In re M.M., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. T.C., Defendant and Appellant.
No. C075687
Third Dist.
Feb. 9, 2015
54
Nixon Peabody, Karl D. Belgum and Blaire Z. Stokes for Defendant and Appellant.
John F. Whisenhunt, County Counsel, and Claire Van Dam, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DUARTE, J.—Appellant, de facto parent of minor M.M., appeals from the juvenile court‘s order removing the minor from her home at the selection and implementation hearing. (
FACTUAL AND PROCEDURAL BACKGROUND
Less than a month after her birth, in December 2012, minor M.M. was placed with appellant, a licensed foster care provider. She had spent five days with her paternal great-great-aunt (aunt), but was removed due to paternity concerns. At the disposition hearing, the court ordered reunification services for both parents. By August 2013, the Sacramento County Department of Health and Human Services (DHHS) was recommending termination of services.
In July 2013 (when the minor‘s half sibling who had also been placed with appellant was moved to a relative‘s home for adoption), appellant expressed reservations as to whether she wanted to adopt the minor. Accordingly, on August 2, 2013, DHHS contacted the aunt to inquire whether she was
On September 10, 2013, appellant told DHHS that she was, in fact, interested in adopting the minor.
The juvenile court terminated reunification services on September 18, 2013. Notice of the
On December 30, 2013, DHHS filed a
On January 14, 2014, the juvenile court granted appellant de facto parent status. Also on January 14, 2014, at approximately 3:00 p.m., DHHS filed an addendum report for the
DHHS responded that either placement would be appropriate and explained that the kinship assessment for the aunt had begun on August 30, 2013, but there had been several delays. The minor‘s counsel concurred, adding, “So I would just request the Court to maybe take this issue under submission. I believe the father‘s attorney is going to be requesting a continuance [because father was absent due to incarceration]. Maybe we can continue this matter to that date as well, because I do think we should review.”
The mother‘s counsel then joined in the request for a continued
The court thanked everyone for being there and then asked the parties if “anyone wish[ed] to be heard further on this issue.” The court then indicated it had read and considered the report prepared for the hearing, found the minor was likely to be adopted, and terminated parental rights. At this point, counsel for DHHS requested that the aunt be appointed the educational rights holder. The court granted that request and then asked if it should place the minor with the aunt at that time. Counsel for DHHS responded that the placement change was included in its proposed orders from the
At no time during the January 22, 2014 hearing did any counsel for the various parties inform Judge Petre that Judge Borack had previously rejected the proposed removal of the minor from appellant‘s home. Nor did counsel ever address or argue the reasoning for the change in placement beyond that the aunt was a “relative.”
Appellant filed a notice of appeal after the conclusion of the hearing.4
DISCUSSION
In her briefing, appellant contends that because she qualified as a prospective adoptive parent, she was entitled to notice and a hearing before the minor
I
Notice and Hearing Requirements Pursuant to Section 366.26
Appellant argues she met the requirements for designation as a prospective adoptive parent pursuant to
The dispute here is whether the statute quoted above actually applied to appellant at the time DHHS was required to provide the notice at issue.
DHHS argues not that appellant failed to meet the requirements to be designated a prospective adoptive parent (see
We disagree with this circular reading of the notice requirements. Before a permanency hearing is held, DHHS is charged with preparing a “preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, . . . particularly the caretaker . . . .” (
DHHS does not dispute that here appellant would have met the threshold criteria to be designated as a prospective adoptive parent at the time DHHS made the decision to seek removal. Instead, relying on
Although we certainly agree that as of January 14, 2014, appellant was not yet eligible to be designated a prospective adoptive parent due to the timing requirement of the designation, she was certainly qualified to be so designated as of that date. In its argument, DHHS conflates the appellant‘s achievement of threshold qualifications with her achievement of ultimate eligibility. As we have described ante, the statute merely requires qualification, not eligibility, in order to be entitled to notice.
Our decision in In re Jayden M. (2014) 228 Cal.App.4th 1452 [176 Cal.Rptr.3d 298] (Jayden M.) does not change this analysis. First and foremost, Jayden M. was decided on the basis of standing. Second, to the extent that we addressed the notice entitlement in Jayden M., we noted that the minor in that case was removed prior to the
“In enacting
II
Forfeiture and Harmless Error
DHHS next argues that any error in failing to formally notify appellant was harmless because she was in court for the
Although appellant may have known that DHHS was considering the aunt as well as appellant for ultimate placement, this is not the written notice that is contemplated and mandated by the statute. As we have detailed, appellant was not served with any of the reports, which themselves were inconclusive about the recommendation to change placement until the late-filed addendum on January 14, 2014. Significantly, at the January 15, 2014 hearing—which was the first date on this record that appellant could have even arguably had an inkling of DHHS‘s pending request to remove the minor—the court decidedly rejected the request to change placement, explaining at length why
When the parties appeared at the continued hearing on January 22, 2014, appellant had no notice, or even reason to suspect, that DHHS intended to continue to pursue its request to remove the minor from her home. Appellant, although previously designated a de facto parent, was not included at the counsel table, but instead remained in the audience. She was not represented by counsel. The court‘s invitation to comment was directed at those who were being permitted to argue at the counsel table, not those individuals in the audience who had merely been acknowledged and thanked for their attendance.
Under these circumstances, we do not agree that appellant either received or forfeited her right to statutory notice and the opportunity to object to the minor‘s removal. By the failure to provide notice to appellant, she was deprived of the opportunities both to request designation as a prospective adoptive parent and to request to be heard regarding removal. Thus we reject the harmless error argument.
III
Abuse of Discretion
Appellant further contends the court abused its discretion in entering the removal order by (apparently) basing it solely on relative preference, and without any evidence regarding the minor‘s best interest. DHHS counters that relative preference was not the basis for the court‘s orders and, in any event, any preference for placement with appellant as the current caretaker is inapplicable. It adds that even if applicable, any claim of preference is forfeited due to appellant‘s failure to claim it below.
First, for reasons we have described ante, we decline to find the argument forfeited due to appellant‘s failure to object at the time of the hearing.
Second, we note that the relative placement preference did not apply at this stage in the proceedings. “[T]he statutory preference for placement of a dependent child with a relative [citation] does not apply to a placement made as part of a permanent plan for adoption.” (In re Sarah S. (1996) 43 Cal.App.4th 274, 276–277 [50 Cal.Rptr.2d 503], fn. omitted.) Once reunification efforts have failed, and the juvenile court has before it a proposed permanent plan of adoption, it is the caretaker who has preference. (Id. at
A juvenile court‘s decision to authorize a change in the minor‘s placement is reviewed for abuse of discretion. (See In re N.M. (2011) 197 Cal.App.4th 159, 171 [127 Cal.Rptr.3d 424].) But we must also review the juvenile court‘s finding that the change is in the minor‘s best interests to determine whether there is substantial evidence in the record to support it. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066 [24 Cal.Rptr.2d 654]; Stack v. Stack (1961) 189 Cal.App.2d 357, 368 [11 Cal.Rptr. 177] [if there were no evidence to support the decision, there would be an abuse of discretion].)
In the written form order, the court checked the box indicating its placement order was in the minor‘s best interests, and DHHS argues in its briefing that the aunt was an otherwise appropriate placement. The suitability of placement with the aunt is, however, not the issue. Because appellant was a current caretaker who met the threshold requirements of a prospective adoptive parent, and the removal order was made at the termination hearing, the issue is whether removal from appellant‘s home was in the minor‘s best interests. Although couched as a placement order, it was necessarily a removal order. There was no evidence in the record from which to conclude that removal from the only home she had ever known was in the minor‘s best interest. (See T.W. v. Superior Court, supra, 203 Cal.App.4th at p. 45 [discussing the difference between placement and removal].)
Here, the evidence established that both appellant and the aunt were appropriate as caregivers. At the hearing, DHHS conceded that “either placement would be appropriate.” There was, however, no evidence that removing the minor from appellant‘s home was in the minor‘s best interests. The minor had been living with appellant for nearly all of her life; comparatively, the minor had visited with the aunt on a monthly basis for six months and there was some evidence of recent overnight visits. There was absolutely no consideration of the impact of removal on the minor, despite evidence that the minor was showing stranger anxiety and looked to appellant to meet her needs. In sum, there was simply no evidence to support the juvenile court‘s finding that removal from appellant was in the minor‘s best interests. Accordingly, the court‘s placement order, which operated as an order removing the minor from appellant‘s care, was an abuse of its discretion.
The change of placement order of the juvenile court is vacated. The matter is remanded to the juvenile court where DHHS is ordered to provide appellant with notice and the opportunity to object to the minor‘s removal and seek designation as a prospective adoptive parent and a hearing pursuant to
Nicholson, Acting P. J., and Mauro, J., concurred.