In re J.Y.

Filed 3/18/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re J.Y., a Person Coming B313020
Under the Juvenile Court Law.
Los Angeles County
Super. Ct. No. 19CCJP04784A
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant;
JORDAN K. et al.,
Appellants,
v.
JEROME Y.,
Defendant and Respondent;
V.Y. et al.,
Respondents.

APPEAL from an order of the Superior Court of Los
Angeles County. Marguerite D. Downing, Judge. Reversed.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Appellant.
Pamela Rae Tripp for Appellants.
 John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal,
for Respondents.
Valerie N. Lankford, under appointment by the Court of
Appeal, for Minor.
_______________________
SUMMARY
When J.Y. was only two months old, he was removed from
his parents’ custody and placed with foster parents April and
Jordan K. (now his de facto parents), who feel he is already their
son and want to adopt him. The court terminated reunification
services for J.Y.’s birth parents in November 2020. They had
received reunification services for more than a year, during which
time the Los Angeles County Department of Children and Family
Services (Department) identified and assessed (or sought to
assess) several relatives for possible placement, including
maternal grandmother, paternal grandmother, paternal
grandfather, and at least four others. The few relatives who had
expressed interest in J.Y. all withdrew their requests to be
considered for placement. The court declared April and
Jordan K. were J.Y.’s de facto parents and ordered adoption was
the permanent plan for the boy on May 19, 2021, when J.Y. was
two years old.
Yet, less than a month later, on June 9, 2021, the trial
court granted the request of paternal relatives in Arizona to place
J.Y. with them, although he barely knew them and had no bond
with them. During reunification, while the Department was
searching for a possible relative placement, no one had
mentioned the Arizona relatives, father Jerome Y.’s half brother

2
V.Y. and his wife M.Y. They had not been in contact with the
extended family in California for years. The Arizona relatives
had no idea J.Y. had been born, until after the court had
terminated reunification services and set a hearing to select a
permanent plan.
The principal reason stated by the trial court for its
decision to send J.Y. to live with virtual strangers in Arizona was
the court’s unfounded conclusion that the Department failed in
its duty under Welfare and Institutions Code section 361.3 to give
preferential consideration to other relatives in California (not the
Arizona relatives) who requested placement “back when the
parents were receiving reunification services.” (All undesignated
statutory references are to the Welfare and Institutions Code.)
The court abused its discretion by deciding, without any support
in the record, the Department failed in its duty to assess other
relatives, and by ordering removal of the child from his de facto
parents although there was no evidence that removal was
necessary or in the child’s best interest. We therefore reverse the
order.
FACTS
1. The Background and the Parties
J.Y. was detained from his parents in July 2019, when he
was two months old, and placed with his foster parents, April and
Jordan K. When J.Y. first arrived in their home, he suffered a
flat head. April K. is a NICU nurse. She raised the issue at
J.Y.’s first appointment with his pediatrician, and obtained a
helmet that J.Y. wore for four months to correct his head shape.
April and Jordan K. provided all the care and attention that J.Y.
needed as an infant.

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 April and Jordan K. became J.Y.’s de facto parents
two years later, at their request, in May 2021. J.Y. has lived with
them since he was two months old; theirs is the only home he has
ever known. J.Y. has a loving and secure attachment with his de
facto parents, and he has thrived in their care. April and
Jordan K. have wanted to adopt J.Y. since November 2019. In
April 2020, the Department reported the plan was for April and
Jordan K. to adopt J.Y. if reunification efforts failed.
The Department provided reunification services to J.Y.’s
birth parents for more than a year, but these were unsuccessful.
During this period (as we will describe, post), the Department
communicated with several relatives about their interest in
having J.Y. placed with them, but these efforts were unavailing.
On November 18, 2020, the court terminated reunification
services and scheduled a permanency planning hearing (§ 366.26)
for March 2021.
On January 13, 2021, about two months after the court
terminated reunification services, the Arizona relatives (father’s
half brother and his wife) e-mailed the Department to inquire
about placing J.Y. with them. “I am not comfortable with
allowing him to be placed with a random person/family within
the foster/adoption care system.” A week or so later, the Arizona
relatives told the Department they were interested in adopting
J.Y. At about the same time, a maternal great-aunt for the first
time indicated her interest in adopting the child. The child’s
birth father told the social worker he agreed with his half brother
becoming J.Y.’s caregiver.
On February 2, 2021, April and Jordan K. began
facilitating weekly virtual visits with J.Y. for the Arizona
relatives. Visits for maternal great-aunt were also approved in

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February. On February 4, 2021, the social worker requested an
“RFA” assessment of maternal great-aunt. (“RFA” stands for
resource family approval, a process required for any person to
qualify to provide care for a child in the foster care system.
Maternal great-aunt and her partner were approved as a
resource family in May 2021.)
On March 17, 2021, at the request of J.Y.’s counsel, the
court set a section 361.3 hearing “on the assessment of relatives
for placement.” This hearing was eventually held on June 9,
2021.
On March 20, 2021, the Arizona relatives traveled to Los
Angeles for their first in-person visit with the child, and there
were more visits later, all facilitated by April and Jordan K. On
April 1, 2021, the court ordered the Department to initiate an
Interstate Compact on the Placement of Children (ICPC)
investigation of the Arizona relatives. The ICPC investigation
had not been completed at the time of the June 9, 2021 hearing.
On April 7, 2021, the Department filed its report for the
section 361.3 hearing, assessing the potential relative
placements. The Department’s conclusion was that further
assessment was needed for the Arizona relatives and maternal
great-aunt, but that due to the length of time the child had lived
with his de facto parents, the strong bond between them, and the
care and stability they provided to J.Y., it was in his best interest
to remain placed with and be adopted by April and Jordan K.
2. The Legal Background
Section 361.3 provides for preferential consideration of a
relative’s request for placement of a child with the relative early
in dependency proceedings, before the disposition order.
Section 361.3 states that when a child is removed from the

5
physical custody of his or her parents, “preferential consideration
shall be given to a request by a relative of the child for placement
of the child with the relative.” (§ 361.3, subd. (a).) 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 of eight listed factors, the first
of which is the best interest of the child. (Id., subd. (a)(1)–(8).)
“ ‘Preferential consideration’ means that the relative seeking
placement shall be the first placement to be considered and
investigated.” (Id., subd. (c)(1).)
The relative placement preference also applies after
disposition, if the child’s placement must change. After
disposition, “whenever a new placement of the child must be
made, consideration for placement 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 county
social worker shall consider whether the relative has established
and maintained a relationship with the child.” (§ 361.3, subd. (d);
In re M.H. (2018) 21 Cal.App.5th 1296, 1303 [relative placement
preference “applies at the disposition hearing and thereafter
‘whenever a new placement of the child must be made’ ”]; see In
re Sarah S. (1996) 43 Cal.App.4th 274, 285 [“[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.”].)
Despite the clear language of the statute, some courts have
declared the relative placement preference applies after
disposition even when no change in placement is necessary.

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Some courts have held the relative placement preference applies
throughout the reunification period. (See, e.g., In re Joseph T.
(2008) 163 Cal.App.4th 787, 795.) Other courts have held the
relative placement preference applies even after the reunification
period if the relative requested placement during reunification
but the child services’ agency failed to assess the relative for
placement. (In re Maria Q. (2018) 28 Cal.App.5th 577, 593, 595
[“[S]ection 361.3 applies after the reunification period where the
relative has made a timely request for placement during the
reunification period and the child welfare agency has not met its
statutory obligations to consider and investigate the relative
seeking placement.”]; Cesar V. v. Superior Court (2001)
91 Cal.App.4th 1023, 1027, 1032–1033, 1036 [granting mandate
petition and ordering juvenile court on remand to evaluate
grandmother for placement where a new placement became
necessary after reunification services were terminated; social
worker prematurely and unfairly abandoned assessment of
grandmother for placement].)
In re Isabella G. (2016) 246 Cal.App.4th 708, 712, held
“that when a relative requests placement of the child prior to the
dispositional hearing, and the Agency does not timely complete a
relative home assessment as required by law, the relative
requesting placement is entitled to a hearing under
section 361.3.” In that case, the grandparents requested
placement before the detention, jurisdictional and dispositional
hearings. (Id. at p. 722.) But the agency did not conduct a home
assessment of the grandparents and misrepresented that the
child’s placement could not be changed for a year. (Id. at
pp. 722–723.) Relying on this misrepresentation, the
grandparents waited a year and requested placement again

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before the 12–month review hearing. (Ibid.) The agency still did
not assess the grandparents’ home for placement. The
grandparents again requested placement after the court
terminated reunification and set a section 366.26 hearing. Not
until the grandparents retained counsel and filed a section 388
petition did the agency conduct a home assessment, approving
the placement in less than three weeks. (Isabella G., at p. 723.)
None of the cases supports the order in this case. The
Arizona relatives first requested placement after reunification
services were terminated and the court had set a section 366.26
hearing to select a permanent plan for J.Y., who was in a stable,
loving placement with de facto parents who wanted to adopt him.
And, as we will now explain, the Department fully complied with
its obligation to assess family members for placement during the
reunification period.
3. The Department’s Assessment of Relatives
During the Reunification Period
The record shows the following chronology relevant to the
Department’s extensive efforts to assess placement with relatives
during the reunification period.
On July 30, 2019, father provided contact information for
paternal grandfather, paternal grandmother and paternal great-
cousin. (The statute requires the court to “order the parent to
disclose to the county social worker the names, residences, and
any other known identifying information of any maternal or
paternal relatives of the child.” (§ 361.3, subd. (a)(8)(B).))
That same day, the court ordered a pre-release
investigation as to possible placement of the child with paternal
grandmother. On August 7, 2019, the Department reported to
the court its attempts to contact her by telephone, mail, and in

8
person, but she “failed to make herself available and has failed to
respond to repeated efforts to assess her home.” There were
further unsuccessful attempts to meet with her in September,
including a message from the social worker on September 25,
2019, requesting a call back to schedule a meeting. That day the
social worker also texted father, who stated he would talk to
paternal grandmother and let the social worker know when she
was available to meet. After the adjudication hearing on
October 9, 2019, the court ordered the Department to “assess and
place as appropriate with relatives identified by father at
detention, PGM or Pat. Great Cousin,” and provide an update in
the next report.
In December 2019, paternal grandfather contacted the
Department to request visitation with the child, and said he
wanted to be assessed to become his caregiver. On January 21,
2020, a social worker was assigned to the RFA assessment.
Paternal grandfather did his 12-hour training, “but nothing else,”
and did not interview after several requests.
On January 27, 2020, the Department approved visits with
the child for maternal grandmother. The record shows the
Department was in touch with maternal grandmother since the
inception of the case. She initially stated she was interested in
being assessed, but later reported she was not able to become
J.Y.’s caregiver.
On March 12, 2020, father told the social worker he wanted
paternal grandfather to get custody of his son and said the child’s
mother agreed with that. But father also informed the social
worker that he (father) was living with paternal grandfather.
Based on that information, the Department concluded it could no
longer consider paternal grandfather’s home for possible

9
placement. Paternal grandfather withdrew his RFA application
on June 25, 2020.
On March 25, 2020, the social worker telephoned and
either spoke to or left messages for four other persons, following
up on another social worker’s family finding efforts. Maternal
great-aunt did not respond, and neither did two others. (A year
later, in February 2021, maternal great-aunt explained that
when the child was removed from his birth parents, she did not
have adequate housing for him.) Paternal great-cousin, who had
previously reported an interest, said she did not follow up with
her application because she was no longer able to care for the
child.
On September 1, 2020, mother told the Department she
had family members who were interested in becoming J.Y.’s
caregivers, but said she did not then have contact information,
and would send it via text message. She never did.
As of September 17, 2020, the Department reported there
were no family members interested in providing permanency for
the child, and recommended adoption with his foster parents.
This repeated the view expressed in the April 2020 status review
report, following the conclusion that paternal grandfather could
no longer be considered.
4. The June 9, 2021 Hearing
At the section 361.3 hearing, the child’s counsel requested
he be placed with the Arizona relatives. Counsel for father joined
in that request. The de facto parents asked the court to deny the
request of the Arizona relatives and allow the child to remain
with them, as did the Department. Counsel for mother sought
placement “with the maternal grandmother,” but counsel’s

10
comments show he was referring to maternal great-aunt, who
“already has an R.F.A. approved home.”
The Department submitted several of its reports as
exhibits, and the child’s counsel submitted a declaration from the
Arizona relatives. The court took judicial notice of the de facto
parents’ request for that status and their accompanying
declaration, filed May 12, 2021. (As stated above, April and
Jordan K. were declared de facto parents on May 19, 2021, and at
the permanency planning hearing that same day, the court
ordered adoption as the permanent plan.) April K. testified,
principally concerning the close bond the boy has with her and
her husband and their facilitation of visits with the Arizona
relatives and other members of the child’s family. In addition,
this exchange occurred between the court and the de facto
mother:
“[Y]ou said that the Department advised you that there
were family members, such as the [Arizona relatives], who were
looking for visitation. [¶] You indicated—you said that she left it
up to you; is this correct?
“THE WITNESS: Yes. [¶] We were told that visits were
not court ordered. [¶] That if we were willing, especially in light
of the COVID pandemic, if we were willing to meet, in person,
that that would be good.
“THE COURT: Okay. [¶] But what I’m trying to elicit is
she gave you the impression that visitation was up to you. [¶]
You could either agree to visits or you could not be agreeable. [¶]
You made the decision to be agreeable?
“THE WITNESS: We did. [¶] Yes. [¶] Yes. [¶] We were
told there was no court order, but that it would be their
recommendation.”

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 After argument, the court ordered the child placed with the
Arizona relatives. The court’s minute order stated: “The Court
finds that [the Department] has failed to comply with assessing
relatives for placement in a timely manner.” The court denied
the Department’s request to stay the order. The hearing
transcript shows the court’s reasoning, and we quote it at some
length.
“I went back to look at the status review report back in
April of 2020, when the parents were receiving reunification
services, and at that time, a number of relatives stepped forward
to ask to be placed, and the Department’s reoccurring response to
these placements are that [J.Y.] is in an appropriate placement.
[¶] Let me find it, because it’s a term they repeat numerous
times. [¶] The Department’s view is the concurrent plan is
adoption with the current—current caregivers. [¶] Although
there are other relatives that, at that point stepped up, in terms
of looking at the factors, the Department had a responsibility and
the Department failed to meet it.
“When the [Arizona relatives] specifically stepped forward
in January [2021], the Department did not walk it on. [¶] The
Department told [de facto mother] here are some relatives, it’s up
to her to set up visitation.
“From the court’s vantage point, the Department did not do
their job, which is unfortunate because my orders are no
reflection of the care that this child has had, but I think that it is
clear, when you look at the eight factors, [J.Y.] has been with the
[de facto parents], but they were foster parents. [¶] I understand
that it is hard to devoid yourself, here is an adorable little baby
that I’m taking care of. [¶] He calls me Mommy. He calls my

12
husband, Daddy, and he is ours, regardless of what else is going
on.
“But the Legislature has a firm commitment that we are
here as family court, and although the [de facto parents] are more
than willing to bring this child into this family and consider him
family, he does have family.
“He has family that has repeatedly stepped up.
“The [Arizona relatives] did not join the discussion until
January, but back when the parents were receiving reunification
services, the grandmother was asking for placement, the
grandfather was asking for placement, the aunt was asking for
placement. [¶] The social worker’s repeating concern is the
concurrent plan is adoption with the current caregivers.
“So in looking at the factors, the court is going to find that
the Department did not follow the law, and given the parents—
given the family—the relative placement as required by 361.3.,
either during reunification services or after reunification
services.”
We pause in our recitation of the court’s statements at the
hearing to note that, while the court was critical of the
Department’s handling of visitation by the Arizona relatives—
recommending the de facto parents cooperate rather than seeking
a court order—that clearly had no causal or adverse effect on the
prospects of the Arizona relatives for placement. As the record
shows, April and Jordan K. facilitated weekly virtual visits,
beginning on February 2, 2021, shortly after the Arizona
relatives stated they were interested in adopting J.Y. on
January 22, 2021. The record also shows that when maternal
great-aunt, who had previously failed to respond when contacted
about placement, called the Department to express interest in

13
becoming J.Y.’s caregiver on January 26, 2021, the social worker
promptly submitted an RFA request on February 4, 2021.
After indicating it was considering ordering an extended
visit for the child in Arizona, the court continued:
“I am open to some other discussion to make the transition,
but I want to be very clear, and [de facto parents], it really hurts
me to have to do this, because I can see it in your faces, this is
your child. He’s not bio, but this does not aways mean anything,
and you have been providing excellent care for him for almost the
first two years of his life.
“The Department failed to meet their burden, so I have to
make the tough call. [¶] So I am going to order this child be
placed with his paternal relatives, the [Arizona relatives]. [¶]
And the Department is going to need to figure out how to do the
extended visit.
“I am mindful of the fact that he has a bond with his
current caretakers, but I do not know that weaning him into his
aunt and uncle’s home is going to be a better plan that just doing
it, and let it be done. [¶] The court believes that he can develop
an appropriate attachment with other family members as he does
with the [de facto parents].”
Counsel for the Department then tried to tell the court
about “the Department’s efforts in regard to the other relatives,”
but the court interrupted and stated, “You made your argument.”
The court would not grant a stay, stating: “I’m unwilling,
because in my mind, the Department needed to do more than
they did, that is why I’m sitting here looking at this heartbroken
woman, [de facto mother], as I move this child. [¶] If the
Department had done what they should have done, I would not
have to make the call. [¶] So, no.”

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5. Subsequent Proceedings
The de facto parents filed a notice of appeal on June 14,
2021. They also filed a supersedeas petition and request for an
immediate stay. We temporarily stayed the juvenile court’s order
placing the child with the Arizona relatives and permitted
responses by the interested parties—the child, mother, father,
the Arizona relatives, and the Department—and a reply from the
de facto parents. On August 4, 2021, the Department also filed a
notice of appeal.
On September 3, 2021, we ordered the stay to remain in
effect until 60 days after the remittitur issues in the appeal. We
also granted a request to expedite the appeal. On October 1,
2021, we denied a motion by the Arizona relatives to vacate our
order.
During briefing of this appeal, the Department filed a
motion to strike portions of the Arizona relatives’ respondents’
brief: specifically, arguments referring to the postappeal
approval under the ICPC of the Arizona relatives and their home
as an appropriate placement for the child. The approval occurred
as of September 20, 2021, well after the trial court’s June 9, 2021
decision, and the filing of these appeals on June 14 and August 4,
2021.
We decline to strike the specified portions of the brief as
unnecessary. The trial court glaringly erred in placing the child
in Arizona without an ICPC approval, but as the Department
acknowledged in its opening brief, that issue is moot because of
the subsequent ICPC approval. More to the point, the ICPC
approval, and the arguments referring to it, are irrelevant to the
basis for our reversal of the trial court’s order. For the same
reason, we need not discuss the affidavits filed by the Arizona

15
relatives and the de facto parents, describing the circumstances
and their desire and ability to provide a permanent home for J.Y.
DISCUSSION
The trial court abused its discretion by setting a
section 361.3 hearing after the reunification period ended, where
the Department had fulfilled its obligations to assess relatives for
placement during reunification, and there was no need to change
J.Y.’s placement. With no legal authority to do so, the court
ordered J.Y. be uprooted from his stable and loving placement—
after the court had declared adoption was the plan, and the de
facto parents wanted to adopt him—to place him with virtual
strangers.
We have described at length both what the Department did
in connection with requests by relatives for placement during the
reunification period, and the rationale expressed by the court in
making its ruling: that “the Department did not do their job,”
and “[i]f the Department had done what they should have done, I
would not have to make the call.” The record facts do not support
the court’s reasoning.
The court said that when the parents were receiving
reunification services, “a number of relatives stepped forward”
requesting placement, and the Department’s “reoccurring
response” was that J.Y. was in an appropriate placement. That is
a misreading of the record. The court based its statement on the
Department’s April 2020 report, where the Department stated
the plan was adoption with the current caregivers. But by April
2020, paternal grandfather had been eliminated from
consideration because father told the Department he was living
with paternal grandfather (who in any event removed himself
from consideration two months later). Maternal grandmother

16
initially expressed interest in being assessed, but later reported
she was not able to become J.Y.’s caregiver. Maternal great-aunt
did not return the social worker’s calls, and now admits that at
the time she had no space for the child. Other prospects likewise
did not return the social worker’s calls.
In short, the trial court’s statement “the grandmother was
asking for placement, the grandfather was asking for placement,
the aunt was asking for placement” is true, but irrelevant,
because they were all eliminated from consideration through
their own actions, not the Department’s. There is no basis for the
court’s finding that “the Department did not follow the law.”
J.Y.’s counsel, father, and the Arizona relatives all insist
the placement order was proper and should be affirmed. None of
their contentions is persuasive.
J.Y.’s counsel argues the de facto parents have no standing
to challenge the juvenile court’s order. We need not be drawn
into a discussion on the question, since the Department has
appealed the order and we necessarily decide the matter in any
event.
J.Y.’s counsel argues “it is clear from the court’s comments
that it did, indeed, consider all 8 factors listed in section 361.3
and it did so throughout the hearing.” We cannot agree. At the
beginning of the hearing, addressing the proposed testimony of
the de facto mother, the court stated the issue “is whether 361.3
has been observed,” and “[t]here are eight considerations the
court is—has to take, and it is the best interest of the child,” and
“she can testify as to one of the eight considerations with respect
to her relationship with [J.Y.].” After the testimony and
argument, the court stated during its ruling: “when you look at
the eight factors, [J.Y.] has been with the [de facto parents].”

17
And the court concluded: “So in looking at the factors, the court
is going to find that the Department did not follow the law, . . .
either during reunification services or after reunification
services.”
These statements by the court are nothing more than
perfunctory references to the factors, followed by the explicit
finding that the Department “did not follow the law.” There was
no need to change J.Y.’s placement and no reason to find it would
be in his best interest to remove J.Y. from the only parents he
had ever known. Indeed, the court’s placement of the child in
Arizona without a completed ICPC investigation, although now a
moot point, further indicates the court’s disregard for the
statutory limitations upon its authority in the exercise of
discretion. “The overriding concern of dependency proceedings
. . . is not the interest of extended family members but the
interest of the child,” whose bond with a foster parent may
require that placement with a relative be rejected. (In re
Lauren R. (2007) 148 Cal.App.4th 841, 855.) “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.” (Ibid.)
DISPOSITION
The order is reversed.

GRIMES, Acting P. J.
WE CONCUR:

STRATTON, J. WILEY, J.

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