Laws relating to relative placement preference
Hello all,

This is some information that was sent to me from a child advocacy group in Northern California.

Anyone ever hear about this? If this is the law, why does birthfamily get preference until the end?

Just thought I'd pass it along in case it can help anyone.


Here's their email:

Many of our website and hotline inquiries throughout California involve permanency issues for very young foster children. California child welfare laws and regulations dictate that all county child welfare departments, while working to reunify a child with parents, must also concurrently plan for achieving legal permanence for a child if reunification fails. We understand what a difficult task this can present, yet in light of our legislative mandates and the CDSS state regulations, the placement directives for all agencies are quite clear.

It is not unusual that county agencies fail to understand mandated placement requirements. Actually, Advokids spends considerable time training attorneys in the laws relating to permanency and placement in California. The laws are complex. However, it is critical that all agencies appreciate the placement laws, especially as they relate to children under the age of three, where unnecessary placement changes can cause devastating life long consequences.

County agencies do sometimes misunderstand their obligation to a relative, and fail to understand that the relative placementӔ preference expires after disposition, unless a placement change must be made, i.e., there is a failed placement. Further, even pre- disposition, a relative placement must always be considered in light of the nature and duration of the relationship, and the best interests of the child.

Here is a summary of the pertinent law :

Relative Placements, although granted preference at the dispositional phase (ONLY), are still always considered in light of the best interests of the child

Disposition hearing, placement considerations. California Welfare and Institutions Code 361.3

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 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 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, and to provide legal permanency for, the child if reunification is unsuccessful.

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

2. Relative Preference ENDS after Disposition, UNLESS a new placement MUST be made.

W & I ǧ 361.3(d) Subsequent to the hearing conducted pursuant to Section 358, whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section 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.

3. IN RE LAUREN R. (2007)149 Cal.App.4th 421

Relative Placement Preference

The relative placement preference is set out in section 361.3. It gives preferential considerationӔ to a request by a relative of a child who has been removed from parental custody for placement of that child. Preferential considerationӔ means that the relative seeking placement shall be the first placement to be considered and investigated.

(ԧ 361.3, subd. (c)(1).) The preference applies at the dispositional hearing and thereafter whenever a new placement of the child must be made . . . .Ӕ ( 361.3, subd. (d).)[8]

There is no relative placement preference for adoption. (Cesar V.; Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721; In re Sarah S. (1996) 43 Cal.App.4th 274.)

The overriding concern of dependency proceedings, is not the interest of extended family members but the interest of the child. Ǔ[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected. (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) Section 361.3 does not create an evidentiary presumption that relative placement is in a childԒs best interests. (Id. at p. 320.) The passage of time is a significant factor in a childs life; the longer a successful placement continues, the more important the childҒs need for continuity and stability becomes in the evaluation of her best interests. (Id. at p. 319.)

4. CDSS Regulations 31-420 A Foster Placement is to provide the Ǔpermanency alternative, should reunification with parents fail, so as to preclude any placement disruption.


.1 The foster care placement shall be based on the following needs of the child including, but not limited to:

.11 The least restrictive, most family-like environment.

.12 The child's age, sex and cultural background, including racial or ethnic and religious identification.

.13 Planned parent/guardian-child contacts during the separation, and the specific actions by the parent(s)/guardian(s) which will facilitate reunification.

.14 Capability, willingness and ability of the caregiver to meet specific needs of the child, to facilitate family reunification, and provide the childԒs permanency alternative, if necessary.

.15 Appropriateness of attempting to maintain the child in his/her current school.

.16 The child's health and emotional factors.

.17 Anticipated special needs of the child, including but not limited to transportation, diet, medical and/or psychological care, clothing, recreation,and special education.

.18 The most appropriate placement selection.
If this is the law, why does birthfamily get preference until the end?

because workers recognize that should the placement be appropriate and safe, that it is a great benefit for children to grow up within their birth family. because sometimes workers know they messed up by 1)not contacting family members in a timely manner, 2)not exploring the list of relatives provided by the parent, 3)not moving quickly enough to get families cleared or licensed.

i've been on both sides of the fence, and as a foster parent i know it is hard to lose a baby or think about losing a baby you have cared for...especially when it seems like family waits until the last second to jump in. but now that i have been on the other side, i now know that sometimes factors play into that that are out of the family's control. i also think that sometimes family members don't want to step in and take a child because they believe the child will go home to the parent shortly, or they don't want to get involved and upset the parent...and it is not until it is made clear that the situation is about to permanently remove the child from their family do they decide to step up.

another thing to consider is that the birth family is NOT always given preference until the end. i know of many cases...including some in my home, where the family actively sought to care for the kid...up until the end....but they could not get approved to do so. so just "being" family does not mean they get to parent these children. but i believe cw's and judges are doing the best thing for these children when they check out every possible avenue.

As my children adopted from foster care get older, they talk more, and i realize just how important their biological family is to them. even when they talk about the abuse and neglect, they will in the next sentence talk about how mad they are that no one in their birth family could or would care for them. i think it is something they will always struggle with, and i am thankful that we can say everything was done to make sure that they were in the safest most appropriate place possible. every person that stepped forward to care for them was checked out by a social worker....even the ones who did not come forward until 2 years after they came into care, moved in with us, and we declared we wanted to adopt them.

i'm sorry. i do know that it is painful and difficult. i just ran across a photo this morning of a baby we fostered that we were told we could adopt, who ended up going home. ugh. in the end, i was so very glad he was going to be raised within his family, but my happiness for him, will never be enough to make up for the pain we felt when he left. hang in there!
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