Filed 1/24/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re J.M., a Person Coming Under the 

Juvenile Court Law.

 H046917

 (Santa Clara County

 Super. Ct. No. JD024706)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY & 

CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

J.M.,

Defendant and Appellant.

Due to a brain injury suffered as an infant, nine-year-old J.M. has extraordinary 

physical needs. In this dependency action, J.M. challenges the juvenile court’s 

permanent plan of legal guardianship with continued dependency jurisdiction. He argues 

the appointment of his grandmother as legal guardian is not authorized by the governing 

statute, his grandmother is not a suitable guardian, and the guardianship is not in his best 

interest. Finding no error in the guardianship appointment, we will affirm the placement 

order.

I. BACKGROUND

J.M. was born in 2010. He suffered an accident at home when he was 10 months 

old, which rendered him permanently disabled. Since the accident J.M. has resided at the 

Children’s Hospital of Northern California, a rehabilitation facility formerly operated as 

The Children’s Recovery Center of Northern California. He suffers from anoxic brain 
2

injury, epilepsy, developmental delays, and bone disorders. He has gastrostomy and 

tracheal tubes to help him eat and breathe, and he will need them indefinitely. He is 

immobile, will never walk, and is fully dependent on others for care. He is nonverbal, 

but oriented to those with whom he interacts, communicating through eye gazes and 

facial expressions. J.M. has an individualized education plan, and he attends elementary 

school in a tilt-in-space wheel chair accompanied by a medical aide. He is a client of the 

San Andreas Regional Center, a facility designated to “assist persons with developmental 

disabilities and their families in securing those services and supports which maximize 

opportunities and choices for living, working, learning, and recreating in the community” 

(Welf. & Inst. Code, § 4640.7, subd. (a)), and he is eligible for the center’s services for 

life.

J.M. came to the attention of the Santa Clara County Department of Family and 

Children’s Services (the Department) in 2017 when the children’s hospital declared him 

medically cleared for discharge, provided that two adults be trained as caregivers.

Neither parent had completed the necessary training. J.M.’s father had never visited him, 

and his mother’s visits were infrequent. J.M. was taken into protective custody while 

continuing to reside at the hospital, and the Department filed a petition alleging that he 

was subject to the juvenile court’s jurisdiction because his parents were unwilling and/or 

unable to care for him upon discharge, and that both parents had a history of substance 

abuse. (Welf. & Inst. Code, § 300, subds. (b)(1), (g).) The petition was sustained and

J.M. was declared a dependent of the court. Family reunification services were ordered 

for both parents, but neither embraced reunification, services were terminated, and the 

matter was set for a hearing under Welfare and Institutions Code section 366.26 to select 

a permanent plan for J.M.

The Department assessed J.M. as “not adoptable” due to his complex specialized 

needs. The Department recommended a permanent plan of legal guardianship with 

J.M.’s maternal grandmother, who visited J.M. regularly and with whom J.M. had formed 
3

a positive emotional bond. J.M.’s two siblings, close to him in age, were also in the 

grandmother’s care, and she was committed to maintaining the sibling relationships. The 

social worker’s report stated that J.M.’s grandmother sought legal guardianship because 

she understood her grandson’s specialized care requirements and his emotional need for a 

familial connection—a need that her daughter (J.M.’s mother), who struggled with 

sobriety, was unable to meet. The grandmother understood the responsibilities of a legal 

guardianship; she was committed to overseeing J.M.’s care and providing the 

“continuous emotional support and the family connection that the department and/or any 

other institution are not able to afford him.” An addendum report explained that the 

Department had been unable to find a qualified placement for J.M. because of his need 

for subacute care, and the regional center had reached out to care facilities in Stanislaus 

County (mother and grandmother moved to Modesto in 2017) which were either full or 

accepting only adult referrals.

At a contested hearing to determine J.M.’s permanent plan, the juvenile court 

admitted in evidence the social worker’s reports and the following stipulations: J.M. had 

resided at the children’s hospital since December 1, 2010; J.M. was cleared for discharge 

from the hospital; grandmother completed some but not all of the training to care for 

J.M.; grandmother did not reside in accessible housing and had no plans to obtain 

accessible housing; and grandmother was not seeking placement of J.M. in her home. 

J.M. opposed the Department’s proposed permanency plan, arguing that the juvenile 

court lacked statutory authority to appoint grandmother as legal guardian without him 

being in her physical custody, and that the plan was not in his best interest because it 

would relieve the Department of any obligation to find a less restrictive placement, thus 

“functionally committing [J.M.] to indefinite institutional care.” 

The juvenile court adopted the Department’s recommendation. It found that the 

permanent plan of legal guardianship was statutorily authorized and in J.M.’s best interest 

due to his unusual needs. It appointed grandmother as legal guardian, continued 
4

dependency jurisdiction with 2028 as the anticipated termination date, and placed J.M. in 

the care, custody, and control of grandmother under the supervision of the Department. 

The court asked the Department to continue to look for a more permanent placement for 

J.M., and it set a six-month post permanency review hearing. 

II. DISCUSSION

Welfare and Institutions Code section 366.26 governs a juvenile court’s selection 

of a permanent plan for a dependent child when the child cannot be reunited with his or 

her parents. (Undesignated subdivision and paragraph references are to this code 

section.) Subdivision (b) requires that the placement decision be made according to the 

following order of preference: adoption; legal guardianship to a relative with whom the 

dependent child is living; legal guardianship to a non-relative; permanent placement with 

a fit and willing relative; and foster care. (Subd. (b)(1)–(7).) In choosing among the 

options, the juvenile court is directed to “proceed pursuant to subdivision (c).” 

(Subd. (b).) Under paragraph (1) of subdivision (c), the juvenile court first determines

whether the child is likely to be adopted. If so, paragraph (c)(1) directs the court to 

terminate parental rights and order the child placed for adoption. (Subd. (c)(1).) 

Subdivision (c) also provides exceptions to terminating parental rights. One of those 

exceptions applies when the court finds that terminating parental rights would be 

detrimental to the child in circumstances including when “[t]he child is placed in a 

residential treatment facility, adoption is unlikely or undesirable, and continuation of 

parental rights will not prevent finding the child a permanent family placement if the 

parents cannot resume custody when residential care is no longer needed.” 

(Subd. (c)(1)(B)(iii).) Paragraph (2) of subdivision (c) provides an exception to 

terminating parental rights when the child welfare agency has failed in its statutory duties 

to facilitate reunification. (Subd. (c)(2)(A).) Under paragraph (3) of subdivision (c), a 

permanent placement goal of adoption is ordered without terminating parental rights 
5

when placement for adoption is deemed difficult for specified reasons and not 

terminating parental rights creates no detriment to the child. (Subd. (c)(3).)

Subparagraph (c)(4)(A), invoked by the juvenile court here, applies “[i]f the court 

finds that adoption of the child or termination of parental rights is not in the best interest 

of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of 

subparagraph (B) of paragraph (1) or in paragraph (2) applies.” (Subd. (c)(4)(A).) The 

triggering clause here is subparagraph (c)(1)(B)(iii), which requires that the child be 

residing in a treatment facility. Under any of those circumstances, the court is directed to 

order that “the present caretaker or other appropriate person” become the child’s legal 

guardian. (Ibid.) The provision further instructs the juvenile court to consider legal 

guardianship “before continuing the child in foster care under any other permanent plan if 

it is in the best interest of the child and if a suitable guardian can be found.” (Ibid.)1

A. SUBPARAGRAPH (C)(4)(A) APPLIES EVEN WHEN ADOPTION IS UNLIKELY

J.M. argues that the juvenile court lacked authority to select a permanent plan of 

legal guardianship under subparagraph (c)(4)(A) because that provision does not apply 

unless the court has made a finding that there is a likelihood of adoption. The argument 

poses a question of statutory interpretation subject to our independent review. (In re 

M.C. (2011) 199 Cal.App.4th 784, 804.) Our focus when construing a statute is to 

determine and give effect to the intent of the Legislature. “We first examine the words 

themselves because the statutory language is generally the most reliable indicator of 

legislative intent.” (People v. King (2006) 38 Cal.4th 617, 622.) “ ‘If the words 

 

1 Subparagraph (c)(4)(B) provides alternative permanent placements in other 

unusual circumstances. Subparagraph (c)(4)(B)(i) provides a placement plan where a 

child is bonded and living with a relative who is willing to provide a permanent home but 

not willing to become a legal guardian; subparagraph (4)(B)(ii) provides a placement plan 

where a child is living with a nonrelative caregiver who is willing to provide a permanent 

home but not willing to become a legal guardian; and subparagraph (4)(B)(iii) provides a 

placement plan where a child is living in a group home or short-term residential 

treatment.
6

themselves are not ambiguous, we presume the Legislature meant what it said, and the 

statute’s plain meaning governs.’ ” (Schatz v. Allen Matkin (2009) 45 Cal.4th 557, 571.) 

But a statute “ ‘should not be given a literal meaning if to do so would create unintended, 

absurd consequences. Instead, “intent prevails over the letter of the law and the letter 

will be read in accordance with the spirit of the enactment.” ’ ” (In re Lana S. (2012) 

207 Cal.App.4th 94, 108.) Ultimately, the court “must select the construction that 

comports most closely with the apparent intent of the Legislature, with a view to 

promoting rather than defeating the general purpose of the statute, and it must avoid an 

interpretation [leading] to absurd consequences.” (People v. Jenkins (1995) 

10 Cal.4th 234, 246.) 

J.M. contends subparagraph (c)(4)(A)’s conditional clause—“If the court finds 

that adoption of the child or termination of parental rights is not in the best interest of the 

child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) ... applies”—

clearly and unambiguously invokes the statutory exceptions to adoption, which are only 

triggered if the child is first found likely to be adopted. He argues that the phrase “not in 

the best interest of the child” in subparagraph (c)(4)(A) is synonymous with the phrase 

“detrimental to the child” in subparagraph (c)(1)(B). According to J.M., subparagraph 

(c)(4)(A) would apply only if the court makes the threshold finding under paragraph 

(c)(1) “that it is likely the child will be adopted,” followed by a detriment finding under 

subparagraph (c)(1)(B) exempting the child from adoption, which did not occur here. 

The language and structure of paragraph (c) do not support J.M.’s narrow reading of the 

statute for several reasons.

Application of subparagraph (c)(4)(A) does not plainly and unambiguously hinge 

on a finding under paragraph (c)(1) that a child is adoptable. The plain language of 

subparagraph (c)(4)(A) makes no mention of whether a child is likely to be adopted. 

Subparagraph (c)(4)(A) instructs the juvenile court to order a present caretaker or other 

appropriate person to be the child’s legal guardian if the court finds that adoption or 
7

termination of parental rights is not in the best interest of the child “because of” certain 

qualifying conditions. (Subd. (c)(4)(A).) 

Had the Legislature intended to exclude from subparagraph (c)(4)(A) children who 

are not likely to be adopted, it could have limited that guardianship alternative to 

circumstances where “the court finds that termination of parental rights would be 

detrimental to the child pursuant to paragraph (1).” Indeed, the Legislature used such 

language in paragraph (c)(3), where the juvenile court is to identify adoption as the 

permanent placement goal without terminating parental rights (as opposed to a permanent 

adoption plan in which parental rights are terminated) if “the court finds that termination 

of parental rights would not be detrimental to the child pursuant to paragraph (1).”

(Subd. (c)(3).) A detriment inquiry is necessary to the permanent placement goal

described in paragraph (c)(3), and the Legislature’s choice of words and specific 

reference to paragraph (c)(1) make that clear. In contrast, the Legislature chose different 

words directed not to the detriment inquiry required by paragraph (c)(1) but rather to the 

conditions described in each clause under subparagraph (c)(1)(B) (“because one of the

conditions in clause (i), (ii), (iii), (iv), (v), or (vi) ... applies”) to trigger the alternative of 

appointing a “caretaker[]” or an “appropriate person[]” as a legal guardian under 

subparagraph (c)(4)(A). That word choice signals to us that the Legislature did not 

intend to limit the alternative placement to children who were deemed likely to be 

adopted but were excepted from adoption.

One of the criteria included in subparagraph (c)(1)(B)(iii) is that “adoption is 

unlikely or undesirable.” That inquiry separates the condition from the detriment inquiry 

under paragraph (c)(1). Indeed, if a child is likely to be adopted under paragraph (c)(1), 

it would be nonsensical to then inquire whether adoption is unlikely. Our interpretation 

that subparagraph (c)(4)(A)’s invocation of subparagraph (c)(1)(B)’s clauses is 

independent from a detriment inquiry under paragraph (c)(1) gives meaning to 

subparagraph (c)(1)(B)(iii) and avoids rendering the phrase “adoption is unlikely or 
8

undesirable” a nullity. (Williams v. Superior Court (1993) 5 Cal.4th 337, 357 [“An 

interpretation that renders statutory language a nullity is obviously to be avoided”].)

The Legislature’s inclusion of guardianship among other alternatives to the 

preferences set forth in subdivision (b) that are not contingent on the likelihood of 

adoption referenced in paragraph (c)(1) also supports our conclusion that the 

guardianship alternative may be selected without determining that a child is likely to be 

adopted. Subparagraph (c)(4)(A) instructs the juvenile court to consider a legal 

guardianship before a permanent plan involving continued foster case, and that inquiry 

also does not differentiate between children who are not likely to be adopted versus those 

who are exempt from adoption. And subparagraph (c)(4)(B) addresses placement

alternatives without distinguishing the reasons adoption is not selected.

2

 Nor does 

paragraph (c)(3) contemplate a likelihood finding. The relevant inquiry in that paragraph 

is whether the child has a probability for adoption

Even if the statute were ambiguous, our interpretation is consistent with legislative 

intent. “The dependency scheme is informed by a policy that respects the child’s interest 

in belonging to a family unit and protects his or her right to ‘a placement that is stable, 

permanent, and that allows the caretaker to make a full emotional commitment to the 

child.’ ” (In re John F. (1994) 27 Cal.App.4th 1365, 1376.) The Legislature finds 

adoption and guardianship more suitable for a child’s well-being than foster care, which 

it considers to be a temporary method of caring for children. (Welf. & Inst. Code, § 396; 

In re Cristella C. (1992) 6 Cal.App.4th 1363, 1370 [recognizing legislative preference to 

avoid “the bleak future in foster care limbo”].) 

Under J.M.’s reading of subparagraph (c)(4)(A), a dependent child’s unique status 

as a seriously disabled resident of a subacute care facility could render the child ineligible 

for guardianship with a relative. If subparagraph (c)(4)(A) were not available, the 

 

2 See footnote 1, ante, page 5. 
9

juvenile court’s options would be limited to those stated in subdivision (b). The preferred 

permanent plan under that subdivision is adoption, but that may not be available due to 

the child’s disability. The next preferred alternative—a relative guardianship—would 

also be unavailable because the statute requires the child to be living with the relative in 

order for that person to be appointed legal guardian. (Subd. (b)(3).) But the child would 

be eligible for a nonrelative legal guardianship. (Subd. (b)(5).) Reading a limitation into 

paragraph (c)(4)(A) that would render a seriously disabled dependent child ineligible for 

a relative guardianship is at odds with the importance the Legislature has placed on stable 

permanent family relationships and the preference for guardianship over foster care.

We therefore interpret paragraph (c)(4) as allowing the juvenile court to select a 

permanent plan under specified conditions without finding a child likely to be adopted. 

In circumstances such as those presented here, the juvenile court may consider under 

subparagraph (c)(4)(A) whether adoption or termination of parental rights is not in a 

child’s best interest because of an enumerated condition which would also support a 

finding under subparagraph (c)(1)(B). J.M. meets the condition described in 

subparagraph (c)(1)(B)(iii): He is placed in a residential treatment facility, adoption is 

unlikely because of a severe disability requiring specialized care, and continuing parental 

rights will not affect his ultimate placement.

B. THE PLAN SELECTED FOR J.M. WAS NOT AN ABUSE OF DISCRETION

J.M. argues that the juvenile court erred by ordering J.M.’s grandmother to 

become his legal guardian under subparagraph (c)(4)(A), which requires the court to 

consider legal guardianship before continuing a child in foster care, provided such 

placement is with “a suitable guardian” and “in the best interests of the child.” 

(Subd. (c)(4)(A).) In J.M.’s view, grandmother is not a suitable guardian because she 

lacks the ability to care for him in her home. Nor does J.M. believe the guardianship is in 

his best interest because it contemplates grandmother overseeing his care in a residential 

facility, and it releases the Department from any obligation “to continue searching for an 
10

appropriate placement” in a “true home.” He asks us to reverse the juvenile court’s 

selection of guardianship and direct that a new permanent plan of long-term foster care be 

selected and implemented. 

“The best interest of the child is the fundamental goal of the juvenile dependency 

system, underlying ... child safety, family preservation, and timely permanency and 

stability.” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) “ ‘ “Its purpose is to 

maximize a child’s opportunity to develop into a stable, well-adjusted adult.” ’ ” (Ibid.) 

Stability and continuity of care are primary considerations in determining the child’s best 

interest. (State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 

287.) Custody determinations in dependency proceedings are “committed to the sound 

discretion of the juvenile court,” and such rulings “should not be disturbed on appeal 

unless an abuse of discretion is clearly established.” (In re Stephanie M. (1994) 

7 Cal.4th 295, 318.) We will not disturb a custody determination “ ‘ “unless the trial 

court has exceeded the limits of legal discretion by making an arbitrary, capricious, or 

patently absurd determination.” ’ ” (Ibid.) 

Here, the juvenile court’s determination that J.M.’s interests would be best served 

through legal guardianship with his maternal grandmother was not an abuse of discretion. 

Grandmother cannot be characterized a mere “friendly visitor,” as J.M. argues. The 

record shows that grandmother has long been a positive presence in J.M.’s life, and that 

the two share an emotional bond. Grandmother has regularly visited J.M. since his 

accident, taking it upon herself to ensure that J.M. feels a sense of family and belonging.

She has been his educational rights holder, has advocated on his behalf with the hospital 

and the regional center, and understands her guardianship responsibilities. The juvenile 

court recognized this is “the rare case” where the child will not reside in the legal 

guardian’s home, but that is not because grandmother is not a suitable guardian. J.M. has

specialized needs which not all loving parents or guardians would be able to meet in a 

“true home” setting. Continued residence at the children’s hospital may not be optimal, 
11

but the record shows that grandmother is committed to J.M’s best interest and supports

moving him to a suitable permanent care facility should that become available. 

Continuing dependency jurisdiction will allow the juvenile court to encourage and 

monitor those efforts.

III. DISPOSITION

The selection and implementation order is affirmed. 
____________________________________

Grover, J.

WE CONCUR:

____________________________

Elia, Acting P. J. 

____________________________

Danner, J. 

H046917 - In re J.M., D.F.C.S. v. J.M. 
Trial Court: Santa Clara County Superior Court

Superior Court No. JD20212

Trial Judge: Hon. Amber S. Rosen

Counsel for Plaintiff/Respondent:

Santa Clara County Department of 

Family and Children’s Services

James R. Williams, County Counsel 

Grace H. Kouba, Deputy County Counsel 

Kristen Baker, Deputy County Counsel

Office of the County Counsel 

Counsel for Defendant/Appellant:

J.M. 

Leslie A. Barry

Under appointment by the Court of Appeal

Marissa Lopez-Scott

Legal Advocates for Children and Youth

H046917 - In re J.M., D.F.C.S. v. J.M