Opinion
F074299
05-31-2017
Guardianship of A.B., a Minor. G.L. et al., Petitioners and Respondents, v. K.B., Objector and Appellant.
Catherine C. Czar, under appointment by the Court of Appeal, for Objector and Appellant. Law Office of Gerald H. Oldfield and Gerald H. Oldfield, for Petitioners and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAT15003049)
OPINION
APPEAL from an order of the Superior Court of Kern County. Cynthia L. Loo, Commissioner. Catherine C. Czar, under appointment by the Court of Appeal, for Objector and Appellant. Law Office of Gerald H. Oldfield and Gerald H. Oldfield, for Petitioners and Respondents.
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Appellant K.B. (Father) appeals from an order terminating his parental rights over his now seven-year-old son A.B. (the Minor) under Probate Code section 1516.5. The order frees the Minor to be adopted by his maternal grandparents and legal guardians, respondents L.L. (Grandfather) and G.L. (Grandmother) (together, the Grandparents). Father contends the trial court abused its discretion in terminating his parental rights under section 1516.5 because substantial evidence does not support the court's finding that adoption would be in the Minor's best interests. We reject Father's contention and affirm the order terminating his parental rights.
In this opinion, certain persons are identified by initials, abbreviated names, and/or by status in accordance with our Supreme Court's policy regarding protective nondisclosure. No disrespect is intended.
All further statutory references are to the Probate Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
A. Circumstances Surrounding the Underlying Probate Guardianship
The Minor was born in January 2010. In November 2012, the Minor's mother died unexpectedly and the Minor came to live with the Grandparents.
Before the Minor's mother died, she and the Minor had lived during the week with the Grandparents at their home in Delano where the mother worked, and then returned on the weekend to their home in Bakersfield. In January 2013, the Grandparents filed a petition to obtain guardianship of the Minor. The guardianship was granted in April 2013, and a mediation agreement between the Grandparents and Father became the order of the court.
The mediation agreement set forth a minimum schedule of visits between Father and the Minor, with supervision by the Grandparents, which the parties could expand by mutual agreement. Specifically, the agreement provided that Father was to have two-hour visits with the Minor on alternate Sundays at the Grandparents' home, and two-hour visits on alternate Saturdays at an agreed-upon location in Bakersfield. It also provided for one five-hour visit for the Minor to attend Father's family reunion. The agreement further provided that Father could have telephone contact with the Minor once a week. In addition, it provided the Grandparents would obtain counseling for the Minor and provide Father with 72-hours' notice of any counseling session to enable Father to attend.
B. Current Section 1516.5 Petition and Hearing
On August 26, 2015, the Grandparents filed a petition to declare the Minor free from parental custody and control under section 1516.5.
The Grandparents also filed the petition on the ground of abandonment. (Fam. Code, § 7822, subd. (a).) However, the court ultimately found the Grandparents failed to meet their burden of establishing Father had the requisite intent to abandon the Minor. (Ibid.) This finding is not at issue on appeal and, therefore, this opinion addresses only matters relevant to the court's order under section 1516.5.
1. Investigator's report
On December 4, 2015, Family Court Services filed an investigator's report. Among other things, the investigator reported that, during her interview of the Minor on November 19, 2015, she asked the Minor several times about Father. In response, the Minor "continually said he does not have any other dad [other than Grandfather] and does not know anyone named [K.]"
The investigator noted that the Minor was "bright and easy to engage in conversation." The Minor told her he was in kindergarten and lived with the Grandparents ("Papa" and "Gigi"), his uncle, and his dog. The Minor appeared to be a typical five year old who liked to play outside with his dog and watch "Paw Patrol" on television. The Minor also told the investigator he took karate and swim lessons and that he liked to practice karate with Grandfather.
The investigator concluded her report by recommending that the trial court grant the Grandparents' petition to terminate Father's parental rights over the Minor. With respect to section 1516.5, the investigator opined that the Grandparents had met the requirements of the statute and that it would be in the Minor's best interest to allow them to adopt him. The investigator explained:
"[The Grandparents] have been [the Minor's] legal guardians since the early part of 2013, a period of time exceeding two years. He has lived with them full-time since [his mother's] death in November of 2012. [The Minor] refers to [the Grandparents] as 'Papa and Gigi,' and when talking about his parents he told the undersigned his mother died and is in heaven and his dad is 'Papa,' [Grandfather]. [The Minor] does not appear to have any memory of [Father] and does not identify anyone else as a father. He does not remember [Father] and does not have any relationship with him. Therefore, termination of the relationship would not be a detriment to [the Minor]."
2. Grandfather's testimony
The trial court conducted a hearing on the Grandparents' petition on June 3 and June 13, 2016. Grandfather testified that Father visited with the Minor approximately a dozen times over the first six or seven months in accordance with the April 2013 mediation agreement, which the trial court received into evidence. After that, Father's visits became "sporadic, spread out." Grandfather recalled the first visit took place at a "Chuck E. Cheese" in celebration of the Minor's birthday, and the last visit took place at Camelot Park in October 2014.
To help foster Father's relationship with the Minor during their last visit at Camelot Park, Grandfather testified that he "stepped back and allowed [Father and the Minor] to interact" while playing miniature golf.
After Father's last visit with the Minor in October 2014, Father called Grandfather and said he felt the Minor "loved" Grandfather and that he felt "very uncomfortable" with the affection he saw the Minor showing Grandfather. In response, Grandfather "shared with [Father] that ... the visitations were for him to build a relationship." Father responded that this was "very difficult" for him.
Grandfather confirmed that the mediation agreement required him to stay where he could both see and hear Father and the Minor during visits. The agreement also provided that only Grandfather or Grandmother could supervise the visits. It did not provide for "any other mutually agreed upon third party" to supervise visits. Father never made a formal request or motion to modify visitation.
After the October 2014 visit at Camelot Park, Father never again contacted Grandfather to request visitation with the Minor. Father never left any messages on Grandfather's cell phone that Grandfather failed to return except on one occasion. Grandfather explained: "That would be just before the—we served the abandonment papers, the Petition, that there—I had received a phone message left on my phone with his number that said, 'I apologize. I haven't been around.' I listened to the message. That's when we began the process of filing the papers."
To Grandfather's knowledge, Father never attempted to communicate with the Minor by sending him things like letters or birthday cards. Father never gave the Minor any birthday gifts and only brought him one gift the first Christmas after the death of the Minor's mother. Additionally, Grandfather never received from Father any financial assistance for the Minor, nor did Father buy any items for the Minor such as clothing or school supplies.
The Grandparents still lived at the same address and had the same telephone numbers they had before Father stopped visiting. Grandfather could not recall Father ever calling to speak to the Minor.
Grandfather had been concerned Father was using drugs but did not ask Father to take a drug test prior to visits, explaining the order under the mediation agreement did not include drug testing.
Father attended one or two of the Minor's counseling sessions. After that, counseling stopped at the suggestion of the counselor.
At one time, the Minor had asked about Father but had seemed confused and called Father by a variation of Father's first name. Eventually, the Minor stopped asking about Father.
3. Father's testimony
Father testified he was part of the Minor's life at the time of the Minor's birth in January 2010. When the Minor was about to turn two years old, Father moved away from Bakersfield to a men's home in the Los Angeles area. After about a month, Father became homesick and returned to Bakersfield and moved into another men's home.
In his testimony, Father explained he had entered the two men's homes voluntarily because he had a drug problem and was trying to straighten himself out and make things right for the Minor and the Minor's mother. After 30 days in the Bakersfield program, Father was able to visit the Minor on the weekends.
Father was still living at the men's home in Bakersfield when he learned of the death of the Minor's mother. He called Grandmother because he was concerned about the Minor, but he did not seek custody of the Minor at this time. Father testified he "ended up dropping out of the men's home ... to file for court papers" and filed his objection when he found out the Grandparents "were filing to get guardianship and all that."
Father confirmed he was aware that, prior to the death of the Minor's mother, the Minor had a close relationship with the Grandparents because the Minor was with them "from Monday through Thursday ... to make it easier for [the Minor's mother] to go to work."
After Father and the Grandparents entered the mediation agreement, Father began to exercise his right to visitation as set forth in the agreement. Father acknowledged feeling uncomfortable during the supervised visits, not because he did not like being watched, but because of his difficulty getting the Minor's attention when the Minor wanted to be with Grandfather.
Father confirmed his last visit with the Minor was at Camelot Park in October 2014. He agreed with Grandfather's testimony estimating that he had visited the Minor approximately 12 times during the preceding year.
Father testified he stopped visiting due to his incarceration for his "[d]rug habit." He further testified that, following his arrest in November 2014, he stood trial and suffered convictions for drug-related offenses. He received a three-year prison sentence of which he served five months before his release on probation.
Father acknowledged he did not attempt to contact the Grandparents or the Minor while he was incarcerated but waited until after his release from custody to contact the Grandparents to try to arrange for visitation. Father also confirmed he never informed the Grandparents of his incarceration.
Father testified that around June 2015, following his release from custody, he tried to make contact with the Grandparents to arrange for visitation with the Minor. He called Grandfather around two or three times and left voicemails, but Grandfather never returned his calls.
When he called Grandfather in June 2015, Father was in a probation-sponsored parenting program in which he had enrolled on his own and he wanted the Minor to attend two "Family Fun Days" with him, which was a requirement of the parenting program. When Father was not able to arrange for the Minor to attend, the program made special arrangements for him to assist with other children, so he could complete the parenting program in March 2016. The court received the certificate of completion of the parenting program into evidence.
Father further testified he was currently working part time and that he had given money to the Minor in the past but acknowledged he had not done so consistently. Father recalled the last time he had given the Minor money was when he gave him $20 following one of their visits.
Father agreed that it was his belief that the Grandparents had taken good care of the Minor and that they had a strong relationship. He also agreed the Minor should live with the Grandparents.
Father explained he did not notify the Grandparents of his incarceration, not because he had been embarrassed, but because he had been "dealing" and did not "want to expose [the Minor] to anybody ... of the situation." Father confirmed he was afraid people he had been involved with might learn he had a son and use that against him in some way, including in a way that might affect the Minor's safety.
4. Trial court's order
Following argument by counsel, the trial court took the matter under submission. By written order filed on August 15, 2016, the court granted the Grandparents' petition to terminate Father's parental rights under section 1516.5.
In granting the petition, the trial court found the Grandparents had met their burden of showing by clear and convincing evidence that the Minor had been in their physical custody for no less than two years and would benefit from being adopted by them. The court further found it was in the Minor's best interest to terminate Father's parental rights and visitation with the Minor. The trial court explained its findings as follows:
"The crucial issue in this case is whether [the Minor] would benefit from being adopted by his grandparents. In determining whether the child would benefit from being adopted, the court has considered all factors relating to the best interest of the child, including the nature and extent of the relationship between the child, the birth parent, and guardian ([§ 1516.5, subd. (a)]), the circumstances leading to guardianship, the parent's efforts to maintain contact with the child, other evidence of commitment to parental responsibilities and whether adoption would be the best alternative for [the Minor]. ([Guardianship of] Ann S. [(2009)] 45 Cal.4th [1110,] 1127, 1132 [(Ann S.)].)
"The evidence demonstrated [the Minor] had experienced the traumatic loss of losing his mother and was confused and emotionally fragile following his mother's death; and his need for comfort, familiarity and stability is heightened. Because the mother and child lived with the Grandparents five days a week previously the transition into the Grandparents['] familiar home was therefore much easier on the child. It is undisputed that the Grandparents have provided good and loving care for
the child, including enrolling the child in counseling to assist the child in dealing with the loss of his mother.
"Initially, the Father objected to the probate guardianship, but later consented, as confirmed in a mediation agreement which provided for supervised weekend visit[s] on alternating Saturdays and Sundays and telephone contact between the Father and child.
"The court has carefully considered the efforts, and choices Father made evidencing his commitment to parental responsibilities following the April 2013 court order for visitation and contact with [the Minor]. The evidence demonstrated that the Grandparents facilitated the visits for the Father consistent with the mediation agreement and the Father regularly visited with [the Minor] for approximately six to seven months.
"The Court's concern involves two primary areas: First, Father did not take advantage of the many opportunities he had for contact with [the Minor]. At best, he visited approximately half of the time allowed for in the mediation agreement, and he failed to telephone the child, though such was also provided for in the mediation agreement. He was given a court-ordered opportunity to develop a relationship with the boy, which regrettably the Father appears to have squandered.
"The second, primary concern, was that Father apparently still was involved in criminal drug activities, the direct consequences of which led him to be incarcerated. The Court sees this—combined with his decision to not have any contact with the Grandparents and [the Minor] from November 2014 to May 2015 as fatal to a determination that continued contact with the Father is in [the Minor's] best interest. [(Emphasis in original.)]
"The Court can speculate as to why Father chose not to keep in contact. He may have been uncomfortable having supervised visits and being watched. He may have found it too painful to see how much [the Minor] loved the Grandparents, as it emphasized to him what he didn't have with his son. The Father may have been too embarrassed to share his legal problems with the Grandparents—knowing that it didn't look good. He already had supervised visits with [the Minor]; and further criminality wouldn't bode well for more liberalized contact. On the other hand, Father may just be too self-involved and placed drugs and criminality before [the Minor].
"Putting aside Father's motivation, whether Father's actions are borne from failings and insecurities that one sympathizes with because we
all have them, the bottom line is that Father made no contact with the Grandparents and [the Minor] for seven months.
"The decision of the Grandparents to file a petition to terminate the Father's parental rights appears to be borne from the silence of many months from the Father, a fear the child needed further protection and a reasonable, justified belief the Father was not committed to [the Minor].
"This was not a situation in which the Grandparents stood in the Father's way. The bottom line-tragic result from Father's decision to have no contact with his son for such a long period of time is that currently the child ceases to know who the Father is and have any recognizable relationship with him. Children need regular and consistent access to a parent to establish and nourish an attachment to that parent; these are attachments that do not develop in a vacuum or are borne out of good intentions, they need nurturance in order to grow. It is not surprising when interviewed by the investigator from Family Court Services, the child had absolutely no recollection of who the biological father was; and according to the Grandfather now never asks about the biological father. Accordingly, the Court finds there is no need for further evidence or testimony as to the quality of relationship between father and son, as there is no appreciable relationship in existence to evaluate.
"Somewhat tragically, the Court is faced with a simple analysis given the lack of any relationship between Father and child at the present time, and comparing the benefits of adoption to the benefits of guardianship and the possibility of continued parental involvement. The analysis clearly weighs in favor of adoption. There is substantial evidence that demonstrates [the Minor] would not be harmed if all contact with the Father was cut off as a result of adoption. This is a time of tremendous emotional shakiness for this child. Paving the way for adoption would provide the stability and security for [the Minor] envisioned by the Legislature.
"Father has made commendable efforts to improve his situation. The Court found the Father earnest in his presentation. Regrettably however, he was unable to demonstrate a commitment to [the Minor]. Whether it be because of the disease of substance abuse, or the inability to tolerate that [the Minor] loves and sees the Grandfather as his papa, the Father has tragically not made the choices nor taken the actions available to him that evidence a dedication to parenting [the Minor] that would have prevented the termination of his parental rights.
"Childhood is brief and a child's need for a permanent and stable home cannot wait for a parent to rehabilitate himself. (Adoption of Allison C. [(2008)] 164 Cal.App.4th [1004,] 1016).
"The Court echoes Minor's Counsel's sentiment that while the child deserves stability and the adoption will ensure it, there is family history, roots through the Father that it is hoped the Grandparents will choose to foster through information and contact. Despite Father's failings, it appears he at his core is a good person. It is clear the Grandparents have the child's best interest at heart and the Court trusts them to do what is best for [the Minor], and allow contact if/when they feel appropriate."
DISCUSSION
Father contends the trial court abused its discretion in finding that adoption by the Grandparents would benefit the Minor because this finding is unsupported by substantial evidence. We disagree.
A. Applicable Law
A probate guardianship is a private custody arrangement, approved but not supervised by the court; it is distinct from a guardianship ordered as a result of juvenile dependency proceedings. (Ann S., supra, 45 Cal.4th at p. 1133.) Probate guardianships provide an alternative placement for children who cannot safely remain with their parents. (Id. at p. 1122.) "It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under section 1516.5." (Ibid.)
When the court appoints a guardian, the parent's authority ceases. (Ann S., supra, 45 Cal.4th at p. 1123.) While the court has discretion to grant visitation, parental rights otherwise are completely suspended for the duration of the probate guardianship and the guardian assumes the care, custody and control of the child. (Id. at pp. 1123-1124.) "Unless ended by court order, the guardianship continues until the child [either] 'attains majority or dies.' " (Id. at p. 1124.) "The court may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child's best interest." (Ibid.)
Section 1516.5 allows a child in a probate guardianship to be declared free from parental custody and control if: (1) the parents do not have legal custody of the child; (2) the child has been in the guardian's physical custody for at least two years; and (3) the court finds that the child would benefit from being adopted by the guardian. (§ 1516.5, subd. (a).) The guardian bears the burden of making the requisite showings under section 1516.5 by clear and convincing evidence. (See Ann S., supra, 45 Cal.4th at p. 1132.)
" 'Benefit' in this context means that adoption would be the best alternative for the child ...[,]" and requires a determination of the child's best interest. (Ann S., supra, 45 Cal.4th at p. 1128, fn. 10.) In making this determination, the court considers all factors relating to the child's best interest, including but not limited to the nature and extent of the child's relationship with his birth parents, his guardian and the guardian's family, and any siblings or half siblings. (§ 1516.5, subd. (a).) Other relevant factors "include the circumstances leading to guardianship, the parent's efforts to maintain contact with the child, any exigencies that might hamper those efforts, and other evidence of commitment to parental responsibilities." (Ann S., supra, at p. 1132.) Trial courts have broad discretion in assessing the relevant factors. (Id. at p. 1138.)
B. Standard of Review
While the trial court's ruling regarding the best interest of the child must be based on clear and convincing evidence (Fam. Code, § 7821), our role is limited to determining whether substantial evidence supports the conclusions reached by the trial court in utilizing that standard. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.) On appeal, we indulge in all reasonable inferences to uphold the judgment. (Ibid.) "[W]e do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. [Citation.] We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact." (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.)
C. Analysis
As we have already stated, in determining whether the Minor would benefit from adoption, the trial court was required to consider all factors relating to the Minor's best interest, including the circumstances that led to the guardianship, Father's efforts in maintaining contact with the Minor, any exigencies that might have hampered his efforts, and other evidence of commitment to parental responsibilities. (Ann S., supra, 45 Cal.4th at p. 1132.) From the record before us, it is clear the court was well aware of and thoughtfully considered all of the relevant factors in exercising its broad discretion to determine that the Minor's adoption by the Grandparents was in the Minor's best interest. Equally clear is that substantial evidence supports the court's best interest determination and underlying factual findings. We find Father's contrary assertions unpersuasive. Accordingly, we affirm the order terminating his parental rights under section 1516.5.
DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
DETJEN, J.