LOS ANGELES COUNTY v. MARGARET M.,

Filed 4/11/06

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County.

Stephen Marpet, Juvenile Court Referee. Reversed.

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

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

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

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In the unpublished portion of the opinion, we find Mother and Fernando's argument regarding the Indian Child and Welfare Act has no merit.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 Code[2] 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 â€