Filed 3/17/22 In re Kaylee B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Robin Kesler, Juvenile Court Referee. Dismissed.

Law Offices of Vincent W. David & Associates and Vincent W. Davis for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________________________

INTRODUCTION

Karen A., the former caretaker of Kaylee B., filed a petition under Welfare and Institutions Code section 366.26, subdivision (n),[1] objecting to removing Kaylee from her care and asking the court to designate her as Kaylee’s prospective adoptive parent. Karen appeals from the juvenile court’s order denying the petition. Because the order is not appealable, and because Karen did not have standing to file the petition in the first place, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Department Places Kaylee with Karen

In April 2017 the juvenile court removed Kaylee, then two years old, from her mother’s care and placed her with Karen. In October 2017 the court sustained a petition under section 300, subdivision (b), and declared Kaylee a dependent child of the court.[2] In December 2018 the court terminated family reunification services for Kaylee’s mother. Kaylee continued to live with Karen.

B. The Department Removes Kaylee from Karen

Between May 2019 and May 2020 the Department received three referrals about Karen—one alleging Karen had physically abused Kaylee, one alleging she had neglected and emotionally abused Kaylee, and one alleging she had abused another child living in her home. The Department determined the allegations were inconclusive.

On November 4, 2020 a child and family team from the Department met with Karen to discuss her conduct.[3] By then, Kaylee and two other children were living with Karen. Karen said she was adhering to a corrective action plan that included refraining from physically disciplining the children and agreed to a follow up meeting with the team on December 2, 2020. On November 20 and November 22, 2020, however, the Department received additional referrals of physical and emotional abuse by Karen. Karen denied the allegations of physical abuse, but admitted she made an inappropriate statement about the mother of one of the children (not Kaylee). The child also accused Karen of throwing an object at her. Karen claimed that she was merely trying to throw away the object and that the child mistakenly believed Karen was throwing the object at her. The Department substantiated the allegations of abuse and, on November 30, 2020, removed Kaylee and the other two children from Karen and placed them with Mr. and Mrs. J.

C. Karen Files a Petition To Be Designated as Kaylee’s Prospective Adoptive Parent, Which the Court Denies

On January 18, 2021 Karen filed a petition under section 366.26, subdivision (n), objecting to Kaylee’s removal from her care and asking the court to designate her as Kaylee’s prospective adoptive parent. Karen argued Kaylee had lived with Karen “since she was three months old” (even though the Department removed Kaylee from her mother when Kaylee was two years old), was “deeply bonded” with Karen, and was “thriving under her care.” Karen also asserted the Department had not “addressed any concerns” with her or given her “a chance to correct and/or address any issues” the Department may have had about her care of the children. Karen did not ask the court to designate her as a de facto parent.

On January 25, 2021 the Department filed a report in advance of the February 1, 2021 section 366.26 selection and implementation hearing. The Department stated that Kaylee was doing “remarkably well” in the home of Mr. and Mrs. J., that Mr. and Mrs. J. were meeting her “educational, emotional, and developmental needs,” and that she got along with Mr. and Mrs. J.’s adopted daughter and other foster children.

The Department initially asked the court to continue the February 1, 2021 hearing to allow the Department to determine how the allegations of abuse would affect Karen’s Resource Family Approval certification.[4] But at the hearing, the Department stated the child’s allegations of abuse were credible and that the Department “no longer believe[d]” it was “safe for any of the children to remain with” Karen.

Following the Department’s recommendation, the juvenile court denied Karen’s petition to be designated as Kaylee’s prospective adoptive parent. The court ruled that, because Kaylee had not been in Karen’s care for several weeks, Karen did “not qualify as a prospective adoptive parent at [that] point in time.” The court also found the evidence did not support Karen’s claims the Department had failed to address its concerns with her. The court continued the section 366.26 hearing to May 2021. On March 5, 2021 Karen filed a notice of appeal from the order denying her petition.

DISCUSSION

A. Applicable Law

“If the court cannot safely return a dependent child to a parent’s custody within statutory time limits, the court must set a hearing under section 366.26.” (In re Caden C. (2021) 11 Cal.5th 614, 630.) “[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and implement a permanent plan for the child.’” (Ibid.; see In re Marilyn H. (1993) 5 Cal.4th 295, 304; In re J.D. (2021) 70 Cal.App.5th 833, 852.)

“Section 366.26, subdivision (n) permits a court, under certain circumstances, to designate a current caretaker as a prospective adoptive parent at a hearing to terminate parental rights or thereafter.” (In re Jayden M. (2014) 228 Cal.App.4th 1452, 1458, italics omitted.) Section 366.26, subdivision (n)(1), provides the juvenile court, “at a hearing held pursuant to this section [i.e., section 366.26] or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process.”

Section 366.26, subdivision (n)(3), establishes a procedure for a current caretaker who meets the qualifications of, but has not yet been designated as, a prospective adoptive parent to object to a child protective agency’s proposal to remove a child from his or her care. That provision states that, “[p]rior to a change in placement and as soon as possible after a decision is made to remove a child,” the agency must notify “the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to [section 366.26, subdivision (n)(1)] on the date of service of [the] notice.” Then, “[w]ithin five court days or seven calendar days, whichever is longer, of the date of notification,” the caretaker may file a petition “objecting to the proposal to remove the child . . . together with . . . a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.” (§ 366.26, subd. (n)(3)(A).)

At the hearing on the caretaker’s petition, “the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to [section 366.26, subdivision (n)(1)], and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the child’s best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the child’s best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed.” (§ 366.26, subd. (n)(3)(B).)

B. The Order Denying the Petition Is Not Appealable

Section 366.26, subdivision (n)(5), governs the (non)appealability of an order granting or denying a caretaker’s petition objecting to the removal of a child and requesting to be designated as a prospective adoptive parent: “Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision [i.e., section 366.26, subdivision (n)] is not appealable.” Section 366.28, subdivision (b)(1), in turn, provides: “After parental rights have been terminated pursuant to Section 366.26, an order by the court that a dependent child is to . . . be removed from a specific placement, is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition was summarily denied or otherwise not decided on the merits.”

The juvenile court held the hearing on Karen’s petition, i.e., “a hearing pursuant to [subdivision (n)]” (§ 366.26, subd. (n)(5)), denied Karen’s petition after hearing argument, and subsequently issued a minute order reflecting its ruling. Under section 366.26, subdivision (n)(5), the order was not appealable except as provided in section 366.28, subdivision (b).

And Karen did not meet the requirements of section 366.28, subdivision (b). She did not timely file a petition for extraordinary writ review, and we did not summarily deny any such petition. Nor does she ask us to treat her appeal as such a petition. Therefore, her appeal must be dismissed. (See § 366.28, subd. (b)(2) [“[f]ailure to file a petition for extraordinary writ review within the period specified by rule of court . . . shall preclude subsequent review by appeal”]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group) ¶ 2:164.25 [“direct review of an order under . . . § 366.26, [subd.] (n) designating a dependent child’s caretaker as a prospective adoptive parent lies only by writ petition pursuant to” § 366.28; the “order is not directly appealable”].)[5]

C. Karen Did Not Have Standing To File the Petition

Nor did Karen have standing to file a petition in the juvenile court under section 366.26, subdivision (n), objecting to Kaylee’s removal from her care and asking the court to designate her as Kaylee’s prospective adoptive parent. As discussed, section 366.26, subdivision (n)(3), requires the Department to provide notice of a proposed removal to a current caretaker who meets “the threshold criteria,” but has not yet been designated, as a prospective adoptive parent, and permits the caretaker to then file a petition objecting to the removal. Here, the Department did not provide Karen the notice described in section 366.26, subdivision (n)(3), before the Department removed Kaylee from Karen’s care. But, as the Department correctly argues, it did not have to provide notice to Karen because it removed Kaylee before the section 366.26 hearing.

Section 366.26, subdivision (n)(1), states the juvenile court may designate a current caretaker as a prospective adoptive parent “at a hearing held pursuant to [section 366.26] or anytime thereafter.” Neither section 366.26 nor any other provision of the Welfare and Institutions Code states the court may designate a caretaker as a prospective adoptive parent before the section 366.26 hearing. Therefore, prior to the section 366.26 hearing, Karen did not meet “the threshold criteria to be designated as a prospective adoptive parent pursuant to [section 366.26, subdivision (n)(1)],” and the Department did not have to comply with the notice provisions of subdivision (n)(3) before removing Kaylee from her care. (§ 366.26, subd. (n)(3)(B); see In re B.S. (2021) 65 Cal.App.5th 888, 897, fn. 2 [the provisions of section 366.26, subdivision (n)(3), do “not apply when a child is removed from potential prospective adoptive parents prior to the termination of parental rights,” italics omitted]; In re Jayden M., supra, 228 Cal.App.4th at p. 1458 [“In the context of [the] statutory framework” governing dependency proceedings, “section 366.26, subdivision (n)(3)’s notice requirements do not apply when a child is removed from potential prospective adoptive parents prior to the termination of parental rights.”]; but see In re M.M. (2015) 235 Cal.App.4th 54, 61 [“the statute merely requires qualification, not eligibility, in order to be entitled to notice”].) And because Karen did not meet the criteria to be designated as a prospective adoptive parent at the time the Department removed Kaylee, the juvenile court properly dismissed Karen’s petition objecting to Kaylee’s removal from her care. (See § 366.26, subd. (n)(3)(B) [“If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal . . . the petition objecting to the proposed removal filed by the caretaker shall be dismissed.”].)

To the extent there was any ambiguity regarding whether a caretaker, before a section 366.26 hearing, can file a petition objecting to the removal of a child and requesting to be designated as a prospective adoptive parent, the legislative history of section 366.26, subdivision (n), makes clear the caretaker cannot. Senate Bill No. 218 (2005-2006 Reg. Sess.) added subdivision (n) to section 366.26. (See also Stats. 2005, ch. 626, § 1.) As several courts have recognized, the purpose of Senate Bill No. 218 was “‘to strengthen the juvenile court’s oversight and to protect the stability of children after parental rights are terminated.’” (In re L.M. (2019) 39 Cal.App.5th 898, 910; accord, T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 44.)

Consistent with this purpose, the Assembly Committee on the Judiciary stated multiple times in its analysis of Senate Bill No. 218 that the caretaker’s rights to receive notice of an agency’s proposed removal of a child and object to the removal applied after the termination of parental rights. For example, the committee summary of the bill stated that the bill “[p]ermits the court, at the hearing to terminate parental rights to a dependent child or at anytime thereafter, to designate as a prospective adoptive parent a current caretaker” and “[e]stablishes for the period between termination of parental rights and the granting of a petition for adoption, notice and, if requested, a hearing, before removal of a dependent child from the home of a caretaker who either is designated as prospective adoptive parent or qualifies as a prospective adoptive parent.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) as amended June 2, 2005, pp. 2-3, italics added.) The analysis also stated: “[T]he existing law does not protect the stability of children post-termination of parental rights, because the court’s oversight function essentially evaporates between the order to place the child for adoption and the order granting the petition for adoption. . . . This bill is intended to limit the removal of a dependent child from his or her caretaker’s home after parental rights are terminated, if the caretaker is a designated or qualifies as a prospective adoptive parent, as defined, in order to ‘protect the stability and best interests of vulnerable children.’” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) as amended June 2, 2005, p. 5, italics added.) These statements indicate that the Legislature did not intend section 366.26, subdivision (n)(3), to authorize a caretaker to object to the removal of a child until after the juvenile court terminated parental rights, i.e., after the selection and implementation hearing under section 366.26. (See also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.), as amended April 21, 2005, p. 3 [“Existing law does not confer on a dependent child’s caretaker standing to petition the court for a hearing if the caretaker objects to the removal of a dependent child from the caretaker’s home.”].)

The history of the amendments to the bill confirms the Legislature intended the notice and removal procedures to apply only after the section 366.26 hearing. The April 7, 2005 version of the bill—the first version to add subdivision (n) to section 366.26—did not include the provision in section 366.26, subdivision (n)(3), that permits a current caretaker to file a petition objecting to a proposal to remove the child and ask the court to designate the caretaker as a prospective adoptive parent. Instead, that version of section 366.26, subdivision (n)(3), would have required the agency to provide notice of a proposal to remove the child only to persons already designated as prospective adoptive parents and would have allowed only designated prospective adoptive parents to object. At that time, section 366.26, subdivision (n)(1), stated, as it does now, the court can designate a current caretaker as a prospective adoptive parent “at a [section 366.26] hearing . . . or anytime thereafter,” but not before the hearing. (See Assem. Amend. to Sen. Bill No. 218 (2005-2006 Reg. Sess.) April 7, 2005.)

The amended bill introduced on April 21, 2005 added the provision in section 366.26, subdivision (n)(3), that authorizes a current caretaker who qualifies, but has not yet been designated, as a prospective adoptive parent to file a petition objecting to removal. (See Assem. Amend. to Sen. Bill No. 218 (2005-2006 Reg. Sess.) April 21, 2005.) The analysis of the Assembly Committee on the Judiciary reported that multiple organizations “oppose[d] the bill unless amendments taken in the Senate Judiciary Committee that require notice, and an opportunity for a hearing to caregivers who qualify as prospective adoptive parents [were] removed” because the amendments “raise[d] both substantial fiscal concerns for the counties and workload issues for local child welfare agencies.” These organizations requested “the bill be limited to provide notice and an opportunity for a hearing to only those parents who have already been designated as prospective adoptive parents.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) as amended June 2, 2005, p. 7.) But the analysis went on to explain that “[t]he author, however, counters, that the requirement to notify caregivers who qualify, but are not yet designated as prospective adoptive parents, of the intent to remove a child is not unduly burdensome . . . [because] children are rarely removed from caregivers who wish to adopt them after parental rights are terminated, so there are not many caregivers who are affected.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) as amended June 2, 2005, p. 7, italics added.) This legislative history indicates the Legislature did not intend the April 21, 2005 amendment to section 366.26, subdivision (n)(3), to allow qualified caretakers to file a petition objecting to removal until after the court terminated parental rights at a section 366.26 hearing.

DISPOSITION

The appeal is dismissed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] The court found true the allegation there was a substantial risk Kaylee would suffer serious physical harm because Kaylee’s mother negligently failed to adequately supervise Kaylee and was unable to provide regular care to Kaylee due to the mother’s substance abuse.

[3] A child and family team is “a group of individuals who are convened by the placing agency and who are engaged through a variety of team-based processes to identify the strengths and needs of the child or youth and their family, and to help achieve positive outcomes for safety, permanency, and well-being.” (§ 16501, subd. (a)(4).)

[4] “The resource family approval process is intended to be an expedited assessment of individuals and families to provide foster care and become legal guardians or adoptive families for dependent children.” (In re C.P. (2020) 47 Cal.App.5th 17, 24; see § 16519.5, subd. (a).) The program “provides a unified approval process to replace the multiple processes to approve foster care homes, relatives and nonrelative extended family members, and adoptive homes for the placement of dependent children” and “involves the comprehensive collection and review of an applicant’s personal information.” (In re Charlotte C. (2019) 33 Cal.App.5th 404, 408.)

[5] Neither side briefed the appealability of the juvenile court’s order. We sent a letter under Government Code section 68081 inviting the parties to file supplemental briefs addressing the appealability of the order, but neither party accepted our invitation.