When a child is detained by the county social services agency, the court may order that the child be placed in the assessed home of a relative or a non relative extended family member (NREFM).

"Relative" - the Legal Definition

An adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words “great,” “great-great,” or “grand,” or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
Welfare and Institutions Code § 319(f)(2)

This term includes a parent, sibling, grandparent, aunt, uncle, nephew, niece, great-grandparent, great-aunt or great uncle (grandparents’ sibling), first cousin, great-great grandparent, great-great-aunt or great great uncle (great-grandparents’ sibling), first cousin once removed (parent’s first cousin), and great-great-great-grandparent; a step-parent or step-sibling; and the spouse or domestic partner of any of the people described above, even if the marriage or partnership was terminated by death or dissolution.
California Rule of Court rule 5.502(34)Table of Consanguinity

"Sibling" - The Legal Definition

“As used in this section ‘sibling’ means a person related to the identified child by blood, adoption, or affinity through a common legal or biological parent.”
Welfare and Institutions Code §§ 309(e)(1), 362.1(c), 16002(g)


County Agencies Have a Legal Obligation to Identify, Locate and Investigate Relatives and Siblings

Within 30 days of a child’s removal from the home of his or her parent or guardian, if the child is in, or at risk of, entering foster care, the social worker or probation officer must use due diligence in conducting an investigation to identify, and locate all the child’s adult relatives. This policy underscores the importance of relative participation and support in all aspects of a child’s life. The social worker or probation officer is not required to notify a relative whose personal history of family or domestic violence would make notification inappropriate.
Welfare & Institutions Code § 309(e), California Rule of Court 5.637


County Agencies Have a Legal Obligation to Send Notice to Relatives and Siblings

Within 30 days of removal of the child, the county social worker shall provide written notification and shall also, whenever appropriate, provide oral notification, in person or by telephone, to relatives of all the following information:

  • Child has been removed.
  • Explanation of the various options to participate in the care and placement of the child and support for the child’s family, including any options that may be lost by failing to respond.
  • How to become an approved relative placement.
  • Information about providing care for the child while the family receives reunification services with the goal of returning the child to the parent or guardian, how to become a foster family home or approved relative or non-relative extended family member.
  • Services and support that are available to people caring for children in placement.
  • A copy of Relative Information (Form JV-285) (or Información del pariente, JV-285S), with the county and address of the court, the child’s name and date of birth, and the case number already entered in the appropriate caption boxes by the social worker.
  • A copy of Confidential Information Form JV-287, which may be used to keep contact information confidential.
  • The court clerk must provide the social worker, all unrepresented parties, and all attorneys with a copy of the completed form or letter.
Welfare & Institutions Code §§ 309(e)(1)628(d); California Rule of Court 5.534(f)


The Court Must Inquire About Relatives and Review at Detention and Disposition Hearings

At the detention hearing the court must ask the parent(s) of the child to provide contact information about maternal and paternal relatives so the social worker can contact them and initiate an assessment if they are willing to be considered for placement.  The social worker must include in the detention report the results of any assessment of a relative home conducted under §309(d).  The agency must also have a procedure for the relatives of a child who has been removed to identify themselves to the social worker and be provided with notice of dependency proceedings.

At the disposition hearing, the court must make findings as to whether the social services agency used due diligence to identify, locate and notify relatives and may order the agency to take additional steps to identify relatives if it finds that the agency has not used due diligence.
Welfare and Institutions Code §§ 309(e)(3), 319(f)(3), 361.3(a); California Rules of Court 5.637, 5.695(f)


Non-Relative Extended Family Member (NREFM): The Legal Definition

A “nonrelative extended family member” is defined as an adult caregiver who has an established familial relationship with a relative of the child or a familial or mentoring relationship with the child. The county welfare department shall verify the existence of a relationship through interviews with the parent and child or with one or more third parties. The parties may include relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends.
Welfare & Institutions Code §§ 362.7, 361.3


Relatives and NREFM May Step Forward and Identify Themselves relatives_page

If an able and willing relative, or NREFM, is available and requests temporary placement of the child pending the detention hearing, the county welfare department shall initiate an assessment of the relative’s or nonrelative extended family member’s suitability.

The assessment shall include:

  • an in-home inspection to assess the safety of the home and the ability of the relative or non-relative extended family member to care for the child’s needs
  • a consideration of the results of a criminal records check
  • a check of allegations of prior child abuse or neglect concerning the relative or non-relative extended family member and other adults in the home.

The standards used to determine suitability shall be the same standards set forth in the regulations for the licensing of foster family homes.
Welfare & Institutions Code § 309(d)

If the county welfare department has not reached out or is not appropriately considering a relative or NREFM for placement, the relative or NREFM may use the Relative Information Form (Form JV-285) to let the court know that relative or NREFM is interested in placement. For more information on the Relative Information Form (Form JV-285) please scroll down this webpage.


Relatives and NREFM Who are Denied Approval to Provide Foster Care May Request a State Hearing

A relative or non-relative extended family member (NREFM) who seeks assessment and approval to provide care to a dependent minor or nonminor dependent and who experiences an adverse decision (aka “denial”) must be provided with a state hearing.
All County Letter ACL 12-71

A state hearing shall be available to those relatives or NREFMs, for whom the county child welfare agency has determined the following:

  • The relative or NREFM did not meet the qualifications to be a caregiver;
  • The relative, NREFM resident adult(s) or adult(s) with significant contacts to children was not approved under this state’s Community Care Licensing laws, and;
  • The relative’s or NREFM’s home does not meet health and safety requirements, or
  • The relative or NREFM did not complete required orientation and/or training. (For more information, including calendaring, scheduling and confidentiality issues see

All County Letter ACT 13-27

County agencies are required to use the Notice of Action-Denial of Home Assessment/Approval (NA 1271) form to provide notice of denial and the right to a state hearing to relatives and NREFMs:

  • To complete the NA 1271 Form, leave the fillable areas on page one of the form to be completed by the agency worker. The form is then mailed to the denied applicant, who completes page two and returns it to the CDSS State Hearings Division as indicated on the form.
  • A copy of the NA 1271 form can also be downloaded in English, Spanish and additional languages here. The fillable areas on the forms have limited space to enter text, so be mindful not to enter too much text and disrupt formatting on the second page.
 If more room is needed, please use an additional page and attach to the Notice.
  • Please note that the right to a state hearing does not apply to placement decisions. An approved relative or NREFM who is denied placement is afforded a grievance review hearing. See Advokids Grievance Review page.
  • For questions about the state hearing process, please call the CDSS State Hearings Division at (916) 657-3550.
  • For questions about these ACLs or the new NA 1271 form, please call the Kinship Care Policy and Support Unit at (916) 651-7465.

Relatives Have the Right to Participate in Dependency Hearings

The Juvenile Court must control all juvenile dependency proceedings by quickly and effectively ascertaining the jurisdictional facts and all information relevant to the present condition and welfare of the child.

The court may permit relatives of the child to:

  • Be present at the hearing
  • Address the court
California Rules of Court 5.534(a), (f)(1)


Relatives of the Child Have the Right to Submit Information About the Child to the Court At Any Time.

The Relative Information Form (Form JV-285) (or Información del pariente, JV-285S) is a simple form that helps relatives and NREFMs organize detailed information about the child and communicate with the court. As NREFM or relative, you know about the child's current circumstances and needs, and should provide any information or concerns you may have to the juvenile court. The goal is to enable the judge to make informed decisions about the child and reach the best outcome regarding the disposition of the child. The form can include information about your relationship with the child, the child’s education or medical needs, and any other information that might be helpful to the court. The JV-285 form may be submitted at any time during the court process.
See our Juvenile Court Process page.

When completing the Relative Information Form (Form JV-285), be sure to be factual, provide specific information, and remain child-centered, positive and kind. You may also want to:

  • Attach a photo so the judge can put a beautiful, smiling face to a name and file number.
  • Share any concerns or individual needs the child may have.
  • If possible, attach letters from doctors, teachers, or other professionals to support your concerns. If you have attachments, be sure to check the box on item 12, indicate the total number of pages attached, and include the date and the case number. Label each attachment page “Attachment to JV-285, Date, Case Number.”
  • Submit the original JV-285 with 8 copies of the form (each form should have a photo on it) to the Juvenile Court Clerk’s Office at least five calendar days before the hearing (or seven days if filing by mail). The County Clerk will then distribute, or "serve" your JV-285 to all of the relevant people involved in the case. California Rules of Court § 5.534 .  Some clerk offices will copy the JV-285 for you, but we recommend coming prepared with all 8 copies just in case.
  • Be sure to keep one copy stamped "filed" by the Clerk, for your records.

When you file your JV-285, you are also developing a relationship with your juvenile court judge and all other parties involved with the case. Your JV-285 will become a part of the court file and will reflect your dedication and commitment to the child.

You may use JV-287 in order to keep confidential any contact information listed on the JV-285.
California Rule of Court 5.534(f)(2)


Relatives With Placement Preference: The Agency and the Court Have a Duty to Assess Any Relatives Who Come Forward Prior to Disposition To Determine if Placement Is Appropriate

If a relative with preference 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.) Request for placement made by 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(c)(1)

“Only the following relatives shall be given preferential consideration for placement of the child: an adult who is a grandparent, aunt, uncle or sibling of the child [emphasis added].”
Welfare & Institutions Code § 361.3(c)(2)

County agencies are required to complete the approval process on a relative who is a grandparent, aunt, uncle or adult sibling, i.e. relatives with preference, within 30 days of their request for approval, or prior to the dispositional hearing, whichever is sooner.
All County Letter ACL 05-13

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.)


Relative Placement Factors

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)  (A)  The safety of the relative’s home which must first be approved per WIC § 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 judgement 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.)


The Key Placement Consideration is the Best Interest of the Child

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 section 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.)

After Disposition and During the Reunification Period: the Relative Placement Preference Applies Only When A New Placement is Necessary

The plain language of the statute requires that specified relatives, i.e. only grandparents, aunts, uncles, adult siblings only, be given preferential consideration for placement “in any case in which the child is removed from the physical custody of his or her parents.”
Welfare and Institutions Code § 361.3(a)

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 with preference 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 of view in the case law as follows:

The 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 the 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 state 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.)

The 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

Some 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 T 163 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. did not 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.

Consequently, Advokids believes that it does not support the Joseph T. majority’s conclusion to the contrary.


End of Reunification Efforts: The Relative Placement Preference Ends When Reunification Efforts End, Except When a Placement Change is Necessary or the Agency has Failed or Refused to Assess Relatives Who Sought Placement Before the Disposition Hearing

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.


Current Caregiver Preference: Once Reunification Services Have Been terminated, The Current Caretaker is the Preferred Adoptive Placement.

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.

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