Opinion
E045319
9-5-2008
In re F.D. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. D.G., Defendant and Appellant.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
Not to be Published
Appellant D.G. (mother) is the mother of F.D., A.D., and I.D. (the children). Mothers parental rights as to the children were terminated. On appeal, she claims that the "relative guardianship" exception applied. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A) (relative guardianship exception).) We affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
Counsel for the children filed a brief on July 16, 2008, urging this court to affirm the juvenile courts orders.
FACTUAL AND PROCEDURAL BACKGROUND
On May 1, 2006, the Riverside County Department of Public Social Services (the department) filed a section 300 petition on behalf of the children. F.D. was five years old at the time, A.D. was four years old, and I.D. was 23 months old. The petition alleged the children came within the provisions of section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (g) (no provision for support). Specifically, the petition included the allegations that the children were at risk of sexual abuse, since there were substantiated allegations that their father (father) had molested his stepdaughter in 2003; mother abandoned the children with relatives, without providing information as to her whereabouts; and mother knew or reasonably should have known the children were at risk of being abused but failed to protect them, and instead abandoned them.
Father is not a party to this appeal.
Detention
The social worker reported that when she first investigated the referral received by the department, the children were living with father in the home of the paternal grandmother. When the social worker told father the children had to be detained, he volunteered to leave the home so the children could remain with his family.
A detention hearing was held on May 2, 2006, and the court placed the children in the temporary custody of the department and detained them in foster care. The children were placed in the home of their paternal grandmother.
Jurisdiction/disposition
The court held a contested jurisdiction hearing on August 2, 2006. Mother was present. The court found that the children came within section 300, subdivisions (b), (d), and (g) and declared them dependents of the court. The court approved a case plan of reunification services for the parents.
Six-Month Status Review
The social worker filed a six-month status review report on December 8, 2006, recommending that mother (and father) receive an additional six months of reunification services as to A.D. and F.D., but that reunification services as to I.D. be terminated (due to statutory timelines). The paternal grandmother reported that mother visited the children sporadically and inconsistently on Sundays for 30 minutes. The social worker reported that mother needed to attend individual counseling and address issues of substance abuse.
At a contested six-month review hearing on February 20, 2007, the court ordered reunification services to continue for another six months as to all three children.
18-Month Status Review
The record does not contain a 12-month status review report.
The social worker filed an 18-month status review report on June 22, 2007, and recommended that the court terminate mothers services and set a section 366.26 hearing. The social worker reported that mothers current circumstances were unknown, since she had not made herself available to the department. The social worker opined that the most appropriate permanent plan for the children was adoption with the paternal grandmother. On May 18, 2007, the paternal grandmother stated her willingness to adopt the children and said that she would not want them to be anywhere else but with her. The social worker reported the children appeared content in the paternal grandmothers home, and that they were receiving love and stability.
On August 14, 2007, the court terminated mothers reunification services and set a section 366.26 hearing for February 5, 2008.
Section 366.26 Report and Hearing
The social worker filed a section 366.26 and section 366.3 postpermanency review report on January 24, 2008, and recommended that the court terminate parental rights and proceed with the permanent plan of adoption with the paternal grandmother. The paternal grandmother reported that mother had not visited the children for approximately two months. The social worker opined that it was probable that the children could be adopted by the paternal grandmother, who reported that she loved the children very much and desired them to be a permanent part of her family. She said she wished to be considered for adopting them. The social worker reported that on August 17, 2007, she visited the paternal grandmother and informed her that the permanent plan was adoption with her. The paternal grandmother said she understood and that she was willing to provide the children permanency. She was given a Spanish brochure about the difference between legal guardianship and adoption. On November 7, 2007, the paternal grandmother and her husband asked the social worker many questions about the adoption process. The social worker answered their questions and noted no concerns during the visit.
The social worker filed a preliminary adoption assessment report, reporting that the paternal grandmother and her husband agreed that if the childrens parents were not able to raise the children, they wished to adopt them and continue providing them with a loving and stable home. They understood the responsibilities of adoption and were fully committed to parenting them for the rest of their lives. They did not wish to consider an alternative permanent plan. F.D. and A.D. told the social worker they felt happy and safe in the care of their grandparents and wanted to stay with them. (I.D. was not interviewed since he was too young.)
The section 366.26 hearing was held on March 5, 2008. Mother argued that the beneficial parental relationship exception to the termination of parental rights applied. The court found it was likely the children would be adopted. It further found that termination of parental rights would not be detrimental to the children and that none of the exceptions contained in the newly renumbered section 366.26, subdivision (c)(1)(B) applied and terminated parental rights.
ANALYSIS
The Relative Guardianship Exception Did Not Apply
Mother contends the court "did not employ the correct legal test" when it terminated parental rights, since it failed to consider the relative guardianship exception set forth in section 366.26, subdivision (c)(1)(A). She contends that the courts order terminating parental rights must therefore be reversed and the matter remanded for the court to consider the exception. We disagree.
A. Mother Failed to Assert the Relative Guardianship Exception and Has thus Forfeited the Issue on Appeal
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the relative guardianship exception set forth in section 366. 26, subdivision (c)(1)(A). This exception applies when "[t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(A). The relative guardianship exception was enacted to prevent caseworkers and judges from pressuring relative caregivers to adopt. A study showed that most relative caregivers were adverse to adoption since it required the termination of parental rights of one of their family members. (Req. for Jud. Notice, p. 5) However, under the previous law, relative caregivers were sometimes pressured to adopt by being told that, absent adoption, the child would be removed from their care. (Id. at pp. 5-6.) The relative guardianship exception supports relative caregivers who opt for legal guardianship over adoption. (Id. at p. 6.)
On June 11, 2008, mother filed a Request for Judicial Notice as to the legislative history regarding Assembly Bill No. 298 (AB 298), regarding the relative guardianship exception. The legislative history consists of an analysis of AB 298 by the Assembly Committee on Judiciary. We reserved ruling for consideration with the appeal. We now grant that request. (Evid. Code, §§ 452, subd. (c), 459; see Post v. Prati (1979) 90 Cal.App.3d 626, 634.)
It is the parents burden to show that the exception applies. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Failure to assert the exception in the trial court waives the right to raise the issue on appeal. (Id. at p. 1343.)
Here, the only exception argued by mother at the section 366.26 hearing was the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i).) Since she failed to raise the relative guardianship exception below, she has forfeited it on appeal. Notwithstanding the waiver, we conclude that the relative guardianship exception under section 366.26, subdivision (c)(1)(A) did not apply.
B. The Relative Guardianship Exception Did Not Apply Here
Mother contends that the relative guardianship exception applied here because the paternal grandmother was interested only in legal guardianship, but then agreed to adopt the children after the social worker pressured her. Mothers entire argument is based on one line from the social workers log entry on May 18, 2007: "[The paternal grandmother] stated that she would adopt because she did not want her grandchildren to live with strangers and plus she stated that no one would be able to handle [I.D.] and his energy." Mother claims "[t]he only reasonable inference" from the grandmothers statement was that the social worker threatened to remove the children from the grandmothers care and place them with strangers if the grandmother did not agree to adopt them. Mothers interpretation of the social workers report is pure speculation and is unsupported by the record. The next sentence in the log entry states that the paternal grandmother said "she wants to adopt but she stated that she also needs help with money for the children." The last sentence in the log entry for that day said, "[The paternal grandmother] once again stated that she will adopt the children and that she would want them no were [sic] else but with her." (Italics added.) There is no indication that the grandmother felt pressured into adopting the children.
Moreover, the relative guardian exception did not apply here since it applies only when "[t]he child is living with a relative who is unable or unwilling to adopt the child because of" certain circumstances. (§ 366.26, subd. (c)(1)(A), italics added.) Again, there was no evidence before the juvenile court that the paternal grandmother and her husband were "unable or unwilling to adopt" the children. To the contrary, the evidence showed they were eager to adopt the children. Although the paternal grandmother may have expressed an interest in legal guardianship initially, she clearly changed her mind and decided to adopt. The social worker gave the paternal grandmother a Spanish brochure that explained the difference between legal guardianship and adoption. The paternal grandmother and her husband subsequently asked the social worker many questions about the adoption process. Thus, they were fully aware of the option of legal guardianship, but chose to pursue adoption. The preliminary adoption assessment report stated that the paternal grandmother and her husband wished to adopt the children and continue to provide them with a loving and stable home. They understood the legal and financial responsibilities of adoption and were fully committed to parenting them for the rest of their lives. They explicitly said they did not wish to consider an alternative permanent plan.
There was no evidence to support that the relative guardianship exception applied here. Accordingly, we reject mothers request to remand the matter for the court to consider the exception.
DISPOSITION
The order is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.