Grandmother Custody of Grandchildren Case in California

In Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, the father and paternal grandmother sought extraordinary relief from a juvenile court order refusing to place the children with the grandmother. The father had stipulated to termination of his reunification services, but had requested the children be placed with the grandmother. "The children's foster family was not interested in adoption, necessitating a change in placement" and the court had ordered the Department to evaluate the grandmother for possible placement. (Id. at p. 1027.) The social worker stated that the grandmother was found not suitable based on a child abuse registry history, dated 1996, for allegations of physical abuse against her son (the children's father), which allegations were unsubstantiated, and because the social worker was concerned that the grandmother had not been in contact with the children or the Department during the dependency proceedings and had not followed up with necessary paperwork. The social worker did not speak to the grandmother, the father, or any other witness to the reported abuse incidents. (Id. at pp. 1027-1029.) The grandmother testified she had almost daily contact with the children before the dependency, that she had seen the children together with the father when he was allowed visits, and that she had not thought she was entitled to visits. (Id. at pp. 1029-1030.) She had moved to a new home and the paperwork from the Department had never arrived. Calls she placed to the social worker were not returned. (Id. at p. 1030.) At the permanency planning hearing, the juvenile court found that the relative placement preference statute did not apply after termination of reunification services, that the Department acted upon its order to assess the grandmother as a placement resource, that section 361.3 applied, and that the Department had not abused its discretion under the statute in denying placement with the grandmother. (Id. at pp. 1029-1030.) The Court of Appeal granted the writ petition. It found that section 361.3 applies before parental rights are terminated "when a new placement becomes necessary after reunification services are terminated." (Cesar, supra, 91 Cal.App.4th at p. 1032.) The court held that amendments to section 361.3 to add subdivision (d) referring to permanent plan requirements and subdivision (a)(7)(H) referring to the ability of the relative to " 'provide legal permanence for the child if reunification fails' "as a factor to consider in evaluating relative placement "indicate the Legislature did not intend to limit the purpose of the relative placement preference to reunification efforts." (Id. at p. 1032.) The appellate court concluded that the Department's evaluation of the grandmother was not sufficient under section 361.3 as the social worker had not made significant efforts to gather the information required by the statute before deciding that the grandmother was unsuitable and abandoning the assessment. (Cesar, supra, 91 Cal.App.4th at p. 1033.) The court reiterated that the Department "is required to give a fair chance to a relative seeking placement. The correct application of the relative placement preference places the relative 'at the head of the line when the court is determining which placement is in the child's best interests.' " (Ibid.) Finally, reversal was compelled by the juvenile court's failure to exercise its independent judgment with respect to the relative placement request, rather than to merely review the Department's placement decision for abuse of discretion. (Id. at pp. 1033-1034.)