Courts Awarding Child Adoption Over Guardianship

In July of 2017, the Los Angeles County Department of Child and Family Services [DCFS] filed a petition with the juvenile court alleging jurisdiction of Daughter [D] (then age four years old).  Mother [M] had given birth to Son [S] and both she and S tested positive for amphetamine and marijuana.  S was placed in the care of his biological father.  D was placed in the care of the mother of M’s godmother [F].

The court juvenile court granted DCFS’s petition to allow S to remain with his father and D to remain with F.  M could reinstate her parental rights if she participated in a full drug/alcohol program, random drug testing, parenting classes, a 12-step plan, and individual counseling. M was ordered to participate in a reunification plan and she was granted monitored visits with D.

In April of 2018, another hearing was held to determine the placement of D.  M attended the hearing, but had completed the court ordered programs.  To determine M’s rights, another hearing was scheduled in September of 2018.

At the September hearing, M did not appear, and the court terminated her reunification services until another hearing set for July 9, 2019.

M did not appear at the July 9, 2019 hearing.  Evidence presented at the hearings (without M) included the completion of a form by F regarding D’s welfare.  In the forms’ section marked “Recommendation for Disposition” F wrote: “I plan to adopt [D].”  DCFS conducted a home study and recommendation F’s of D.  The judge granted the recommendation.

M appealed from the juvenile court’s order stating that F should have been given the opportunity to choose guardianship over adoption, but there is no evidence in the July 9, 2019 hearing that the guardianship option was provided.

The Appellate Court agreed with the juvenile court:

“…At a selection and implementation hearing the court must order one of three permanent plans for the dependent child – adoption, legal guardianship or foster care. Adoption is the permanent plan preferred by the Legislature… Freeing a child for adoption requires termination of parental rights. To terminate parental rights, the court need only make two findings: (1) there is clear and convincing evidence that the minor will be adopted; and (2) there has been a previous determination that reunification services were terminated… Welfare & Institutions Code Section 366.26, subdivision (c)(1) carves out exceptions to this preference for adoption, and the parent bears the burden of showing that one of the exceptions listed in section366.26, subdivision (c)(1) applies… Absent one of these exceptions, if the child is adoptable, the juvenile court must select adoption as the child’s permanent plan…

“…We find no statute or case requiring the juvenile court to inquire whether a willing non-relative adoptive parent was advised of and then rejected the option of guardianship. And we decline to graft such a requirement onto the adoption protocol in light of the Legislature’s preference for adoption as a dependent child’s permanent plan. As one court has stated: “The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, ‘Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the legislature.’”

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