Grandparent Adoption Case in California

In In re Fernando M. (2006) 138 Cal.App.4th 529, the maternal grandmother had three of the mother's children in her care, but only the youngest child was a dependent of the juvenile court. The maternal grandmother hoped that all three children might be returned to their mother at some point. To preserve this option, the maternal grandmother preferred legal guardianship because adoption of the youngest child might have resulted in separation of that child from his siblings if they were returned to their mother. However, the social worker told the maternal grandmother that if she did not adopt, the social worker would try to remove the youngest child from the maternal grandmother and place him in an adoptive home. At a permanency planning hearing, the juvenile court confirmed this view and stated the preferred permanent plan for a dependent child is adoption. The Court of Appeal reversed the order terminating parental rights, concluding that, under the peculiar facts of that case, the maternal grandmother should not have been "coerced into either becoming 'willing' to adopt the youngest child or watching as someone else does." (Fernando, supra, at p. 538.) In Fernando, the maternal grandmother wanted all three children to return to their mother and thus preferred legal guardianship. (Fernando, supra, 138 Cal.App.4th at p. 533.) Moreover, an adoption would have disrupted her marriage because her husband was not willing to adopt and a spousal waiver was required. (Id. at p. 537.) The Court reversed the termination of the mother's parental rights because the juvenile court incorrectly found Welfare and Institutions Code section 366.26 subdivision (c)(1)(D) did not apply. Fernando had been placed with the maternal grandmother since he was a few months old; she also cared for his two older siblings, neither of whom was a dependent of the juvenile court. Fernando had special needs "as a result of reactive airway disease and slight developmental delay," which the grandmother dealt with well. Both grandparents bonded with Fernando and had "a warm and affectionate relationship with him." But the grandfather did not want to adopt the child. The grandmother also did not want to adopt "because Fernando 'belongs to my daughter, and I know that one day she will get him back.'" (Id. at p. 533.) The grandmother testified she agreed to adoption only because the social worker threatened to remove Fernando from her home if she did not. (Id. at p. 536.) The court found the evidence showed the grandmother was unwilling to adopt due to exceptional circumstances, thus falling within the exception to termination in section 366.26, subdivision (c)(1)(D). Fernando's adoption by someone else would disrupt his relationship with his siblings and deprive him of the stability and consistency he required to progress developmentally. If the grandmother were forced to adopt Fernando, "there would be nothing to prevent Mother from taking custody of her two other children, leaving Fernando alone with the grandmother." (In re Fernando M., supra, 138 Cal.App.4th at p. 537.) Furthermore, the grandfather would have to sign a spousal waiver, which would "invade the private realm of the grandmother's marriage" and potentially have a detrimental effect on Fernando's relationship with his grandfather. (Ibid.)