Filed 1/24/20 CERTIFIED FOR PUBLI CATION

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 D EPARTMENT 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 guardian ship with continued dependency jurisdiction

. He argues the a ppointment 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. H e suffered an accident at home when he was 10 months old , which render ed him permanently disabled. Since the accident J.M. has resided at the Children ’s Hospital of Northern California , a rehabilitat ion facility formerly operated as
T he Children’ s Recovery Center of Northern California

. He suffers from anoxic brain2

injury, epilepsy, development al delays, and bone disorder s . 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 depe ndent 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 ed ucation 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 i n 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 th e 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

. N either parent had co mpleted the necessary training. J.M.’s father had never visited him , and his mother ’s visits were infrequent

. J.M. was taken into protect ive 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 parent s 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

. F amily reunification services were ordered for both parents , but n either embraced reunificati on , 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 formed3

a positive emotional bond. J.M.’s two siblings, close to him in age, were also in the grandmother’s care, and sh e was committed to maintaining the sibling relationships. The social worker ’s report stated that J.M.’s grandmother sought legal guardian ship because she understood her grandson’s specialized care requirements and his emotional need for a familial connect ion

— a need that her daughter (J .M.’s mother ) , who struggl ed 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 ha d been u nable 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 accept ing only a dult 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.; gran dmother 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 statu tory 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

“ function ally 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 , continued4

dependency jurisdiction with 2028 as the anticipated termination date , and plac ed 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 s ection 366.26 governs a juvenile court’s selection of a permanen t plan for a d ependent child when the child cannot be reunited with his or her parents

. ( U ndesignated subdivision and paragraph references are to this code section.) Subdivision (b) requires that the placement decision be made according to the following order of prefe rence : 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

. ( S ubd. (b)(1)

– (7)

. ) In choosing among the options , the juvenile court is directed to “ proceed pursuant to subdivision (c). ” ( S ubd. (b).) Under paragraph (1) of subdivision (c), the juvenile court first determine s 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. ( S ubd. (c)(1).) Subdivision (c) also provides exceptions to terminating parental rights. One of those exceptions applies when the court finds that terminating parental right s 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 p lacement if the parents cannot resume custody when residential care is no longer needed. ” ( S ubd. (c)(1)(B)(iii).) P aragraph ( 2 ) of subdivision (c) provide s an exception to terminatin g parental rights when the child welfare agency has failed in its statut ory duties

to facilitate reunification

. ( S ubd. (c)(2)(A).) Under paragraph (3) of subdivision (c), a permanent placement goal of adoption is ordered without terminating parental rights5

when placement for adoption is deemed difficult for specified reasons and not terminating parental rights creates no detriment to the child

. ( S ubd. (c)(3).) Subp aragraph (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 i n 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 .” ( S ubd. (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 furth er 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. S UBP ARAGRAPH ( C )(4)(A) A PPLIES E VEN W HEN A DOPTION IS U NLIKELY J.M. argues that the juvenile court lacked authority to select a permanent plan of legal guardianship under sub paragraph (c)(4)(A) because that provision does not apply unless the court ha s 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 gi ve 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 pro vide 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 ar e not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs.’ ” ( Schatz v. Allen Ma tkin (2009) 45 Cal.4th 55 7 , 571

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

a bsurd 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 sub paragraph (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 condi tions in clause (i), (ii), (iii), (iv), (v), or (vi) ... applies ”

—

c learly and unambiguously invok es the statutory exceptions to adoption , which are only triggered if the child is first found likely to be ado p ted

. He argues that the phrase “not in the best i nterest of the child” in sub paragraph (c)(4)(A) is synonymous with the phrase “detrimental to the child” in sub paragraph (c)(1)(B)

. According to J.M. , sub paragraph (c)(4) ( A ) would appl y 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 sub paragraph (c)(1) (B) exempting the child from adoption , which did not occur here. The language and struc ture of paragraph (c) do not support J.M.’s narrow reading of the statute for several reasons

. Application of s ubp aragraph (c)(4) (A) does not plainly and unambiguously hinge on a finding under paragraph (c)(1) that a child is adoptable

. The plain languag e of sub paragraph (c)(4)(A) makes no mention of whether a child is likely to be adopted. Subp aragraph (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 or7

termination of parental rights is not in the best interest of the child “because of” certain qualifying conditions. ( Subd . (c)(4)(A).) Had t he Legislature intended to exclude from sub paragraph (c)(4)(A) children who are not likely to be adopted , it could have limited th at 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 right s (as opposed to a perman ent 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)

. ” ( S ub d. (c)(3).) A detriment inquiry is necessary to the permanent placement goal described in paragraph (c)(3) , and the L egislature’s choice of words and specific reference to paragraph (c)(1) ma k e 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 sub paragraph (c)(4)(A)

. That word choice signals to us that the Legislat ure 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

s ubparagraph (c)(1)(B)(iii) and avoids rendering the phrase “adoption is unlikely or8

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 al ternative may be selected without determining that a child is likely to be adopte d

. Subp aragraph (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 differentiat e between children who are not likely to be adopted versus those who are exempt from adoption. And sub paragraph (c)(4)(B) addresses placement alternative s without distinguishing the reason s adoption is not selected

. 2 Nor does
paragra ph (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 i s 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 ca r e, which it considers to be a temporary method of caring for children. (Welf. & Inst. Code, § 396; In re Cristell a C . (1992) 6 Cal.App.4th 1363, 1370 [recognizing legislative preference to avoid “the blea k future in foster care limbo”].) Under J.M.’s reading of sub paragraph (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

. T he 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. ( S ubd. (b)(3).) But the child would be eligible for a nonrelative legal guardianship. ( S ubd. (b)(5).) Reading a limitation into paragraph (c)(4)(A) that would render a seriously disabled dependent child in eli gible 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 p aragraph (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 sub paragraph (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 sub paragraph (c)(1) (B)

. J.M. meets the condition described in sub paragraph (c)(1)(B)(iii) : He is placed in a residential trea tment facility, adoption is unlikely because of a severe disability requiring specialized care, and continuing parental rights will not affect his ultimate placement. B. T HE P L AN S ELECTED F OR J.M. W AS N OT AN A BUSE OF D ISCRETION J.M. argues that the juvenile court erred by ordering J.M.’s grandmother to become his legal guardian under sub paragraph (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” an d “in the best interest s of the child.” ( S ubd

. (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 contemplate s grandmother overseeing his care in a residential facility , and it release s the Department from any obligation “to continue searching for an10

appropriate placement” in a “true home.” He asks us to reverse the juvenile c ourt’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 pres ervation, 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 .) S tability and continuity of care are primary consideration s in determining the child’s best interes t. ( 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 li mits 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 can not be characterized a mere “friendly visitor,” as J.M. argues. The record shows that grand mother has long been a positive presence in J.M.’s life , and that the two share an emo tional bond. Grandmother has regularly visited J.M. since his accident, tak ing 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 re gional center , and understands her guardianship responsibilities. T he 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 special ized needs which not all loving parents or guardians would be able to meet in a

“ true home ” setting

. C ontinued 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 support s 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. L eslie 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