Filed 2/9/15; pub. order 3/11/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                         ----




In re M.M., a Person Coming Under the Juvenile                              C075687
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                     (Super. Ct. No. JD232884)
HEALTH AND HUMAN SERVICES,

                  Plaintiff and Respondent,

         v.

T.C.,

                  Defendant and Appellant.




         Appellant, de facto parent of minor M.M., appeals from the juvenile court’s order
removing the minor from her home at the selection and implementation hearing. (Welf.
& Inst. Code, §§ 366.26, 395.)1 She contends she was entitled to notice and a hearing



1   Further undesignated statutory references are to the Welfare and Institutions Code.

                                                          1
prior to the minor’s removal, and that the juvenile court abused its discretion in
summarily ordering the removal. As we will explain, we agree that appellant was entitled
to notice and the opportunity to object and request a hearing prior to the minor’s removal.
We also agree that the removal was an abuse of discretion, as it was unsupported by the
evidence in the then-existing record. We shall vacate the order and remand with
instructions.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Less than a month after her birth, in December 2012, minor M.M. was placed with
appellant, a licensed foster care provider. She had spent five days with her paternal
great-great-aunt (aunt), but was removed due to paternity concerns. At the disposition
hearing, the court ordered reunification services to both parents. By August 2013, the
Sacramento Department of Health and Human Services (DHHS) was recommending
termination of services.
       In July 2013 (when the minor’s half sibling who had also been placed with
appellant was moved to a relative’s home for adoption), appellant expressed reservations
as to whether she wanted to adopt the minor. Accordingly, on August 2, 2013, DHHS
contacted the aunt to inquire whether she was interested in placement, as paternity
concerns had been resolved. The aunt reported that she was interested and had not come
forward earlier because she had wanted to give the mother an opportunity to reunify.
DHHS referred the aunt for a kinship assessment.
       On September 10, 2013, appellant told DHHS that she was, in fact, interested in
adopting the minor.
       The juvenile court terminated reunification services on September 18, 2013.
Notice of the section 366.26 hearing, scheduled for January 15, 2014, was mailed to
appellant. The notice did not indicate removal from appellant’s home was proposed or
requested by any party.



                                             2
       On December 30, 2013, DHHS filed a section 366.26 hearing report
recommending termination of parental rights and selection of adoption as the permanent
plan. The report indicated the minor was showing some stranger anxiety around new
people and looked to appellant to meet her needs. The report added that appellant had
“expressed her desire to provide permanency for [M.M.] through adoption, and she [had]
begun an adoption homestudy.” Also, the aunt had “expressed a desire for [M.M.] to be
placed in her care and intends to pursue permanency for [M.M.] through adoption.” The
kinship unit had not completed the relative assessment. The report did not recommend
one placement over the other, nor did it signal DHHS was seeking to remove the minor
from appellant’s home. The report was not served on appellant.2
       On January 14, 2014, the juvenile court granted appellant de facto parent status.
Also on January 14, 2014, at approximately 3:00 p.m., DHHS filed an addendum report
for the section 366.26 hearing the next day. DHHS reported that the aunt’s home had
been approved for placement. The aunt was intending to quit her job if the minor were
placed with her, was willing to adopt the minor, and could provide her with a loving,
stable home. Her home was in a suburban area, close to schools, parks, shopping, and
transportation. She had successfully raised two children and there were not any concerns
regarding her ability to meet the minor’s needs. She had been visiting the minor on a
monthly basis since August 2013, and “visitation had been increased to include overnight
visits” on December 26, 2013. There was no information on how many, if any, such
visits had occurred or how they went. DHHS recommended the minor be moved to the




2 We are not suggesting that this report and additional reports and orders we describe
post should have been served on appellant. (See § 827 et seq.) Our point is that the
record fails to reflect that appellant was made aware of the majority of the information
made available to the parties, including changing recommendations by DHHS.

                                             3
aunt’s home and indicated a home study would commence once the minor was moved.
The addendum report was not served on appellant.
       The January 15, 2014, hearing took place before the juvenile court (Borack, J.)
that had presided over the majority of the hearings in the case, including the disposition
hearing and the review hearing at which services were terminated. The court stated it
was “somewhat confused as to why there was an assessment going forward on relatives
when we were already at the selection and implementation hearing. The child had been
placed with the current care provider when the child was approximately three weeks old
or so.” Noting that as of September 10, 2013, DHHS was aware that appellant was
committed to adoption and had begun an adoptive home study, the court noted that
appellant was to be assessed and identified as a prospective adoptive parent.
       DHHS responded that either placement would be appropriate and explained that
the kinship assessment for the aunt had begun on August 30, 2013, but there had been
several delays. Minor’s counsel concurred, adding, “So I would just request the Court to
maybe take this issue under submission. I believe the father’s attorney is going to be
requesting a continuance [because father was absent due to incarceration]. Maybe we can
continue this matter to that date as well, because I do think we should review.”
       Mother’s counsel then joined in the request for a continued section 366.26 hearing,
as she had just received DHHS’s late-filed addendum that day. The court responded:
“While the Court understands that there are delays in kinship assessments that we
experience all the time in this court . . . I don’t read anything in either case law or
statutory law that says except when [DHHS] can’t do something in a timely manner. The
focus for case law and the focus for statutory law is always the child. And both federal
law as well as state law emphasize stability for the child. All of the information in the
report that was prepared for the 366.26 hearing indicates that the child is stable in the
child’s current placement, that the child has been there the entire child’s life, that the
child is going through--the child, being on track in her emotional development shows

                                               4
some stranger anxiety around new people; and although we know these new people are
relatives, the child does not necessarily know that these people are relatives. The only
mother this child has really ever known is the current caretaker. The report indicates
that she desires to provide permanency through adoption, that she has begun an adoptive
home study. And at this point in time the law prefers the current caretaker to relatives.
That’s the way the Court reads the law.” (Italics added.) The court then continued the
366.26 hearing to January 22, 2014.3
       On January 22, 2014, an assigned judge (Petre, J.) was hearing Judge Borack’s
calendar. Counsel for DHHS requested that Judge Petre adopt the findings and orders it
attached to its January 15, 2014, addendum report, which included placing the minor with
the aunt. Counsel for the parents and minor concurred in the proposed placement. The
court then asked the individuals in the audience to stand up and indentify themselves.
The paternal grandmother introduced herself, and then the aunt identified herself as the
minor’s aunt. The court asked the aunt if her home was where the minor was currently
placed and appellant responded from the audience, “No, I am the de facto parent, and the
current caregiver.” Appellant provided her name, as did the aunt, and then counsel for
DHHS interjected, referencing the aunt, “That’s the recommendation. She passed
kinship. She’s [a] relative.” Appellant was not asked to join the parties at counsel table,
or asked her position on the proposed change of placement.
       The court thanked everyone for being there and then asked the parties if “anyone
wish[ed] to be heard further on this issue.” The court then indicated it had read and
considered the report prepared for the hearing, found the minor was likely to be adopted,
and terminated parental rights. At this point, counsel for DHHS requested that the aunt



3  We note that the minute order from the January 15 hearing indicates only that “[t]he
issue of relative placement preference at a 366.26 WIC hearing was argued/discussed for
the record” in addition to noting the continuance. The order was not served on appellant.

                                             5
be appointed the educational rights holder. The court granted that request and then asked
if it should place the minor with the aunt at that time. Counsel for DHHS responded that
the placement change was included in its proposed orders from the section 366.26
hearing, and the court ordered the minor placed with the aunt. The order changing
placement was contained in the form order generated from the selection and
implementation hearing.
       At no time during the January 22, 2014, hearing did any counsel for the various
parties inform Judge Petre that Judge Borack had previously rejected the proposed
removal of the minor from appellant’s home. Nor did counsel ever address or argue the
reasoning for the change in placement beyond that the aunt was a “relative.”
          Appellant filed a notice of appeal after the conclusion of the hearing.4
                                      DISCUSSION
       In her briefing, appellant contends that because she qualified as a prospective
adoptive parent she was entitled to notice and a hearing before the minor was removed
from her and placed with the aunt. She adds that the juvenile court abused its discretion
in entering the disputed placement order without hearing evidence regarding the minor’s
best interests, and instead relying solely (and erroneously) on relative preference.
Respondent DHHS argues first that appellant was not entitled to notice due to the timing
of the removal, which it argues was prior to the section 366.26 hearing. Next, DHHS
argues that any error was harmless and any objection to error was forfeited. DHHS adds




4  On June 4, 2014, appellant filed a motion to augment the record on appeal. We deny
appellant’s motion because augmentation is unnecessary for our determination of the
issues in this appeal. On June 20 and again on July 2, 2014, we requested supplemental
briefing regarding whether subsequent events affected the positions or arguments of the
parties or rendered the appeal moot. After receiving briefing, we agree with both parties
that this appeal is not moot.

                                             6
that there was no abuse of discretion and that appellant has forfeited any claim of
caretaker preference. As we explain post, we agree with appellant on the relevant points.
                                              I
              Notice and Hearing Requirements Pursuant to Section 366.26
       Appellant argues she met the requirements for designation as a prospective
adoptive parent pursuant to section 366.26, subdivision (n)(1) and (2), which entitled her
to notice, as provided by subdivision (n)(3), prior to the minor’s removal. Subdivision
(n)(3) requires DHHS to notify a designated prospective adoptive parent, or a current
caretaker who meets the criteria to be a prospective adoptive parent, prior to a change in
a minor’s placement. The prospective adoptive parent, or current caretaker who meets
the criteria, may then object and request a hearing and may also request, in the case of a
current caretaker, to be designated as a prospective adoptive parent. (§366.26, subd.
(n)(3)(A).) If the court sets a hearing regarding the proposed removal, DHHS must prove
by a preponderance of the evidence that removal is in the minor’s best interests.
(§366.26, subd. (n)(3)(B); T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45.)
       The dispute here is whether the statute quoted above actually applied to appellant
at the time DHHS was required to provide the notice at issue.
       DHHS argues not that appellant failed to meet the requirements to be designated a
prospective adoptive parent (see §366.26, subd. (n)(1), (2); the minor had lived with
appellant for 14 months, she had expressed a commitment to adopt the minor, and she
had taken at least two steps to facilitate the adoption process--applying to be a de facto
parent and beginning an adoption home study), but instead that “a caretaker cannot
qualify as a prospective adoptive parent . . . until the time of the section 366.26 hearing.”
Therefore, because the plan to move the minor was hatched before that hearing (although
admittedly implemented at the time of the hearing), the period of time prior to the hearing
during which DHHS would have been required to notice appellant (were she covered by
the requirement) had already passed by the arrival of the hearing date.

                                              7
       We disagree with this circular reading of the notice requirements. Before a
permanency hearing is held, DHHS is charged with preparing a “preliminary assessment
of the eligibility and commitment of any identified prospective adoptive parent or legal
guardian, particularly the caretaker . . . . (§ 366.21, subd. (i)(D).) “Prior to a change in
placement and as soon as possible after a decision is made to remove a child from the
home of a designated prospective adoptive parent, the agency shall notify the court, the
designated prospective adoptive parent or the current caretaker, if that caretaker would
have met the threshold criteria to be designated as a prospective adoptive parent
pursuant to paragraph (1) on the date of service of this notice, the child’s attorney, and
the child, if the child is 10 years of age or older, of the proposal in the manner described
in Section 16010.6.” (§ 366.26, subdivision (n)(3), italics added.)
       DHHS does not dispute that here appellant would have met the threshold criteria
to be designated as a prospective adoptive parent at the time DHHS made the decision to
seek removal. Instead, relying on section 366.26, subdivision (n)(1), DHHS argues that it
was not required to give appellant notice of the proposed change because she could not
have been actually designated the prospective adoptive parent until the day after it
notified the court of its proposal--at the section 366.26 hearing. This is because section
366.26, subdivision (n)(1) does not provide for the court’s designation of the current
caretaker as a prospective adoptive parent until the section 366.26 hearing is held.
Simply put, there cannot be a designated prospective adoptive parent until the child has
been freed for adoption, generally as a result of the termination of parental rights.
       Although we certainly agree that as of January 14, 2014, appellant was not yet
eligible to be designated a prospective adoptive parent due to the timing requirement of
the designation, she was certainly qualified to be so designated as of that date. In its
argument, DHHS conflates the appellant’s achievement of threshold qualifications with
her achievement of ultimate eligibility. As we have described ante, the statute merely
requires qualification, not eligibility, in order to be entitled to notice.

                                                8
       Our decision in In Re Jayden M. (2014) 228 Cal.App.4th 1452 (Jayden M.) does
not change this analysis. First and foremost, Jayden M. was decided on standing.
Second, to the extent that we addressed the notice entitlement in Jayden M., we noted that
the minor in that case was removed prior to the section 366.26 hearing, thus the notice
requirements contained in that statute were inapplicable. We went on to suggest that had
the removal been concurrent to the hearing or subsequent thereto (as was the minor’s
removal in the instant case), our analysis would have been different. (Jayden M., supra,
at pp. 1458-1459 [“Here, though the record is not explicit, it appears the minor was
removed from his paternal aunt and uncle's custody prior to the continued hearing on the
termination of parental rights. Thus, section 366.26, subdivision (n) is inapplicable to the
instant facts. Furthermore, even if Jayden [were] removed . . . concurrent with or
subsequent to the selection and implementation hearing . . . [the] parents do not have
standing to assert rights under section 366.26, subdivision (n)”].)
       “In enacting section 366.26, subdivision (n), the Legislature 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 qualified as a prospective adoptive parent,
as defined, in order to ‘protect the stability and best interests of vulnerable children.’
(Assembly Com. on Judiciary, com. on Sen. Bill No. 218 (2005-2006 Reg. Sess.) as
amended June 2, 2005, p. 5.)” (T.W. v. Superior Court, supra, 203 Cal.App.4th at p. 44.)
Here, at the same hearing--the section 366.26 hearing--and in the same order, the juvenile
court, at the urging of the attorneys and apparently without any idea that the request for
removal had already been rejected, terminated parental rights and then removed the
minor from the only home she had ever known. Notice to her current caretaker was
required.




                                               9
                                             II
                              Forfeiture and Harmless Error
       DHHS next argues that any error in failing to formally notify appellant was
harmless because she was in court for the section 366.26 hearing and thus had ample
“notice and a meaningful opportunity to be heard.” DHHS dovetails this argument into a
forfeiture argument, asserting that appellant had the opportunity to object from her
position in the audience at the (continued) hearing and failed to do so. We are not
persuaded by either argument.
       Although appellant may have known that DHHS was considering the aunt as well
as appellant for ultimate placement, this is not the written notice that is contemplated and
mandated by the statute. As we have detailed, appellant was not served with any of the
reports, which themselves were inconclusive about the recommendation to change
placement until the late-filed addendum on January 14, 2014. Significantly, at the
January 15, 2014, hearing--which was the first date on this record that appellant could
have even arguably had an inkling of DHHS’s pending request to remove the minor--the
court decidedly rejected the request to change placement, explaining at length why the
request was improvidently made. Although the termination hearing was continued to
provide father with an opportunity to be present, the matter of the minor’s placement
appeared to be resolved, and appellant was not privy to any reports or minute orders
suggesting otherwise.
       When the parties appeared at the continued hearing on January 22, 2014, appellant
had no notice, or even reason to suspect, that DHHS intended to continue to pursue its
request to remove the minor from her home. Appellant, although previously designated a
de facto parent, was not included at counsel table, but instead remained in the audience.
She was not represented by counsel. The court’s invitation to comment was directed at
those who were being permitted to argue at counsel table, not those individuals in the
audience who had merely been acknowledged and thanked for their attendance.

                                             10
       Under these circumstances, we do not agree that appellant either received or
forfeited her right to statutory notice and the opportunity to object to the minor’s
removal. By the failure to provide notice to appellant, she was deprived of the
opportunities both to request designation as a prospective adoptive parent and to request
to be heard regarding removal. Thus we reject the harmless error argument.
                                              III
                                     Abuse of Discretion
       Appellant further contends the court abused its discretion in entering the removal
order by (apparently) basing it solely on relative preference, and without any evidence
regarding the minor’s best interest. DHHS counters that relative preference was not the
basis for the court’s orders and, in any event, any preference for placement with appellant
as the current caretaker is inapplicable. It adds that even if applicable, any claim of
preference is forfeited due to appellant’s failure to claim it below.
       First, for reasons we have described ante, we decline to find the argument
forfeited due to appellant’s failure to object at the time of the hearing.
       Second, we note that the relative placement preference did not apply at this stage
in the proceedings. “[T]he statutory preference for placement of a dependent child with a
relative [citation] does not apply to a placement made as part of a permanent plan for
adoption.” (In re Sarah S. (1996) 43 Cal.App.4th 274, 276-277, fn. omitted.) Once
reunification efforts have failed, and the juvenile court has before it a proposed
permanent plan of adoption, it is the caretaker who has preference. (Id. at pp. 285-286; In
re Lauren R. (2007) 148 Cal.App.4th 841, 855-856.) Although DHHS now argues
relative preference was not the basis for the court’s decision, the record is clear that
DHHS relied on the relative preference to ask the court to change the minor’s placement.
As we have described, this was the only basis articulated by any of the parties at the
hearing. However, as we explain post, we need not rely on the applicability of either
preference to decide abuse of discretion here.

                                              11
       A juvenile court’s decision to authorize a change in the minor’s placement is
reviewed for abuse of discretion. (See In re N.M. (2011) 197 Cal.App.4th 159, 171.) But
we must also review the juvenile court’s finding that the change is in the minor’s best
interests to determine whether there is substantial evidence in the record to support it.
(See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066; Stack v. Stack (1961)
189 Cal.App.2d 357, 368 [if there were no evidence to support the decision, there would
be an abuse of discretion].)
       In the written form order, the court checked the box indicating its placement order
was in the minor’s best interests, and DHHS argues in its briefing that the aunt was an
otherwise appropriate placement. The suitability of placement with the aunt is, however,
not the issue. Because appellant was a current caretaker who met the threshold
requirements of a prospective adoptive parent, and the removal order was made at the
termination hearing, the issue is whether removal from appellant’s home was in the
minor’s best interests. Although couched as a placement order, it was necessarily a
removal order. There was no evidence in the record from which to conclude that removal
from the only home she had ever known was in the minor’s best interest. (See T.W. v.
Superior Court, supra, 203 Cal.App.4th at p. 45 [discussing the difference between
placement and removal].)
       Here, the evidence established that both appellant and the aunt were appropriate as
caregivers. At the hearing, DHHS conceded that “either placement would be
appropriate.” There was, however, no evidence that removing the minor from appellant’s
home was in the minor’s best interests. The minor had been living with appellant for
nearly all of her life; comparatively, the minor had visited with the aunt on a monthly
basis for six months and there was some evidence of recent overnight visits. There was
absolutely no consideration of the impact of removal on the minor, despite evidence that
the minor was showing stranger anxiety and looked to appellant to meet her needs. In
sum, there was simply no evidence to support the juvenile court’s finding that removal

                                             12
from appellant was in the minor’s best interests. Accordingly, the court’s placement
order, which operated as an order removing the minor from appellant’s care, was an
abuse of its discretion.
                                      DISPOSITION
       The change of placement order of the juvenile court is vacated. The matter is
remanded to the juvenile court where DHHS is ordered to provide appellant with notice
and the opportunity to object to the minor’s removal and seek designation as a
prospective adoptive parent and a hearing pursuant to section 366.26, subdivision
(n)(3)(A)-(D). Notice is to be provided within 10 days of the filing of our remittitur. The
hearing, if requested, shall be held within 40 days of the filing of our remittitur. At the
hearing, DHHS has the burden to prove by a preponderance of the evidence that removal
from appellant is in the minor’s best interests, based on the state of the evidence at the
time of the hearing. The juvenile court shall ensure that the minor is in an appropriate
placement pending the hearing.




                                                         DUARTE                , J.



We concur:



      NICHOLSON              , Acting P. J.



      MAURO                  , J.




                                              13
Filed 3/11/15 (received for posting 3/12/15)

                                   CERTIFIED FOR PUBLICATION




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                               (Sacramento)
                                                   ----




In re M.M., a Person Coming Under the Juvenile                        C075687
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                               (Super. Ct. No. JD232884)
HEALTH AND HUMAN SERVICES,
                                                               ORDER CERTIFYING
                  Plaintiff and Respondent,                      OPINION FOR
                                                                 PUBLICATION
         v.

T.C.,

                  Defendant and Appellant.




                                                    1
       The opinion in the above-entitled matter filed on February 9, 2015, was not
certified for publication in the Official Reports. For good cause it now appears the
opinion should be published in the Official Reports, and it is so ordered.

FOR THE COURT:


      NICHOLSON             , Acting P. J.



       MAURO                , J.



       DUARTE               , J.




                                             2
                               EDITORIAL LISTING


       APPEAL from orders of the Superior Court of Sacramento County, Donna M.
Petre and Jerilyn L. Borack, Judges. Vacated and remanded with directions.

      Nixon Peabody, Karl D. Belgum and Blaire Z. Stokes, for Defendant and
Appellant.

       John F. Whisenhunt, County Counsel, Claire Van Dam, Deputy County Counsel,
for Plaintiff and Respondent.




                                         3
