1

Filed 2/7/22 W.R. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

W.R.,

Petitioner,

v.

THE SUPERIOR COURT OF 

SAN BERNARDINO COUNTY,

Respondent;

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Real Party in Interest.

E077934

(Super.Ct.No. J280519)

OPINION

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Steven A. Mapes. 

Petition denied.

James W. Tritt for Petitioner.

No appearance for Respondent.
2

Steven O’Neill, Interim County Counsel, and Kaleigh Ragon, Deputy County 

Counsel, for Real Party in Interest.

I

INTRODUCTION

Petitioner W.R. (Father) seeks extraordinary writ relief (Welf. & Inst. Code, 

§ 366.26,1subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court’s order made 

at a section 366.3 permanency planning review hearing terminating Father’s reunification 

services, denying return of his now two-year-old son L.O to his care, and setting a 

selection and implementation hearing (§ 366.26).2 He contends substantial evidence does 

not support the juvenile court’s finding that the return of his child to his custody would 

create a substantial risk of detriment to L.O.’s physical or emotional well-being. He 

further argues the juvenile court erred in ruling out the paternal grandmother (PGM) for 

placement. We do not find Father’s contentions meritorious, and we accordingly deny 

the petition.

II

FACTUAL AND PROCEDURAL BACKGROUND

In March 2019, San Bernardino County Children and Family Services (CFS) 

received a referral for general neglect of L.O. after then 15-year-old Mother, a San 

Bernardino County dependent minor, was picked up in San Diego by a trafficking 

1

 All future statutory references are to the Welfare and Institutions Code unless 

otherwise stated.

2

 K.O. (Mother) is not a party to this writ proceeding.
3

officer.3 Mother had given birth to L.O. in San Diego and following her discharge from 

the hospital several days later, she was transported to San Bernardino County Juvenile 

Hall due to a warrant for not appearing in court. L.O. remained in the hospital for seven 

days due to Group B Strep. Mother was guarded and would not provide contact 

information for Father. Mother had a history of substance abuse, defiance toward 

authority, human trafficking, running away from her group homes, and extensive trauma 

related to sexual abuse and exploitation.

CFS detained L.O. on April 4, 2019, and filed a petition on behalf of the child 

under section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). 

The petition was later amended, deleting the subdivision (g) allegation and adding 

subdivision (b) allegations and a subdivision (d) (sexual abuse) allegation against Father.

L.O. was formally detained from parental custody at the April 9, 2019 detention 

hearing. At that hearing, Mother identified Father as L.O.’s father, giving his name and 

contact information. The paternal stepgrandfather, the maternal grandmother, a maternal 

aunt, a maternal uncle, and the paternal great-grandmother were identified as possible 

placements for L.O.4

CFS’s investigation revealed that then 21-year-old Father had been in a 

relationship with Mother for the past three years. The relationship began when Mother 

3

 Because Mother is not a party to this writ proceeding, we discuss matters related 

to Mother as relevant for this writ proceeding.

4

 The paternal great-grandmother later indicated that she would not be able to care 

for the child due to her age and part-time work. In September 2019, the maternal aunt 

declined placement of L.O. due to health issues.
4

was 13 years old, and Father was 18 years old. In June 2017, Father was arrested for 

domestic violence against Mother and statutory rape. He was eventually convicted of 

these charges and placed on probation. Father had about a year and a half left on 

probation. Father noted that he was not a sex offender as a result of his conviction but 

was only allowed to be around children who were family members. However, after his 

incarceration, he continued to maintain a relationship with Mother and received a 

probation violation as a result. Father stated that his probation officer did not know about 

L.O. and that he was afraid to notify him as it would likely result in another violation.

Father appeared at an April 30, 2019 hearing and denied the allegations. The 

juvenile court referred the matter to mediation and provided Father with visitation.

On June 6, 2019, a referral was called into the child abuse hotline alleging that 

Father, then age 21, sexually victimized Mother, then age 15. The reporting party stated 

that on June 3, 2019, Father’s girlfriend, C.A., found recent text messages in his phone 

indicating that Father had picked up Mother from school and engaged in sexual 

intercourse with Mother in a parking lot. Father became upset when confronted with this 

information by C.A. and wrestled the phone away from C.A. C.A. contacted law 

enforcement and Father was arrested for domestic violence. On June 5, 2019, Father was 

arrested again for violating probation by having ongoing contact with Mother.

Father was released from custody in September 2019. Mother ran away from her 

group home and was believed to be staying with Father. On September 19, 2019, CFS 

contacted San Diego law enforcement to request a welfare check at Father’s home. The 
5

welfare check revealed that Father had been living in the home until approximately a 

week prior when his family kicked him out of the home. Father’s family also informed 

the officers that Father was with Mother and provided a description of Father’s car. 

Father appeared to be transporting Mother to and from her scheduled visitations with 

L.O. While Mother visited with L.O., Father was observed waiting outside the CFS

building near the front lobby to see Mother and L.O. together. Around September 13, 

2019, Father came into the CFS office and demanded visits with L.O. The social worker 

informed Father that CFS was working on setting up separate visits for Father and L.O.

On October 7, 2019, the juvenile court took jurisdiction over L.O. on the basis of 

sustained allegations pursuant to section 300, subdivision (b), as alleged in the amended 

petition. The court dismissed the subdivision (d) (sexual abuse) allegation against Father. 

The court declared L.O. a dependent of the court, removed him from parental custody,

and ordered reunification services for Mother and Father.

On June 10, 2020, foster parents Mr. and Mrs. C. filed a de facto parent request. 

By that date, L.O. had been residing with Mr. and Mrs. C. for over a year and they had 

provided for his daily needs.

By April 2020, CFS recommended terminating reunification services for Father 

and Mother due to their lack of progress and violations of the law and court order. On 

November 29, 2019, Father and Mother had been arrested together by border patrol 

agents on immigrant smuggling charges. They were again arrested together on March 8, 

2020, for stealing. And, on April 20, 2020, Father and Mother were involved in a
6

domestic violence incident at a motel when Mother became upset, fled with Father’s car 

key, and police were called. It was evident to CFS that Father and Mother were in a 

relationship and that Father continued to be in contact with Mother in violation of a 

restraining order. Father was uncooperative with CFS, blamed the social worker for his 

failure to comply with his case plan and restraining order, was homeless and 

unemployed, and refused to give the social worker an address for where he was residing. 

He stated that he had no family support in California as his parents resided in Japan. CFS 

was concerned that Father had failed to take responsibility for his actions and had not 

shown to have benefitted from services.

However, by June 2020, Father had made progress in his case plan, and CFS 

recommended additional services for Father. He had maintained consistent contact with 

L.O., and his interactions with L.O. were appropriate. On June 4, 2020, Father contacted 

the social worker and stated that he had completed his individual counseling and only had 

one more parenting class and domestic violence class. Father’s therapist confirmed his 

progress and noted that he was “highly motivated and focused.” Father was staying in a 

hotel provided for by the Veterans Affairs (VA). Due to this new information, CFS 

opined that it was appropriate to offer Father six additional months of services so that he 

may obtain employment and maintain stability to show that he can support, protect, and 

provide for his child. CFS continued to recommend terminating reunification services to 

Mother as her whereabouts remained unknown.
7

At the six-month review hearing on June 16, 2020, Father’s counsel submitted on 

the recommendation and requested unsupervised visits. Mother’s counsel requested to 

set the matter for contest, and a contested hearing was scheduled for August 11, 2020.

By August 2020, Father continued to reside in a motel funded by the VA. Father 

reported that he was collecting unemployment and was awaiting low-income housing. 

He inquired with the social worker if Mother was allowed to live with him in the lowincome housing and noted that the restraining order was set to expire in October 2020. 

Father also stated that he and Mother would discuss plans for their relationship and that

he wanted Mother to babysit L.O. The social worker was concerned that Father did not 

think about what was in the best interest of his child and was further concerned that 

Father’s choice to have Mother live with him would continue to place L.O. at risk. The 

social worker recommended that any unsupervised visitation with Father and L.O. occur 

only at a CFS office.

At the contested six-month review hearing on August 11, 2020, the juvenile court 

provided the parents with an additional six months of services. The court granted Father 

unsupervised visits at the CFS office. The court also granted Mr. and Mrs. C.’s request 

for de facto parent status. The court noted that because the date for the 12-month review 

hearing had passed, this hearing would be considered a combined six-month and 12-

month review hearing. The court thus set an 18-month review hearing for October 1, 

2020.
8

By October 1, 2020, the parents had not identified any new family members L.O. 

may be placed with. Father continued to report that his mother lived out of the country

but noted that his brother may be coming to reside with him in California. Father was 

still residing in motels provided for by the VA while he waited for low-income housing. 

He was unemployed but had recently attended a hiring event and continued to collect 

unemployment. As of June 13, 2020, Father had completed all of his case plan services. 

However, when questioned about his current ability to take care of L.O., Father stated 

that he could take care of him as long as Mother could take him when he obtained 

employment. When the social worker reminded Father about the restraining order and 

the issues with their relationship, he did not appear to understand the severity, responding 

that the best option was for L.O. to stay with Mother and Father could pick him up after 

work.

Based on Father’s financial information in the low-income housing application, it 

was apparent that Father provided Mother with financial support and that they maintained 

a relationship. Father, however, indicated that he had called Mother on August 18, 2020,

and told her that they could not be together because he could not afford to lose his son. 

He acknowledged that he was not supposed to speak to Mother. Father also stated that 

his brother may be moving in with him and that he would try to work during the hours 

that his brother could watch L.O. Due to concerns with Father and Mother’s ongoing 

relationship, instability, risks of domestic violence, and inability to assume full 

responsibility for L.O. within the next six months, CFS recommended that reunification 
9

services be terminated to both Mother and Father and that a section 366.26 hearing be set 

to establish a permanent plan of adoption for L.O. The scheduled October 1, 2020 18-

month review hearing was continued to November 30, 2020, for contest.

By November 19, 2020, Father resided in a temporary hotel while waiting for 

approval for low-income housing and continued to consistently visit L.O. He was 

looking for stable employment, but in the meantime was delivering food for a food 

delivery service. When questioned about his plans to take care of L.O. if he was returned

to his custody, Father stated that he would move in with his sister, though he had never 

mentioned his sister before. Father reported that he had a twin sister who resided in a 

studio apartment with her boyfriend, and his sister could watch L.O. when she was not 

working. Father’s VA case manager confirmed that Father was awaiting housing and that 

Father continued to engage in mental health services through the VA.

The contested 18-month review hearing set for November 30, 2020, was continued 

once more to January 12, 2021, due to the sudden unavailability of an attorney assigned 

to the case.

By January 5, 2021, Father continued to search for housing and receive

unemployment benefits. He also continued to consistently visit L.O.at the CFS office. 

Father reported that his brother and nephews were included on his housing voucher and 

that they planned to move in with Father. However, the social worker noted that the live 

scan paperwork, which was sent to Father’s brother in November 2020, had not been 

returned.
10

The contested 18-month review hearing was held on January 12, 2021. After 

hearing testimony and argument from all counsel, the juvenile court noted that there was 

a clear suspicion that Father and Mother were together, though all evidence of their 

relationship was dated at least six months prior. As such, the court decided to allow both 

Mother and Father to continue reunification services until the section 366.25 permanency 

review hearing scheduled for March 25, 2021. Since the criminal restraining order that 

prohibited contact between Father and Mother had expired in October 2020, the court 

issued its own no-contact order for Father and Mother.

In March 2021, CFS reported that Father’s unsupervised visits were moved to

locations outside of the CFS office. CFS explained that visits were moved outside of the 

office so that Father could have the opportunity to demonstrate that he can be outside of a 

controlled environment and still follow court orders and provide for the safety of L.O.

Father’s visits were reported to be consistent and appropriate. CFS also reported that 

Father was in the final stages of finding housing and should be able to move into his new 

home within a few weeks. Father had also found stable employment. Father stated that 

his brother would assist with childcare if L.O. was returned to him and that he had no 

plans to continue a relationship with Mother. CFS recommended continued services for 

Father under a plan of permanent placement with the goal of L.O. returning to Father.

CFS noted that Father needed additional time to secure housing, stabilize himself, prove 

he could manage L.O. safely outside of a controlled environment, and prove that he was 
11

able and willing to remain separated from Mother for the long term. Neither Father nor 

Mother had identified any new family members to consider as placement options for L.O.

Mother, on the other hand, continued to show poor insight, disobeyed house rules, 

repeatedly left her foster home, returned two hours after her curfew and ignored the foster 

mother’s attempts to contact her, continued to disrespect others in the house, and failed to 

exhibit independent living skills. CFS noted concerns that Mother was unable to 

demonstrate that she could behave appropriately without supervision or that she could 

prioritize the needs of her child over her own. Mother was not looking for a job but 

appeared to have a lot of money and did not disclose where she got the money. CFS thus 

recommended that Mother’s services be terminated.

At the section 366.25 hearing on March 25, 2021, after hearing argument from 

counsel, the court found no likelihood of return of L.O. to Mother and terminated 

Mother’s reunification services. The court agreed to extend services for Father, finding a 

likelihood that L.O. could be returned to Father. The court granted Father unsupervised 

visits with L.O. and ordered that Mother was not to be present. A permanent plan review 

hearing was scheduled for September 24, 2021.

By September 2021, Father had moved into his home in late April 2021. He had 

also completed all of his case plan services. However, CFS remained concerned with 

Father’s inability to follow the court’s no-contact order with Mother. CFS reported 

coincidences that led to a suspicion that Father and Mother were having contact with one 

another. CFS noted that on May 12, 2021, Mother had a scheduled supervised visit with 
12

L.O. at the CFS office. After the visit, the social worker witnessed Father pick up Mother 

from the store next door to the office. The social worker was able to identify Father in 

the car and later was also able to match his license plate to the car that picked up Mother. 

On May 19, 2021, the social worker again witnessed Father pick up Mother from the 

store parking lot next to the CFS office following one of her supervised visits with L.O.

In June 2021, L.O.’s foster parents also began to suspect that Father and Mother 

were visiting L.O. together. In July 2021, L.O.’s foster mother reported that after she met 

Father to drop off L.O. she saw Mother standing at the corner of a residential street

frequented by Father. Due to Mother’s distinctive tattoos and the foster mother’s 

substantial interactions with Mother, the foster mother stated that there was no question 

that it was Mother that she saw. Moreover, L.O., who was two years old by this time and 

verbal, indicated that Father and Mother were visiting him together. On one occasion, 

when Father was placing L.O. in the foster mother’s vehicle following an unsupervised 

visit, the foster mother heard L.O. continually ask Father “where mom go?” The foster 

mother stated that there was no confusion regarding who L.O. was talking about as he 

only calls Mother “mom” and calls her (foster mother) “mama.” In addition, L.O.

continued to talk about Mother following visits with Father and identified his supervised 

visits at the CFS office as with “mom” and identified his unsupervised visits as with “dad 

and mom.” While she originally thought L.O. may have been confused, the foster mother 

reported that L.O. was adamant and consistent about “mom” being at Father’s 

unsupervised visits.
13

When confronted with these concerns, Father denied all allegations that he was in 

contact with Mother. CFS remained concerned that Father was unable to follow the 

court’s no-contact order, despite knowing that having contact with Mother could cause 

him to lose his son. CFS opined that due to Mother’s “ongoing concerning and 

dangerous” behaviors and Father’s “significant struggle with protective capacities,” L.O.

would continue to be at risk for significant harm and neglect if he were placed in Father’s 

care.

5 CFS thus recommended that Father’s reunification services be terminated and a 

section 366.26 hearing be set to establish a permanent plan of adoption for L.O. L.O. had 

been placed with his foster parents since May 2019 and was attached to them. The foster 

parents were mutually attached to L.O. and desired to adopt L.O. and provide him with 

permanency and stability.

At the scheduled September 24, 2021 section 366.3 hearing, after Father’s counsel 

requested to set the matter for contest, the juvenile court scheduled a contested hearing

for October 18, 2021. In the interim, Father’s visits were reverted to supervised once a 

week for two hours.

On October 13, 2021, CFS informed the juvenile court that PGM was approved to 

participate in a portion of Father’s supervised visits. The social worker spoke with PGM 

on October 12, 2021. PGM admitted that this was the first time she had met L.O., 

although she had seen him in video chats. The social worker noted that PGM was 

5

 Mother continued to engage in sex trafficking behaviors, was arrested by the 

San Diego Human Trafficking Unit with her minor sister, and had a large amount of cash 

in her possession. Mother’s dependency case was dismissed in August 2021 when she 

turned 18.
14

unclear about what she wanted and made conflicting statements as to placement of L.O. 

in her care. PGM stated that she was in California to visit so L.O. could get to know her, 

but then said she came because “you guys wanted me to show up so I am here.” PGM 

noted that she lived in Japan and was only in California for the hearing. She also claimed 

that she had reached out numerous times regarding placement of L.O., but neither the 

current social worker nor the previous one ever received any communication from her.

The social worker reported that PGM may have reached out at the inception of the case in 

2019 and was told she needed to come to California to complete live scan fingerprinting; 

however, since she lived in Japan and the parents were participating in reunification 

services in California, placement would not have been possible in Japan. PGM admitted 

that she never pursued placement as she believed Father would reunify with L.O. and it 

would be a waste of time to come to California to seek placement.

However, once Father informed PGM that the recommendation was to terminate 

services, she and her husband flew out on an emergency leave basis as her husband was 

in the military. When asked what it would look like for PGM to have placement of L.O.

and the location of the placement, PGM did not have a response. She indicated her 

current housing was “temporary” and not “long-term” and that financials were an issue.

PGM could not identify or describe any stable plan for placement of L.O. and did not 

know how long she could stay in California or where she would stay. She also had 

reservations about placing L.O. in her care in Japan because she did not know how long 

she would be living in Japan. The social worker opined that placement with PGM would 
15

be very concerning at this point as she made minimal efforts to obtain placement, was 

unable to demonstrate stability, and was unable to verbalize a plan for placement of L.O. 

in her care.

By October 2021, CFS also recommended that the juvenile court reduce both 

parents’ visitations due to the harm visits have had on L.O.’s emotional stability. CFS 

reported that over the previous month, L.O. had struggled with tantrums and aggression, 

including kicking, biting, and hitting, due to not wanting to go to visits with Father and 

Mother.

The contested section 366.3 hearing was held on October 18, 2021. Following 

admission of evidence, testimony from Father and the social worker, and argument from 

all counsel, the juvenile court considered the factors under section 361.3 and ruled out 

PGM’s request to be considered for placement. The court further found, by a 

preponderance of the evidence, that custody by Father continued to be detrimental to L.O.

The court terminated Father’s reunification services and set a hearing under section 

366.26. Father timely filed a notice of intent to file a writ petition.

III

DISCUSSION

A. Detriment Finding

Father contends the juvenile court erred in not returning L.O. to his care at the 

section 366.3 permanency planning review hearing because the court’s finding of 

detriment was not supported by substantial evidence. We disagree.
16

Section 366.25 governs cases in which reunification services have been extended 

to 24 months. At a 24-month review hearing, the juvenile court must order the return of a 

child to the parent’s physical custody unless the court finds by a preponderance of the 

evidence that the child’s return would create a substantial risk of detriment to the child’s 

safety, protection, or physical or emotional well-being. (§ 366.25, subd. (a)(1).) If the 

child is not returned to his or her parent at the 24-month review hearing, the juvenile 

court must set a section 366.26 hearing. (§ 366.25, subd. (a)(3).) 

Here, at the section 366.25 review hearing in March 2021, the juvenile court found 

that return of custody of L.O. to Father continued to be detrimental to L.O. The court, 

however, did not terminate Father’s services and ordered a permanent plan of placement 

in foster care with a permanent plan of return home to Father. The court found a 

compelling interest for determining that a section 366.26 hearing was not in L.O.’s best 

interest and that it was in L.O.’s best interest to offer Father an additional six months of 

services under the permanent plan. 

“Once a permanent plan is selected, however, the case moves into the postpermanency stage, . . . If a plan other than adoption is selected, and parental rights are 

not terminated, the availability of reunification services is determined thereafter under 

section 366.3. . . .” (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1038; see 

§ 366.3.) Section 366.3 provides for a status review at least every six months in the case 

of a child placed in long-term foster care. (§ 366.3, subd. (d).) “The statutory scheme 

ensures that efforts are continuously being made to find a more permanent placement for 
17

a child in long-term foster care.” (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 

1178.) The legislative preference is “for adoption over legal guardianship over long-term 

foster care.” (San Diego County Dept. of Social Services v. Superior Court (1996) 13 

Cal.4th 882, 888.)

Section 366.3, subdivision (f), provides that where parental rights have not been 

terminated: “It shall be presumed that continued care is in the best interests of the child, 

unless the parent or parents prove, by a preponderance of the evidence, that further efforts 

at reunification are the best alternative for the child. In those cases, the court may order 

that further reunification services to return the child to a safe home environment be 

provided to the parent or parents up to a period of six months, and family maintenance 

services, as needed for an additional six months in order to return the child to a safe home 

environment.”

Section 366.3 also provides that at a postpermanency planning review hearing, the 

juvenile court “shall order” a section 366.26 hearing “unless it determines by clear and 

convincing evidence that there is a compelling reason for determining that a hearing held 

pursuant to Section 366.26 is not in the best interest of the child because the child is 

being returned to the home of the parent, the child is not a proper subject for adoption, or 

no one is willing to accept legal guardianship as of the hearing date.” (§ 366.3, 

subd. (h)(1); see M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1180.) The statute 

thus does not require the juvenile court to make a finding of detriment in order to set a 

section 366.26 hearing at a postpermanency planning review hearing, even though the 
18

juvenile court made such finding at the section 366.3 hearing. Father does not argue or 

suggest that it was not in L.O.’s best interest to set a section 366.26, and there is no 

evidence to suggest otherwise. L.O. had been placed with his foster parents when he was 

two months old and is now two years old. L.O. has been in the care of his foster parents, 

who desired to adopt him and provide him with stability and permanency, nearly all of 

his young life.

Although Father challenges a finding of detriment in his writ petition, the juvenile 

court here was not required to make a detriment finding when it ordered the section 

366.26 hearing. Father’s challenge to the order on that basis thus fails. Even if a 

detriment finding was required, there is substantial evidence to support the juvenile 

court’s detriment finding. 

“We review the juvenile court’s finding of detriment for substantial evidence.” 

(Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864 (Georgeanne G.).) 

“ ‘ “In making this determination, we draw all reasonable inferences from the evidence to 

support the findings and orders of the dependency court; we review the record in the light 

most favorable to the court’s determinations; and we note that issues of fact and 

credibility are the province of the trial court.” [Citation.] “We do not reweigh the 

evidence or exercise independent judgment, but merely determine if there are sufficient 

facts to support the findings of the trial court.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)

Substantial evidence supports the juvenile court’s finding of detriment. Although 

Father is correct that he had completed his case plan, he nonetheless continued to 
19

maintain a relationship with Mother and had contact with Mother, despite the no contact 

order and Mother’s risk to L.O. He had repeatedly allowed Mother to attend his 

unsupervised visits with L.O., despite Mother continuing to engage in reckless, 

dangerous, and irresponsible behaviors and her lack of insight into how her behavior 

posed a risk to L.O. There was ample evidence in the record that a relationship with 

Mother would pose a risk to L.O. and that L.O. continued to be at risk of exposure to 

Mother. Father continued to deny having a relationship with Mother, but he was seen 

with Mother at visits by the social worker, as well as the foster mother. Moreover, L.O. 

indicated to the foster mother that Mother attended Father’s unsupervised visits. There 

was also evidence in the record to show that Father provided for Mother’s financial 

needs. Contrary to Father’s claim, the risk to L.O. was not theoretical.

M.G. v. Superior Court (2020) 46 Cal.App.5th 646 (M.G.) and Georgeanne G.,

supra, 53 Cal.App.5th 856, relied on by Father, are distinguishable. First, both of those 

cases involve a parent’s challenge to a finding of detriment and termination of 

reunification services that occurred at the 18-month review hearing before a permanent 

plan was established. (See M.G., at p. 649; Georgeanne G., at p. 858.) Therefore, 

different statutes and statutory presumptions were applicable in those cases that are not 

applicable to this case. (See M.G., at p. 660 [“ ‘[A]t each review hearing prior to 

permanency planning, there is a statutory presumption that the child will be returned to 

parental custody.’ ”]; §366.22 subd. (a).) Further, the facts of those cases are different 

than the present case.
20

In M.G., supra, 46 Cal.App.5th 646, the juvenile court sustained a petition as to 

the parents based in part on their substance abuse and domestic violence by the father and 

mother’s boyfriend P.B. (Id. at pp. 650-651.) Although the mother obtained a restraining 

order against P.B., the court later modified the order to allow peaceful contact, and the 

mother planned to move in with P.B. (Id. at p. 654.) The mother made significant 

progress in addressing her substance abuse issues, but the juvenile court made a finding 

of detriment based on the risk P.B. posed to mother’s sobriety. (Id. at pp. 658-659.) The 

Court of Appeal reversed, explaining, “The juvenile court’s ruling relied on . . . vague 

and nebulous concerns that were not supported by evidence. The court stated it had no 

concerns with the parents’ substance abuse. It focused on Mother’s relationship with 

P.B., even though Mother testified she was merely friends with P.B., and her therapist 

testified she had no concerns about Mother’s relationship with P.B. [The child welfare 

agency] produced no evidence contradicting that evidence. In short, the court based its 

concerns on a hunch that was not supported by any evidence, stating Mother’s 

relationship with P.B. was ‘a risk to you and your sobriety.’ ” (Id. at p. 662.) In contrast 

to M.G., the juvenile court here had more than a “hunch” that Father’s relationship with 

Mother posed a substantial risk to L.O.

Father’s reliance on Georgeanne G., supra, 53 Cal.App.5th 856 is likewise 

misplaced. There, the juvenile court made a finding of detriment based on the mother 

living with a man (Arthur) who had been convicted of raping his former wife despite 

there being a no-contact order in place and no evidence Arthur had engaged in any 
21

physical or verbal abuse of the mother. (Id. at pp. 859, 863.) The Court of Appeal 

rejected the juvenile court’s finding the mother’s lack of insight into the risk posed by 

Arthur created a risk of detriment, explaining, “The Department’s and the court’s 

assessment Lucas risked exposure to family violence, even with a no-contact order or 

monitored visitation for Arthur, depended on two inferences: Georgeanne would violate 

the court order, and Arthur would commit (or was likely to commit) an act of violence 

against Georgeanne or perhaps Lucas. Neither essential inference had a basis in the 

evidence. [¶] Certainly, Arthur committed a serious act of violence against his ex-wife, 

for which he was convicted of a felony and placed on probation. But there was no 

evidence he engaged in any physical or verbal abuse toward Georgeanne during the 22 

months they had been living together. Nor was there reason to believe, if violence were 

threatened, Georgeanne would be a passive victim and unable to protect Lucas.” (Id. at 

pp. 868-869.) Further, “[w]hatever theoretical risk Arthur might pose . . . could be 

effectively neutralized by continuing court supervision and services while returning 

Lucas to Georgeanne’s care.” (Id. at p. 869.) As discussed, Father here continually 

violated the no contact order and had a pattern of similar conduct in the past. Although 

he denied having contact with Mother, he was observed numerous times with Mother by 

the social worker and the foster mother. L.O. also indicated Mother’s attendance at 

Father’s unsupervised visits. 

Because substantial evidence supports the juvenile court’s finding of detriment, 

the juvenile court did not err in refusing to return L.O. to Father. 
22

B. Placement

Father also asserts that the juvenile court erred in “refus[ing] to consider” PGM’s 

request for assessment as a legal guardian or prospective adoptive parent at the section 

366.3 hearing. Relying on section 366.3, subdivision (h)(1), he claims that “[b]ecause the 

court was aware that the paternal grandmother was then, at the time of the hearing, 

requesting to be assessed for placement of L.O. in her care, it was error for the court to 

find it was in the best interest of L.O. to set a section 366.26 hearing when the court knew 

that paternal grandmother was willing to accept legal guardianship of L.O. as of the 

hearing date.” Father’s claim lacks merit as he misconstrues subdivision (h) of section 

366.3.

As previously discussed, section 366.3 governs postpermanency review hearings 

for children for whom a permanency plan has been selected, including long-term foster 

care. Consistent with the Legislature’s preference for a permanency plan other than longterm foster care (§ 396), the court is required to consider “all permanency planning 

options for the child” at a postpermanency review hearing. (§ 366.3, subd. (h)(1).) The 

court is required to consider all permanency planning options, including whether the 

child should be returned to the home of the parent, placed for adoption, appointed a legal 

guardian or placed in another planned permanent living arrangement. (Ibid.) The court 

must set a section 366.26 hearing unless it determines by clear and convincing evidence 

there is a compelling reason that a section 366.26 hearing is not in the child’s best 

interest. (§ 366.3, subd. (h)(1).) A compelling reason exists when the child is being 
23

returned to the home of the parent, the child is not a proper subject for adoption or there 

is no one willing to accept legal guardianship of the child.6(Ibid.)

Father appears to interpret section 366.3, subdivision (h)(1), to mean that if there 

is someone willing to accept legal guardianship of the child as of the hearing date, then 

that alone is a compelling reason that a section 366.26 hearing is not in the best interest of 

the child. However, the statute provides that where there is no one willing to accept legal 

guardianship of the child as of the hearing date, a compelling reason exists that it is not in 

the best interest of the child to not set a section 366.26 hearing. In fact, as explained, the 

juvenile court “shall order” a section 366.26 hearing “unless it determines by clear and 

convincing evidence that there is a compelling reason for determining that a hearing held 

6

 Specifically, section 366.3, subdivision (h)(1), states: “At the review held 

pursuant to subdivision (d) for a child in foster care, the court shall consider all 

permanency planning options for the child including whether the child should be returned 

to the home of the parent, placed for adoption, or, for an Indian child, in consultation with 

the child’s tribe, placed for tribal customary adoption, or appointed a legal guardian, 

placed with a fit and willing relative, or, if compelling reasons exist for finding that none 

of the foregoing options are in the best interest of the child and the child is 16 years of 

age or older, whether the child should be placed in another planned permanent living 

arrangement. The court shall order that a hearing be held pursuant to Section 366.26, 

unless it determines by clear and convincing evidence that there is a compelling reason 

for determining that a hearing held pursuant to Section 366.26 is not in the best interest of 

the child because the child is being returned to the home of the parent, the child is not a 

proper subject for adoption, or no one is willing to accept legal guardianship as of the 

hearing date. If the county adoption agency, or the department when it is acting as an 

adoption agency, has determined it is unlikely that the child will be adopted or one of the 

conditions described in paragraph (1) of subdivision (c) of Section 366.26 applies, that 

fact shall constitute a compelling reason for purposes of this subdivision. Only upon that 

determination may the court order that the child remain in foster care, without holding a 

hearing pursuant to Section 366.26. The court shall make factual findings identifying any 

barriers to achieving the permanent plan as of the hearing date. The nonminor 

dependent’s legal status as an adult is in and of itself a compelling reason not to hold a 

hearing pursuant to Section 366.26.”
24

pursuant to [s]ection 366.26 is not in the best interest of the child because the child is 

being returned to the home of the parent, the child is not a proper subject for adoption, or 

no one is willing to accept legal guardianship as of the hearing date.” (§ 366.3, 

subd. (h)(1); see M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1180.)

PGM’s request to be assessed for placement after over two years since L.O.’s 

removal, detention, and placement with his foster parents is not a compelling reason to 

not set a section 366.26 hearing. Rather, the record demonstrates that it was in L.O.’s 

best interest to schedule a section 366.26 hearing. The foster parents had provided for 

L.O.’s daily needs for the past two years and desired to adopt him prior to PGM’s request

to be assessed as a legal guardian or prospective adoptive parent.

To the extent that Father is implying that the juvenile court erred in “refusing to 

consider” PGM’s request for placement under section 361.3, he has waived such 

argument by failing to assert it in his petition. “Courts will ordinarily treat the appellant’s 

failure to raise an issue in his or her opening brief as a waiver of that challenge. 

[Citation.]” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685;see 

Nemarnik v. Los Angeles Kings Hockey Club (2002) 103 Cal.App.4th 631, 638, fn. 3

[“[a] party’s failure to raise an issue below and in its opening brief constitutes a waiver”]; 

Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 

[failure to raise issue on appeal constitutes waiver]; Locke v. Warner Bros., Inc. (1997) 

57 Cal.App.4th 354, 368 [failure to raise issue in opening brief waives issue on appeal].)

Even if he raised the argument, the juvenile court here considered PGM’s request 
25

and rejected it under the factors listed in section 361.3. In determining where to place a 

child removed from the physical custody of his or her parents, preferential consideration 

is given to relatives. However, placement with a relative is neither required nor 

guaranteed. (§ 16519.5, subd. (c)(6).)

“ ‘Section 361.3 gives “preferential consideration” to a relative’s request for 

placement, which means “that the relative seeking placement shall be the first placement 

to be considered and investigated.” (§ 361.3, subd. (c)(1).)’ [Citation.] ‘When 

considering whether to place the child with a relative, the juvenile court must apply the 

[section 361.3] placement factors, and any other relevant factors, and exercise its 

independent judgment concerning the relative’s request for placement.’ [Citation.]” (In 

re A.K. (2017) 12 Cal.App.5th 492, 498; accord, In re Isabella G. (2016) 246 

Cal.App.4th 708, 719.)

“The relative placement provisions in section 361.3 apply when a child is taken 

from her parents and placed outside the home pending the determination whether 

reunification is possible. [Citation.] The relative placement preference also applies to 

placements made after the dispositional hearing, even when reunification efforts are no 

longer ongoing, whenever a child must be moved. (§ 361.3, subd. (d); [citation].)” (In re 

A.K., supra, 12 Cal.App.5th at p. 498.) 

Here, the juvenile court found that there was lack of relationship, effort, and 

involvement by PGM. The court also determined that there was a need for stability and 

permanency for L.O. L.O.’s need for stability and permanency after over two years since 
26

the dependency proceedings commenced weighed in favor of ruling out PGM’s request to 

be assessed for placement. The juvenile court thus did not err in refusing to order a 

placement assessment for PGM at the section 366.3 hearing.

IV

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.