Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CVSA060015
NEEDHAM, J.
Robert T. (father) appeals from a judgment freeing his minor son Hayden T. from his custody and control based on findings that he abandoned Hayden under Family Code section 7822 and has been convicted of a felony demonstrating parental unfitness under section 7825. Father contends reversal is required because (1) the trial court did not order an investigation and report as required by sections 7850 and 7851, (2) the court failed to consider the appointment of independent counsel for Hayden; (3) the evidence was insufficient to establish that father “left” Hayden in the care of another, or that he intended to abandon his son; and (4) the evidence does not support a finding that father was convicted of a felony demonstrating parental unfitness. We conclude the failure to order an investigation and report requires reversal and a new trial.
All further statutory references are to the Family Code unless otherwise indicated.
I. Facts and Procedural History
Hayden was born to father and Jennifer R. (mother) in 1995. The couple was married but lived together for only a couple of months after Hayden’s birth. Mother divorced father in 1997 and was awarded physical custody with visitation rights to father.
Respondents Ellwood and Laurie L. began caring for Hayden in the late 1990’s. They obtained a temporary guardianship, to which both father and mother consented, and in November 2000, the court issued letters of guardianship.
It appears the L.’s are Hayden’s aunt and uncle.
On September 21, 2006, the L.’s filed a request to adopt Hayden on a Judicial Council ADOPT-200 form. Mother is in favor of the adoption and has entered into a visitation agreement with the L.’s. On April 19, 2007, the L.’s filed an amended petition under section 7841 to declare Hayden free from father’s custody and control. The grounds alleged in the petition were abandonment under section 7822 and father’s conviction of a felony showing parental unfitness under section 7825. Father opposed the petition, and a contested hearing was held at which the following evidence was taken:
Father was convicted of burglary and forgery and was incarcerated from 1996 until 1999. He went to prison for a new offense in 1999, was paroled after four years, and was returned to custody several times on parole violations. In 2006, father was sentenced to prison for four years for a conviction of petty theft with a prior. During Hayden’s lifetime, father has spent only six months or so out of prison.
At some point after father’s release from prison in 1999, he cared for Hayden for two or three weeks. While in prison, father spoke to Hayden on the phone when Hayden visited his paternal grandparents. However, these visits stopped after Hayden’s paternal grandmother attempted unsuccessfully to terminate the L.’s guardianship based on allegations that Hayden had been abused while in their care.
Approximately once a year, the L.’s received a card or letter from father addressed to Hayden. They received three such letters at the beginning of 2007, although the handwriting in the cards themselves appeared to be that of Hayden’s paternal grandmother. Father once showed up unannounced at the L.’s home when he was out of custody and asked for a visit, but was told by them that, on the advice of their attorney, he would have to arrange for visits through court-ordered mediation.
While father was briefly out of custody in approximately 2002, he had one or two supervised visits with Hayden at the Child Care Council. He and Hayden’s paternal grandparents had a supervised visit with Hayden in September 2006 at the Environmental Alternatives Foster Agency. The latter visit ended within 10 minutes when Hayden told the supervising social worker he did not want it to continue.
Father was not opposed to the guardianship, but did not want to lose all contact with Hayden through adoption. He acknowledged that he committed his crimes because he was under the influence of drugs or attempting to obtain money to buy drugs. Father never paid or offered to pay child support to mother or the L.’s, but indicated that this was because he was incarcerated for most of the time and had not held a job for more than six months when he was released.
During an in-chambers interview with the court required by section 7891, Hayden stated that he loved the L.’s and was glad he was being adopted by them. He wanted mother and father to still be part of his family, but he felt the L.’s were his parents because they had cared for him. Hayden remembered talking to father once at the sheriff’s station, but did not remember any letters. His opinion about adoption probably would not change if he knew father had sent letters.
Hayden’s counselor, Todd Armstrong, testified that Hayden suffered from bipolar disorder and had had episodes of cursing and acting out. Hayden had been doing better since their counseling sessions began, but Armstrong believed that Hayden’s anger reflected his need for permanency and that he would benefit from adoption. Hayden did not trust his father, and for any bond to develop between them, father would have to apologize and explain his absence in Hayden’s life.
Based on this evidence, the trial court granted the petition on all grounds alleged and ordered Hayden freed from father’s custody and control. Father appeals.
II. Discussion
Father contends the trial court acted in excess of its jurisdiction when it freed Hayden from his custody and control without ordering a statutorily required investigation and report regarding Hayden’s circumstances. We agree.
Section 7850 provides that, upon the filing of a petition by an interested party to free a child from the custody or control of a parent, “the clerk of the court shall, in accordance with the direction of the court, immediately notify the juvenile probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, or the county department designated by the board of supervisors to administer the public social services program, who shall immediately investigate the circumstances of the child and the circumstances which are alleged to bring the child within the [provisions for freeing a child from parental custody and control].” Section 7851, subdivision (a) provides that the person or entity so notified “shall render to the court a written report of the investigation with a recommendation of the proper disposition to be made in the proceeding in the best interest of the child.” Section 7851, subdivision (d) provides, “The court shall receive the report in evidence and shall read and consider its contents in rendering the court’s judgment.”
The trial court has a statutory obligation to order the investigation and report pursuant to sections 7850 and 7851 whenever a petition is filed to declare a child free from parental custody and control. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 168.) The purpose of the report is to inform the court of the best interests of the child, a consideration that is fundamental to the proceeding. (Id. at p. 164.) The court’s failure to perform its mandatory duty by ordering the investigation and report is not waived by a parent’s failure to object. (Ibid.; see also In re Linda W. (1989) 209 Cal.App.3d 222, 226- 227 [interpreting former Civil Code section 233, the predecessor statute to sections 7850 and 7851].)
The L.’s do not claim that the provisions of sections 7850 and 7851 were met, or that the issue has not been preserved on appeal. They argue instead that the omission of an investigation and report amounts to harmless error where the court heard directly from Hayden and his counselor, both of whom were in favor of adoption. We are not persuaded.
Although the court interviewed Hayden in chambers and heard testimony from a counselor selected by the L.’s, this was no substitute for a comprehensive report about his circumstances by a neutral party enumerated under section 7850. “[A] decision to terminate parental rights is one of the gravest a court can make. Thus it is only under specified circumstances, and upon specific findings that include the interests of the child, that a court has authority to terminate parental rights.” (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 791.) The investigation and report required by sections 7850 and 7851 ensures that an investigation will be conducted into the allegations of the petition and the present circumstances of the child, that the minor has been apprised of the nature of the parental termination action, and that the child’s feelings—in light of this information—are known to the court. (In re Linda W., supra, 209 Cal.App.3d at p. 226.)
For example, under section 7851, subdivision (b)(1), the report regarding the minor’s circumstances must contain “[a] statement that the person making the report explained to the child the nature of the proceeding to end parental custody and control.” The court did not explain on the record the legal consequences of adoption or the fact that father could be entirely excluded from Hayden’s life. Hayden stated that he wanted his mother and father to remain part of his family, and additional information about the adoption process could have influenced his views. We cannot conclude the investigation and report would have had no effect on the proceedings when we do not know what the investigator would have recommended or whether the process would have altered Hayden’s views. (See, generally, In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 993; Neumann v. Melgar, supra, 121 Cal.App.4th at pp. 168-169 [conducting harmless error analysis where report was prepared but not considered by trial court as required by statute, and concluding error not harmless].)
In light of our determination that the judgment must be reversed based on the failure to comply with sections 7850 and 7851, father’s claim that the trial court did not consider the appointment of independent counsel for Hayden under section 7861 is moot. We observe that the court did not explicitly consider the appointment of counsel on the record, although it did refer to section 7861 while discussing whether it would take Hayden’s testimony in chambers and stated it was “not clear” that counsel was necessary. On remand, the court should consider the issue of independent counsel. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 171.)
Section 7861 provides in part, “The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child, whether or not the child is able to afford counsel.”
As for father’s contention that the evidence was insufficient to support the findings of abandonment and a conviction of a felony showing parental unfitness, we decline to reach the merits because the matter must be retried.
Because double jeopardy does not bar successive petitions to terminate parental rights (see People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 486, fn. 4, citing Santosky v. Kramer (1982) 455 U.S. 745), the resolution of these issues in father’s favor would not bar a retrial, as would be true in a criminal matter. (Compare People v. Hill (1998) 17 Cal.4th 800, 848.)
We deny as moot father’s request for judicial notice of documents pertaining to the legislative history of Senate Bill No. 1325 (2005-2006 Regular Session), which was filed November 28, 2007.
III. Disposition
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
We concur. SIMONS, Acting P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.