San Mateo Cnty. Human Servs. Agency v. Geraldine K. (In re G.K.)

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In re G.K. and G.A., Persons Coming Under the Juvenile Court Law.

San Mateo County Human Services Agency, Plaintiff and Respondent, v. GERALDINE K., Appellant.

A164841

California Court of Appeals, First District, Second Division

January 9, 2023

NOT TO BE PUBLISHED

(San Mateo County Super. Ct. No. 19JD0600 & 19JD0601)

STEWART, P.J.

This appeal is from the juvenile court's denial of motions for de facto parent status and change of placement for half-siblings G.K. and G.A. The children were removed from parental custody when G.K. was one month old and G.A. was one year old. Appellant is G.K.'s paternal grandmother and although she is not biologically related to G.A., considers G.A. her grandchild. During the dependency proceedings appellant unsuccessfully sought to have the children placed with her or other paternal relatives in Washington state. When parental rights were terminated, two-year-old G.K. had been living with the same foster parents for all but the first weeks of his life and G.A had been living with them for over a year. The juvenile court ordered a permanent plan of adoption, with the foster parents identified as prospective adoptive parents. Several months later, appellant filed the motions at issue here, again seeking to have the children placed with her in Washington state. The juvenile court denied the motions without a hearing, and we affirm.

BACKGROUND^[1]

G.K and his half-sister G.A. were detained on July 19, 2019, when G.A. had recently turned one year old and G.K. was one month old, due to safety concerns arising from the parents' inability to adequately address G.K.'s nutritional needs: G.K. had been hospitalized twice due to weight loss, malnourishment and dehydration resulting from not being fed consistently and a soft cleft palate. G.A was placed in the home of the maternal grandmother, where she was already living at the time of detention, and G.K. was placed in a foster home. A week later, on July 31, G.K. moved to the foster home in which he has remained. The siblings have had regular visits since August 1, 2019, facilitated by G.K.'s foster mother and the maternal grandmother.

The jurisdictional report filed on October 8, 2019, stated that the social worker had "exercised due diligence to identify, locate and notify the children's relatives as required under Welfare and Institution Code 309 and 628," and listed seven relatives to whom notification letters and relative information forms had been sent.^[2] The maternal grandmother was willing to care for G.A. and wanted a relationship with G.K., but was unable to care for two young children because of her age. Appellant, G.K.'s paternal grandmother, had told the social worker she wanted to adopt G.K. She also told the social worker that a paternal cousin and her husband (the cousins) were interested in adopting both children, and the cousin confirmed this in a telephone conversation with the social worker on August 8. Appellant and the cousins live in Washington state.

The social worker referred both appellant and the cousins for assessment through the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). At the end of September, the cousins and appellant expressed concern that appellant had received ICPC paperwork from Washington social services but the cousins had not, and appellant told the social worker, "I don't want to be considered if [the cousin] won't be considered." Appellant withdrew her ICPC application in October 2019.

At a combined jurisdiction and disposition hearing on January 17, 2020, the parents submitted to jurisdiction and the court ordered reunification services. Shortly thereafter, in furtherance of its concurrent planning obligations, the Agency sought to move G.A. to G.K.'s placement because the maternal grandmother was not able to care for G.K. and the foster parents wanted to adopt both children if reunification did not succeed.

Mother objected to this plan and filed a motion to prevent the change in placement; the Agency opposed the motion, explaining its position that the concurrent plan should be "in-county with [G.K.'s] caregivers" and "not relatives in Washington State" because the children's proximity would benefit the parents' reunification process and G.A. would be placed with G.K. Meanwhile, in February 2020, G.K.'s foster parents were granted de facto parent status.

At a hearing in July 2020, mother withdrew her motion to keep G.A. with the maternal grandmother. Appellant accused the Agency of ignoring the Washington relatives and the court instructed the Agency to consider them.

On August 28, 2020, after providing advance notice, the Agency moved G.A. to G.K.'s placement.

On September 1, 2020, the cousins filed a declaration stating their continued interest in adopting the siblings. They stated that they had an approved ICPC as of February 18, 2020, and were in the final approval process to become licensed foster parents in Washington, and they expressed frustration that G.A. was being moved to G.K.'s foster home when biological family were ready to receive the children.

On September 10, 2020, father filed a Welfare and Institutions Code section 388^[3] motion to have G.K. placed with his relatives in Washington. Mother requested a hearing, claiming the Agency had not complied with the relative preference mandated by section 361.3, and moved to join father's motion and to add G.A. to the proposed placement in Washington. Mother's counsel represented to the court that the cousins are father's first cousins and that the paternal relatives had had contact with G.A. for a couple of months when she was very young, but not with G.K. because he had been detained so soon after birth. Mother subsequently moved for in-person visits between the cousins and the children, to be combined with visits the court had already ordered for appellant, and the cousins filed a motion to change the children's placement to their home. Appellant had been visiting with the children each time she was in the area for court hearings in the case.

The Agency's September 14, 2020 12-month report and response to father's section 388 motion offered several reasons the children had not been placed with the cousins in Washington. First, the parents were participating in reunification services and would not have been able to visit the children if the children were in Washington. Second, G.K. required cleft palate surgery and a team of medical and other providers had been assembled in San Mateo to "prepare, test, and proceed with the surgery and aftercare; it would not have been in G.K.'s interest to move before the surgery, which took place in August 2020, and he would continue to require specialized medical care for the next year. Third, the report stated that it was in the children's best interest to be placed together and "[i]t was only until very recently that the [cousins] expressed interest in both children." The report also noted that G.K. had been in the foster parents' home for over a year and was bonded to them, so that a change in placement would be detrimental. G.A. had lived with the maternal grandmother for more than two years before moving to the foster home; the maternal grandmother and current caregivers had a very positive relationship; and moving G.A. a long distance from the maternal grandmother would not be in G.A.'s best interest.

In late October 2020, the Agency learned that the cousin in Washington was not father's first cousin, as had originally been indicated, but at most a second cousin, making her a third cousin to G.K. and not within the statutory definition of relative entitled to preference under section 361.3. In its November 2020 brief opposing the pending section 388 motions and allegation that it had not complied with section 361.3, the Agency maintained that it had been making efforts to assess and consider the relatives since the beginning of the case, as described in its various reports, and that in referring the cousins for ICPC assessment, it complied with section 361.3's relative preference even though the cousins were not in fact entitled to the preference. The Agency further argued that moving the children to Washington would not be in the children's best interests in light of their bonds with the foster parents and maternal relatives, and the fact that both had emotional, physical and psychological needs that were being treated by local providers.^[4] The Agency also argued that moving the children would arbitrarily undermine the parents' reunification efforts.

The cousins subsequently withdrew their section 388 motion seeking placement of the children in their home. The other section 388 motions seeking placement in Washington were also withdrawn.

Appellant then indicated she wanted to initiate the ICPC process and in March 2021 the Agency confirmed that the request had been submitted to Washington state on appellant's behalf. As of May 2021, arrangements for a home assessment in Washington were in progress.^[5]

At a hearing on May 27, 2021, the court terminated the parents' reunification services and found a change in placement would be detrimental to the children. On July 22, G.K.'s de facto parents were appointed de facto parents for G.A. as well. The parents did not attend the section 366.26 hearing on September 8, 2021, at which their parental rights were terminated and the de facto parents were designated as prospective adoptive parents. Mother did not appeal the termination of parental rights. Father appealed, his attorney filed a no issues statement, and the appeal was dismissed.

On February 17, 2022, appellant filed requests to be appointed de facto parent of both children, arguing that she had established a psychological bond...