In re Fernando M.

41 Cal.Rptr.3d 511

138 Cal.App.4th 529

In re FERNANDO M., a Person Coming Under the Juvenile Court Law Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Margaret M., Defendant and Appellant Fernando M., Appellant.

No. B184836.

Court of Appeal, Second District, Division 8.

April 11, 2006.

Certified for Partial Publication.^*

Christopher Blake, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Merrill Lee Toole, under appointment by the Court of Appeal, Monrovia, for Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Steven E. Henry, Deputy County Counsel, for Plaintiff and Respondent.

COOPER, P.J.

This appeal is from the termination of Margaret's (Mother's) parental rights over Fernando. Mother and Fernando correctly argue that the juvenile court should have selected legal guardianship as Fernando's permanent plan instead of adoption because, notwithstanding the strong presumption in favor of adoption, the peculiar facts of this case demonstrate a compelling reason for finding that termination of parental rights would be detrimental to Fernando and exceptional circumstances warrant selecting legal guardianship as his permanent plan.

In the unpublished portion of the opinion, we find Mother and Fernando's argument regarding the Indian Child and Welfare Act has no merit. We shall reverse the juvenile court's order identifying adoption as Fernando's permanent plan.

FACTUAL AND PROCEDURAL BACKGROUND

Fernando was born with a positive toxicology for alcohol and marijuana, and Mother had entered a voluntary maintenance plan, which proved unsuccessful. The court detained Fernando on July 28, 2004, when he was approximately four months old, and ordered him placed with maternal grandmother, Christina, who had been taking care of him.¹ Christina had called the police when Mother left Fernando with her for 11 days and disappeared. The Welfare and Institutions Code² section 300 petition, as sustained, indicated that Mother has a history of substance abuse, was incapable of caring for Fernando, left Fernando with Christina without providing for his care, and placed Fernando at risk of physical and emotional harm.

Initially, Mother did nothing to comply with her case plan, but eventually she entered a rehabilitation program and initiated visits with Fernando. Throughout Fernando's detention, he resided with Christina, who also cared for Fernando's two minor siblings, neither of whom was a dependent of the juvenile court.

There is no dispute that Christina provided excellent care or that Fernando has bonded with her. The Department of Children and Family Services (DCFS) consistently reported that Christina was able to deal effectively with Fernando's special needs as a result of reactive airway disease and slight developmental delay. In January 2005, DCFS reported that Fernando was attached to Christina and that she was providing for his necessities and monitoring his medical needs. DCFS also reported that Christina "is doing a great job with complying with the case plan. She remains dedicated to caring for child Fernando. . . ."

In May 2005, DCFS reported that "Fernando has many special needs and requires stability and consistency in order to progress developmentally." DCFS also reported that the grandparents "love him [Fernando] very much. Fernando has become a part of their family." It was reported the Fernando bonded with his grandparents and that they "have a warm and affectionate relationship with Fernando. They are able to meet Fernando['s] special needs and provide him with a safe and stable home environment." DCFS opined that it was in Fernando's best interest to be adopted by his grandparents. The next month DCFS reported that it was in Fernando's best interest to be adopted by his grandmother. The report did not mention adoption by Fernando's grandfather other than to indicate that a spousal waiver was necessary in order to proceed with the adoption.

In August 2005, the juvenile court terminated Mother's parental rights and ordered adoption as Fernando's permanent plan. Christina and Mother had requested legal guardianship as Fernando's long term plan. At that time, there was no dispute that Christina's husband was not willing to adopt and that Christina's adoption would require he sign a spousal waiver.

At the section 366.26 hearing, Mother testified that she had been clean and sober for almost six months, had taken parenting classes, and visited with Fernando on the weekends. She testified there was a relationship between Fernando and his older siblings. Christina testified that she cared for Fernando and for Mother's two other children. Christina testified that Fernando "doesn't really know [Mother] that well, but he is starting to." Christina testified that she preferred to become Fernando's legal guardian rather than adopt him but that the social worker told her "if I didn't adopt Fernando, that he would be placed in the system to be adopted by someone else." Christina did not want to adopt because Fernando "belongs to my daughter, and I know that one day she will get him back." Christina also testified that Fernando had a very close relationship with his siblings and that the siblings regularly play together.

The court found that Mother does not have a parental relationship with Fernando because she waited until after the statutory six month period had elapsed to appear in court and did not begin visiting Fernando until ten weeks before the section 366.26 hearing. The court then found that section 366.26, subdivision (c)(1)(D) was inapplicable because, even though Christina was a relative caretaker, no exceptional circumstances were present. The court explained its finding as follows: "this is a grandmother who has already taken care of two of this mother's kids already, and there's just no exceptional circumstances." The court also found that Fernando is adoptable.

Mother and Fernando both appeal, arguing that the court should have selected legal guardianship as Fernando's long term plan and that the court failed to comply with the Indian Child Welfare Act (ICWA). In the unpublished portion of the opinion, we shall summarize the facts with respect to the latter contention along with the discussion.

DISCUSSION

I. Fernando's Long Term Plan

A. General Principles

The following pertinent principles are well established. After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a "placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) The purpose of a section 366.26 hearing is to "provide stable permanent homes for" dependent children." (§ 366.26, subd. (b).) At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long term foster care. (§ 366.26, subd. (b).) Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. (In re Jasmine T., (1999) 73 Cal.App.4th 209, 212, 86 Cal.Rptr.2d 128.) The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions. (In re Zachary G. (1999) 77 Cal. App.4th 799, 809, 92 Cal.Rptr.2d 20.)

There are five circumstances that may present "a compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . ." (§ 366.26, subdivision (c)(1).) One is if "[t]here would be a substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).)

Another exception, under section 366.26, subdivision (c)(1)(D) applies if "[t]he child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional 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 and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child." The subdivision (c)(1)(D) exception does not apply where the juvenile court makes a finding that grandparents are willing and able to adopt a child. (In re Zachary G., supra, 77 Cal.App.4th at p. 810, 92 Cal.Rptr.2d 20.)

B. The Juvenile Court Applied the Incorrect Test in Evaluating the (c)(1)(D) Exception

Generally, we review the trial court's application of the exception to the termination of parental rights for substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th 799, 809, 92 Cal.Rptr.2d 20; In re Derek W. (1999) 73 Cal.App.4th 823, 827, 86 Cal.Rptr.2d 739.)³ However, in this case, the court applied the incorrect legal test. We review de novo the interpretation of a statute, which is a question of law. (Robin J. v. Superior Court (2004) 124 Cal.App.4th 414, 420, 21 Cal.Rptr.3d 417.) The relevant facts are not disputed, and therefore the significance of the facts presents a question of law. (Ghirardo v. Antonioli (1994...