In re Raymond E. CA1/2

Filed 2/13/15 In re Raymond E. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

In re Raymond E., a Person Coming Under
the Juvenile Court Law.
HUMBOLDT COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v. A141195
Leanne E., (Humboldt County
Defendant and Appellant. Super. Ct. No. JV120040)

I. INTRODUCTION
On January 9, 2014, we denied a petition filed by Leanne E. (Mother) seeking
extraordinary writ review of a juvenile court order terminating Mother’s reunification
services with her son, Raymond E. (Raymond), and setting the matter for a Welfare and
Institutions Code section 366.26 hearing.1 (L.E. v. Superior Court (Jan. 9, 2014,
A139753) [nonpub. opn.].) Mother now appeals from the juvenile court’s order
terminating her parental rights. She asserts that the court erred when it found that she had
not met her burden of establishing the beneficial relationship exception (§ 366.26, subd.
(c)(1)(B)(i)), which overcomes the statutory presumption in favor of adoption. Mother
also argues that the court improperly denied Raymond’s grandparents’ section 388

1
All further statutory references are to the Welfare and Institutions Code unless
otherwise noted.

1
petition and failed to consider the relative placement preference (§ 361.3) before
terminating Mother’s parental rights. We disagree and, accordingly, affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Raymond was detained on March 9, 2012, when he was almost five years old after
Mother and Father2 were unable to care for him because of their substance abuse and
mental health issues.3 Before Raymond was detained, there had been 10 social service
referrals regarding Raymond between April 23, 2007, and March 9, 2012. Six of these
referrals were assigned for investigation, beginning with a report of general neglect after
Raymond tested positive for marijuana at birth. In another reported incident, on
November 7, 2011, a mandated reporter contacted the Department “to report the general
neglect of [Raymond] by his parents. Raymond’s maternal uncle reportedly disciplined
him inappropriately which resulted in the mother and the uncle getting into a physical
altercation. The parents were described as low functioning due to extreme mental health
issues. The minor was seen and was dirty, smelled of feces, and had food crusted to his
face. The father appeared agitated and spoke unintelligibly at times. The father smelled
of marijuana. The family had limited resources. The referral was assigned for
investigation and remains open.” The Department social worker who was involved in
placing Raymond in foster care reported that family members had heard “Raymond talk
about killing himself. They feel this may be because of overhearing his parents making
similar statements.”
At the time he was detained, Raymond was living with his parents in a tent on the
maternal grandparents’ property in Arcata.
Raymond was placed in a local foster home and the court ordered supervised
visitation for the parents twice a week for two hours.

2
Father is not a party to this proceeding.
3
The pertinent facts leading up to the juvenile court’s order terminating Mother’s
reunification services are set forth in our earlier opinion denying Mother’s writ petition.
Some, but not all, of these facts are summarized below.

2
 At the six-month review hearing, Mother argued that she had not been provided
with reasonable family reunification services because she had not been provided with a
psychological evaluation. The court agreed based on the fact that a psychiatric evaluation
had yet to be performed.
During this period of time, the Department had referred Mother to several
programs and Mother was scheduled to start an “Early Recovery Group” in August. At
the same time, Mother drug tested positive for marijuana. She then did not attend any
groups for two months except on one occasion when she brought Father with her and said
she could not leave him alone. After that, there was no further contact on Mother’s part
with these services.
In addition to struggling with mental health and substance abuse issues, Mother
did not have a stable living environment. She and Father were living for a time with
Father’s sister, but then were forced to move back to Eureka where they camped at sites
and with friends. They also stayed intermittently at Mother’s parents’ house. According
to the Department “[t]he maternal grandparents’ residence is not appropriate for
Raymond to be returned home to. There is often conflict and discord between the parents
and grandparents and the parents are often ‘kicked out’ of the residence. Furthermore the
parents reside in a tent on the backside of the house.”
With regard to their parenting, despite a referral to a parenting class at the Manila
Community Center, the parents did not attend this class. Referred to a second parenting
class, the parents attended and participated, although they missed class or left early on
several occasions. In addition, the parents had missed about half their visits. During
those visits, “the parents struggle[d] to maintain their behavior” and Mother was the
parent who most significantly interacted with Raymond. Mother also had inappropriate
conversations with Raymond, which caused him to “wet his pants, become aggressive,
cry, and withdraw[].” In addition, Mother had been arrested twice outside the location of
the supervised visits. According to the Department, “The first time, on or about
7/12/2012, she was hitting her head against a pole and screaming. She was arrested for
[being] drunk in public and was taken to Sempervirens. The second incident occurred on

3
8/6/2012. She was arrested for domestic abuse against [Father]. Law enforcement
believed both parents to be under the influence of a control[led] substance, most likely
methamphetamines.”
On December 11, 2012, Mother’s parents sought to be appointed Raymond’s de
facto parents pursuant to California Rules of Court, rule 5.502(10). In their petition they
stated that they “spent about 8-10 hours daily with” Raymond. Mother and Father
supported this request; the Department opposed it. At the hearing on this request, county
counsel pointed out that Raymond was detained while living with Mother at the home of
the grandparents, “which indicates that they did not take steps to protect the child when
the child was originally detained.” By order filed April 4, 2013, the court denied the
request, finding that “while [grandparents] were active and caring grandparents for the
minor, the nature of the relationship did not give rise to de facto parent status.” There
was no appeal from this order.
On January 7 and 21, 2013, Mother was evaluated by Dr. Andrew Renouf.
Renouf diagnosed Mother as follows: “[Mother] exhibits a chronic and low-level
depression that periodically will worsen to a major depression. Her level of depression at
the time of assessment was mild but present. The diagnosis of PTSD indicates that she
suffered a trauma that she continues to experience through intrusive memories,
flashbacks, and nightmares. She attempts to avoid reminders of the trauma because of
the distress associated, and is unusually vigilant for potential threats in her environment.
The diagnosis of Cannabis Dependence indicates a pervasive pattern of excessive
cannabis use with a psychological dependence on the substance.” In sum, Mother
“exhibits serious symptoms of anxiety, trauma, and depression, and is seriously impaired
in her ability to function socially, as a parent, and vocationally.”
Mother and Father subsequently separated and by June 4, 2013, Mother was again
living with her parents. Mother began to see a drug counselor and was planning to begin
a dual recovery program as well as see a psychiatrist to monitor her medications.
At the 12-month permanency planning hearing stage, the Department
recommended that reunification services be terminated. The Department recognized that

4
“[t]he family has made many changes over the past three months. However, Raymond
was removed in March 2012 and the family has not been able to engage in their case plan
until the parents separated in April 2013. At the writing of this report, the parents do not
have housing, their mental health and substance abuse is not stable although they are
beginning to engage in services, and visits are only now becoming more focused and
consistent. Given the parents’ long reported history of AOD abuse and Mental Health
issues a 3-4 month period of relative stability is not enough time to find substantial
probability of return by the next review. This is especially true in light of the fact that
Raymond was removed one and a half years ago.”
At the section 366.26 contested hearing, Mother testified that she lived on her
parents’ property with her boyfriend, Wayne, in a tent. She believed she would
eventually be able to move into the house and Raymond would live in the same room
with her. She was looking for a job. Mother stated that she believed Raymond was more
important than Wayne. There was no domestic violence in the relationship and it was
positive. Wayne was unemployed and did not support her financially. She understood
that he had been convicted of several crimes, including domestic violence. She believed
her visits with Raymond went well.
At the conclusion of the hearing, the juvenile court made a number of findings. Of
relevance to this matter, the court found that “while the parents have done quite a bit to
individually stabilize themselves, that’s really the jumping off or starting point to see
whether or not there’s—what improvements could potentially be made. And the analysis
is is there a substantial probability that the child would be returned. And just arguably
using the December date, the Court finds there is not a substantial probability. Frankly,
there isn’t any real probability that in three-month’s time all the problems that led to the
Court’s becoming involved would be to the point that the child could be returned in the
matter. And I think that’s too bad. [¶] I am happy that the parents are improving their
individual lives and have stabilized, but it doesn’t relate directly necessarily to the care of
the child that, like I said before, the jumping off point.”

5
 The court then terminated reunification services and set a section 366.26 hearing.
This order, as we have noted, was upheld in our earlier opinion regarding Mother’s
petition for extraordinary writ review.
On October 18, 2013, the court granted Raymond’s foster parents de facto parent
status and also designated them prospective adoptive parents. On that same date,
Raymond’s social worker sought a change in the court’s previously ordered supervised
visitation schedule for the parents from twice a week for two hours to once a week for
two hours. This request was based on the fact that “[t]he high frequency of visits are
confusing to Raymond. He has been told he will not live with his parents again, but he
continues to have frequent visits.” In addition, “[Raymond’s] behavior at school had
deteriorated and the staff at the school has expressed concerns for his well-being.” On
November 6, 2013, the court found that the previous visitation schedule was not in
Raymond’s best interests and decreased Mother’s visits to a minimum of one weekly visit
of no less than two hours. The court ordered that the grandparents also have contact with
Raymond.
On October 28, 2013, the grandparents filed a section 388 petition asking the court
to “[s]et a hearing to determine whether the Department [was] investigating placement or
visitation with the grandparents . . . [and] order visitation to the grandparents.” The
grandparents alleged that “[t]he minor has a bond with the maternal relatives. They have
been having visitation with the minor consistently, with relatively short notice, when the
parents cannot attend the visit. There have not been any problems with these visits and it
is an important part of the minor’s life. The Department has not adequately explored
further visitation with the grandparents, whether supervised or not.” The court denied
this petition on December 30, 2013.
In advance of the section 366.26 hearing, the Department informed the court that
Raymond was on track developmentally, and “very much at home” with his foster
parents, who “are dedicated to providing a permanent home for Raymond.” The
caregivers were “aware of [Raymond’s] physical, emotional, education and
developmental needs. The caregivers have demonstrated their willingness and ability to

6
meet his needs . . . [and] are committed to providing permanency in the form of adoption
for Raymond.” Although Raymond “clearly loves his parents and grandparents and
enjoys spending time with them, the instability has been unsettling for him.” The
Department recommended that Mother and Father’s parental rights be terminated and that
adoption by his current foster parents be ordered as Raymond’s permanent plan.
The Court-Appointed Special Advocate (CASA) agreed with the Department’s
recommendation regarding the termination of parental rights and also recommended that
the current foster parents be granted the status of prospective adoptive parents. The
CASA identified Raymond’s “current foster parents as very important adults in his life.”
Raymond referred to them as “Mom” and “Dad” and kissed and hugged them when he
left them and returned to them. He called his foster siblings his “brother and sister.”
Academically, Raymond was doing well in school although he had recently had a number
of outbursts in class and he had also hit other children during recess. In addition, the
CASA learned that Raymond had been having “an increased number of negative
behaviors on visitation days.”
Raymond also continued to visit regularly with his birth parents and his maternal
grandparents. The service logs of Mother’s supervised visits with Raymond chronicled
loving visits in which he generally had fun, and played well with Mother, who generally
behaved appropriately with him. He looked forward to seeing her and on one occasion
asked why he couldn’t see her more and told her she was “the best mother ever.”
The Department acknowledged that Mother wanted her parents to adopt Raymond
and that her parents were interested in adopting him. The Department, however, was
concerned that “the grandparents will not be able to adequately protect him from his
parent’s behavior since they have previously demonstrated that they are unable to have
firm boundaries with the parents. . . .” Noting that there was no approved adoption
homestudy for the grandparents, the Department also reported that “adoption with the
grandparents would likely not be approved since the mother stated on December 16, 2013
that she is still living with her parents. . . .” In contrast, Raymond’s foster parents

7
“provid[ed] healthy boundaries between the parents as well as providing structure in the
home.”
On February 26, 2014, the court held a section 366.26 hearing. When asked about
the recent escalation in Raymond’s aggressive behavior, the social worker observed that
Raymond had “increased contact [with Mother] in the month of December. Mother had
been discussing being pregnant again. She was encouraging [Raymond] to put his hand
on her stomach. And basically, all I know further is that—that around that time is when
his behavior started to deteriorate.” A social worker who was familiar with Raymond
testified at the hearing that his foster mother had informed him that Raymond’s
“behaviors have deescalated substantially since visitation was suspended.” He had also
learned from the principal of his school that Raymond “has been completely stable since
visitation was suspended . . . .”
At the conclusion of the hearing, the court found that Mother had not shown the
extraordinary circumstances necessary to invoke the beneficial relationship standard in
which “[t]he parent must show the parent-child bond is a substantial, positive, emotional
attachment such that the child will be greatly harmed if the parental rights will be
terminated.” The court also emphasized the quality of Raymond’s relationship with his
foster family, in which he interacted with them as a “family unit.” The court pointed out
that Raymond “appears very content when playing with his foster siblings” and referred
to them as mom, dad, brother and sister.
The court expressed its understanding that this was an “[a]wful decision, because
he does love you, and he does love his grandparents, and I have no doubt about that.”
The court also observed, however, that ultimately “[t]he essence to [Raymond] is where
do I find peace and permanency.” Accordingly, the court terminated Mother and Father’s
parental rights.
A notice of appeal of this order was filed on February 27, 2014.4

4
Father did not appeal.

8
 III. DISCUSSION
A. Beneficial Relationship Exception
Mother argues that she met her burden of showing a continuing beneficial
relationship with Raymond under section 366.26, subdivision (c)(1)(B)(i)) and the court
therefore erred in terminating parental rights. We disagree.
At the section 366.26 hearing, the court must select and implement a permanent
plan for the dependent child. “Adoption, where possible, is the permanent plan preferred
by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)
Section 366.26, subdivision (c)(1), provides that “[i]f the court determines . . . it is likely
the child will be adopted, the court shall terminate parental rights and order the child
placed for adoption.” An exception is made if the court finds “a compelling reason for
determining that termination would be detrimental to the child [because] . . . [¶] (i) [t]he
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); In re Clifton B.
(2000) 81 Cal.App.4th 415, 424.) It is the parent’s burden to demonstrate the
applicability of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
“The ‘benefit’ prong of the exception requires the parent to prove his or her
relationship with the child ‘promotes the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new, adoptive
parents.’ [Citations.] No matter how loving and frequent the contact, and
notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must
show that they occupy “a parental role” in the child’s life.’ [Citations.] The relationship
that gives rise to this exception to the statutory preference for adoption ‘characteristically
aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day
contact is not necessarily required, although it is typical in a parent-child relationship.’
[Citation.] Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the court has
repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary
case that preservation of the parent’s rights will prevail over the Legislature’s preference
for adoptive placement.’ [Citation.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.)

9
 The beneficial relationship exception is “examined on a case-by-case basis,” (In re
G.B. (2014) 227 Cal.App.4th 1147, 1166) taking into account “ ‘[t]he age of the child, the
portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect
of interaction between parent and child, and the child’s particular needs . . . .’ ” (In re
Jerome D. (2000) 84 Cal.App.4th 1200, 1206.)
We will affirm the trial court’s order if substantial evidence supports its
conclusion that Raymond’s need for a permanent, stable home outweighed any benefit to
him from a continued legal relationship with Mother.5 “On review of the sufficiency of
the evidence, we presume in favor of the order, considering the evidence in the light most
favorable to the prevailing party, giving the prevailing party the benefit of every
reasonable inference and resolving all conflicts in support of the order. [Citations.]”
(Autumn H., supra, 27 Cal.App.4th at p. 576.)
Viewing the evidence in favor of the order, we conclude that substantial evidence
supports the court’s decision that Mother failed to meet her burden of showing the
beneficial relationship exception applies in this case. Raymond is currently seven years
old.6 The first five years of Raymond’s life, when he lived with Mother and Father, were
beset with difficulty. Before Raymond was finally detained, the Department received 10
referrals—beginning with Mother testing positive for marijuana at birth, several for
“general neglect,” and one involving the inappropriate discipline of Raymond by an
uncle. Mother and father both had significant mental health issues and Raymond was,
when contact was made with Department workers, dirty and smelled of feces. It is
evident from the record that the beginning of Raymond’s life in the care of Mother was in
many ways detrimental to him.

5
Although courts have applied different standards of review to this issue, in this
case, we would affirm under either the substantial evidence or abuse of discretion
standard of review. (See In re G.B., supra, 227 Cal.App.4th at p. 1166, fn. 7.)
6
Raymond was born in April 2007. He was detained in March 2012, placed in a
temporary foster home for a month, then lived with his paternal aunt for less than two
months and, since June 11, 2012, has lived with foster parents.

10
 The record also supports the juvenile court’s determination that Raymond’s
interactions with Mother often had negative effects on him. Early in the dependency
process, Mother had “inappropriate conversations” with him that caused him to wet his
pants, become aggressive and cry. Prior to the February 26, 2014, section 366.26
hearing, Raymond acted out at school by hitting other children and, in general, had an
increased number of negative behaviors on visitation days. This behavior coincided with
Mother’s conversations with Raymond in December 2013 about her desire to increase
their visits. At the February 26, 2014, section 366.26 hearing, a social worker who was
familiar with Raymond described the recent escalation in Raymond’s aggressive
behavior, and observed that this may have stemmed from December visits in which
Mother discussed her pregnancy with Raymond and encouraged him to put his hand on
her stomach. After visitation was suspended, Raymond’s “behaviors . . . deescalated
substantially.” Raymond’s school behavior was also “completely stable since visitation
was suspended . . . .”
At the time of the section 366.26 hearing, Raymond was securely bonded with his
foster family, with whom he had been living for nearly two years. He got on well with
them, and looked to his foster parents as his caregivers. Raymond referred to them as
“Mom” and “Dad.” Improvements in his behavior were attributed by social workers to
his relationship with his foster parents.
The juvenile court acknowledged the loving bond Mother shared with Raymond,
who called her “mom,” enjoyed their visits, and talked about her at school. During
supervised visits Mother was attentive to him, engaged him in activities on these visits
and appropriately disciplined him and comforted him. Raymond enjoyed seeing her and
asked Mother why he could not see her more and why their visits weren’t longer. On one
occasion, Raymond had a “meltdown” and told Mother he did not want to end the visit.
Evidence of loving and enjoyable supervised visits, however, are not enough to
establish that “mother’s relationship with her children promoted their well-being to such
an extent that it outweighed the well-being the children would gain in a permanent home
with adoptive parents.” (In re G.B., supra, 227 Cal.App.4th at p. 1166.) In light of the

11
evidence that Raymond’s contacts with Mother were problematic and often resulted in
escalating negative behavior, and his relationship with his foster family so clearly gave
him much-needed stability, substantial evidence supports the juvenile court’s finding that
Raymond’s need for stability outweighed any benefit to him from a continuing
relationship with Mother.
B. Grandparents’ Section 388 Petition
Mother also argues that the court erred in its December 30, 2013, order denying
grandparents’ section 388 petition seeking a “change of placement or . . . for the Court to
direct a home study be done of the maternal grandparents’ home.”
The first issue we must decide is whether we have jurisdiction to review this order.
Mother filed a notice of appeal on February 27, 2014, seeking review only of the court’s
“2/26/14; order terminating parental rights per W.I.C. 366.26.” She did not make any
reference to the court’s December 30, 2013, order denying grandparents’ section 388
petition, an order that was never appealed.
In general, “ ‘all postdispositional orders in juvenile dependency matters are
directly appealable without limitation, except for post-1994 orders setting a section
366.26 hearing.’ [Citation.]” (In re Daniel K. (1998) 61 Cal.App.4th 661, 668.)
“Appellate jurisdiction to review an appealable order is dependent upon a timely notice
of appeal.” (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) “An appeal from the
most recent order entered in a dependency matter may not challenge prior orders, for
which the statutory time for filing an appeal has passed.” (In re Elizabeth M. (1991) 232
Cal.App.3d 553, 563.) Mother, therefore, appears to have waived review of the court’s
December 30, 2013, order.
Mother argues, however that we may liberally construe the notice of appeal to
include the December 30, 2013, order. In In re Madison W. (2006) 141 Cal.App.4th
1447, 1450, the mother appealed from a section 366.26 order terminating her parental
rights. She failed, however, to appeal from the juvenile court’s order, made just three
days earlier, denying her section 388 petition seeking further reunification services. In
that situation, the court liberally construed the notice of appeal to include the denial of

12
Mother’s section 388 petition. The court observed that “[w]e frequently receive notices
of appeal challenging the termination of a parent’s rights and nothing more despite the
fact that on or before the same day as the termination order but within 60 days of when
the notice of appeal was filed (Cal. Rules of Court, rule 2), the court also denied the
parent’s eleventh-hour section 388 petition. When counsel brings the issue to our
attention during record preparation or before briefing occurs, we routinely deem the
notice of appeal amended to include the additional ruling.” Among other reasons the
court gave for this liberal construction of the parent’s notice of appeal was its recognition
that these “eleventh-hour” petitions would be otherwise appealable if the trial court had
denied them within the 60-day window for filing an appeal.
Here, the grandparents’ petition, which was filed on October 28, 2013, was not
filed in conjunction with the February 26, 2014, order terminating Mother’s parental
rights, nor did it involve a parent’s effort to seek further reunification services as in In re
Madison W. It is, however, the case that the court’s December 30, 2013, order would
have been appealable at the time the February 27, 2014, notice of appeal was filed. In
addition, as Mother points out, the notice of appeal does refer to the December 30, 2013,
order when it refers to the hearing dates related to the termination of parental rights. In
these circumstances, therefore, we will liberally construe the notice of appeal to include
the court’s December 30, 2013, order.
The Department also argues that Mother does not have standing to challenge the
court’s denial of the grandparents’ section 388 petition. Mother’s parental rights,
however, had not yet been terminated and, therefore, she had an interest in Raymond’s
placement, which gave her standing to appeal this order. (In re H.G. (2006) 146
Cal.App.4th 1, 9-10 [prior to termination of parental rights, parents have standing to
challenge court order regarding placement of child with grandparents].)
We turn now to the merits of Mother’s argument, which is essentially that the trial
court abused its discretion in not reconsidering its original decision that the grandparents
were an inappropriate placement for Raymond, a decision based largely on the fact that
the grandparents continued to allow the parents to live on their property and could not

13
prevent them from interacting with Raymond. “Under section 388, the petitioner must
show by a preponderance of the evidence either changed circumstances or new evidence
and that the proposed modification is in the best interests of the child. (§ 388; In re
Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The grant or denial of a section 388 petition
is committed to the sound discretion of the trial court and will not be disturbed on appeal
unless an abuse of discretion is clearly established. [Citation.] A trial court exceeds the
limits of legal discretion by making an arbitrary, capricious or patently absurd
determination. [Citation.]” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
In their section 388 petition, the grandparents asked the court to set a hearing to
determine whether the Department was investigating placement or visitation with the
grandparents. The grandparents alleged that “[t]he minor has a bond with the maternal
relatives.” They also pointed out that they “have been having visitation with the minor
consistently, with relatively short notice, when the parents cannot attend the visit. There
have not been any problems with these visits and it is an important part of the minor’s
life.”
On December 30, 2013, the court heard the grandparents’ section 388 petition,
which the Department and the CASA opposed. Grandmother testified that she
understood the Department believed there was a risk, based on her past behavior, that she
would not be able to protect Raymond from his Mother and Father. She admitted that
Mother, who was homeless, continued to live in a tent on grandparents’ property and
would come into grandparents’ house for meals and use the bathroom. Grandmother
explained that although she had earlier told the Department that she would not allow
Mother to live with her again, Mother continued to do so because “it’s kind of hard to not
have her on the property when she calls you up and she’s crying because she has no place
to stay, she doesn’t have any food. I mean, she’s my daughter. I’m supposed to take care
of her . . . even though she is an adult and able to do that on her own.” Grandmother
explained that she couldn’t afford to pay to put Mother up elsewhere. However,
Grandmother testified that if she (grandmother) had custody of Raymond, Mother would
“just have to find someplace else to be.” Grandmother did not think she would be able to

14
help Mother much in finding a place and she didn’t know how that would work out. She
did not want to have to choose between her daughter and her grandson. In fact, her
preference was for them to be together but if that wasn’t possible, then she would like to
have her grandson. Grandmother believed that Mother was “a lot stabler now. She’s not
on the drugs that she was on. And you can talk to her and have a normal conversation,
without her screaming at you and just being . . . kind of uncontrollable.” With regard to
visiting Raymond, Grandmother stated that when Father could not make visits, then she
would go. In his visits with his cousins, Raymond got along well and they had a “good
time.” Grandmother did not believe she would have any difficulty establishing
boundaries with Raymond’s father.
Grandmother also testified about a visit in March when she allowed Mother to
attend an event with Raymond which had not been authorized by the Department.
Grandmother explained that she had not realized the visit was not permissible under
Mother’s visitation rules.
Mother testified that she would accept Grandmother’s decision to ask her to leave
the property if Grandmother had custody of Raymond. Mother was willing to stay away
from her child because “I really want some contact with my kid and his family. And if
that means I got to stay out of the picture, I’ll do anything to—just so that they can see
him.” She had plans for living with her boyfriend, who was employed and financially
supporting her.
The court denied the grandparents’ section 388 request for a “change in placement
or . . . for the Court to direct a home study be done of the maternal grandparents’ home.”
Although it was clear to the court “that the maternal grandparents love their daughter
very much and love their grandson very much,” the court found that there was no
“significant or any change of circumstance since the last time this issue was addressed.
And I don’t think that it’s in the child’s best interests . . . aside from the fact that, you
know, if the child is around people that love them, they generally do well. [¶] But there
is all indications that the child has stabilized in the current placement and that that
placement needs to be looked at, dealt with in its entirety before any—before there would

15
be a change of circumstance that would be key in to looking at relative placement again.”
The court noted with approval the current caregiver’s practice of going “out of her way to
maintain positive relationships with . . . family members,” which the court believed “does
go to Raymond’s long-term best interests.”
The court did not abuse its discretion in denying the grandparents’ section 388
petition. At the time of the hearing, the grandparents had not addressed the Department’s
concern that Mother continued to live on the property and had access to her parents’
house. It was this concern that led to the Department’s initial recommendation against
placing Raymond with grandparents. Beyond grandmother and Mother’s assurances that
if Raymond were placed with his grandparents, Mother would no longer live on the
property, the fact that this had not taken place gave rise to a reasonable inference that it
would not occur in the future. Meanwhile, Raymond had entered into a positive, stable
placement with foster parents who wanted to adopt him. Given that the grandparents
failed to show any change in circumstances and Raymond’s strong interest in continuing
in his placement, we conclude that the court did not abuse its discretion in denying the
petition.
C. Relative Placement Preference (§ 361.3)
Mother argues that the court abused its discretion when, at the section 366.26
hearing, it did not give preferential consideration to grandparents’ request under section
361.3 that Raymond be placed with them. We disagree.
The relative placement preference set out in section 361.3, subdivision (a)
provides that “[i]n any case in which a child is removed from the physical custody of his
or her parents pursuant to Section 361, preferential consideration shall be given to a
request by a relative of the child for placement of the child with the 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 . . . [t]he best interest
of the child, including special physical, psychological, educational, medical, or emotional
needs.” (§ 361.3, subd. (a)(1).) “The correct application of the relative placement
preference places the relative ‘at the head of the line when the court is determining which

16
placement is in the child’s best interests.’ [Citation.]” (Cesar V. v. Superior Court
(2001) 91 Cal.App.4th 1023, 1033.)
Although it is unsettled whether the relative placement preference is applicable
after the termination of reunification services (In re Stephanie M. (1994) 7 Cal.4th 295,
319-320), the grandparents also requested placement when Raymond was detained, and
this placement was consistently considered and rejected. For example, when Raymond
was detained, the Department noted that the maternal grandparents were a potential
relative placement but were not appropriate because Mother and Father continued to live
on their property. At the detention hearing, the court found that the grandparents’
“suitability is not determined at this time.” On April 4, 2012, after a short stay in foster
care, Raymond was moved to his paternal aunt’s home. He lived there for two months,
but his behavioral difficulties led to his aunt’s request that he be removed. At that time,
he was placed with his current foster family. On November 6, 2012, the Department
noted in its status review report that Raymond’s maternal grandparents “continue to
request placement of Raymond.” However, as it had when Raymond was detained, the
Department did not believe the grandparents “are appropriate at this time as they continue
to allow the parents to reside in their home even after stating they would never take them
back in.”
As previously noted, in its consideration of the grandparents’ section 388 petition,
the court did not abuse its discretion in concluding that placing Raymond with his
grandparents was not appropriate. (In re R.T. (2015) 232 Cal.App.4th 1284 [applying
abuse of discretion standard of review to issue of denial of section 388 petition seeking
relative placement].) The court’s decision was based on the fact that Mother was living
with the grandparents and grandparents were unlikely to keep Mother off the property.
Essentially, placing Raymond with grandparents was tantamount to placing him with
Mother—a placement the juvenile court concluded was clearly not in Raymond’s best
interests. In reaching the same conclusion at the section 366.26 hearing, the court
similarly did not abuse its discretion.

17
 In any event, even if the court did err, any such error was not prejudicial. As the
court points out in In re Joseph T., Jr. (2008) 163 Cal.App.4th 787, 798, when the record
shows “compelling reasons” not to place a child with a family member, any error in
applying the relative placement preference is harmless. Here, as we have described, “the
reasons for denying placement are clear from the evidence and discussion at the hearing
and support the court’s decision.” (Ibid.) Therefore, it was not reasonably probable that
a more favorable decision would have been reached in the absence of such error. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
After briefing was concluded, Mother brought to our attention In re R.T., supra,
232 Cal.App.4th 1284. In that case, after R.T. was removed from his parents’ custody,
the Agency ignored the parents’ requests made that same day that he be placed with
either of two aunts identified immediately by father. The court found error, and held that
this error was not harmless because the child might well have been placed with these
relatives. This case is not helpful to Mother, however. Most basically, here, in contrast
to the relatives in In re R.T., Raymond’s grandparents were not an appropriate placement
in light of the fact that Mother continued to live on their property. Thus, even if there
was error, any such error was harmless.
IV. DISPOSITION
The order appealed from is affirmed.

_________________________
Miller, J.

We concur:

_________________________
Richman, Acting P.J.

_________________________
Stewart, J.

18