In re K.M.

Filed 3/22/07 In re K.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant K.M.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone A.

Ruth E. Stringer, Acting County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

K.M. (Mother) and Tyrone A. (Father) appeal from the juvenile courts order terminating their parental rights to K.M. (born in 2004) pursuant to Welfare and Institutions Code section 366.26.^[1] Both parents contend the trial court abused its discretion in designating a prospective adoptive parent before selecting adoption as the permanent plan. ( 366.26, subd. (n)(1).)^[2]

I. PROCEDURAL BACKGROUND AND FACTS

K.M. came to the attention of the San Bernardino County Department of Childrens Services (the Department) as a result of a 10-day referral alleging severe neglect.^[3] The child had had open heart surgery at Loma Linda Childrens Hospital and had been discharged on January 10, 2005. Due to the unsanitary and unsafe conditions of the home, the child was removed from the parents home on February 2. A petition was filed under section 300, subdivision (b). Finding a prima facie showing, the court ordered the child detained in foster care.

On April 20, 2005, at the jurisdictional/dispositional hearing, the court found the allegations in the petition true, declared the child a dependent child, and ordered him placed with Mother and Father under a family maintenance plan. Father was found to be the presumed father.

At the six-month review hearing, the Department recommended, and the court agreed, that an additional six months of family maintenance services be given to assure the childs safety and to allow Mothers situation to stabilize with support. The presumed father of one of Mothers other children had been shot and killed in September 2005, and Father had been incarcerated for a hit-and-run incident.

Around December 1, 2005, Mother and K.M. could not be located when a nurse went to their home to transport them to a followup appointment for the child at Loma Linda Hospital. A bench warrant was issued. On December 21, an informant directed law enforcement to the location of Mother and son; however, Mother fled by way of a rear window. The child was placed in foster care.

On January 4, 2006, a supplemental petition was filed, alleging that Mother failed to keep the childs medical appointments, that she had left the child with persons known for drug abuse offenses, and that she fled from law enforcement. At the January 5 detention hearing, the court removed the child from parents care and placed him in foster care. The court found that the previous disposition had not been effective in the rehabilitation or protection of the child.

On March 6, 2006, the court found the allegations in the section 387 petition to be true. It found that the parents had failed to participate regularly and make substantive progress in the court-ordered treatment plan. Reunification services were terminated and a section 366.26 hearing was scheduled for July 3, 2006.

Mothers whereabouts remained unknown in spring 2006; however, it appears that in June she contacted the Department. The Department set up four appointments to meet with Mother, but she failed to appear. Father was not scheduled to be released from prison until November 2006; however, he had made substantive progress towards completing his case plan. Also, he contacted the Department weekly, updating his progress and inquiring about his child.

The childs great aunt, Hattie B., was willing and able to provide a home for the child. On May 19, 2006, the relative assessment unit approved her request for placement. However, Hattie B. did not want to adopt the child because of the financial responsibilities, the medical problems, and her perception that she was being disloyal to Father. Thus, she requested guardianship. The social worker determined that, due to the childs young age, adoption was the preferred permanent plan.

The child had been living with LaRenda S. since December 21, 2005. The Department recommended that she be given de facto parent status and considered as an adoptive parent. Ms. S. had provided the child with stability for the last six months. He had gained weight, become more active, more verbal, had begun to catch up developmentally, and he was bonded to his caregiver. Father had not had any contact with the child since Fathers incarceration in 2005. Mother had not visited since December 7, 2005.

On June 29, 2006, the Department moved to continue the section 366.26 hearing to allow time for an adoption assessment to be completed by Ms. S. Ms. S. filed a de facto parent request on July 3, 2006. It was granted the same day. Fathers counsel objected to the request. The court also designated Mrs. S. as a prospective adoptive parent pursuant to section 366.26, subdivision (n)(1).

On September 6, 2006, the bailiff indicated that Mother was in custody at the West Valley Detention Center. The parties agreed to trail the hearing a day or two to coincide with a hearing Mother had on another child.

The section 366.26 hearing began on September 11, 2006. Prior to that date, Father filed a section 388 petition requesting that the court reinstate his reunification services. Father noted that he had completed a parenting class, a surviving recovery class, and an anger management class. The court denied Fathers petition without a hearing on the grounds that it did not show how the change in orders would be in the best interest of the child.

The court then proceeded with the section 366.26 hearing. The social worker testified that the child was adoptable because he was a loving child and his heart problem was manageable. She also stated that the foster mother was sincere in her interest in wanting to adopt the child. The social worker noted that Mother had visited the child in July 2006. Initially, the visits were upsetting for both Mother and the child. The child did not remember Mother and would hold onto the foster mother. The social worker did not attempt to set up any visits or telephone calls between Father and the child because of the age of the child.

Mother testified that she had taken good care of the child while he had been in her custody. She claimed that the child was removed from her custody in December 2005 because her cousin told the police that they were selling drugs at the house. Mother claimed that the visits with the child began to change when the foster mother was present and would hold the child for the entire visit. Mother claimed to love the child and did not want him to be adopted.

Father testified that he became incarcerated in May 2005 and was scheduled to be released on December 7, 2006. He was told by the social worker that because of the childs age, he could not speak to Father on the phone. Nonetheless, Father called the social worker to check on the child. After Father was incarcerated and before the child was detained in December 2005, Father called Mother and spoke to the child every day. Father claimed to have a loving bond relationship with the child. He said that the child called him dad. Father believed that he could avoid future problems with the law because he had learned that the child came first. Father requested that the court not terminate his parental rights but choose legal guardianship.

Finding by clear and convincing evidence that it was likely the child would be adopted, the court terminated parental rights and selected adoption as the permanent plan.

II. CARETAKER DESIGNATED AS PROSPECTIVE ADOPTIVE PARENT

Both parents contend the trial court abused its discretion under section 366.26, subdivision (n), by designating Ms. S. as the prospective adoptive parent before selecting adoption as the permanent plan. In response, the Department argues that the parents lack standing to raise this issue because it does not affect them directly. We will assume, without deciding, that the parents can raise this issue and will address it on the merits.

Subdivision (n), a new provision in section 366.26 effective January 1, 2006, provides that a court may designate the childs current caretaker as the designated prospective adoptive parent at the section 366.26 hearing or anytime thereafter. [Citation.] To qualify, the caretaker must have cared for the child at least six months, currently express a commitment to adopt the child and have taken at least one step to facilitate the adoption process, like applying for an adoption home study, being designated by the court or the licensed adoption agency as the adoptive family, or requesting de facto parent status. [Citation.] A designation (or eligibility for that designation) as the prospective adoptive parent gives the current caretaker the right to notice before a change in placement and to petition for a hearing in the event a decision is made to remove the child from the home. [Citations.] (In re P.C. (2006) 137 Cal.App.4th 279, 290 (conc. opn.).)

According to the parents, the trial court acted in excess of its jurisdiction because Ms. S. had not been listed in the preliminary adoption assessment as an appropriate person to be considered as the childs adoptive parent. However, at the time the section 366.26 hearing was set, March 6, 2006, Ms. S. had been the childs caretaker for only approximately three months. By the time of the hearing, on July 3, she had been the childs caretaker for nearly seven months. After the section 366.26 hearing began, the court made the orders designating Ms. S. as both a de facto parent and a prospective adoptive parent. Subdivision (n) of section 366.26 provides that such order may be made at the hearing. The Department requested that the section 366.26 hearing be continued for the preparation of the required adoption assessment of the child, not Ms. S.

According to the record before this court, the fact that Ms. S. had not been identified as a potential adoptive parent in March 2006 was because she had been caring for the child for only three months. Moreover, at that time, there was a possibility that a family member, Hattie B., would adopt the child. It was not until July 2006 that the court was made aware of Hattie B.s decision not to adopt, and Ms. S.s desire to adopt. Given the timeline in this case, we cannot find that the court acted contrary to the express language of the statute. Thus, the court did not abuse its discretion under section 366.26, subdivision (n), by designating Ms. S. as the prospective adoptive parent before selecting adoption as the permanent plan.

Notwithstanding the above, both parents further contend the trial court acted in excess of its jurisdiction because a caretaker cannot be designated as a prospective adoptive parent prior to the termination of parental rights. ( 366.26, subd. (n).) We disagree. The statute specifically states: [T]he court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent . . . . ( 366.26, subd. (n)(1), italics added.) That is precisely what the court did. At the beginning of the section 366.26 hearing on July 3, 2006, the court designated Ms. S. as a prospective adoptive parent. There is no requirement that the court must follow a certain order, i.e., terminate parental rights and then designate a current caretaker as a prospective adoptive parent. Mothers and Fathers claims to the contrary are misplaced.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

RICHLI

J.

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

^[2]On January 23, 2007, K.M. filed a motion to dismiss this appeal on the grounds it is untimely and moot. In opposition, Mother noted that the order appealed from was made during the section 366.26 hearing, which was continued several times until the final order was issued on September 11, 2006. Mother further contends that the issue raised is not moot because it presents an issue of continuing public interest. We agree with Mother and deny the motion to dismiss.

^[3]K.M.s half brother, K.J., Jr., was also named in the referral; however, he is on a different track and thus not a subject of this appeal.