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In re R.S.

November 30, 2009

IN RE R.S., A PERSON COMING UNDER THE JUVENILE COURT LAW.
DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PETITIONER AND RESPONDENT,
v.
M.T. ET AL., OBJECTORS AND APPELLANTS.



TRIAL COURT: Del Norte County Superior Court Del Norte County Super. Ct. No. JVSQ-07-6254) TRIAL JUDGE: Honorable Robert W. Weir.

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

The parents of the minor R.S. executed a relinquishment of parental rights with the state's Department of Social Services (State Adoptions) in conformance with Family Code section 8700. Subsequently, the Juvenile Court of Del Norte County terminated their parental rights. M.T. (Mother) and R.S. (Father) appeal from that order, made pursuant to Welfare and Institutions Code section 366.26.*fn1 We consider first Father's contention-in which counsel for the minor has joined-that the juvenile court erred in holding the section 366.26 hearing and in issuing orders that terminated parental rights and granted a request by the minor's foster parents (Foster Parents) to be designated as prospective adoptive parents pursuant to section 366.26, subdivision (n). Father argues that in doing so the court impermissibly interfered with a final, voluntary relinquishment the parents had made to State Adoptions. This relinquishment included a designation of persons other than the Foster Parents as the intended adoptive placement, namely, Mother's sister K.F. (Aunt) and Aunt's husband P.F. (See Fam. Code, § 8700, subd. (f).)

As discussed below, we agree with this contention and reverse the orders of the juvenile court. Secondly, we conclude that it is unnecessary to address Mother's contention, that the court violated notice requirements of the Indian Child Welfare Act (ICWA), because any defect in the notice provided to Indian tribes, concerning the minor's dependency proceeding, was rendered moot by the parents' voluntary relinquishment to State Adoptions.

Background

In November 2007, the county's Department of Health and Human Services (Department) initiated these proceedings as to the minor (born June 2006). On January 9, 2008, the juvenile court established dependency jurisdiction over the minor after sustaining allegations under section 300, subdivisions (b), (g), and (j). After a dispositional hearing on January 25, 2008, the court directed the minor's removal for out-of-home placement and ordered the Department to provide reunification services to the parents. On this date, the minor was placed with Foster Parents, D.D. and K.D.

At the conclusion of the six-month status review hearing (six-month hearing) on August 5, 2008, the juvenile court terminated reunification services and set the matter for a hearing under section 366.26. Mother sought review of this order by petition for extraordinary writ. The underlying facts and procedural background up to this point are summarized in this court's decision denying Mother's petition. (M.T. v. Superior Court (Nov. 14, 2008, A122647) [nonpub. opn.].)

The juvenile court held a hearing on September 12, 2008, to review visitation between the parents and the minor pending the section 366.26 hearing. At this hearing, Mother's counsel indicated that her preference, since the termination of reunification efforts, was to have the minor adopted by Aunt, who resided in Clovis, Fresno County. On the other hand, Foster Parents had retained counsel and were "jumping through all the hoops in as vigorous a way as they can" in seeking to adopt the minor. For this reason, Mother's counsel moved for a hearing on her request to have the minor placed with Aunt pursuant to the relative placement provisions of section 361.3.*fn2 Counsel representing Aunt, who was present at the hearing, mentioned to the court that both Mother and Father were in the process of preparing a "designated relinquish[ment]" with State Adoptions-that is, a voluntary relinquishment of their parental rights that would include their designation of a person with whom they intended the minor to be placed for adoption. (See Fam. Code, § 8700, subd. (f).) Minor's trial counsel supported Mother's request for a relative placement hearing, noting that Aunt had made "a very strong showing," and that "it's better normally . . . to leave the child with family rather than with foster parents." Counsel for the Department stated that State Adoptions should be involved in the hearing.

At the outset of the relative placement hearing under section 361.3, Aunt's counsel again noted that both parents were "prepared to sign" a relinquishment of their rights with State Adoptions, designating Aunt as the person they intended the minor to be placed for adoption. S.A. (Grandmother), the mother of both Aunt and Mother, appeared at the hearing and informed the court that the minor's placement with Aunt in Clovis would interfere with her relationship with the minor, as well as the minor's relationship with a seven-year-old half sibling, F., who lived with Grandmother. Grandmother further stated she herself was "being considered for adoptive placement" and, as she had previously adopted F., queried why she should not be able to adopt the minor as well. Mother testified to her desire that the minor be placed with Aunt, stating she and minor had lived with Aunt from before his birth until he was almost one year of age. Mother explained neither she nor Aunt had been able to maintain a relationship with F.-her biological daughter and the minor's half sibling-because Grandmother would not allow it. She indicated, however, that Aunt would ensure the minor had contact with the minor's two other half siblings, J. and C., who had been adopted by their paternal grandmother. The State Adoptions specialist for Del Norte County testified that she had only recently received an approved home study of Aunt from the Fresno branch of State Adoptions. She stated that several families, including Foster Parents and Grandmother, were also interested in adopting the minor, and she had not yet completed her adoption assessment for the section 366.26 hearing. She recommended that the minor not be moved from his current placement with Foster Parents before she completed her assessment. At the conclusion of the hearing, on October 16, the court denied Mother's request for immediate placement of the minor with Aunt.

Meanwhile, both Foster Parents and Aunt and P.F. filed requests for de facto parent status. The juvenile court granted these requests on November 7 and November 13, 2008, respectively. On November 17, Foster Parents additionally filed a request to be designated as prospective adoptive parents pursuant to section 366.26, subdivision (n).

The Department's report prepared for the section 366.26 hearing, completed and filed December 3, 2008, recommended that the juvenile court terminate the parents' parental rights and select adoption as the permanent plan. The Department further recommended that the court designate Foster Parents as the prospective adoptive parents and that the minor remain placed with them for adoption.

The assessment by State Adoptions, completed on December 2, 2008, by the Arcata district manager, was submitted as an attachment to the Department's report. This assessment noted that in late November, Mother and Father had "completed designated relinquishments identifying [Aunt and P.F. as] the prospective adoptive parents." State Adoption's central office had "received and acknowledged" the completed relinquishment. State Adoptions thus regarded Aunt and P.F. as the minor's prospective adoptive parents, deeming them "suitable and committed to the adoption." It recommended that the juvenile court "take into consideration the birth parents' wishes, as reflected in their designated relinquishment." State Adoptions noted that "[g]iven the aforementioned designated relinquishments, in which the birth parents voluntarily terminated their parental rights, it is not necessary for the court to also move to terminate the parental rights of [Mother and Father]." Declarations attached to the assessment averred that State Adoptions headquarters had issued an acknowledgment of the relinquishment on December 1.*fn3

At the outset of the section 366.26 hearing, on December 5, 2008, the juvenile court noted that it had before it the Department's "report and its attachment." Counsel for the minor pointed out, "as a procedural matter" that both parents had "officially relinquished their claims," and thus there was no "necessity for the classical reason of a [section 366.26] hearing." Counsel for Foster Parents agreed, stating in effect there was no issue requiring a contested section 366.26 hearing, as the parents could not contest the termination of parental rights they had already relinquished. The court continued the hearing without making any determination on this point.

At the continued hearing, on December 19, 2008, the juvenile court admitted the Department's report and the State Adoptions assessment into evidence. Counsel for Aunt and P.F. expressed his view that "the only issue to be resolved" was whether State Adoptions determined there would be "serious detriment" to the minor if he were removed from his current placement with Foster Parents. Counsel for Foster Parents stated there was the additional issue of Foster Parents' pending request for designation as prospective adoptive parents pursuant to section 366.26, subdivision (n). Father's counsel made an objection to the court's termination of parental rights based on the designated relinquishment of those rights. Counsel for Mother essentially expressed willingness to submit on the Department's report and the State Adoptions assessment. The court, meanwhile, twice posed the question whether "there [was] any reason not to complete our objectives under [section] 366.26," that is, to "terminate ...


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