Filed 12/14/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.R., a Person Coming B269663
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK01646)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
C.R. et al.,
Defendants and
Respondents;
D.R.,
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing Judge. Reversed.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting
Assistant County Counsel, and Jeanette Cauble, Deputy County
Counsel, for Plaintiff and Appellant.
Jeanette Freeman Cochran, under appointment by the
Court of Appeal, for Appellant.
Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Respondent C.R.
Kate M. Chandler, under appointment by the Court of
Appeal, for Defendant and Respondent E.M.
D.R. was born in November 2004. She lived with her
maternal grandmother since she was an infant and felt safe in
her grandmother’s home and loved by her grandmother. She was
“thriving” in her grandmother’s care. D.R.’s two half siblings
lived in the same apartment building as D.R. with D.R.’s
maternal great-grandmother.
C.R., D.R.’s father (father), who initially was described as
“whereabouts unknown,” eventually was located at the home of
his mother and stepfather, where he lived. Father had been
convicted of statutory rape of D.R.’s mother prior to the
dependency proceedings. Father did not see D.R. after he was
released from incarceration. His name was not on D.R.’s birth
certificate. Father visited D.R. for only a four-month period
during the dependency proceedings, after which he stopped
visiting. Father did not attend conjoint therapy with D.R.
This appeal concerns D.R.’s permanent plan. The juvenile
court selected legal guardianship over adoption. On appeal, both
D.R. and the Los Angeles County Department of Children and
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Family Services (DCFS) challenge the order of legal
guardianship. After review, we conclude that the trial court was
required to select the more permanent plan of adoption. No
substantial evidence supported the court’s rationale for selecting
legal guardianship instead of adoption. We therefore reverse the
legal guardianship order.
BACKGROUND
1. Petition
On October 7, 2013, DCFS filed a Welfare and Institutions
Code1 section 300 petition identifying grounds for juvenile court
jurisdiction over mother’s three children—D.R. and her half
siblings Aa.G., and Aw.G. At that time father’s whereabouts
were unknown. Allegations in the petition concerned mother and
A.G., the father of Aa.G. and Aw.G.
As later sustained following mother and A.G’s stipulation,
the petition alleged that mother and A.G. engaged in a violent
altercation with other family members and mother struck her
cousin with a bat. A.G. hit mother’s relative. Mother possessed
methamphetamine, marijuana, a drug pipe, and a loaded firearm.
Mother also used methamphetamine and marijuana. A.G. used
methamphetamine and marijuana and had a criminal history
involving possession of a controlled substance and being under
the influence of a controlled substance.
2. Mother and A.G. Failed to Reunify with the Children
After the juvenile court sustained the allegations in the
petition, mother and A.G. were given reunification services.
Mother and A.G. failed to comply with their case plans, and their
reunification services eventually were terminated. Without
1 All statutory citations are to the Welfare and Institutions
Code.
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objection, adoption was selected as the permanent plan for Aa.G.
and Aw.G.
3. Father C.R.
As noted, father’s whereabouts were not known at the
detention hearing. The court initially stated that father was
“apparently a presumed father.” But then, after questioning
mother the court revised its determination, stating that father
was the “legal father.” Father’s paternity form indicates that on
October 18, 2013, the juvenile court found him to be an “alleged”
father. The court’s minute order dated October 18, 2013,
confirms this finding, stating: “The court finds that the following
person is the alleged father only of the minor [D.R.]: [C.R.]”
(Capitalization omitted.) In all of its reports, DCFS identified
father as an alleged father.
Father had not been located for the November 2013
jurisdictional hearing.
In February 2015, a social worker located father. DCFS
investigated father’s criminal history, which included criminal
threats, possession of a controlled substance, sex with a minor
three years younger than father, misdemeanor driving while
under the influence of alcohol, misdemeanor disobeying a court
order, misdemeanor battery, and robbery. When DCFS contacted
father, father stated that he desired custody of D.R. He began
visiting her, and his visits initially were described as “going well.”
Father progressed from monitored to unmonitored visits.
In March 2015, DCFS reported that father wanted to
reunify with D.R. DCFS concluded that “[b]ased on the fact that
[D.R.] is starting to bond with her father, it is in the best interest
of the child to remain [a] dependent of the Court and under
supervision from DCFS.” However, DCFS further concluded that
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D.R. would be at moderate risk of abuse if released to father’s
care and emphasized that father had not been in a parental
relationship with D.R. for 10 years.
In April 2015, maternal grandmother reported that D.R.
was not being fed while in father’s care. Maternal grandmother
also reported that D.R. did not want to live with father. D.R. told
her therapist that she wanted to have visits with father but did
not want to live with him. D.R. wrote the juvenile court a letter
stating that she did not want to live with father. Her letter
stated that “for the past 10 years I have been living with the
family that has been with me for the sad moments fun moments
and proud moments that my dad hasn’t been there.”
In June 2015, father reported that he wanted D.R. to live
with him. D.R. did not want to live with father. D.R.’s therapist
recommended conjoint therapy in order that D.R. and father
develop a healthier relationship.
In August 2015, DCFS reported that D.R. did not want
conjoint therapy with father but nevertheless agreed to it. She
had not visited father for two weekends. Father reported that he
did not visit because he did not have a vehicle but promised to
visit the following weekend. Father did not appear for his
promised visit. Father also did not appear for the scheduled
conjoint therapy session with D.R.
Also in August 2015, DCFS reported that father did not
appear at 11 regularly scheduled visits or at a scheduled conjoint
therapy session. Father never rescheduled the conjoint therapy
and had no sessions with D.R. DCFS recommended terminating
father’s reunification services and leaving D.R. in the care of her
grandmother.
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Father did not appear at a court hearing scheduled for
August 11, 2015, concerning his reunification services. The court
found that returning D.R. to father’s custody would create a
substantial risk of detriment and would result in either severe
emotional or severe physical harm. The court terminated father’s
reunification services.
In October 2015, father told a social worker that he did not
want to lose his parental rights but also did not want to force
D.R. to live with him. Father confirmed that his last visit had
been May 24, 2015. Father had received a copy of the following
letter from D.R.:
“Dear, Judge
“I know that you said that I had to sleep over my dad house
and so I just want one last attempt so you can know that I am
horrible, hurt, ruined, burned up because I am going to miss my
aunts, grandma, great grandma cousins and mom, and brothers
because of a small change I just feel like my heart stopped and
sadness and I just can’t say thing to my dad that are personal
because I need my aunts becaues they are the only ones that
understand. And I am not going to have the same house or close
friends or family birthday partys. and everything is not the
same. [¶] Please I am begging and praying that you would listen
to me please.” (Sic.)
In December 2015, DCFS reported that father had not
made efforts to see D.R. since May 24, 2015. Father did not
appear for scheduled visits in April, May, June or July, and no
further visits had been scheduled. Father still had not called
D.R.’s therapist to set up a conjoint counseling session.
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4. Maternal Grandmother Sought to Adopt D.R.
In March 2015, maternal grandmother reported that she
was willing to adopt D.R. D.R. reported that she “likes living
with her grandmother and she is happy there.”
In June 2015, grandmother reaffirmed that she was willing
to adopt D.R.
In December 2015, DCFS reported that grandmother’s
homestudy was approved. DCFS reported that grandmother
loved D.R. and was committed to adopting her.
5. The Court Selects Legal Guardianship As D.R.’s
Permanent Plan
No witness testified at the section 366.26 hearing. Father’s
counsel argued that the exception under section 366.26,
subdivision (c)(1)(B)(i) applied and that therefore adoption should
not be D.R.’s long-term plan. That exception applies when a
parent has “maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Father’s counsel
requested legal guardianship as D.R.’s long-term plan. Father’s
counsel argued that maternal grandmother manipulated the
situation by failing to provide his information sooner and that
father decided not to visit because D.R. was uncomfortable with
visitation. Counsel acknowledged that father did not have a
“strong relationship” with D.R. Counsel however argued that
father “made the effort that he could” but D.R. did not want to
see him. Mother’s counsel argued that mother visited regularly
and had a strong relationship with D.R.
On December 30, 2015, the court ordered legal
guardianship as D.R.’s permanent plan. The court’s order stated
that “[t]he child is living with a relative who is unable or
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unwilling to adopt the child because of circumstances that do not
include an unwillingness to accept legal or financial
responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment
through legal guardianship.”
The court found that it would be detrimental to place D.R.
in father’s custody. Father consented to guardianship, and the
court terminated its jurisdiction.
DISCUSSION
1. Substantial Evidence Does Not Support the Juvenile
Court’s Conclusion That an Exception to Adoption Existed
Under the circumstances of this case, the trial court was
required to order adoption as D.R.’s permanent plan because, as
explained, it is the preferred permanent plan when no exception
exists. Section 366.26 governs the selection of a permanent plan
for a dependent child and carves out six exceptions, only one of
which was relied upon by the juvenile court. Absent one of these
exceptions, if the child is adoptable—and it is undisputed that
D.R. was adoptable—the juvenile court must select adoption as
the child’s permanent plan. (In re Jasmine T. (1999) 73
Cal.App.4th 209, 213 [absent an exception, “the court must order
adoption as the permanent plan for a child found likely to be
adopted”]; In re Casey D. (1999) 70 Cal.App.4th 38, 50 [“If a child
is likely to be adopted, adoption is the plan preferred by the
Legislature.”]; In re Jose V. (1996) 50 Cal.App.4th 1792, 1798 [if
no exception to adoption applies adoption will be “ ‘relatively
automatic’ ”].)
The exception to adoption relied on by the juvenile court
was as follows: D.R.’s grandmother was “unwilling to adopt the
child because of exceptional circumstances, that do not include an
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unwillingness to accept legal or financial responsibility for the
child, but who is willing and capable of providing the child with a
stable and permanent environment and the removal of the child
from the physical custody of his or her foster parent . . . would be
detrimental to the emotional well-being of the child.” (§ 366.26,
subd. (c)(1)(B)(iv).
No evidence supported this exception. (In re Fernando M.
(2006) 138 Cal.App.4th 529, 535 [“Generally, we review the trial
court’s application of the exception to the termination of parental
rights for substantial evidence.”].) D.R.’s grandmother was
willing to adopt D.R., repeatedly expressed a desire to adopt
D.R., and had an approved home study. Grandmother’s
homestudy had been approved prior to the court’s legal
guardianship order, and grandmother had repeatedly reaffirmed
her desire to adopt D.R. The juvenile court’s conclusion that an
exception applied because D.R.’s caretaker was unwilling to
adopt is not supported by any evidence in the record. Nor was
there any support for a conclusion that grandmother was unable
to adopt as she had an approved home study.
2. Mother’s and Father’s Arguments That the Juvenile
Court Could Not Terminate Father’s Parental Rights Lack
Merit
Neither mother nor father argue that substantial evidence
supported the exception to adoption relied on by the juvenile
court. Neither mother nor father argues that any section 366.26
exception to adoption is applicable to this case.
Instead, mother and father argue that the legal
guardianship order must be affirmed because father was a
presumed father and the trial court failed to make a finding of
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detriment necessary to terminate his parental rights. The record
belies these arguments.
The record can support only the conclusion that father was
an alleged father. Although the court initially stated that
“apparently” father was a presumed father it then questioned
mother and concluded father was only an alleged father. This
conclusion is documented both in the court’s minute order and in
the court’s signature after checking the box “alleged” on the
paternity questionnaire. There is no record support for the
conclusion that father was adjudicated to be a presumed father.2
Mother and father’s argument that the fact father received
reunification services shows that he was a presumed father is
incorrect. While a presumed father is entitled to reunification
services, a biological father may receive such services if it is in
the best interest of the child. (In re A.A. (2003) 114 Cal.App.4th
771, 780 [“ ‘the juvenile court may order services for the child and
the biological father . . .’ ”]; see Francisco G. v. Superior Court
(2001) 91 Cal.App.4th 586, 597.) Additionally, the trial court
may have erred in ordering reunification services for father, an
error that accrued to his benefit.
The trial court may not terminate a presumed father’s
parental rights without finding that awarding custody to him
would be detrimental to the child. (In re T.G. (2013) 215
Cal.App.4th 1, 20.) Here, the court was not required to find
2 To the extent father is seeking to adjudicate this for the
first time on appeal, he cannot raise it on appeal in the first
instance. (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1296;
see In re Jason J. (2009) 175 Cal.App.4th 922, 932-933.)
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detriment because father was an alleged, not a presumed,
father.3
In short, the juvenile court’s determination that an
exception to adoption applied was not supported by any evidence.
Neither mother nor father demonstrate any other impediment to
ordering adoption as D.R.’s permanent plan. Because the
Legislature has expressed a preference for adoption absent an
exception, the juvenile court erred in not ordering adoption as
D.R.’s permanent plan.
DISPOSITION
The juvenile court’s order of legal guardianship is reversed.
The juvenile court is directed to enter a new order of adoption as
D.R.’s permanent plan.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
3 Father cursorily claims that his counsel may have been
ineffective in failing to seek presumed father status but argues
any error was not prejudicial. We agree that any assumed error
would not be prejudicial. The juvenile court found that it would
be detrimental to place D.R. in father’s custody and no evidence
supported a different finding.
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