Prior to January 1, 2018, certain relatives (grandparents, aunts and uncles) had placement preference over others.  Currently, there is no longer preferential preference given to any of these relatives.  Welfare and Institutions Code section 361.3(a) states "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative, regardless of the relative's immigration status."  Subsection (b) now provides that if one more than one relative requests placement, each of those relatives shall be considered under the factors listed in subdivision (a).    Welfare and Institutions Code § 361.3(a)-(b)

If a relative seeks placement under section 361.3 prior to the disposition hearing, the social services agency must consider and investigate the request. (In re R.T. (2015) 232 Cal.App.4th 1284, 1297.) A relative of the child shall be given preferential consideration. “Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.”
Welfare and Institutions Code § 361.3(c1)

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.) The Court realizes “the importance of according relatives a ‘fair chance’ to obtain custody. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023.) At the same time, however, the fundamental duty of the juvenile court is to ‘assure the best interest of the child’ …. [emphasis added].” (In re Stephanie M. (1994) 7 Cal.4th 295.)

The relative placement preference does not “operate as an evidentiary presumption in favor of placement with [relatives] that would overcome the juvenile court’s duty to determine the best interests of the child… The relative placement preference is not a relative placement guarantee [emphasis added].”(In re Joseph T. (2008) 163 Cal.App.4th 787.)

Welfare and Institutions Code section 361.3, subdivision (a) sets forth a number of factors the agency and the court must consider in deciding to place the child with a relative.  "In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors:

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 the 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 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 the child.
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)  (i)  Provide legal permanence for the child if reunification fails.

(ii)  However, any finding made as to (G) or (H) shall not be the sole basis for precluding preferential placement with a relative.

(I)  Arrange for appropriate and safe child care, as necessary

8.  The safety of the relative’s home which must first be approved per Welfare & Institutions Code § 309 (d).(i.e. an assessment which includes the ability of the relative to meet the child’s needs, a home inspection, and a criminal record check, and the relative home shall meet the same standards and regulations set forth for the licensing a of foster family homes.)"
Welfare and Institutions Code § 361.3

While the social services agency is responsible for making the initial assessment of whether a child should be placed with a relative, both the county social worker and the court must consider whether the proposed relative placement is appropriate. If there is an issue concerning a proposed relative placement the juvenile court must use its independent judgment in making its decision.  It may not just rely on the agency’s recommendation. (Cesar V. v Superior Court (2001) 91 Cal.App.4th 1023, 1033.)

It is no coincidence that the child’s best interests are listed as the first factor to be considered in assessing a proposed relative placement. The fundamental duty of the juvenile court throughout dependency proceedings is to determine what is in the best interests of the child.  Welfare and Institutions Code § 361.3

Whenever the court contemplates a placement or a change in placement, the court must consider whether that placement would be in the child’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 321; see also Alicia B.  Superior Court (2004) 116 Cal.App.4th 856, 862-863 [“The linchpin of a section 361.3 analysis is whether a placement with a relative is in the best interests of the minor.”];  In re Jessica G. (1997) 58 Cal.App.4th 1, 8 [best interest is “implied throughout dependency law”]; In re Tabatha G, (1996) 45 Cal.App.4th 1150, 1165 [best interest is “inherent in the legislative procedure”];  In re Robert L. (1993) 21 Cal.App.4th 1057, 1068 [“The child’s best interest must be the linchpin of the court’s analysis under § 361.3”].)

The juvenile court is not required to place with relatives unless it finds that it is in the best interest of the child to do so. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 862-863.)  Preferential consideration of a relative “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.) Section 361.3 does not “supply an evidentiary presumption that placement with a relative is in the child’s best interests,” but it does require the social services agency and juvenile court to determine whether such a placement is appropriate, taking into account multiple factors including the best interests of the child, the parents’ wishes and the fitness of the relative. (In re R.T. (2015) 232 Cal.App.4th 1284.) Even when the preference applies, it does not “overcome the juvenile court’s duty to determine the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Welfare and Institutions Code Section 361.3 further specifies that subsequent to the disposition hearing, whenever a new placement must be made, consideration shall again be given to relatives who have not been found to be unsuitable, and who will fulfill the child’s reunification or permanent plan requirements.  In addition to the factors described in subdivision (a), the social worker shall consider “whether the relative has established and maintained a relationship with the child.”

Welfare and Institutions Code § 361.3(d) (emphasis added)

There is a divergence in the case law as follows:

Majority View:  After Disposition The Child’s Placement Should Not be Changed Unless Necessary Because of the Risk of Emotional Damage When A Child’s Primary Attachment is Disrupted.

The majority of cases have held that the relative placement preference applies up to and at the child’s initial disposition hearing, but “does not arise again until a new placement of the child must be made.” (In re N.V. (2010) 189 Cal.App4th 25, 31; In re Lauren R. (2007) 148 Cal.App.4th 841, 854).  In situations where a relative does not come forward until after disposition, i.e., after a child has been placed with a foster parent or other caregiver, several California courts have held that the maintenance of existing attachment to a primary caregiver is an important consideration in determining the best interests of the child.  These cases rely on the psychological concept of attachment and the neuroscience of early child development, both of which stress the important role of consistent relationships in young children’s brain development.

In In re Lauren Z, the court focused on the bond between Lauren, the foster child, and her foster parents holding that “Lauren, now about three years old, bonded with her foster parents.  Fanny [the maternal aunt], notwithstanding her apparent financial security and the dependency court’s urging, did not visit and remained a stranger.  Under these circumstances, Lauren’s best interests have to prevail over all other considerations, and those interests are plainly served only by adoption by her foster parents.” In Lauren R. the court held that “the overriding concern dependency proceedings, however, is not the interest of the extended family members but the interest of the child” and recognized that “the passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of her best interests.” In re Lauren Z. (2008) 158 Cal.App.4th 1102.

In In re Sarah S the court stated that “[i]t would be grossly unfair and unjust to Sarah to have her bear the detrimental consequences of replacement…[Sarah] is innocent of all that has happened and deserves only what is in her best interests irrespective of the conduct of others.” (In re Sarah S. (1996) 43 Cal.App.4th  274, 287).

In In re Rose G the court stressed that “[a]n important element that a trial court must consider, when making a decision about children, is the impact of the passage of time.  Childhood is short; many basic attitudes and capacities are developed in the very early years.  Ties are formed to the adults present in the child’s life, and can only be broken by inviting emotional disaster.” (In re Rose G. (1976) 57 Cal.App.3d 406, 425).

Child welfare experts now emphasize the need for judges and attorneys to consider the child’s attachment to the current caregiver when determining a child’s best interests.  The newest research on infant mental health tells us that babies require permanence in their relationships and consistency in their daily routines.  Consistent early relationships and experiences are the foundation upon which all subsequent emotional development rests…[¶] Consistency in relationships for infants is achieved through attachment – the formation of an enduring emotional bond with a primary or small number of stable, responsive, and sensitive caregivers.  Infants in foster care are at particular risk for attachment disruption.  Decisions to remove infants from their home or move them once in a placement must reflect these needs.”

Dicker and Gordon, Ensuring the Healthy Development of Infants in Foster Care:  A Guide for Judges, Advocates, and Child Welfare, New York State Permanent Judicial Commission on Justice for Children, January 2004, pp. 17, 20.

“Secure and stable attachments with a primary caregiver form the foundation for a child’s social, emotional, and cognitive development.  Children who develop secure attachments show a greater capacity for self-regulation, effective social interactions, self-reliance, and adaptive coping skills later in life…”  Smariga, Visitation with Infants and Toddlers in Foster Care: What Judges and Attorneys Need to Know (July 2007), ABA Center on Children and the Law Practice and Policy Brief, pp. 4, 5, 8, 11, 12.

“Healthy development depends on the quality and reliability of a young child’s relationship with the important people in his or her life, both within and outside the family.  Even the development of a child’s brain architecture depends on the establishment of these relationships.”  National Scientific Council on the Developing Child, Young Children Develop in an Environment of Relationships:  Working Paper No. 1. Center for the Developing Child, Harvard University, 2004, p.1. 

In any custody determination, a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity.  “When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role.  That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 296, 317.)

Minority View: The Court May Order Placement With A Relative During the Reunification Period So Long As It Is In The Childs Best Interests to Do So

A few cases have held that the court may order placement with a relative post-disposition and during the reunification period if it is in the child’s best interests to do so, regardless of whether a new placement for the child is needed.

In Joseph T. the court was divided on whether the relative placement preference only applies after disposition if a placement change is necessary.  The majority held that the relative placement preference applies throughout the reunification period, regardless of whether a new placement is necessary or is otherwise being considered by the dependency court.  (In re Joseph T163 Cal.App.4th 787, 797-798.)  However the majority still recognized that placement with a relative seeking placement is not automatic, is not guaranteed, and must still be in the best interests of the child.  (Id. at 798.) The dissenting opinion concluded that section 361.3 (d) specifically applies to placement changes after disposition and to interpret the statute as applying throughout the entire reunification period would render subdivision (d) meaningless and superfluous, (Id. at 799.) This dissenting justice as also “concerned that a contrary interpretation of the statute will result in increased burdens on the child welfare agencies, who will be forced to expend resources on assessments throughout the reunification period, even when the child remains for a substantial period of time in a stable foster care placement.”

The Joseph T. majority relied upon three older cases to support its conclusion that the relative placement preference applies through the family reunification period.  Advokids believes that these cases do not support the interpretation of the statute that allows relative placement even when a new placement is not being considered after Disposition and prior to termination of parental rights.

In In re Sara S. the court held that “under section 361.3 a ‘relative’ is given priority over others regarding the order in which applications for placement are processed…[S]ection 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. Sarah S. does not conclude that a relative’s application for placement after a child has already been placed in a suitable home warrants preferential consideration or is a reason for a placement change.  (In re Sarah S. (1996) 43 Cal.App.4th 274, 285-286 (italics added)).

In Jessica Z., the court’s holding was much more circumscribed than the Joseph T. majority’s conclusion: “when, as here, however, a relative requests custody while reunification efforts are still ongoing, and before any substantial damage would be done to the child by a change in placement, we conclude section 361.3 mandates that the propriety of such a placement at least be assessed.”  In fact, like the Joseph T. majority the Jessica Z. court affirmed the juvenile court’s order denying a placement change, concluding that, because Jessica had been with her foster family for over a year and the option to reunify with parents was becoming increasingly unlikely, it would not be in Jessica’s best interests to move her to the home of a relative who did not come forward until six months after disposition. In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1100.

In Baby Girl D, the issue on appeal was whether relatives who came forward after parental reunification efforts had failed and the court had selected adoption as the permanent plan were entitled to a placement preference for adoption.  Baby Girl D. didnot hold that the relative preference applies throughout the reunification period regardless of whether a new placement is necessary.  In re Baby Girl D. (1989) 108 Cal.App.3d 1489, 1492-93.

Joseph T. majority’s conclusion to the contrary, neither the statute nor the weight of local authority requires that relatives be given preference after disposition unless a placement change is necessary.

The initial focus after a child has been removed from parental custody “is on the parent’s relationship with the child and, when possible, reunification.”  (In re Sarah S. (1996) 43 Cal.App. 4th 274, 284.)  Relatives are given placement preference at disposition because “a relative, who presumably has a broader interest in family unity, is more likely than a stranger to support the parent-child relationship.  (Cesar V v Superior Court (2001) 92 Cal.App.4th 1023, 1032.)

Once the juvenile court has determined that reunification is not possible and reunification efforts are terminated, the very reason for giving relative’s preference – to maintain family ties – terminates as well.  (Sarah S., supra, 43 Cal.App.4th at p.285; Lauren R., supra, 148 Cal. App. 4th at pp 854-55.) “Application of the relative placement preference ‘requires…factors that are wholly or largely irrelevant once parental rights are terminated.  By its own terms, therefore section 361.3 applies when ‘a child is removed from the physical custody of his or her parents,’ and thus must be ‘placed’ in a temporary home, not when reunification efforts have failed and a permanent plan for adoption has been approved (or when a child has otherwise been freed for adoption.”  (Sarah S., supra, 43 Cal.App.4th at 284.)

The relative placement preference does not apply to permanent placements or placements for adoption.  (Lauren R., supra. 148 Cal.App.4th at 174.) The one exception is when a placement change becomes necessary after reunification services are terminated.  (Cesar V., supra., 91 Cal.App.4th at 1032.)  Once the case is in the permanency planning stage, the child’s best interests become paramount.

While the overarching goal of dependency law is to safeguard the welfare of dependent children and to promote their best interests, the law’s first priority when dependency proceedings are commenced is to preserve family relationships.  To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. In contrast, after reunification services are terminated or bypassed “the parents’ interest in the care, custody and companionship of the child is no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’”  (In re K.C. (2011) 52 Cal.4th 231,236, citing Stephanie M., supra, 7 Cal.4th at 317.)

One of the earliest cases on relative placement is Baby Girl D., which the court held that there is no relative preference at the permanency planning stage.  (In re Baby Girl D. (1989) 108 Cal.App.3d 1489, 1493).  The mother in that case appealed from a post permanent plan order continuing placement in a foster-adoptive home, arguing that the child should have been place with a great aunt who first came forward at the hearing at which services were terminated and the agency directed to file a petition to terminate parental rights. (Id. at 1492.)  The court held that “[o]nce the juvenile court determines at a permanency planning hearing that reunification is no longer possible and that a child should be freed for adoption, there is no longer any reason to give relatives preferential consideration in placement.  The overriding concern at this point is to provide a stable, permanent home in which a child can develop a lasting emotional attachment to his or her caregivers…It would be contrary to Legislative policy to uproot the child and force her to adjust to a new home.” (Id. at 1494-95.)

In Stephanie M., the court explained that after termination of reunification services, “the focus shifts to the needs of the child for permanency and stability, and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.” (In re Stephanie M., supra, 7 Cal.4th at 317.)

The Isabella G. court said “[p]rior case law does not preclude the application of the relative placement preference after the reunification period, even when no new placement is necessary.”  This is the language upon which relatives who do not come forward in a timely manner rely for the argument that they are entitled to be assessed even after reunification services are terminated.  However that sentence of Isabella G. was the court’s response to the agency’s argument that the law prohibited the court juvenile court from considering the relative’s placement request at that point in the case in spite of the fact that the relative had first requested placement prior to detention.  In Isabella G, because the agency lied to the relative about placement requirements throughout the case and had never actually assessed the relative for placement until the relative filed a section 388 petition after services had been terminated, the court of appeal held that the fact that reunification services had been terminated did not bar the juvenile court from considering the placement request. (In re Isabella G. (2016) Cal.App.4th 708, 722-723.) The appellate court noted that In re R.T. had many similarities to this case and quoted R.T.’s holding that the relative placement preference should apply later in a dependency case “where the relative invoked the preference before the dispositional hearing [and] the agency and court filed to apply it at disposition…(R.T. supra, 232 Cal.Ap.4th at 1300),  (Issabella G. supra, 246 Cal.App.4th at 721; emphasis in the original.). The Isabella G court specifically noted, as one of its reasons for rejecting the agency’s arguments, that “had the Agency fulfilled its statutory responsibility when Grandparents first requested placement, their home likely would have been approved prior to the dispositional hearing.” (Ibid; emphasis in the original.) Despite arguments to the contrary, Isabella G. does not support the proposition that a relative who did not come forward before disposition but who requests to be considered for placement after reunification services have been terminated must be considered for placement under the provisions of section 361.3.

The current caregiver has specific rights at this stage of the case. “[T]he statutory preference for placement of a dependent child with a relative does not apply to a placement made as part of a permanent plan for adoption.”  (In re Sarah S. (1996) 43 Cal.App.4th 274, 276-277.)   “Once reunification efforts have failed, and the juvenile court has before it a proposed permanent plan of adoption it is the caretaker who has preference .”  (In re M.M. (2015) 235 Cal.App.4th 54, 63-64.)   The caregiver preference applies anytime the intent is to place the child for adoption.  (In re Lauren R. (2007) 148 Cal.App.4th 841.)

In determining adoptive placement, the agency must give current caregiver's preference with respect to their application for adoption.  Section 366.26 (k) states that “Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement…”  Under the terms of the statute, the preference applies if the child has “substantial emotional ties” to the current caretaker and removal from the current caretaker would be “seriously detrimental to the child’s emotional well-being.”  The current caregiver’s application must be given “serious and thorough preferential consideration” before the agency may consider an adoptive request from a relative or NREFM who is not the current caretaker.

If the agency believes that it would not be detrimental to the child to remove the child from the current caregiver’s home, the current caretaker is entitled to judicial review of that determination at any hearing on adoptive placement.  At that hearing, the juvenile court must evaluate the current caretaker for adoptive placement “on a level playing field” with a relative.  (In re Lauren R. (2007) 148 Cal.App.4th 841, 859-860.)

Prospective Adoptive Parent Status

The legislature enacted section 366.26 (n) to limit removals of children from current caregivers who have demonstrated an interest in adopting the child and have cared for the child for at least six months.  If the caregiver qualifies for the prospective adoptive parent status the agency may not remove the child from the home of a current caregiver without the notice and opportunity to object to the removal required by subdivision (n).  The intent was and is to protect the stability and best interests of vulnerable children who are already in prospective adoptive homes when parental rights are terminated.

In re M.M., supra, 235 Cal.App.4th 54, 62, which further holds that the agency may not remove a child from the home of a current caregiver who meets the threshold criteria of a prospective adoptive parent even though the section 366.26 yet been held. (Id. at 63-64.)

For more information, see our Prospective Adoptive Parent status webpage.