In re Reylene R.

Filed 11/20/07 In re Reylene R. CA5

Received from the court on January 3, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert Anspach, Judge.

Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Patricia T. appeals from orders terminating parental rights (Welf. & Inst. Code,  366.26) to her three-year-old daughter and one-year-old son.^[1] She contends the court abused its discretion by not selecting legal guardianship as the permanent plan for the children. According to appellant, evidence that the childrens relative caregivers preferred guardianship overcame the statutory preference for adoption as the childrens permanent plan. On review, we disagree and will affirm.

RELEVANT PROCEDURAL AND FACTUAL HISTORY

Given the narrow scope of this appeal, we do not recite the facts underlying the childrens dependency and their parents failed attempts at reunification. Suffice it to say, in October 2006 the Kern County Superior Court set the case for permanency planning. In the same month, respondent Kern County Department of Human Services (department) placed the children with a paternal uncle and aunt whom the department identified as the childrens prospective adoptive parents.

As the time approached for the permanency planning hearing, the department prepared a report in which it assessed the children as adoptable and recommended the court terminate parental rights. The childrens paternal uncle and aunt expressed a desire as well as a commitment to adopt them in order to keep them within the family system. When asked why he wanted to adopt his niece and nephew, the uncle, Robert R., replied They have a need and they are my blood. Another person cant provide for them like we can. The aunt stated We can provide them a family history. The uncle and aunt described themselves as being part of a large and supportive extended family. The couple loved the children and wanted them to be with family.

The court conducted its permanency planning hearing for the children in May 2007. At the May hearing, Robert R. took the witness stand. He confirmed his willingness to adopt his niece and nephew although he added he would prefer to be the childrens legal guardians. Robert R. so informed the childrens social worker who appeared to understand that when children are placed with family members, the family in most instances prefers guardianship in the belief adoption disorganizes the family structure. This was Robert R.s position as well. He explained:

If I were to adopt them, their older brothers would become their cousins and I would be, I would become the father and my wife, which is their aunt, would become the mother. And I expressed to [the social worker] I didnt see where that was any benefit to the children, really, because I think it would cause more awkwardness with the family structure.

Robert R. also thought it would be awkward for his brother, the childrens father because he remained a member of the family and there would be interaction. The two brothers came from a family of thirteen brothers and sisters.^[2] Adoption, in Robert R.s estimation, would be like adding salt to a wound for his brother. Robert R. also believed it would be awkward for the children as they grew older in terms of their interaction with the family. However, he further testified that the children already considered him and his wife to be their Daddy and Mommy and referred to them as such, without any prompting.

On cross-examination, county counsel asked if he had spoken to anyone else about adoption versus legal guardianship. Robert R. replied he spoke briefly with his brothers attorney and counsel for the children who asked if he felt he was being influenced. I said, no, I was just told that I need to consider those two options.

In closing argument, counsel for the father claimed, based on Robert R.s testimony and In re Fernando M. (2006) 138 Cal.App.4th 529 (Fernando M.), that exceptional circumstances warranted the court selecting legal guardianship as the childrens permanent plan. He assumed the department would remove the children from the relatives care had they been unwilling to adopt. Counsel for the children also argued for legal guardianship, although he conceded there may be no exceptional circumstances. Instead, the childrens attorney urged legal guardianship would also serve the childrens best interests in terms of permanence because the uncle was committed to providing the children with a permanent home.

The court took the matter under submission to review the case law. When court reconvened, the judge rejected counsels arguments. It explained:

I think that issue is the scope at which the Court should view the willingness or unwillingness of the caretaker to proceed to an adoptive mode with respect to these youngsters. And analyzing and reviewing his testimony, its uppermost, his concern is that the adult members of the family wouldnt understand the relationship that results from adoption. And perhaps the children wouldnt understand their relationship with their siblings and their cousins and an uncle.

These reasons are not such that the Court finds that it is not such that a caretaker would be unwilling to adopt. The court would find that its not the provision and exception of the [ 366.]26 is, paragraph two, paragraph D would not be applicable.

That the best interest of these Minors is to have permanency that may be offered through adoption.

Having found clear and convincing evidence that the children were likely to be adopted, the court terminated parental rights.

DISCUSSION

Because the children were likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provided a compelling reason for finding termination of parental rights would be detrimental to them. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The so-called caregiver exception is one of those designated circumstances. It provides that termination would be detrimental when:

The child is living with a relative, foster parent, or Indian custodian 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, foster parent, or Indian custodian would be detrimental to the emotional well-being of the child. . . . ( 366.26, subd. (c)(1)(D).)

The caregiver exception does not apply if the caregiver is willing and able to adopt the dependent child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 810.) Here, Robert R. and his wife were willing and able to adopt appellants children. Mere family preference for a plan short of adoption is insufficient evidence of exceptional circumstances. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298; In re Zachary G., supra, 77 Cal.App.4th at p. 810.) Indeed, at least one court has held a caregivers personal preference for guardianship over adoption is irrelevant to any inquiry at the section 366.26 hearing, where the courts task is to select the plan which best serves the childs interests. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.)^[3]

Appellant nevertheless claims other case law warrants a courts consideration of the relatives position and the impact of adoption on the family as a whole on the theory that a relative caregivers preference for a permanent plan other than adoption should be heeded. She cites, as did fathers counsel in the trial court, the Fernando M. opinion. According to appellant, the court failed to consider this and therefore abused its discretion. As discussed below, we disagree.

In Fernando M., a dependent child lived with maternal grandparents who also cared for his older siblings. The child was undisputedly bonded and shared a close relationship with his grandparents and siblings. However, the grandfather was not willing to adopt and would have to sign a spousal waiver in order for the grandmother to adopt. For her part, the grandmother did not want to adopt because she believed the child belonged to his mother and one day the mother would get him back. (In re Fernando M., supra, 138 Cal.App.4th at p. 533.) Her statements of willingness to adopt were always followed by what she described as a threat that unless she adopted her grandson, the department would find another adoptive home. (Id. at p. 538.) There was also compelling evidence that to remove the child from his grandmothers care would detrimentally affect him and deprive him of the stability to which he was entitled. (Ibid.)

The appellate court reversed, concluding there were exceptional circumstances as that term is used in section 366.26, subdivision (c)(1)(D) because (1) the grandmother was also caring for the childs siblings whom she was not adopting and with whom the child was bonded, and (2) adoption would disrupt the grandmothers marriage. (In re Fernando M., supra, 138 Cal.App.4th at pp. 537-538.)It concluded its discussion with the following:

under the peculiar facts of this case, [the grandmother] should [not] be coerced into either becoming willing to adopt Fernando or watching as someone else does. That neither serves Fernandos best interest nor follows the mandate of section 366.26, subdivision (c)(1)(D). (In re Fernando M., supra, 138 Cal.App.4th at p. 538.)

Returning to the case before us, we conclude Fernando M. is not factually analogous, as appellant claims. There was no question of the uncle and aunts willingness and ability to adopt the children. Also, to appellants insinuation that the department made a veiled threat to the uncle and aunt, we note the uncle expressly denied feeling influenced. Further, the uncles concern that adoption would create an awkward situation for family members was more a reflection of the importance of family relationships to the uncle than a case of detriment to the children. As we noted previously, regardless of the uncles concern over family status, the children already called him and his wife, Daddy and Mommy, and considered them to be their parents.

Further, we are not persuaded that Fernando M. holds a relative caregivers preference for legal guardianship constitutes exceptional circumstances within the meaning of section 366.26, subdivision (c)(1)(D). This is not so surprising given the statutory law on point. The presumption at the permanency planning stage is that, assuming the child is adoptable, termination is in the childs best interests unless it is proven to be detrimental. ( 366.26, subd. (b).) And, for detriment under the caregiver exception, the court must find in part that the caregiver is unable or unwilling to adopt the child because of exceptional circumstances. ( 366.26, subd. (c)(1)(D).) Such language does not suggest that the trial court should defer to a relative caregivers preference.

Under these circumstances, we conclude there is no merit to appellants claim of error.

DISPOSITION

The orders terminating parental rights are affirmed.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

* Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] In her brief to this court, appellant appears to confuse these relatives. Post adoption they would remain the childrens uncles and aunts.

^[3] In this case, we believe the juvenile court wisely overruled relevancy objections to the uncles testimony in order to make a clear record on the issue of his willingness to adopt.