Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. JVSQ-07-6254.
Marchiano, P.J.
Pursuant to Welfare and Institutions Code section 366.28, M.T. challenges an order of the Del Norte County Superior Court, Juvenile Division, entered January 29, 2010, that denied her motion for a posttermination change of placement for the minor R.S. M.T., the child’s birth mother, sought to have the minor removed from his placement with D.D. and K.D. (Foster Parents) in order to place him with K.F. and P.F. (Aunt and Uncle), whom M.T. had designated as the persons with whom she intended the minor to be placed for adoption when she completed a voluntary relinquishment of the minor to the adoptions unit of the State Department of Social Services (State Adoptions). In denying her motion, the juvenile court declined to interfere with State Adoption’s determination not to place the minor with Aunt and Uncle-notwithstanding M.T.’s designation-but to continue his placement with Foster Parents in a plan of adoption. As discussed below, we conclude State Adoptions’ placement decision was not an abuse of discretion, and the juvenile court properly denied M.T.’s motion. We therefore deny M.T.’s petition on the merits.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.
Section 366.28, subdivision (b), requires a timely petition for extraordinary writ in order to review an order, made after the termination of parental rights, that directs a dependent child to reside in, be retained in, or be removed from a specific placement. Absent extraordinary circumstances we decide such a petition on its merits. (Rule 8.456(i)(1).)
Background
This petition is the sequel to In re R.S. (2009) 179 Cal.App.4th 1137 (R.S.), in which M.T. and R.S. (the birth father) appealed the juvenile court’s order of December 19, 2008, made at the conclusion of a section 366.26 hearing. The birth parents had completed a voluntary relinquishment of the minor to State Adoptions, pursuant to Family Code section 8700. The relinquishment, which became final in early December 2008, designated Aunt and Uncle as the persons whom they intended the minor to be placed for adoption, and operated to terminate the birth parents’ parental rights, subject to a time-limited right to rescind the relinquishment in the event State Adoptions did not place the minor with Aunt and Uncle for adoption. (R.S., supra, 179 Cal.App.4th at p. 1146; see Fam. Code, § 8700, subds. (f), (g), (h) & (j).)
On November 30, 2009, we issued our decision in the appeal, reversing the juvenile court’s order because it impermissibly interfered with the voluntary relinquishment-that is, the order involuntarily terminated the birth parents’ parental rights and designated Foster Parents as prospective adoptive parents. (R.S., supra, 179 Cal.App.4th at pp. 1143−1144; see § 366.26, subds. (c)(1) & (n).)
In the interim, the juvenile court proceeded to hold an evidentiary hearing to determine the appropriate placement for the minor. In February 2009, after four days of testimony, the court concluded that it was in the best interests of the minor that he remain with Foster Parents-with whom he had lived since January 25, 2008-in a plan of adoption. In May 2009, State Adoptions sent notices to the birth parents of its determination not to place the minor with Aunt and Uncle for adoption. These notices included notification of the birth parents’ right to rescind their voluntary relinquishment within 30 days. (See Fam. Code, § 8700, subds. (g) & (h).) In December 2009, State Adoptions filed a written statement of its “position” in light of our decision in R.S., supra, 179 Cal.App.4th 1137 . This statement noted that neither of the birth parents had made a timely response to the notice of its decision not to place the minor with Aunt and Uncle. State Adoptions expressed its intent to “move forward with adoption proceedings to allow [the minor] to be adopted by [Foster Parents].”
Dependency proceedings, of course, are not generally stayed pending an appeal. (See Code Civ. Proc., § 917.7.)
“If the relinquishing parent does not request rescission during the 30-day period, the department or licensed adoption agency shall select adoptive parents for the child.” (Fam. Code, § 8700, subd. (h)(2).)
The remittitur in R.S., supra, 179 Cal.App.4th 1137, was issued in early January 2010. On January 29, the juvenile court conducted a hearing which was, in essence, a review of State Adoptions’ placement determination. The court concluded that State Adoptions acted within its discretion when it decided not to place the minor with Aunt and Uncle, noting in particular the length of time the minor had continued to live and bond with Foster Parents. Counsel for Mother then made a motion “to remove the child from his current placement and place him with [Aunt and Uncle].” The court denied the motion. Mother’s petition followed. (§ 366.28, subd. (b).)
Discussion
M.T. asserts that State Adoptions had a “legal duty” to honor her designation of Aunt and Uncle as the persons by whom she intended the minor to be adopted, particularly in the absence of any “new developments” calling into question their fitness as adoptive parents, or any evidence that moving the minor to a placement with Aunt and Uncle would be harmful to the minor. In her view, the juvenile court improperly permitted State Adoptions simply to ignore her designation of Aunt and Uncle.
In R.S., supra, 179 Cal.App.4th 1137, we summarized the applicable law as follows. “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 and control of the child until an order of adoption is granted. (Fam. Code, § 8704, subd. (a).) The agency to which 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 Welf. & Inst. Code, §§ 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 Welf. & Inst. Code, § 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 interest.” ’ ” (R.S., supra, 179 Cal.App.4th at p. 1150, citing In re Harry N. (2001) 93 Cal.App.4th 1378, 1397, quoting Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 725.)
Thus, the juvenile court, and this court, are limited to a review whether State Adoptions abused its discretion when it determined not to place the minor with Aunt and Uncle, notwithstanding the birth parents’ designation. (See Department of Social Services v. Superior Court, supra, 58 Cal.App.4th at p. 724.)
We are not persuaded that when birth parents have made a designation of intended placement as part of a voluntary relinquishment under Family Law Code section 8700, that the agency is obligated to pursue that placement unless the designated persons are shown to be unfit or placement with them is shown to be harmful to the minor. The standard-at least until the designated persons have filed a petition for adoption-is whether the agency’s decision not to pursue the designated placement is “ ‘patently absurd or unquestionably not in the minor’s best interest.’ ” (R.S., supra, 179 Cal.App.4th at p. 1150.) Here, the record indicates that State Adoptions’ decision followed, and was consistent with a determination by the juvenile court, made after several days of testimony, that it was in the minor’s best interests to remain in his placement with Foster Parents. Moreover, by the time the juvenile court reviewed State Adoptions’ decision in January 2010, the minor had been placed satisfactorily with Foster Parents for two years, beginning when he was 19 months of age. (Id. at p. 1144.) We conclude, on this record, that State Adoptions did not abuse its discretion when it determined not to place the minor with Aunt and Uncle, despite the birth parents’ designation.
M.T. also claims she did not receive actual notice of State Adoptions’ decision not to place the minor with Aunt and Uncle, and argues that State Adoptions failed to show that it mailed the notice within 72 hours of making its decision, as required by Family Law Code section 8700, subdivision (g). The record, however, indicates that M.T. received the notice by certified mail, return receipt requested. We note further that it is M.T.’s burden to show affirmative error, and there is nothing in the record to indicate that State Adoptions did not mail its notice within the time required by Family Law Code section 8700, subdivision (g).
We conclude the juvenile court did not err in denying M.T.’s motion for a change in the minor’s placement.
Disposition
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur: Margulies, J., Banke, J.