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In re M.M.

California Court of Appeals, Third District, Sacramento

February 9, 2015

In re M.M., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
v.
T.C., Defendant and Appellant.

Super. Ct. No. JD232884.

Page 55

[Copyrighted Material Omitted]

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COUNSEL

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

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

OPINION

DUARTE, J.

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 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 for both parents. By August 2013, the Sacramento County 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

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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.

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, ...


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