In re Samantha H. ( 2020 )

Filed 5/26/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Samantha H., a Person B300065
Coming Under the Juvenile
Court Law. (Los Angeles County
______________________________ Super. Ct. Nos. DK23919A
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Jeanette Cauble, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Mother appeals the juvenile court’s order selecting adoption
as the permanent plan for her daughter Samantha H. Mother
argues the juvenile court erred when it ordered adoption absent
evidence in the record that the prospective non-relative adoptive
parent was advised of and affirmatively rejected guardianship in
favor of adoption.
We conclude the juvenile court appropriately ordered
adoption and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On July 17, 2017, the Los Angeles County Department of
Children and Family Services (DCFS) filed a petition under
Welfare and Institutions Code1 section 300, subdivision (b)(1)
alleging jurisdiction over Samantha (then nearly four years old)
and J.C., Jr. (then a newborn) based on J.C.’s positive test at
birth for amphetamine and marijuana and Mother’s drug use.
The court detained Samantha from Mother and released J.C. to
his father. Samantha was placed with M.W., the mother of
Samantha’s godmother. This appeal involves Samantha only.
On October 10, 2017, Mother pleaded no contest and the
court sustained the petition as amended. The court ordered
Mother to participate in a full drug/alcohol program, random
drug testing, a 12-step plan, parenting classes, and individual
counseling. Mother was ordered to participate in a reunification
plan and she was granted monitored visits with Samantha.
1 All statutory references are to the Welfare and Institutions
Code, unless otherwise stated.
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Samantha thrived in M.W.’s care. At the six-month
hearing in April, 2018, Mother had not followed through with the
service providers. The court ordered more services and set a
12-month review for September 2018. Mother failed to appear at
the 12-month hearing in September. The court found Mother’s
progress was “nonexistent” and terminated reunification services.
The court set a selection and implementation hearing pursuant to
section 366.26. The hearing occurred on July 9, 2019.
Mother failed to appear at the July 9, 2019 hearing.
Among other documents and reports considered by the juvenile
court was M.W.’s Caregiver Information form, filed March 19,
2019. This is a form caregivers complete to give information to
the juvenile court about the child or children for whom they are
caring. In the section marked “Recommendation for Disposition,”
M.W. wrote, “I plan to adopt Samantha . . . .” She filed a second
form on July 8 2019, again informing the juvenile court that she
wanted to adopt Samantha. A home study was approved and
DCFS recommended termination of parental rights and adoption
by M.W. Mother’s counsel presented no evidence challenging
DCFS’s recommendation; her attorney objected to termination of
parental rights based on Mother’s initial interest in reunifying
with her daughter, but acknowledged he had no recent direction
from his client. Mother never argued DCFS or the juvenile court
had an obligation to ensure that M.W. knew about and
affirmatively rejected the option of guardianship. Because the
issue was not raised, not surprisingly there is no discussion of or
findings on that issue.
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DISCUSSION
A. Mother’s Challenge to the Juvenile Court’s Order of
Adoption is Waived.
At the selection and implementation hearing, Mother failed
to object to the court’s adoption order on the ground raised for the
first time on appeal -- that M.W. had not been properly advised
about the option of guardianship. This argument is therefore
waived. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317; In re
Dakota S. (2000) 85 Cal.App.4th 494, 502.) Nonetheless, if we
were to consider the merits of Mother’s challenge, we would find
the trial court acted properly.
B. The Trial Court Was Under No Obligation Sua Sponte To
Inquire Whether M.W. Had Been Advised Of And Rejected
The Option of Guardianship In Favor Of Adoption.
Statutory interpretation calls for our independent review.
(In re K.H. (2011) 201 Cal.App.4th 406, 415.)
At a selection and implementation hearing the court must
order one of three permanent plans for the dependent child –
adoption, legal guardianship or foster care. Adoption is the
permanent plan preferred by the Legislature. (In re Beatrice M.
(1994) 29 Cal.App.4th 1411, 1416; In re Casey D. (1999)
70 Cal.App.4th 38, 50.) Freeing a child for adoption requires
termination of parental rights. To terminate parental rights, the
court need only make two findings: (1) there is clear and
convincing evidence that the minor will be adopted; and (2) there
has been a previous determination that reunification services
were terminated. (Cynthia D. v. Superior Court (1993) 5 Cal.4th
242, 249–250.) Section 366.26, subdivision (c)(1) carves out
exceptions to this preference for adoption, and the parent bears
the burden of showing that one of the exceptions listed in section
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366.26, subdivision (c)(1) applies. (In re Anthony B. (2015)
239 Cal.App.4th 389, 395.) Absent one of these exceptions, if the
child is adoptable, the juvenile court must select adoption as the
child’s permanent plan. (In re Jasmine T. (1999) 73 Cal.App.4th
209, 213.)
Mother acknowledges Samantha is adoptable and likely to
be adopted, as M.W. clearly expressed her desire to adopt the
child. Mother does not challenge the court’s determination
denying reunification services. Indeed, Mother avers there “was
no dispute that [M.W.]’s home was the right environment for
raising Samantha” and “it was clear that Samantha should be
living with [M.W.]” She also concedes none of the exceptions in
section 366.26 apply.
Instead, Mother argues that both adoption and legal
guardianship could provide a stable home for Samantha and it
was error for the trial court to “foreclose the guardianship
option.” She wants us to create an additional requirement that
the court must satisfy before ordering adoption as the permanent
plan. Mother argues the record must reflect that either DCFS or
the court advised the prospective non-relative adoptive parent of
the guardianship option and that the prospective parent
affirmatively rejected guardianship in favor of adoption.
Mother’s relies on In re Fernando M. (2006)
138 Cal.App.4th 529. Her reliance is misplaced. In that case the
child’s caretaker grandmother preferred legal guardianship, but
she was told she had to adopt her grandchild or face losing him to
another adoptive family. (Id. at p. 532.) The court of appeal
vacated the adoption order because it was in the child’s best
interest to remain with his grandmother, even if the placement
was under a guardianship. (Id. at p. 539.) This result was also
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prompted by one of the statutory exceptions to adoption in section
366.26, subdivision (c)(1) that permits the court to elect
guardianship as the permanent plan in lieu of adoption where
(1) a relative is unwilling to adopt but is willing to accept legal
and financial responsibility for the child and is capable of
providing the child with a stable and permanent environment;
and (2) removal of the child would be detrimental to his or her
emotional well-being. (§ 366.26, subd. (c)(1)(B)(iv).)
Samantha’s adoption does not involve a prospective
adoptive parent who is also a caretaking relative. The exception
in subdivision (c)(1) does not apply; In re Fernando M. and its
analysis is inapt.
Mother’s next argument is that the juvenile court has an
obligation to ensure that a prospective adoptive parent is fully
informed of all options. In this regard we note that the
“Concurrent Planning Assessment” completed and filed by DCFS
for the March 19, 2018 hearing states, “[Adoption Children’s
Social Worker (ACSW)] spoke to [M.W.] and discussed
permanency plan for Samantha [H]. ACSW explained concurrent
planning, alternative placement options, legal and financial rights
and responsibilities of adopting parents and adoption homestudy
process.” (Italics added.) DCFS then reported to the court that
M.W. “stated that she is interested in pursuing adoption of
Samantha [H].” We assume “alternative placement options”
includes legal guardianship. If this is an incorrect assumption,
we remind Mother it was her burden at the trial court to present
actual evidence to halt the adoption, i.e., to show that M.W. made
an uninformed, coerced, or otherwise tainted decision. (In re C.F.
(2011) 193 Cal.App.4th 549, 553.) Mother has not shouldered
that burden.
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Further, we decline to compel the juvenile court, as a
matter of course, to engage in a colloquy with non-relative
adoptive parents to determine whether they prefer guardianship,
or to otherwise ensure that the record shows an advisement
about and affirmative rejection of the guardianship option where
adoption is the Legislature’s preferred permanency plan. Here
the juvenile court considered, among other things, a Concurrent
Planning Assessment, two Case Information Forms completed by
the caregiver, and a 366.26 WIC Report, all of which discussed in
detail the caregiver’s wishes and DCFS’s recommendations for
adoption as the permanency plan. To require the juvenile court
to engage prospective non-relative adoptive parents in an on-the-
record colloquy akin to the taking of a plea in a criminal case is
unnecessary.
We find no statute or case requiring the juvenile court to
inquire whether a willing non-relative adoptive parent was
advised of and then rejected the option of guardianship. And we
decline to graft such a requirement onto the adoption protocol in
light of the Legislature’s preference for adoption as a dependent
child’s permanent plan. As one court has stated: “The
Legislature has decreed . . . that guardianship is not in the best
interests of children who cannot be returned to their parents.
These children can be afforded the best possible opportunity to
get on with the task of growing up by placing them in the most
permanent and secure alternative that can be afforded them. In
decreeing adoption to be the preferred permanent plan, the
Legislature recognized that, ‘Although guardianship may be a
more stable solution than foster care, it is not irrevocable and
thus falls short of the secure and permanent placement intended
by the legislature.’ ” (In re Beatrice M., supra, 29 Cal.App.4th at
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p. 1419.) Where, as here, all statutory requirements to terminate
parental rights have been met, the non-relative prospective
adoptive parent has been clear and consistent in her willingness
and desire to adopt the child, and the court has found the
adoptive parent suitable and the child thriving in the adoptive
parent’s care and custody, we see no reason whatsoever to derail
this adoption.
DISPOSITION
The juvenile court’s judgment is affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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