Vivian, and was given discretion to release her to “any appropriate relative.”   DCFS failed to inform the dependency court that Patsy had visited Vivian at the hospital, or that Patsy had asked the social worker to place Vivian with her, or that the social worker (Joan Parker) had said no,² or that DCFS had already placed Vivian with a non-relative foster parent, Brenda E., without ever considering the availability of a relative placement.

Vivian's mother did not contest the petition and on March 25 the court granted DCFS discretion to permit Vivian to live with her mother at a residential drug rehabilitation program.   DCFS again failed to inform the court that Vivian had been placed with Brenda or that Patsy had asked for placement of Vivian with her, as a result of which the court ordered that Vivian was to “remain detained in DCFS approved hospital.”

In June, the dependency court consolidated Vivian's petition with the older petition concerning her siblings and set a September hearing for Vivian's six-month review.   By this time, Patsy had learned that Vivian had been placed with Brenda and had attempted to visit Vivian, but Brenda refused to let her see her niece without a court order.   At the June hearing, Patsy's lawyer asked the court to place Vivian with Patsy or, at a minimum, to grant her permission to visit Vivian.   The court granted visitation for Patsy and ordered DCFS to investigate the possibility of placing Vivian with Patsy and the possibility of Patsy becoming the legal guardian of all five siblings.

In September, DCFS recommended that Vivian remain with Brenda because “it is felt at this time [that] placement with [Patsy] would be detrimental as [Patsy] has a lot to handle with her four special needs children already placed.   Further, [Patsy] just began visiting [Vivian] in August.” ³  DCFS nevertheless conceded that Vivian's siblings were doing well with Patsy and recommended that Patsy become their legal guardian.   When the court ordered that Vivian remain with Brenda, Patsy objected and (at her request) an evidentiary hearing was scheduled for December 8, a date already set to consider a permanent plan for Vivian's siblings.

The December hearing was continued to March 1995, then to May (the judge was ill).   In May, the court bifurcated the issue of Vivian's placement from the issues concerning her siblings and set Vivian's hearing for June 7.   The June hearing was later changed to a mediation but it was not held (Patsy's lawyer was ill) and a new hearing was set for August 18.   In the interim, Patsy's lawyer, joined by Vivian's lawyer, filed a petition pursuant to section 388 of the Welfare and Institutions Code ⁴ in which she formally sought modification of Vivian's placement and requested a hearing on that issue.   On August 18, the court granted Patsy's request for a hearing and set it for October 6.

On October 6, Vivian's mother failed to appear and DCFS reported that she had not been heard from since she had departed prematurely from her drug rehabilitation program.   The mother's lawyer also failed to appear, and after attempting without success to locate him, the court said it was going to continue the hearing, then asked the parties to address the issue of visitation.   Patsy asked for liberal overnight visits with Vivian, and visits during the week so Vivian could spend time with her siblings.   Brenda objected and said Vivian required “special care” because she “screams a lot” and “you [have to] know what each scream is.”   DCFS advocated a slow approach, referring to Brenda as Vivian's “Mommy” and telling the court that Vivian had never been away from Brenda.   As Patsy pointed out, however, Brenda attended school and regularly left Vivian and her other foster children in the care of others.

This was the court's response:  “[The court is] very impressed with [Brenda] and her care of [Vivian and] kn[ows] very well ․ how determined [Patsy is] once [she has] something in [her] mind, not unlike [her] attorney․   So far things have worked out well in the long run.   The short run has been very painful for [Patsy] in terms of getting the results [she] wants.” ⁵  The court agreed to increase Patsy's visitation but not to the extent requested, and instead ordered a report on visitation and set another hearing to consider overnight visits.   When Patsy's lawyer objected to another continuance, explaining that Patsy was “being prejudiced [because Vivian] is remaining a longer and longer period with a nonrelative,” the court granted de facto parent status to Brenda and ruled that the absence of Vivian's mother and her lawyer and representation for Brenda compelled the continuance.⁶  The hearing was continued to November 3.

DCFS reported that Vivian's visits with Patsy went well and, on November 3, the court permitted Patsy to take Vivian to her home for four hours each week.   Later that month, DCFS reported that Vivian's siblings (and a cousin who also lived with Patsy) were happy, healthy and well-cared for.   Patsy told DCFS they were “a close bonded family” but that she and all of the children were upset because Vivian was not living with them.   A therapist who had been seeing the siblings individually reported that DCFS' case worker “would appear at their school and talk to them in a menacing manner to get them to talk against [Patsy].”  The therapist also said the children were happy with Patsy, that she had provided “a stable, loving and safe home environment,” and that she was “involved in every aspect of their lives, including school [and] therapy and gives them spiritual and loving guidance.”

On December 11, 1995, the combined hearing on Patsy's objection to the September 1994 placement order and her July 1995 section 388 petition finally began.   Only one witness was heard on that date-Carmelia Echaveste, a social worker retained by Vivian's lawyer.   Echaveste testified that she first met Patsy a year earlier and observed that she was nurturing and loving with Vivian's siblings, with a strong bond existing among them all.   Echaveste monitored one of Patsy's visits with Vivian at Brenda's home, where Vivian had a difficult time and cried during most of the visit.   At a subsequent visit by Vivian to Patsy's home, Echaveste “saw a very different child.   A child who was playing with her siblings․   She was playing, singing, dancing to a Barney tape that [Patsy] had on.   She was letting [Patsy] hold her without crying.   She also molded to [Patsy's] body-at one point, she also put her head on her shoulder.   She allowed [Patsy] to feed her when it was time for dinner, and [Patsy] also allowed Vivian to feed herself․”   Vivian was happy and called her siblings by name.   Echaveste saw nothing that caused her concern at Patsy's home, and concluded that Vivian had bonded with her siblings and with Patsy.

At the conclusion of Echaveste's testimony, the court ordered overnight visits for Vivian with Patsy but then delayed the next hearing date until February 7, 1996.   At the February hearing, Vivian (through her attorney) and Vivian's mother (through a new attorney) both supported Patsy's petition.   In addition, the case worker responsible for Vivian's cousin (who was also in Patsy's care) testified that Patsy had provided appropriate care for the cousin, who also has special needs.

Patsy testified in February, explaining that DCFS had filed two petitions concerning Vivian's siblings shortly after Vivian's birth, and that the siblings had been temporarily removed from her care.   By June 1994, the petitions were dismissed and the children were returned to her home, and she again asked Vivian's case worker (Parker) to place Vivian with her.   Parker said “the Department would not allow it.”   When Parker was replaced by Dara Gilger, Patsy renewed her request but Gilger also refused to place Vivian with Patsy.   When Gilger was replaced by Andrea Gates in February 1995, she told Patsy she thought that placing Vivian with Patsy was a good idea but that “she had just started her job, and she didn't want to lose it, and she had to go with the Department.”   Patsy said her visits with Vivian were going very well, that Vivian was very happy, loving, affectionate and playful, that she never had any temper tantrums or screaming fits, and that Vivian's visits were also beneficial to her sisters and brothers.   Patsy said she was willing to adopt Vivian or become her legal guardian, whatever was best for Vivian.

The next day (February 8), the lawyer representing Vivian's mother informed the court that he had just discovered a conflict (he represented one of the other foster children in Brenda's care) and that he had to withdraw.   The court agreed and continued the matter to April.   In April, Patsy concluded her testimony and told the court she wanted to adopt all of the children, that the differences between guardianship and adoption had never been explained to her, and that she was “happy to take what [she] could get.”

Andrea Gates testified that she became the case worker for Vivian and her siblings on January 30, 1995.   Since that time, she had always found Patsy to be an appropriate caretaker, had no concerns about her ability to care for Vivian, and felt that Patsy's visits with Vivian went well.   On her first visit to Patsy's home, Gates asked why Vivian wasn't there.   Patsy said she didn't know but that she wanted Vivian with her.   When Gates spoke to her supervisor, she was told that “it was determined not to place [Vivian with Patsy]” and that Patsy had said “she was not interested in the child.”   Gates agreed, however, that she had known since she was assigned to the case that Patsy did indeed want Vivian to live with her.   According to Gates, she had discussed a permanent plan with Patsy, who said she wanted legal guardianship of Vivian but not adoption.   Unfortunately, Gates did not remember whether she had ever told Patsy that Brenda was willing to adopt Vivian or that, unless Patsy was willing to consider adoption, Gates would recommend adoption by Brenda.   Gates' current view was that Vivian should not be placed with Patsy because Vivian should stay with “the only ․ mother that she's known” and because Brenda is an “excellent foster parent.”   Gates conceded, however, that Patsy's home would be a “good place” for Vivian.

Dr. Stan Katz testified that a two-year-old child who is removed from her primary caretaker is able to form another attachment to a new primary caretaker, particularly if the new caretaker is a relative with whom the child has had an ongoing relationship, and particularly if there are siblings in the new home.   Although there would likely be short term distress, the long term effects would be positive because, “[a]s children grow older, their sense and need for biological ties seem to increase.   Children deeply resent when they become adolescents or young adults not having been with biological parents or relatives․   So there would be tremendous benefits from a child being placed in the home where she has [an] aunt and uncle and siblings.   It would give her a sense of family, her family of origin.   It would give her continuity and stability․”

Brenda testified that she is a licensed foster parent for drug and alcohol exposed and medically fragile children, and had four foster children living with her (three two-year olds and a seven-month-old) in addition to her own seven-year-old and 19-year-old and her life partner, Shirley.   At the time Vivian was placed with her, Brenda's son, who is also a special needs child, was living with her.   Brenda was attending school to become an elementary school teacher, and she received help in caring for the children from Shirley and several relatives.   According to Brenda, Vivian had tantrums since she started having overnight visits with Patsy.   In rebuttal, Patsy testified that Vivian never had tantrums at her home, but was unhappy when she had to return to Brenda's home.

At the conclusion of the hearing, Patsy, Vivian and Vivian's mother all urged placement with Patsy, while DCFS and Brenda urged that Vivian remain with Brenda.   This was the court's response:  “[The court has] no doubt with respect to what's in the best interest of this child.   Beyond any reasonable doubt, this child should remain in the home where she is, in the home of [Brenda].   This child has been in that home since she was ․ six days [old]․  The only argument that's before this court is what's in the best interest of this child, nothing of that legal semantics of whether the child should have been placed there in the first place or not.   The child is there, the child is bonded with [Brenda], and the court has had the opportunity on this occasion and other occasions to evaluate [Patsy].

“The court knows [Patsy] very well and this court has had an opportunity to evaluate [Brenda] as well as a witness in this matter and her credibility, and [Brenda] is an outstanding role model for this child․   She would make an excellent mother, an excellent person for this child to look up to and to guide her through her life.

“[Patsy] has had her own problems in life.   I admire her for what she's done for the other children in this who she's been granted guardianship with, but her demonstration in this courtroom alone with respect to her testimony, with respect to her own emotional outbursts are not such that would cause a person to look with great respect at her in terms of a role model for a child.  [¶] [Vivian] has already had problems with respect to acting out and temper tantrums.   I have seen [Patsy] in this very courtroom engage in temper tantrums, right in front of the judge.

“There is no question in my mind that this child is well placed in the home of [Brenda], that [Brenda] is a wonderful, caring, nurturing mother for this child․  [¶] [Patsy] is not the mother of this child, she's just a relative.   That doesn't ․ put her ․ at any higher standing with respect to what she can do for the best interest of this child, and for attorneys that work in dependency court to come into this courtroom and tell this court what should be done on an adoption case is the height of idiocy.   I am an expert on adoption matters.   I make decisions with respect to adoptions on a daily basis.   I make decisions with respect to [the] best interest[s] of children with respect to adoption cases on a regular basis and I've done that for three years.

“It is in the best interest of Vivian ․ that she be adopted by Brenda․   I have no question ․ that [Brenda] is open to allow this child to have contact with her siblings and her relatives and to know about her mother․   The issue before this court ․ is [whether] there [has] been a change of circumstances and is it in the best interest of this child that the child be placed in some other home․   The court is satisfied there is no change of circumstances and it is abundantly clear to me beyond a reasonable doubt ․ that Brenda['s home] is the appropriate place for this child to remain and that the case should proceed on so that [Brenda] can adopt the child.”  (Italics added.)

The court dismissed Patsy's section 388 petition, found that Vivian would be adopted by Brenda, and set a section 366.26 hearing.   Patsy appeals.

DISCUSSION

 Section 388 provides a vehicle for modifying a previous placement order based upon either changed circumstances or new evidence.   On this appeal, Patsy contends the dependency court abused its discretion first by delaying consideration of Patsy's objection to Vivian's placement with Brenda, then by failing to consider Vivian's interest in the preservation of her family, and finally by focusing solely on “changed circumstances” and ignoring the evidence of DCFS' misconduct.   We agree.⁷

The record does not support the dependency court's recitation of the evidence.   Instead, it reflects a pervasive failure by DCFS to obey the dependency court's orders and the dictates of dependency law.   At Vivian's detention hearing, knowing the court was required to determine whether there was a relative able and willing to care for Vivian (§ 319, subd. (d)), DCFS failed to inform the court that Patsy had already made known her desire to take Vivian into her home.   To make matters worse, DCFS failed to inform the court that it had already placed Vivian in a foster home, leaving the court to believe that, at the time of its original disposition order, Vivian remained in the hospital where she was born.   Then, instead of complying with the court's directive to look for a suitable relative to care for Vivian, DCFS filed unsubstantiated petitions against Patsy and removed Vivian's siblings from Patsy's home, leading us unavoidably to the conclusion that DCFS was acting solely in its own interests, to create a justification for its earlier failure to comply with the court's directive and for its conclusion that placement of Vivian with Patsy would not be in Vivian's best interests.  (See § 281.5.)

At the subsequent disposition hearing, where the focus was on the then-viable efforts of Vivian's mother to complete a residential drug rehabilitation program, DCFS did nothing to correct the court's misunderstanding that Vivian was still in the hospital and would be placed with an “appropriate relative” upon her release.   If DCFS genuinely believed it was in Vivian's best interests to be placed with Brenda, it was incumbent upon DCFS to give Patsy preferential consideration and to present evidence sufficient to convince the court that placement with Patsy was not in Vivian's best interests. (§§ 361.2, 361.3;  In re Sarah S. (1996) 43 Cal.App.4th 274, 285, 50 Cal.Rptr.2d 503 [“section 361.3 assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application”].)  For reasons that do not appear in the record, DCFS decided to orchestrate an end run around these requirements by placing Vivian with Brenda and by keeping that fact from the court.

On June 24, 1994 (when Patsy finally got the other children back and discovered that Vivian was in the same foster home where one of Vivian's siblings had been temporarily placed), Patsy formally requested visitation and custody of Vivian.   When DCFS tried again to mislead the court by stating that Vivian was “with another family member,” Patsy's lawyer explained that Vivian was in a foster home with a non-relative.   When the court again ordered DCFS to consider placement of Vivian with Patsy, DCFS responded with a report that played fast and lose with the facts-suggesting without factual support that this would somehow be “detrimental” to Vivian because Patsy had a “lot to handle with the other children” and criticizing Patsy for failing to visit Vivian until August without mentioning that Brenda refused to permit visits until Patsy obtained a court order.

Moreover, the dependency court focused solely on its factually unsupported preference for Brenda and its equally unsupported dislike for Patsy.   The record does not show the basis for either perception, and we are willing to assume that both Brenda and Patsy have Vivian's best interests at heart.   The problem is, the dependency court failed altogether to consider the factors listed in section 361.3, those that must be considered in determining whether placement with a relative is appropriate ⁸ -the best interests of the child (including her physical, psychological and emotional needs), the wishes of the parent, the provisions of the Family Code regarding relative placement,⁹ the placement of siblings in the same home, the good moral character of the relative, and the ability of the relative to provide a secure and stable environment, exercise proper and effective care and control of the child, provide a home and the necessities of life for the child, protect the child from her parents, and facilitate visitation with the child's other relatives. (§ 361.3, subd. (a).)

Under subdivision (c)(1) of section 361.3, a relative must be given “preferential consideration,” meaning that “the relative seeking placement shall be the first placement to be considered and investigated.”   If the relative satisfies the criteria listed in the preceding paragraph, that is the end of the inquiry and the child must be placed with her.  “If the court does not place the child with a relative who has been considered for placement ․, the court shall state for the record the reasons placement with that relative was denied.” (§ 361.3, subd. (e).)

Patsy was not considered first, and the assessment of her suitability, when finally done, was perfunctory.   All of the factors listed in section 361.3 favor placement with Patsy, and the court's “reasons” for rejecting Patsy are wholly irrelevant (they are based on the court's view of its own expertise and its unwillingness to consider the views of the lawyers or the experts).   Patsy wanted Vivian.   Vivian's lawyer concluded that it was in his client's best interests to be with Patsy.   Vivian's mother wanted Vivian to be with Patsy.   Everyone, including DCFS, said that Patsy had provided a secure, stable, loving and safe environment for Vivian's siblings and her cousin.   In short, DCFS and the dependency court failed to heed the “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, 27 Cal.Rptr.2d 595, 867 P.2d 706, italics omitted.)

The dependency court's notion that the delay caused in the first instance by DCFS' deception and aggravated by the system's inherent inefficiencies could prevent a change in Vivian's placement flies in the face of law, logic and common sense.   Within days after Vivian was born, Patsy requested custody.   As soon as she found out that Vivian had been placed with Brenda, Patsy contested that placement.   Since Patsy did everything she could as fast as possible, the only question is whether, at the time the matter was finally heard, a change in placement was in Vivian's best interests. (§ 388.)   Dr. Katz testified that it was, and that Vivian would adapt to the change and ultimately benefit from it.   His opinions were uncontroverted, as was the evidence that Vivian has bonded to her brothers and sisters and to Patsy, and that Vivian is a happy, contented child when she is in Patsy's home.   The record simply does not support the dependency court's conclusion that the simple passage of time meant that it was in Vivian's best interests to remain with Brenda.  (In re Stephanie M., supra, 7 Cal.4th at pp. 323-324, 27 Cal.Rptr.2d 595, 867 P.2d 706.)

The only conclusion supported by the record is that Vivian should be placed with Patsy, under the court's continuing jurisdiction to determine whether, in the long run, legal guardianship or adoption by Patsy is in Vivian's best interests.   We recognize the effect of this conclusion on Brenda, who has provided a good home for Vivian for over three years.   Under the law, however, our focus is on the child's best interests, not on those of the foster parent, and our sympathy in this instance is tempered by the fact that Brenda has known all along that Patsy, Vivian's aunt, wanted to have the child live with her.   Since Brenda has been represented by counsel throughout these proceedings, we must presume she knew of Vivian's statutory preference.   But if there is blame to be laid, it must be placed at the feet of DCFS for its failure to disclose critical information to the court and for its subsequent efforts to justify its own inappropriate conduct.

DISPOSITION

The order denying Patsy's section 388 petition and her contest to Vivian's placement is reversed, and the cause is remanded to the dependency court with directions to place Vivian with Patsy, and to thereafter make such further orders as it deems appropriate.

FOOTNOTES

1.   The fifth sibling was placed with yet another sibling who was already an adult.

2.   DCFS told Patsy she could not take Vivian because of “past allegations.”   The reference was to a 1992 petition filed by DCFS alleging that Patsy had failed to provide proper care for Vivian's siblings.   That petition was summarily dismissed by the dependency court, as were two subsequent petitions filed by DCFS after Vivian's birth.   As will appear, Patsy's care of Vivian's siblings was and remains excellent.

3.   DCFS neglected to mention that Brenda had denied Patsy's earlier requests to visit Vivian.

4.   Unless otherwise stated, all section references are to the Welfare and Institutions Code.

5.   The record does not disclose the basis for the court's opinion of Patsy or her lawyer.

6.   The court's unexplained preference for Brenda is shown not only by the sua sponte order of de facto parent status to Brenda to finesse Patsy's objection to the delay, but also by the court's further comments:  “[Brenda has] had the child in her home since the child was born, which is well over a year, and cared for the child exclusively, a special needs child, and she is entitled to the courtesy of being present in these proceedings, and being represented by counsel.”

7.   We summarily reject DCFS' suggestion that Patsy has no standing to appeal because she is not a party aggrieved since she is not a parent.   DCFS concedes that Patsy was permitted to petition the court for a change in Vivian's placement under section 388, and that Patsy was “aggrieved” by the trial court's order on her petition.  (Code Civ. Proc., § 902;  In re Joel H. (1993) 19 Cal.App.4th 1185, 1195-1196, 23 Cal.Rptr.2d 878.)   Accordingly, it is nonsense to suggest she is not sufficiently “aggrieved” to pursue an appeal.

8.   It is undisputed that Patsy is a relative within the meaning of all of the relevant statutes.  (See § 361.3, subd. (c)(2) [defining “relative” to include an adult aunt].)

9.   Section 7950 of the Family Code provides that placement “shall, if possible, be made in the home of a relative․   Diligent efforts shall be made to locate an appropriate relative.   Before any child may be placed in long-term foster care, each relative whose name has been submitted to the agency as a possible caretaker ․ shall be evaluated as an appropriate placement resource.”

MIRIAM A. VOGEL, Associate Justice.

SPENCER, P.J., and ORTEGA, J., concur.