235 Cal. App. 4th 54
Cal. Ct. App.2015Background
- Infant M.M. was placed with T.C. (appellant), a licensed foster caregiver, within weeks of birth and lived there for nearly all of her life; appellant later sought to adopt and began a home study.
- DHHS recommended termination of parental rights and listed both appellant and the paternal aunt as prospective adoptive caregivers; the aunt’s kinship assessment was incomplete but later approved.
- A section 366.26 selection-and-implementation hearing was noticed for January 15, 2014; DHHS filed a late addendum (not served on appellant) recommending placement with the aunt and approval of her home.
- At the January 15 hearing Judge Borack declined to change placement and continued the 366.26 hearing to January 22; appellant was granted de facto parent status the day before the addendum was filed.
- At the January 22 hearing before a different judge, the court terminated parental rights and, without notifying appellant or holding an evidentiary hearing on removal, ordered M.M. placed with the aunt; appellant was in the audience and not invited to be heard.
- The Court of Appeal vacated the placement (removal) order and remanded, holding appellant was entitled to statutory notice and an opportunity to object and that the removal was an abuse of discretion because there was no evidence removal was in the child’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a current caregiver who meets threshold criteria for designation as a prospective adoptive parent is entitled to written notice and a hearing under Welf. & Inst. Code §366.26(n)(3) before removal | Appellant: qualified as prospective adoptive parent and therefore entitled to statutory notice and opportunity to object/request a hearing prior to removal | DHHS: notice requirement does not apply because designation can only occur at the 366.26 hearing; removal planning occurred before that hearing | Court: Appellant qualified for notice under §366.26(n)(3); DHHS’s timing argument is rejected—written notice and opportunity to be heard were required prior to removal |
| Whether failure to give written notice and a formal opportunity to object was forfeited or harmless because appellant was present at the hearing | Appellant: lack of formal notice deprived her of statutory rights and chance to request designation and a hearing | DHHS: presence in court gave meaningful opportunity to be heard; any objection was forfeited by not speaking up from the audience | Court: Error was not forfeited or harmless; informal presence did not satisfy the statute because appellant lacked notice of the changed recommendation and was not represented or invited to participate |
| Whether the juvenile court abused its discretion by ordering removal/placement with the aunt without evidence removal was in M.M.’s best interests | Appellant: removal was ordered without evidence addressing harm of uprooting child from sole known caregiver; court relied on relative preference improperly | DHHS: placement with aunt was appropriate; relative preference not relied on or inapplicable; appellant forfeited challenge | Court: Removal was an abuse of discretion—no substantial evidence supported finding removal was in child’s best interests; reliance on relative preference (as argued at hearing) was improper at adoption stage |
| Remedy/remand requirements | Appellant: vacate placement and require notice/hearing under §366.26(n)(3) with DHHS bearing burden to prove removal is in child’s best interests | DHHS: any procedural error harmless; placement ok | Court: Vacated placement order; remanded with instructions that DHHS must give notice within 10 days of remittitur; hearing within 40 days if requested; DHHS must prove by preponderance removal is in child’s best interests |
Key Cases Cited
- T.W. v. Superior Court, 203 Cal.App.4th 30 (discussing §366.26(n) notice and burden of proof requirement for removal)
- In re Jayden M., 228 Cal.App.4th 1452 (standing and timing issues concerning removals before/at 366.26 hearings)
- In re Sarah S., 43 Cal.App.4th 274 (statutory relative-placement preference does not apply to adoption placements)
- In re Lauren R., 148 Cal.App.4th 841 (caretaker preference at adoption stage)
- In re N.M., 197 Cal.App.4th 159 (placement-change review standard—abuse of discretion)
- In re Robert L., 21 Cal.App.4th 1057 (need for evidence to support findings about child's best interests)
- Stack v. Stack, 189 Cal.App.2d 357 (reaffirming that absence of evidentiary support can constitute abuse of discretion)