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In Re K.H., et al., Persons Coming Under the Juvenile Court v. N.M

November 30, 2011


APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. (Super. Ct. Nos. MJP016600, MJP016601)

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



K.M. and K.H. (hereafter referred to individually by their respective initials or collectively as the children) appeal from the Welfare and Institutions Code section 366.26 orders designating legal guardianship with their maternal grandparents as their permanent placement.*fn1 This placement was based on the juvenile court's finding that the exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(A), which governs a child living with a relative who is "unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child," applied in this case. The children contend the juvenile court erred in applying this exception because it was required to find the relative caregiver's inability or unwillingness to adopt was due to "appropriate circumstances." We disagree and affirm the orders.


In May 2010, the Madera County Department of Social Service, Child Welfare Services (Department) initiated dependency proceedings over then three-year-old K.H. and six-month-old K.M. after their mother, N.M. (mother), was arrested for trespassing in an occupied house with the children. The police took the children into protective custody as mother was unable and unwilling to make a plan for their care due to her mental health issues. The children were detained and placed with their maternal grandmother, Brenda O.

This was not the first time the family had come to the Department's attention. In November 2009, the Department received two referrals stemming from mother's hospitalization for a section 5150 evaluation. In the first, no caregiver was available for K.H. when mother was hospitalized, while in the second, mother had given birth to K.M. and the hospital staff reported concerns about K.M's safety due to mother's bizarre behaviors. The first referral was evaluated out after Brenda took K.H. into her care, while the second was closed after Brenda agreed to assist mother in caring for K.M. The Department received two more referrals in February 2010. The first reported that mother was exhibiting bizarre behavior and walking into people's apartments uninvited, and the second reported that while mother was in a Department of Social Services office, K.M. was dirty and screaming, and mother refused to supervise K.H. In the second referral, mother admitted to the responding social worker that she was unable to supervise and care for the children. The referral was closed after the maternal grandfather picked up mother and the children and took them to his home, where the maternal grandparents cared for the children until April 7, 2010, when mother took the children to stay with her at a rescue mission.

The juvenile court found true the allegations of an amended petition which alleged the children came under section 300, subdivisions (b), (j) and (g), due to mother's failure and inability to supervise the children due to her mental illness, and because the children's half-sibling, A., was declared a dependent under section 300, subdivisions (b) and (g), and mother continued to suffer from severe mental health issues that led to his removal and termination of mother's reunification services in August 2004. In August 2010, the juvenile court declared the children dependents of the court, continued their relative placement, and denied reunification services to mother under section 361.5, subdivision (b)(10) based on her failure to reunify with A. and to make reasonable efforts to treat the problems that led to A.'s removal. The court ordered visitation for mother and set a section 366.26 hearing.

In a report prepared for the hearing, California Department of Social Services (CDSS) adoption specialist Mary F. Wilson stated that CDSS had determined the children were adoptable as they were in good health with no current developmental delays. Wilson noted, however, that the children's current relative care providers (grandparents) were unwilling or unable to commit to adopting the children, although they were willing to commit to a permanent plan of legal guardianship. Accordingly, CDSS recommended a permanent plan of legal guardianship with the grandparents without termination of mother's parental rights.

Wilson stated the children had adjusted successfully to placement with their grandparents, where they had been since their detention, while making steady improvements in physical and emotional development. The children appeared successfully bonded to their grandparents and they all operated as a family unit. The grandparents had been the one stable factor in the children's lives, as they had consistently come forward to take responsibility for their care when mother had mental health and legal problems, and were willing and committed to providing the children with a permanent home through legal guardianship. In Wilson's opinion, the children and grandparents had close and loving attachments, and the detriment of separation from grandparents outweighed the prospects of placement with another unknown family or even another family member. Wilson noted that Department case records showed mother had maintained monthly contact with the children through visits supervised by either the Department or grandparents, and recommended mother's supervised visits continue as long as the visits were not detrimental to the children's emotional stability.

The Department assessed the grandparents, 47-year-old maternal grandmother Brenda O. and her husband, 51-year-old Kirk J., for guardianship. The couple has two children together. Kirk is also the father of two other adult children and he raised Brenda's daughter, N.M., since she was two. The Department stated that the grandparents and children appeared to be quite bonded to each other, and the family has a good support system. The grandparents were aware of the children's needs for stability and affection, and were committed to providing a stable loving environment for them. The Department recommended the grandparents be approved as the children's legal guardians and dependency dismissed.

A contested section 366.26 hearing was held at the request of children's counsel. Kirk testified that he is the children's "granddad" and while he is not mother's biological father, he raised her since she was two years old and she considered him a father figure. Kirk was asking for guardianship over the children rather than adoption because "I'm just looking at the best interest for the kids and I'd just like to keep my family together." He was willing to keep the children in his home as a permanent plan, provide for them throughout their childhood and was capable of supporting them financially. Kirk was not willing to adopt the children if the court ordered adoption as the permanent plan, however, because he had been in mother's life since before the children were born and he "wouldn't quit my kids and I have to see them through. They need help. They need me. So it's not - it's not nothing that I have to do as a grandparent is adopt." Kirk recognized his commitment now was to the children, but he understood he could raise them without adopting them. Kirk admitted there was nothing that precluded him from being able to adopt the children if he wanted to and the only reason he would not adopt them was because he was unwilling to do so.

Wilson testified that while she found the children adoptable, she recommended legal guardianship as their permanent plan because the children were living with relatives who were committed to providing a permanent plan through legal guardianship, and the children had relationships with the relatives since they were born. Wilson had discussed the options with the grandparents, including the differences between adoption and legal guardianship, and felt their responses were clear. Wilson understood the grandparents did not want to adopt because they wanted to remain the grandparents and raise the children. Kirk also stated that he feared for mother's safety, he did not want to hurt or damage mother, and he wanted to maintain his family.

In Wilson's opinion, it would be detrimental to the children to remove them from the grandparents' home as they had lived with the grandparents for a year and been in the grandparents' home on and off all their lives. Wilson believed the grandparents were willing and capable of providing the children with a stable and permanent environment, as they were meeting the children's needs and had a "very loving" relationship with them. The grandparents had good jobs and adequate wages, but needed some assistance to provide for the children financially, such as medical and "Kin-GAP." Wilson did not believe the grandparents were unwilling to adopt because they did not want to accept financial responsibility for the children. In her ten years as an adoption specialist, Wilson had only encountered this reason for not wanting to adopt, i.e. wanting to remain the grandparents and raise the children, in two other cases. Ultimately, ...

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