|
(Cite
as: 179 Cal.App.4th 1137, 101 Cal.Rptr.3d
910) |
Court
of Appeal, First District, Division 1, California.
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.
No.
A124021.
Nov.
30, 2009.
**912
Donna L. Hall and Valerie E. Sopher, El Cerrito, under appointment by the Court
of Appeal, for Objectors and Appellants.
Janet
G. Sherwood, Corte Madera, under appointment by the Court of Appeal, for the
minor.
Dohn
R. Henion, County Counsel and Ian W. Trueblood, Deputy County Counsel, for
Petitioner and Respondent.
MARCHIANO,
P.J.
*1143
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**913
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).)
FN1.
Further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
*1144
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 *1145
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, **914
? 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.
FN2.
Prior to the dispositional hearing, Aunt herself had made a request to the
Department for relative placement. It appears this earlier request was not
granted largely because a relative placement in Fresno County, at that point,
would have interfered with the parents' reunification efforts in Del Norte
County.
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).
*1146
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 **915
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
FN3.
When a voluntary relinquishment such as that made by Father and Mother is made
to State Adoptions or some other licensed adoption agency, the agency accepting
the relinquishment must send a copy to State Adoptions for filing. The
relinquishment becomes final 10 business days after receipt of the filing by
State Adoptions or when State Adoptions sends written acknowledgment of receipt,
whichever is earlier (unless a longer period for finality is necessary due to
causes beyond the control of State Adoptions). (Fam.Code, ? 8700, subd. (e)(1).)
With one exception discussed below, a voluntary relinquishment, once final, may
be rescinded only by mutual consent of the relinquishing parents and the agency
that accepted the relinquishment. (Fam.Code, ? 8700, subd. (e)(2).) The filing
of the relinquishment with State Adoptions operates to terminate
all parental rights and responsibilities, again with one exception discussed
below in the opinion. (Fam.Code, ? 8700, subd. (j).)
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.
*1147
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 parental rights and
select adoption as the permanent plan.? Asking for any disagreement, and
?[h]earing none,? the court proceeded to terminate both parents' parental
rights, made a finding that the minor was adoptable, and ordered a permanent
plan of adoption.
Counsel
for Foster Parents then renewed his request that they be designated as
prospective adoptive parents pursuant to section 366.26, subdivision (n).
Counsel for Aunt and P.F. objected on the ground that State Adoptions had
already determined that placement with Aunt was appropriate pursuant to the
parents' designated relinquishments. The juvenile court **916
did not find this objection persuasive, deeming the provisions of section
366.26, subdivision (n), to be a procedure ?removing? State Adoptions' placement
discretion ?in a limited way.? The court concluded that Foster Parents, Aunt and
P.F., and Grandmother were all
to be designated as prospective adoptive parents, and continued the matter for
an evidentiary hearing relating to the minor's ultimate adoptive
placement.
The
parents' appeal followed. (? 395.)
DISCUSSION
I.
The
Juvenile Court's Orders Impermissibly Impaired the Voluntary
Relinquishment
A.
Father's
Contention
Father
argues that the juvenile court erred in holding the hearing under section 366.26
after the voluntary relinquishment he and Mother made to *1148
State Adoptions. He points out that the juvenile court had no right to limit
their ability to make a voluntary relinquishment to a public adoptions agency
that was willing to accept it. (? 361, subd. (b).) Father also points out that,
once their designated relinquishment became final-before the date set for the
section 366.26 hearing-State Adoptions was vested with exclusive custody and
control of the minor until an order of adoption is granted. (Fam.Code, ? 8704,
subd. (a).) In Father's view, the court's decision to hold the section 366.26
hearing, and to make orders that included one that terminated his and Mother's
parental rights and one that granted Foster Parents' request for designation as
prospective adoptive parents under section 366.26, subdivision (n), was error
that impermissibly and prejudicially interfered with their voluntary
relinquishment to State Adoptions, with its designation of Aunt and P.F. as the
intended adoptive parents. Appellate counsel for the minor has filed a
responding brief that joins in this argument.
B.
The
Statutory Scheme
Father's
contention calls for a detailed examination of the Family Code provisions
governing voluntary relinquishment and the applicable provisions of the
dependency law. Once a child is adjudged a dependent of the juvenile court, that
court is authorized to issue orders that limit the control a parent may exercise
over that child, to the extent necessary to protect the child. (? 361, subd.
(a).) The juvenile court may not, however, ?limit the ability of a parent to
voluntarily relinquish his or her child to [State Adoptions] or to a licensed
county adoption agency at any time while the child is a dependent child of the
juvenile court, if [State Adoptions or the county adoption agency] is willing to
accept the relinquishment.? (? 361, subd. (b).)
A
birth parent may relinquish a child to State Adoptions or a licensed adoption
agency FN4
by a written statement signed before two subscribing witnesses and acknowledged
before an authorized official of State Adoptions or the licensed adoption
agency. (Fam.Code, ? 8700, subd. (a).) **917
To be effective, a certified copy of the relinquishment must be sent to and
filed with State Adoptions. (Fam.Code, ? 8700, subd. (e)(1).) As noted above, a
*1149
relinquishment generally becomes final when State Adoptions sends a written
acknowledgment of receipt of the relinquishment, or in any event after the lapse
of 10 business days after State Adoptions receives the relinquishment for
filing. (See fn. 3, ante.)
FN4.
A ?licensed adoption agency? is one licensed by State Adoptions to provide
adoption services, including both county adoption agencies and private adoption
agencies. (Fam.Code, ? 8530.) While section 361, subdivision (b), prohibits a
juvenile court from limiting the ability of a birth parent to make a voluntary
relinquishment of a dependent child either to State Adoptions or a county
adoption agency, the court may, nevertheless, limit the ability of a birth
parent to make a voluntary relinquishment of a dependent child to a licensed
private
adoption agency, pursuant to its authority to limit parental control under
section 361, subdivision (a). (Teresa
J. v. Superior Court
(2002) 102 Cal.App.4th 366, 375-376, 125 Cal.Rptr.2d 506.)
After
a relinquishment becomes final, it may be rescinded only by mutual consent of
the relinquishing parent and State Adoptions or the licensed adoption agency.
(Fam.Code, ? 8700, subd. (e)(2).) There is, however, one exception. As was done
by Father and Mother in this case, a birth parent may name in his or her
voluntary relinquishment the person or persons with whom he or she intends that
placement of the child for adoption be made by State Adoptions or the licensed
adoption agency. (Fam.Code, ? 8700, subd. (f).) State Adoptions or the licensed
adoption agency may not accept a relinquishment under Family Code section
8700-including one that designates the intended adoptive parent-unless the
agency determines it is able to place the child for adoption.FN5
(Cal.Code Regs., tit. 22, ? 35135, subd. (a)(2).) Nevertheless, the provisions
for voluntary relinquishment recognize that State Adoptions or the licensed
adoption agency, even after accepting a designated relinquishment, might
ultimately decide either not to place the child with the designated persons or
to remove the child from placement with the designated persons prior to granting
of adoption. In such an event, State Adoptions or the licensed adoption agency
must provide notice of its decision to the relinquishing birth parent.
(Fam.Code, ? 8700, subd. (g).) The relinquishing birth parent then has 30 days
from the mailing of the notice in which to rescind his or her relinquishment, or
to rescind that relinquishment and make a new one that designates a different
person or persons for adoptive placement.FN6
(Fam.Code, ? 8700, subd. (h).) With the exception of this right to rescind a
designated relinquishment when the designated placement is terminated before an
adoption order is granted, the filing of a voluntary relinquishment with State
Adoptions operates to terminate all parental rights and responsibilities with
regard to the child. (Fam.Code, ? 8700, subd. (j).)
FN5.
Thus, for example, the adoptions specialist in this case testified at the
relative placement hearing that State Adoptions would not ?randomly? accept a
designated relinquishment, but would first need to complete an approved home
study of the designated placement and determine additionally that the designated
placement was in the child's best interest.
FN6.
Of course, to be effective the new designation must be accepted by State
Adoptions or the licensed adoption agency and filed with State Adoptions. (See
Fam.Code, ? 8700, subd. (h)(3).)
When
a birth parent has voluntarily relinquished a child for adoption under Family
Code section 8700, and that child is a dependant of the juvenile court, the
adoption agency accepting the relinquishment must, within five court days,
provide written notice of the relinquishment to the juvenile court having
*1150
jurisdiction, counsel for the minor, if any, and counsel for the relinquishing
parent, if any. (Fam.Code, ? 8700, subd. (i).)
[1]
When a child is freed for adoption-whether by voluntary relinquishment under
Family Code section 8700 or by termination of parental rights-the agency to whom
the child has been freed becomes responsible for the care of the child, and is
entitled to exclusive custody **918
and control of the child until an order of adoption is granted. (Fam.Code, ?
8704, subd. (a).) The agency to whom the child has been freed for adoption may,
in its discretion, terminate a temporary care placement or an adoptive placement
at any time before an adoption order is granted. (Fam.Code ? 8704, subd. (a).)
The juvenile court retains jurisdiction over a dependent child freed for
adoption, until the order of adoption is granted. (See ?? 366.29, subd. (c),
366.3, subd. (a).) Its oversight of placement decisions by the agency having
exclusive custody and control however, is limited. Once a petition for adoption
has been filed by the prospective adoptive parents, the agency having exclusive
custody and control may not remove the child from an adoptive placement with
these parents without approval of the court-that is, the juvenile court or
family law court in which the adoption petition has been filed. (Fam.Code, ?
8704, subd. (b); see ? 366.26, subd. (e).) But before the prospective adoptive
parents file an adoption petition, the juvenile court may interfere with or
disapprove a placement decision made by the agency having exclusive custody and
control only if the agency's decision is ? ?patently absurd or unquestionably
not in the minor's best interests.? ? (In
re Harry N.
(2001) 93 Cal.App.4th 1378, 1397, 114 Cal.Rptr.2d 46, quoting Department
of Social Services v. Superior Court
(1997) 58 Cal.App.4th 721, 725, 68 Cal.Rptr.2d 239 (Theodore
D.).)
This
limitation on the juvenile court's oversight of the adoption agency's placement
decisions was modified by 2005 legislation. ?If the court, by
order or judgment, declares the child free from custody and control of both
parents,
or one parent if the other does not have custody and control ... [State
Adoptions or the] licensed adoption agency ... shall be entitled to the
exclusive care and control of the child at all times until a petition for
adoption is granted, except
as specified in subdivision (n).
...? (? 366.26, subd. (j), italics added.) Subdivision (n), in turn, authorizes
the juvenile court ?at
a
[section 366.26] hearing
or any time thereafter,
[to] designate a current
caretakerFN7
as a prospective adoptive parent? if the caretaker has taken care of the child
for at least six months, has expressed a commitment to adoption, *1151
and has taken at least one step to facilitate the adoption process. (? 366.26,
subd. (n)(1), italics added.) The designation gives the caretaker limited
standing in the dependency proceeding, essentially requiring the agency to give
the caretaker notice of any proposed decision it has made to remove the child
from placement with the caretaker, permitting the caretaker to file a petition
with the juvenile court objecting to the proposed removal, and permitting
removal of the child only if the court determines removal is in the child's best
interest. (? 366.26, subd. (n)(3); see Wayne
F. v. Superior Court
(2006) 145 Cal.App.4th 1331, 1334, 1342, 52 Cal.Rptr.3d 519.)
FN7.
Given the limitation to designate only ?current caretakers,? the juvenile court
in this instance had no authority to designate Grandmother or Aunt and P.F.-in
addition to Foster Parents-as prospective adoptive parents.
Finally,
we note that section 366.26 generally outlines the procedures by which the
juvenile court selects a permanent plan for a dependent child ?in order to
provide [a] stable, permanent home[ ]? for that child, choosing, in order of
preference, a plan of either adoption, legal guardianship, or long-term foster
care. (? 366.26, subd. (b).) The court may select a plan of adoption only after
ordering the termination of parental rights, and, if the petition for adoption
is filed with the juvenile court, may **919
proceed with the adoption only after the appellate rights of the natural parents
have been exhausted. (? 366.26, subd. (b)(1); see also ? 366.26, subds. (c)(1)
& (e).)
But
section 366.26 is not
the exclusive procedure to terminate parental rights in a dependency proceeding.
With regard to a dependent child, the ?exclusive procedures for permanently
terminating parental rights? are those specified in section 366.26, and
also
those specified in several Family Code sections including section 8700. (?
366.26, subd. (a).)
C.
The
Interplay of Voluntary Relinquishment and Dependency Law
[2]
The foregoing provisions, read together, clearly evidence a legislative intent
to preserve without limitation the right of a birth parent of a dependent child
to relinquish voluntarily his or her parental rights and free the child for
adoption through a public adoption agency. (?? 361, subd. (b), 366.26, subd.
(a); Fam.Code, ?? 8700, 8704.) This right includes the ability to participate in
the adoption process to the extent of designating a relative or other person
with whom the birth parent intends the public adoption agency to place the child
for adoption. It also includes the right-notwithstanding the voluntary
relinquishment of all other parental rights-to rescind the relinquishment within
the specified 30-day period, in the event that the public adoption agency
terminates the designated placement before adoption is final. (Fam.Code, ? 8700,
subds. (f), (g) & (h).) These rights necessarily *1152
continue throughout the dependency proceeding, at least until the juvenile court
has ordered the involuntary termination of parental rights, an order that
obviously leaves the birth parent with no further rights to
relinquish.
[3]
Here the juvenile court, at its hearing on December 5, 2008, had before it the
State Adoptions assessment and attached declarations. The assessment and
declarations indicated that the parents had completed a voluntary, designated
relinquishment that had been accepted by State Adoptions, a public adoption
agency, and that duly became final on December 1, when State Adoptions
headquarters gave written acknowledgment of the relinquishment. (See Fam.Code, ?
8700, subd. (e)(1)(A).) The court was on notice, as the minor's trial counsel
pointed out, that there was no ?necessity? for a section 366.26 hearing, at
least in its ?classical? sense, because the parents had exercised their right
under section 361, subdivision (b), to relinquish their parental rights and free
the minor for adoption through a public adoption agency.
Neither
the dependency law nor the applicable rules of court specify what the juvenile
court must do in such circumstances-that is, when the parents make a voluntary
designated relinquishment that becomes final after
the court has set a section 366.26 hearing, but before
the date set for the section 366.26 hearing. The scheme outlined above, however,
makes it clear what a juvenile court may not
do. The court is barred by section 361, subdivision (b), from making any order
that interferes with a birth parent's final, voluntary designated
relinquishment.
[4]
The orders made by the juvenile court in this case impermissibly interfered with
the parents' relinquishment in several respects. First and foremost, the court
was no longer authorized to order the involuntary termination of parental
rights. The parents had effectively terminated their parental rights through the
alternative procedure of voluntary relinquishment, an alternative expressly
authorized by section 366.26, subdivision (a). Moreover,**920
an order of involuntary termination, once it becomes final, is conclusive and
binding in nature, both on the parents and the minor, and the juvenile court
cannot set it aside.FN8
(? 366.26, subd. (i)(1).) As such, it would necessarily interfere with and
effectively cut off the parents' one remaining right to rescind
their relinquishment in the event the designated placement was terminated before
adoption became final. (Fam.Code, ? 8700, subds. (g) & (h).)
FN8.
There is a limited exception applicable when the plan for adoption has been
unsuccessful after at least three years. (? 366.26, subd. (i)(2).)
Because
the court could not properly make an order that involuntarily terminated
Father's and Mother's parental rights, it was also precluded from making an
order under section 366.26 placing the minor for adoption. *1153
(? 366.26, subd. (b)(1).) The minor had already been placed for adoption through
the final designated relinquishment, at which point State Adoptions was entitled
to exclusive custody and control of the minor until the granting of an order of
adoption. (Fam.Code, ? 8704, subd. (a).) The most that the juvenile could
properly do, under theses circumstances, was to hold a hearing for the purpose
of vacating the scheduled section 366.26 hearing, and state on the record its
reasons for doing so. That is, the selection of a permanent plan under section
366.26 had become unnecessary because the parents and State Adoptions, through a
final, voluntary designated relinquishment, had freed the minor for adoption
through State Adoptions, a public adoption agency.
Finally,
it was error for the juvenile court in this instance to issue an order granting
the request of the minor's current caregivers, Foster Parents, for designation
as prospective adoptive parents. Such an order may only
be made at a section 366.26 hearing or thereafter. (? 366.26, subd. (n)(1).) But
the court in this instance could not accomplish the purposes of a section 366.26
hearing. It was precluded by the final voluntary designated relinquishment from
ordering the involuntary termination of parental rights, and thus from ordering
the minor placed for adoption. Nor was the court authorized to select any other
permanent plan, as the relinquishment had effectively accomplished such a
selection by freeing the minor for adoption through State Adoptions. As we have
noted, the only proper course open to the court was to vacate the section 366.26
hearing, and thus it was premature for the court to consider properly any
request for designation as prospective adoptive parents under section 366.26,
subdivision (n). More importantly, the order designating Foster Parents as
prospective adoptive parents was in critical conflict with the Father's and
Mother's final designation of Aunt and P.F. as the intended adoptive placement,
in violation of section 361, subdivision (b) and Family Code section 8700,
subdivision (f).
[5]
The Department argues that the juvenile court was entitled to proceed with the
section 366.26 hearing in order to address the protections offered to current
caregivers under subdivision (n) of section 366.26, because those provisions are
applicable ?[n]otwithstanding section 8704 of the Family Code.? (See ? 366.26,
subd. (n)(1).) The simple answer to this is that ?exclusive custody and control?
provisions of Family Code section 8704 apply when a child has been freed for
adoption by ?either
relinquishment or termination of parental rights.?
(Fam.Code, ? 8704, subd. (a), italics added.) When this language is read
together with section 366.26, subdivision (n)(1), it is clear that the
procedures of section 366.26, subdivision (n), are intended**921
to limit the ?exclusive custody and control? provisions of Family Code section
8704 only when the child has been freed for adoption through a juvenile
*1154
court order terminating parental rights involuntarily in a section 366.26
hearing. The protections for current caregivers under section 366.26,
subdivision (n), do not come into play when a child has been freed for adoption
through the voluntary relinquishment procedures of Family Code section 8700. Any
such interpretation would allow the error that occurred in this case-a
designation of current caregivers as prospective adoptive parents that actively
conflicts with a voluntary designated relinquishment in violation of the
protections afforded to birth parents under section 361, subdivision
(b).
The
Department protests that such an interpretation would allow ?different
standards? to be applied to a child depending on whether his or her birth
parents relinquished their rights or had them terminated involuntarily by the
juvenile court. However, the scheme outlined above is designed to balance the
best interests of a dependent child with the rights of birth parents. On the one
hand, a birth parent is entitled to contest a proposed involuntary termination
of his or her parental rights, and when there is an involuntary termination of
parental rights, the juvenile court may not proceed with nor finalize any
adoption until the parents' appellate rights have been exhausted. (? 366.26,
subds. (e) & (j).) On the other hand, when birth parents relinquish their
parental rights voluntarily, they are not only able to participate in the
adoption process, but their relinquishment also obviates the need for a
contested hearing to terminate their rights involuntarily. The child
relinquished voluntarily, may, in turn, achieve the stability of a final
adoption without the delay attendant upon the exhaustion of the parents' appeal
from an involuntary termination of parental rights.FN9
FN9.
Such delay is illustrated by the period that has elapsed since the order of
December 19, 2008, the subject of this appeal. We note also that the provisions
of subdivision (n) of section 366.26 originated with Statutes 2005, chapter 626,
section 1 (Sen. Bill No. 218). To determine legislative intent it is appropriate
to consider the floor analysis of this bill. (See People
v. Broussard
(1993) 5 Cal.4th 1067, 1075, 22 Cal.Rptr.2d 278, 856 P.2d 1134.) The Senate
Floor Analysis for Senate Bill No. 218 of 2005 indicates that the procedures to
protect current caregivers, now set out in section 366.26, subdivision (n), were
designed to address concerns arising during the more delayed
?period between termination of parental rights and the granting of a petition
for adoption,? as distinguished from the more expedited period between voluntary
relinquishment and the granting of a petition for adoption. (See Sen. Rules
Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 218 (2005-2006 Reg.
Sess.) Sept. 6, 2005, par. 3. <http:/
The
Department's other arguments are similarly unpersuasive. It suggests, for
example, that the juvenile court was entitled to proceed with a section 366.26
hearing in order to implement the protections of section 366.26, subdivision
(k). That subdivision sets out a ?preference? for the application *1155
for adoptive placement made by a current caretaker when the agency making the
placement determines that the child ?has substantial emotional ties to the ...
caretaker ... and removal ... would be seriously detrimental to the child's
emotional well-being.? (? 366.26, subd. (k).) That subdivision, however, had
little or no relevance by the time of the date set for the section 366.26
hearing. The ?preference? refers only to the processing of the application for
adoptive placement and the completion of the family study. (? 366.26, subd.
(k).) The Department's report completed immediately prior to the scheduled
**922
section 366.26 hearing indicates that the applications for adoptive placement
and home studies had already been completed for Foster Parents, as well as for
Aunt and P.F.
The
Department suggests finally that the juvenile court was entitled to proceed with
the section 366.26 hearing because none of the parties clearly disputed the need
for the court to select a permanent plan. We disagree. As noted above, the court
was on notice that a final, voluntary designated relinquishment had been
accomplished prior to scheduled commencement of the section 366.26 hearing, and
the minor's trial counsel pointed out there was no longer any need to accomplish
the ?classical? purposes of a section 366.26 hearing.
D.
Conclusion
[6]
We conclude, in summary, that when, as here, the birth parents make a voluntary
designated relinquishment to a public adoption agency under Family Code section
8700, and the relinquishment becomes final after the section 366.26 hearing has
been set, but before it is scheduled to commence, the relinquishment effectively
precludes the need for a hearing to select a permanent plan under section
366.26. The juvenile court is precluded from making any order that interferes
with the parents' unlimited right to make such a voluntary relinquishment to a
public adoption agency. In this case, the court made such orders, both when it
terminated parental rights involuntarily, and when it designated Foster Parents
as prospective adoptive parents under section 366.26, subdivision (n). These
orders not only violated the parents' statutory rights under section 361,
subdivision (b), but were clearly prejudicial to the designation they made under
Family Code section 8700, naming Aunt and P.F. as the intended adoptive
placement. We accordingly reverse the order of December 19, 2008.
II.
ICWA
Notice Violations
[7]
At the outset of the proceeding, Mother stated she had a grandmother who was a
member of a Cherokee or Choctaw tribe, while Father stated he thought he might
have Blackfeet ?ancestry.? The Department sent notice to *1156
these tribes, including such information about their grandparents and
great-grandparents as Mother and Father had provided. Based on the tribes'
responses, the Department determined, by the time of the six-month hearing, that
ICWA did not apply. At the six-month hearing itself, counsel for Mother stated
that Aunt, who was not present, had provided counsel with documents indicating
that Aunt was applying for a ?certificate of degree of Indian blood? from the
Chickasaw tribe-a tribe not previously identified in the proceeding.
Grandmother, who was present at the hearing, informed the court that neither her
own mother nor her grandmother had an ?affiliation with any tribe.? The court
stated that, since the documents did not establish any specific information
indicating Chickasaw ancestry, and since Grandmother denied such ancestry, there
was ?no credible basis? for the claim, and ruled that the minor was not an
Indian child within the meaning of ICWA.
Mother
argues, essentially, that the Department failed to investigate adequately the
parents' initial claims of Indian ancestry, to provide the Cherokee, Choctaw,
and Blackfeet tribes with more detailed information than what she and Father had
provided. She also claims the juvenile court violated its ongoing duty to
provide notice when it declined to provide notice to the Chickasaw tribe after
being informed at the six-month hearing of Aunt's application to that
tribe.
[8]
The duty of the Department and juvenile court under ICWA, to inquire
regarding**923
Indian affiliation, and to provide notice and an opportunity to intervene to
appropriate Indian tribes, is one that applies in dependency proceedings that
involve a child the court knows or has reason to know is an Indian child, and
that may result in an involuntary foster care placement, guardianship, or
involuntary termination of parental rights and adoptive placement. (25 U.S.C. ?
1912; Cal. Rules of Court, rule 5.480; see Cal. Rules of Court, rule 5.481.)
After the parents' voluntary relinquishment freed the minor for adoption through
State Adoptions, the minor was effectively freed from the dependency proceedings
to the extent they might result in involuntary foster care placement,
guardianship, or adoptive placement following an involuntary termination of
parental rights. At that point, State Adoptions, as the adoption agency
accepting relinquishment, became subject to separate provisions of ICWA relating
to voluntary relinquishments by the parents of an Indian child. (See 25 U.S.C.
?? 1913, 1915; Fam.Code, ? 8606.5.) The inquiry and notice provisions no longer
applied pending the outcome of the voluntary adoption proceeding. Accordingly,
we deem events subsequent to the court's ICWA status ruling, made at the
six-month hearing, rendered Mother's objections moot, and deem it unnecessary to
consider the merits of those objections.
*1157
DISPOSITION
The
order of December 19, 2008, is reversed.FN10
FN10.
The motion of minor's counsel to strike references to Dr. Blake Carmichael's
report from respondent's brief is denied as moot in light of the controlling
issues on appeal.
We
concur: MARGULIES and BANKE, JJ.