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Name: In re J.M.
Case #: H046917
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/24/2020

Welfare and Institutions Code section 336.26(c)(4) allowed the juvenile court to select a permanent plan of legal guardianship with grandmother who could not take physical custody of the minor. Nine-year-old J.M. suffered an accident as an infant that left him entirely dependent on others for care. He is nonverbal and immobile. He became a dependent of the juvenile court because neither of his parents had completed the necessary training to be his caregivers, so he was not discharged from the hospital. Reunification services were ordered for his parents, but they did not participate, so services were terminated and a 366.26 hearing was set. The Agency assessed J.M. as not adoptable due to his complex specialized needs. It recommended a permanent plan of legal guardianship with the grandmother, who had regularly visited him and with whom he had a positive bond. Grandmother also had custody of J.M.’s two siblings. However, grandmother had not completed the training to care for J.M.; her home was not accessible and she was not seeking placement of J.M. in her home. J.M. opposed the permanent plan, contending that the court lacked authority to appoint grandmother the legal guardian without him being in her physical custody, and that the plan was not in his best interest because it would relieve the Agency of any obligation to find a less restrictive placement, leaving J.M. in institutional care. The juvenile court appointed grandmother legal guardian, and J.M. appealed. The appellate court affirmed the order. Section 366.26, subdivision (c) provides exceptions to termination of 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 the child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent the child from finding a permanent family placement. Subparagraph (c)(4)(A) instructs the juvenile court in that case to consider legal guardianship before continuing the child in foster care. Subparagraph (c)(4)(A) applies even when adoption is unlikely. The juvenile court did not abuse its discretion in determining that J.M.’s interests would best be served through legal guardianship with his grandmother. Grandmother has long been a positive presence in J.M.’s life and the two share a bond. Grandmother has been his educational rights holder and advocated for him with the regional center and the hospital. Continued residence at the children’s hospital may not be optimal, but the record shows that grandmother was committed to J.M.’s best interests and would support moving him to a permanent care facility should that become available.