Filed 5/26/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re Samantha H., a Person 

Coming Under the Juvenile 

Court Law.

______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.M.,

Defendant and Appellant.

B300065

(Los Angeles County

Super. Ct. Nos. DK23919A

APPEAL from the judgment of the Superior Court of Los 

Angeles County, Jean M. Nelson, Judge. Affirmed.

Mitchell Keiter, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, 

Assistant County Counsel, and Jeanette Cauble, Principal 

Deputy County Counsel, for Plaintiff and Respondent.

_________________________
2

Mother appeals the juvenile court’s order selecting adoption 

as the permanent plan for her daughter Samantha H. Mother 

argues the juvenile court erred when it ordered adoption absent

evidence in the record that the prospective non-relative adoptive 

parent was advised of and affirmatively rejected guardianship in 

favor of adoption.

We conclude the juvenile court appropriately ordered 

adoption and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On July 17, 2017, the Los Angeles County Department of 

Children and Family Services (DCFS) filed a petition under 

Welfare and Institutions Code1 section 300, subdivision (b)(1)

alleging jurisdiction over Samantha (then nearly four years old) 

and J.C., Jr. (then a newborn) based on J.C.’s positive test at 

birth for amphetamine and marijuana and Mother’s drug use. 

The court detained Samantha from Mother and released J.C. to 

his father. Samantha was placed with M.W., the mother of 

Samantha’s godmother. This appeal involves Samantha only.

On October 10, 2017, Mother pleaded no contest and the 

court sustained the petition as amended. The court ordered 

Mother to participate in a full drug/alcohol program, random 

drug testing, a 12-step plan, parenting classes, and individual 

counseling. Mother was ordered to participate in a reunification 

plan and she was granted monitored visits with Samantha.

1 All statutory references are to the Welfare and Institutions 

Code, unless otherwise stated.
3

Samantha thrived in M.W.’s care. At the six-month 

hearing in April, 2018, Mother had not followed through with the 

service providers. The court ordered more services and set a 

12-month review for September 2018. Mother failed to appear at 

the 12-month hearing in September. The court found Mother’s 

progress was “nonexistent” and terminated reunification services. 

The court set a selection and implementation hearing pursuant to

section 366.26. The hearing occurred on July 9, 2019.

Mother failed to appear at the July 9, 2019 hearing. 

Among other documents and reports considered by the juvenile 

court was M.W.’s Caregiver Information form, filed March 19, 

2019. This is a form caregivers complete to give information to 

the juvenile court about the child or children for whom they are 

caring. In the section marked “Recommendation for Disposition,” 

M.W. wrote, “I plan to adopt Samantha . . . .” She filed a second 

form on July 8 2019, again informing the juvenile court that she 

wanted to adopt Samantha. A home study was approved and 

DCFS recommended termination of parental rights and adoption 

by M.W. Mother’s counsel presented no evidence challenging 

DCFS’s recommendation; her attorney objected to termination of 

parental rights based on Mother’s initial interest in reunifying 

with her daughter, but acknowledged he had no recent direction 

from his client. Mother never argued DCFS or the juvenile court 

had an obligation to ensure that M.W. knew about and 

affirmatively rejected the option of guardianship. Because the 

issue was not raised, not surprisingly there is no discussion of or 

findings on that issue.
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DISCUSSION

A. Mother’s Challenge to the Juvenile Court’s Order of 

Adoption is Waived. 

At the selection and implementation hearing, Mother failed 

to object to the court’s adoption order on the ground raised for the 

first time on appeal -- that M.W. had not been properly advised 

about the option of guardianship. This argument is therefore 

waived. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317; In re 

Dakota S. (2000) 85 Cal.App.4th 494, 502.) Nonetheless, if we 

were to consider the merits of Mother’s challenge, we would find 

the trial court acted properly.

B. The Trial Court Was Under No Obligation Sua Sponte To 

Inquire Whether M.W. Had Been Advised Of And Rejected 

The Option of Guardianship In Favor Of Adoption.

Statutory interpretation calls for our independent review. 

(In re K.H. (2011) 201 Cal.App.4th 406, 415.)

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. (In re Beatrice M. 

(1994) 29 Cal.App.4th 1411, 1416; In re Casey D. (1999) 

70 Cal.App.4th 38, 50.) 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. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 

242, 249–250.) 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 section 
5

366.26, subdivision (c)(1) applies. (In re Anthony B. (2015) 

239 Cal.App.4th 389, 395.) Absent one of these exceptions, if the 

child is adoptable, the juvenile court must select adoption as the 

child’s permanent plan. (In re Jasmine T. (1999) 73 Cal.App.4th 

209, 213.)

Mother acknowledges Samantha is adoptable and likely to 

be adopted, as M.W. clearly expressed her desire to adopt the 

child. Mother does not challenge the court’s determination 

denying reunification services. Indeed, Mother avers there “was 

no dispute that [M.W.]’s home was the right environment for 

raising Samantha” and “it was clear that Samantha should be 

living with [M.W.]” She also concedes none of the exceptions in 

section 366.26 apply.

Instead, Mother argues that both adoption and legal 

guardianship could provide a stable home for Samantha and it 

was error for the trial court to “foreclose the guardianship 

option.” She wants us to create an additional requirement that 

the court must satisfy before ordering adoption as the permanent 

plan. Mother argues the record must reflect that either DCFS or 

the court advised the prospective non-relative adoptive parent of

the guardianship option and that the prospective parent 

affirmatively rejected guardianship in favor of adoption.

Mother’s relies on In re Fernando M. (2006) 

138 Cal.App.4th 529. Her reliance is misplaced. In that case the 

child’s caretaker grandmother preferred legal guardianship, but

she was told she had to adopt her grandchild or face losing him to 

another adoptive family. (Id. at p. 532.) The court of appeal 

vacated the adoption order because it was in the child’s best 

interest to remain with his grandmother, even if the placement 

was under a guardianship. (Id. at p. 539.) This result was also 
6

prompted by one of the statutory exceptions to adoption in section 

366.26, subdivision (c)(1) that permits the court to elect 

guardianship as the permanent plan in lieu of adoption where

(1) a relative is unwilling to adopt but is willing to accept legal 

and financial responsibility for the child and is capable of 

providing the child with a stable and permanent environment;

and (2) removal of the child would be detrimental to his or her 

emotional well-being. (§ 366.26, subd. (c)(1)(B)(iv).)

Samantha’s adoption does not involve a prospective 

adoptive parent who is also a caretaking relative. The exception

in subdivision (c)(1) does not apply; In re Fernando M. and its 

analysis is inapt. 

Mother’s next argument is that the juvenile court has an 

obligation to ensure that a prospective adoptive parent is fully 

informed of all options. In this regard we note that the 

“Concurrent Planning Assessment” completed and filed by DCFS 

for the March 19, 2018 hearing states, “[Adoption Children’s 

Social Worker (ACSW)] spoke to [M.W.] and discussed 

permanency plan for Samantha [H]. ACSW explained concurrent 

planning, alternative placement options, legal and financial rights

and responsibilities of adopting parents and adoption homestudy 

process.” (Italics added.) DCFS then reported to the court that 

M.W. “stated that she is interested in pursuing adoption of 

Samantha [H].” We assume “alternative placement options” 

includes legal guardianship. If this is an incorrect assumption, 

we remind Mother it was her burden at the trial court to present 

actual evidence to halt the adoption, i.e., to show that M.W. made 

an uninformed, coerced, or otherwise tainted decision. (In re C.F.

(2011) 193 Cal.App.4th 549, 553.) Mother has not shouldered 

that burden.
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Further, we decline to compel the juvenile court, as a 

matter of course, to engage in a colloquy with non-relative 

adoptive parents to determine whether they prefer guardianship,

or to otherwise ensure that the record shows an advisement 

about and affirmative rejection of the guardianship option where 

adoption is the Legislature’s preferred permanency plan. Here 

the juvenile court considered, among other things, a Concurrent 

Planning Assessment, two Case Information Forms completed by 

the caregiver, and a 366.26 WIC Report, all of which discussed in 

detail the caregiver’s wishes and DCFS’s recommendations for 

adoption as the permanency plan. To require the juvenile court 

to engage prospective non-relative adoptive parents in an on-therecord colloquy akin to the taking of a plea in a criminal case is 

unnecessary.

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.’ ” (In re Beatrice M., supra, 29 Cal.App.4th at 
8

p. 1419.) Where, as here, all statutory requirements to terminate 

parental rights have been met, the non-relative prospective 

adoptive parent has been clear and consistent in her willingness 

and desire to adopt the child, and the court has found the 

adoptive parent suitable and the child thriving in the adoptive 

parent’s care and custody, we see no reason whatsoever to derail 

this adoption.

DISPOSITION

The juvenile court’s judgment is affirmed. 

CERTIFIED FOR PUBLICATION

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.