Opinion
A150088
09-11-2017
Guardianship of B.M., D.A., et al., Petitioners and Respondents, v. G.M., Objector and Appellant.
BY THE COURT:
It is ordered that the opinion filed herein on September 11, 2017, be modified as follows: On page 19 in the Disposition, the sentence, "Respondents shall recover their costs on appeal," is changed to "The parties shall bear their own costs on appeal."
This modification does not change the judgment. Dated: __________
/s/_________
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CVGD147002)
After G.M. (Father), was arrested in 2013 on multiple charges including possession of drugs for sale, being a felon in possession of a firearm and willful cruelty to a child, he agreed that his sister A.A. and her husband D.A. (Guardians) would be guardians of his child B.M. (Minor), then four years old. Father was sentenced to a year in prison, and after his release, Guardians petitioned in October 2015 to terminate his parental rights so they could adopt Minor. Father, who had a long history of drug and alcohol abuse, was hopeful that before March or April 2016 he would be at a point in his recovery where he could seek to terminate the guardianship, and opposed the petition. But as late as July 2016, more than two years after the guardianship began, and less than a month after a positive drug test, Father conceded that it would be at least several more months, and perhaps a year, before he was prepared to take custody of Minor.
In August 2016, the court terminated Father's parental rights pursuant to Probate Code section 1516.5, subdivision (a), which authorizes the termination of parental rights after a child has been in the physical custody of a guardian for two years so the child can be adopted by the guardian, and Family Code section 7825, subdivision (a), which authorizes the termination of the parental rights of a parent who is convicted of a felony if the facts of the crime prove the parent's unfitness for future custody, as a step toward providing a child "the stability and security of an adoptive home when those conditions are otherwise missing from the child's life." (Fam. Code, § 7800.) The court ordered Minor free for adoption and placed him with Guardians pending adoption. Father appeals, arguing that the trial court erred in determining that terminating his parental rights was in Minor's best interests. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Guardianship Established in 2014
In January 2014, Guardians petitioned for guardianship of Minor, who was then four years old. Del Norte County Child Welfare Services (CWS) had placed Minor in their care after Father was arrested in late December 2013 and Minor had spent a night in foster care.
A.A. is one of Father's sisters; D.A. is her husband. Minor's mother died in a motorcycle crash 2012.
Father was arrested for willful cruelty to a child (Pen. Code, § 273a); possessing a firearm as a felon (Pen. Code, § 29800); possessing a controlled substance (Health & Saf. Code, § 11377); possessing a controlled substance for sale (Health & Saf. Code, § 11378); and possessing controlled substance paraphernalia (Health & Saf. Code, § 11364). We discuss the circumstances of the arrest below.
This was not the first time that Minor was in Guardians' care. In March 2013, when Minor was three years old, another family member reported to CWS that Father had a substance abuse problem that prevented him from meeting Minor's needs. CWS's investigation at that time was "inconclusive," but Father placed Minor with A.A. under an informal temporary guardianship, telling her that he was going away to participate in a 90-day rehabilitation program. About three weeks later, Father reclaimed Minor, though he had not gone to rehab in the meantime; instead, he spent the time working on a friend's farm.
From April to December 2013, Minor lived with Father and his girlfriend in the home of Father's and A.A.'s mother (Grandmother). During that time, Father was using and selling drugs. Father and his girlfriend were arrested at the home in late December 2013, and the day after his arrest, Father met with a social worker from CWS and signed a "safety plan" placing Minor in A.A.'s care. Father agreed that D.A. and A.A. should be Minor's guardians. Because prescription and non-prescription drugs and drug paraphernalia were found in the residence, a hair follicle was taken from four-year-old Minor for drug testing a week after the arrest. The test showed a level of methamphetamine consistent with high or constant use in a 150-pound adult.
On January 16, 2014, Guardians petitioned for guardianship, and filed Father's nomination of them as guardians. The court appointed Susan Minx as Court Investigator. CWS filed a report stating that a visitation schedule had been implemented, and that, after missing some appointments with the Del Norte County Alcohol and Other Drugs program (AOD), by early February Father had completed an AOD assessment, which found he would benefit from treatment. CWS recommended the guardianship move forward.
When Minor came to live with Guardians, CWS told them to be prepared for Minor to have withdrawals from the methamphetamine, "bouncing off the walls one minute, sleeping the next, vomiting." At first, Minor looked frail and sickly. He had a rash in his groin area, which took three or four months to clear up. He had six cavities; the dentist told Guardians it was "borderline abusive." He mostly slept, and when he woke up he would vomit. When he ate, he had an enormous appetite and ate quickly. He did not know how to brush his teeth or take a bath or wash himself. Eventually, he learned to eat slowly, stay awake, and take naps, and he stopped vomiting.
In mid-February 2014, Father filed an objection to the petition for guardianship, declaring that Guardians were "making it difficult for [him] to have frequent and continuing contact with" Minor, that he had been clean and sober since the day after his arrest, and that no guardianship was necessary, but that if the court was inclined to grant temporary guardianship, Father would consent to the appointment of another of his sisters, B., as guardian so long as the court ordered visitation. Father attached a form in which he nominated B. as guardian and B. consented to the guardianship.
Minx filed her initial report on February 18, 2014. At a hearing on February 21, 2014, the court ordered the parties to mediation, noted that Father had provided clean samples and was requesting unsupervised visits and that Guardians were complying with the "safety plan" and allowing only supervised visits. The court assigned one of B.'s daughters to supervise visits and handle transportation, and permitted B. to have visits in her home. Father was to visit twice a week.
In mid-March 2014, after mediation, Father and Guardians signed a stipulation that became an order of the court. Father's sister B. withdrew as a potential guardian, and Father agreed that D.A. and A.A. would have guardianship of Minor. Father and Guardians agreed that Father would have unsupervised visitation with Minor, including a weekend overnight; that they would all "refrain from using illegal drugs at all times and from exposing [Minor] to anyone using illegal drugs"; and that they would seek the assistance of a mediator if problems arose with their agreement. Father agreed to submit to drug testing, and agreed that his visits with Minor would become supervised if any test results were positive. Letters of guardianship were filed in early April 2014. B. Visitation in 2014
Father's unsupervised visits did not last long. Just three weeks after the letters of guardianship were filed, a new stipulation and order on visitation was filed stating that Father had not complied with the treatment and testing requirements of the earlier stipulation and that he would therefore be limited to five hours of professionally supervised visitation per week at the Del Norte Child Care Council (Council).
Even though he knew that Minor enjoyed and looked forward to the supervised visits, Father missed visits or arrived late, and continued to do so after notice from the Council, with the result that the Council removed the family from its visitation schedule in August 2014. Asked why he missed visits, Father testified, "[a] lot of times it was because I overslept or because back then I was still using."
At some point in 2014, as a result of his December 2013 arrest, Father pleaded guilty to endangering Minor and to being a felon in possession of a firearm. Father served a year in prison, from September 2014 to September 2015. While he was in prison, he made no attempts to write to Minor, but said he tried unsuccessfully to call Minor at Guardians' house. C. Petition to Terminate Parental Rights
The trial court did not find credible Father's testimony as to his attempts to reach Minor and Guardians by phone.
In October 2015, after his release from prison, Father filed a request for an order modifying the April 2014 visitation order to allow him unsupervised visitation with Minor. Father stated that he would "be in a position to file a petition for termination of the guardianship within 5-6 months." Ten days later, Guardians filed a petition to terminate Father's parental rights for purposes of adoption pursuant to Family Code section 7825, subdivision (a). In addition to Father's 2014 conviction for being a felon in possession of a firearm and child endangerment, Guardians presented documents showing that in 2003, when he was about 30, Father pleaded guilty to felony unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)) and to misdemeanor providing alcohol to minors (Bus. & Prof. Code, § 25658, subd. (a)), and was sentenced to the aggravated term of 3 years in prison for the felony conviction and to 180 days for the misdemeanor, to be served concurrently.
Pursuant to the April 2014 stipulation and order, Guardians refused to allow Father unsupervised visits with Minor. The Council, which had terminated its supervision of visitation in August 2014, required a re-referral from the court before it would resume supervising visits between Father and Minor.
Family Code section 7825, subdivision (a) authorizes a proceeding to declare a minor free from parental custody and control for the purpose of adoption "where both of the following requirements are satisfied: [¶] (1) The child is one whose parent or parents are convicted of a felony. [¶] (2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child."
When mediation did not result in an agreement between the parties as to visitation, the court appointed court investigator Susan Minx, who had previously been assigned to the case, to investigate the circumstances alleged in Guardians' petition to terminate parental rights. Minx filed a report on November 19, 2015, in which she recommended that an attorney be appointed for Minor.
At a hearing in early December 2015, the court ordered the parties to further mediation, which was unsuccessful. The court then appointed an attorney to represent Minor and ordered the court investigator to complete her report. In her report, filed on February 3, 2016, the court investigator noted that Minor's extended family was large, and that communication among family members was "difficult and not direct." After conducting interviews with Minor, Father, nine members of the extended family (including three of Guardians' adult children), and a family friend raised by Guardians, the investigator recommended that the court allow a period of two to three months during which Guardians and Father would meet with a mediator, and a plan of supervised visitation between Father and Minor would be implemented.
At a hearing on February 5, 2016, Minor's counsel advocated supervised visits for Minor and Father. Guardians objected, and a hearing was set. Father's counsel joined the request for supervised visitation, and at a hearing on February 22 the court ordered three hours of visitation per week to be supervised by the Council and set two further court dates, one in March for a review of visitation and mediation, and one in April for a contested hearing.
Visitation began on March 14, 2016. In advance of the review hearing, the Council filed a report on the first two visits and the court investigator filed a further report and addendum. The Council reported that visits between Father and Minor were "going well." The investigator recommended that the trial court "delay the decision regarding the termination of parental rights to allow for visitation to re-develop the relationship" between Minor and Father, and review the matter in five months "to evaluate the progress of visitation . . . and to determine if the termination of parental rights is still an appropriate consideration."
At some point, Father moved to terminate the guardianship. Twice-weekly visitation continued, and after several continuances, the contested hearing began on July 25, 2016. The record shows that in May 2016 a follicle drug test of Father was positive for methamphetamine, and that a readiness conference set for July 15 was continued to July 22 because Father was incarcerated. Father testified that he was jailed for using alcohol and methamphetamine. D. Hearing, Order and Judgment
The contested hearing, which began on July 26, 2016, lasted three days. The court heard testimony from Father, Minor (then almost seven years old), Guardians, and several other family members, specifically Grandmother, Guardians' adult daughter, two other of Father's nieces, and Minor's half-brother by Minor's mother. In addition, there was testimony from a child development and bonding expert, Father's substance abuse counselor, and court investigator Minx.
Among other things, several witnesses testified about restrictions that Guardians imposed on Minor's spending time with certain family members, including where Minor could spend time alone with them and where visits could occur. For example, Guardians would not allow Father into their house, and would make Father being drug free a condition of any unsupervised visitation with Minor. Grandmother, one of Father's sisters, and two of that sister's daughters were allowed to visit with Minor only if Guardians or Guardians' children were present.
Guardian A.A. testified that she would not allow Father in her house because Father was a convicted felon and drug user. Guardian D.A. testified that Father was allowed in the house until Father came to Minor's preschool graduation with alcohol on his breath, which Father said he had drunk to come down from a high, and challenged guardian D.A. to a fight and insulted him with obscenities in front of Guardians' children.
Guardian A.A. said there was "a trust issue" with those family members, and contended they had failed to follow court orders regarding visitation. She testified that Grandmother tried to arrange for Minor to see Father at a time when Father's visits with Minor were terminated, and that one of her nieces had taken Minor to visit Father and "brought him back smelling like marijuana."
At the conclusion of testimony, Father's counsel asked to withdraw the petition to terminate the guardianship, saying that he and Father believed that Minor, Father and the family would benefit from continuing the guardianship. Counsel for Guardians and Minor agreed that it was in Minor's best interest not to terminate the guardianship.
The court then heard argument on terminating parental rights. Counsel for Guardians argued two bases for terminating Father's parental rights: Family Code section 7825 and Probate Code section 1516.5. Father's counsel and Minor's urged the court to retain the status quo, with Father's counsel suggesting that if Father "continues to make bad choices" parental rights could be terminated in six months and Minor's counsel suggesting that within the next 12 months it would be clear whether parental rights should be terminated, depending on how Father proceeded with his recovery.
The Probate Code authorizes a proceeding to declare a child free from the custody and control of one or both parents in the context of an existing guardianship proceeding "if all of the following requirements are satisfied: [¶] (1) One or both parents do not have the legal custody of the child. [¶] (2) The child has been in the physical custody of the guardian for a period of not less than two years. [¶] (3) The court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child . . . ." (Prob. Code, § 1516.5, subd. (a).)
The trial court judge then observed that he was required to do what "appears to the court in the best interest of [Minor], not [Guardians], whether they're hurt or not, [Father's ] feelings, whether they're hurt or not, various siblings, whether they're hurt or not and uncles, grandmother." The judge said he was prepared to rule, and that he would make a written ruling with findings, but he would first give the Father and Guardians until late the next morning to meet and see if they could reach an agreement, rather than have him decide the matter.
The parties and their counsel appeared in court the next day and informed the court that they had reached some stipulations that would be effective regardless of how the court ruled. Guardians made an offer as to Sunday visits between Father and Minor, but the parties had not reached agreement on details. The judge encouraged the Guardian's counsel to file the stipulations and the offer with the court. The record does not reflect that any such filing was made.
In August 2016, the trial court issued a written order terminating Father's parental rights pursuant to Family Code section 7825 and Probate Code section 1516.5. The trial court acknowledged Father's difficult life, including the fact that his own father went to prison for sexual abuse of Father's sister A.A., and Father therefore lacked a father figure when he was as young as 12, that Father had struggled with serious substance abuse for about 30 years, since he was 12 or 14 years old, and that Father had a long history of criminal activity and convictions.
Guardian A.A. testified that she and Father "suffered quite a bit in childhood," and that they didn't have "a normal childhood growing up. You know, we had drugs in our home. My father molested me while I was a child and went to prison. We had parties in our home by our mother. When I went back to live with my mom when I was 12, she was dating [the man who] is now her husband. We grew—they grew pot in the backyard. It was just our way of life; we didn't know any better."
With respect to Family Code section 7825, the court found by clear and convincing evidence that Father was unfit based on the facts surrounding his felony convictions and abuse of Minor. With respect to Probate Code section 1516.5, the court found by clear and convincing evidence that terminating Father's parental rights was in the best interest of Minor and that it would be detrimental to Minor to be removed from Guardians. The trial court explained, "The Court finds by clear and convincing evidence that there is a strong parental bond between the guardians and [Minor]. All parties acknowledge that placement with [Father] would be inappropriate at the moment. The Court also finds by clear and convincing evidence that 1) the guardianship has existed for two years and eight months, that 2) [Father] does not have legal or physical custody of [Minor], that 3) [Minor] would benefit from the stability of being adopted, and that 4) the prospective adopted parents would continue to allow [Minor] to have healthy contact with his siblings, family members, and his father."
Judgment was filed in October 2016 declaring Minor free from parental custody and control, and Father timely appealed. After Father filed his opening brief on appeal, Minor's trial counsel filed a "recommendation for appointment of appellate attorney for child," which we granted. Minor's appellate counsel timely filed a brief arguing that the trial court's order should be reversed, on grounds similar to those urged by Father on appeal.
DISCUSSION
A. Applicable Law
1. Terminating Parental Rights
In certain circumstances, California's Family Code and Probate Code authorize the termination of parental rights to facilitate the adoption of a child.
Under Family Code sections 7803 and 7825, a minor may be declared free from the custody and control of his or her parent or parents, whose parental rights are terminated, if the parent or parents are convicted of a felony and if "[t]he facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child." (Fam. Code, § 7825, subd. (a)(2).) In making its determination under Family Code section 7825, "the court may consider the parent's criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent's ability to exercise custody and control regarding his or her child." (Fam. Code, § 7825, subd. (a)(2).) Family Code section 7285 is "intended foremost to protect the child." (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) The purpose of the statute "is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life," (Fam. Code, § 7800) and the Legislature directs the trial court to "consider the wishes of the child, bearing in mind the age of the child" and to "act in the best interest of the child." (Fam. Code, § 7890.) The trial court must make its findings based on clear and convincing evidence. (Fam. Code, § 7821.)
Under Probate Code section 1516.5, the trial court has authority to terminate parental rights after two years of probate guardianship if "[t]he court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following: [¶] (A) The child and the birth parent. [¶] (B) The child and the guardian, including family members of the guardian. [¶] (C) The child and any siblings or half siblings." (Prob. Code, § 1516.5, subd. (a)(3).) The trial court must make its findings based on clear and convincing evidence. (Prob. Code, § 1516.5, subd. (a); Fam. Code, § 7821; see also In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382 (Noreen G.).)
Unlike a proceeding under Family Code section 7825, a proceeding under Probate Code section 1516.5 does not require "[e]vidence of parental unfitness or that terminating parental rights is the least detrimental alternative for the child." (Noreen G., supra, 181 Cal.App.4th at p. 1383; see In re Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1128 (Ann S.) ["[i]t would be anomalous to require proof in every case, by clear and convincing evidence, that a mother or father who has had no custodial responsibilities for two or more years is currently an unfit parent"].) "Nothing more must be proved than that termination of parental rights and adoption by the guardian are 'in the "best interests of the child." ' [Citation.] And in determining the best interests of the child, the trial court must consider all factors, 'which would 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. [Citations.] Under section 1516.5, the detriment of terminating parental rights is not balanced directly against the benefits of adoption; it is only a factor to be considered when evaluating the child's best interest." (Noreen G., supra, 181 Cal.App.4th at p. 1383.) Probate Code section 1516.5 "afford[s] children in probate guardianships the opportunity to enjoy permanent adoptive homes with familiar caretakers, and giv[es] willing guardians the chance to become adoptive parents." (Ann S., supra, 45 Cal.4th at p. 1138.)
2. Standard of Review
"[T]he decision to terminate parental rights lies in the first instance within the discretion of the trial court, 'and will not be disturbed on appeal absent an abuse of that discretion. [Citation.] While the abuse of discretion standard gives the court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action. . . .' " [Citation.] "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." [Citation.]' (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.)" (Noreen G., supra, 181 Cal.App.4th at pp. 1382-1383.)
Our review of the trial court's findings " ' "is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard." ' [Citation.] Under the substantial evidence standard of review, ' "[a]ll conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment." ' " (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010-1011, fn. omitted.) " 'It was the trial court's duty to determine whether' the petitioners met their 'burden of proof; it is our duty to determine whether there is substantial evidence to support the trial court's findings that it did.' (In re Robert J. (1982) 129 Cal.App.3d 894, 901.)" (Noreen G., supra, 181 Cal.App.4th at p. 1382.)
"When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Ibid.) Substantial evidence is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. . . . (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The appellant must show the evidence is insufficient to support the trial court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)" (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.) B. Analysis
Father advances two basic arguments on appeal. First, he argues that substantial evidence does not support the trial court's determination under Probate Code section 1516.5 or Family Code section 7825 that it was in Minor's best interest to terminate parental rights. Second, he argues that the court's order must be reversed because the court impermissibly relied upon Guardians' agreement that they would facilitate post-termination contact between Father and Minor. Minor's appellate counsel advances the same two arguments. We are not persuaded.
Neither Father nor Minor's appellate counsel disputes the trial court's findings under Family Code section 7825, subdivision (a) that Father is unfit, based on the circumstances surrounding his felony convictions and abuse of Minor, or its findings under Probate Code section 1516.5, subdivisions (a)(1) and (2) that Father did not have custody of Minor during the guardianship, which had lasted for more than two years.
1. Substantial Evidence Supports the Trial Court's Findings
No one disputes the existence of love and affection between Father and Minor. But that does not bar a determination that termination of Father's parental rights and adoption by Guardians are in Minor's best interest, and we have no difficulty concluding that substantial evidence supports the trial court's determination here. (See Noreen G., supra, 181 Cal.4th at p. 1384 [acknowledging a "loving bond" between minors and their mother, while finding substantial evidence to support benefit to minors from termination of parental rights].)
The trial court was presented with expert testimony that there was a strong primary bond between Guardians and Minor, based on the length of time that Minor had lived with them, Minor's behavior, and Minor's identification with Guardians' family, which includes their two young sons. The expert testified that breaking that primary bond, and trying to establish another primary bond, as with Father, risked "cascading negative effects."
Minor testified that he feels safe at Guardians' home, and that he likes living there and would be sad to leave. Minor asked Guardians to adopt him. He had no interest in spending more time with Father, and was happy with two hour-and-a-half visits a week. While living with Guardians, Minor told the court investigator, "[I]f I was the judge I would make it so I could stay here because I don't want to change." Minor viewed Guardians as parental figures and their children as his siblings. Father himself wants Minor to stay with Guardians at present.
Minor has three half-siblings, with whom he visited occasionally during the guardianship. At trial, Minor testified that he "missed" them. None of the half-siblings live with Father.
During more than two years of guardianship, Father did not remedy the substance abuse that led to his abuse of Minor and the guardianship. Father's drug counselor testified that honesty is a key element of recovery, but it appeared to the court that Father had not absorbed that lesson. The trial court found not credible Father's explanation that Minor was exposed to high levels of methamphetamine entirely as a result of Father's smoking methamphetamine in the closet where Minor's clothes were stored, and Father's statements that he did not know his girlfriend in 2013 possessed or used methamphetamine, even though she provided him with the substance. Father admitted to using methamphetamine twice in the three months before the contested hearing, but only after he had dirty test results, and only after telling the court investigator and Minor's attorney he was not using drugs at all. In addition to his July 2016 arrest for using methamphetamine, Father testified he was arrested another time after his September 2015 release from prison and tested positive for alcohol, which he attributed to taking cough syrup.
Father admits that he has not made enough progress in his recovery to take custody of Minor. In October 2015, Father expected to be able to take custody of Minor in five or six months. Months later, in July 2016, Father's initial testimony was that he would be ready to take custody of Minor in another six months. Later, he admitted that it would likely take a year. Father's drug counselor, who has known him for three years, opined that Father would not be prepared to take custody of Minor for at least a year. By that time, Minor would be eight years old, and the guardianship would have lasted almost four years.
But our Legislature has recognized that as soon as two years after a guardianship has begun, a child may have "a fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver" and that guardians, "after fulfilling a parental role for an extended period, [have] also developed substantial interests . . . ." (Ann S., supra, 45 Cal.4th at p. 1136.) As the trial court explained in its order, as of summer 2016, Minor in this case had waited more than two and a half years, "more than one-third of his life for his father. And . . . there is still no end in sight. Perhaps [Father] can beat his nearly thirty-year drug habit in the next six months, next year, next five years, or perhaps never. Only time will tell. Delay is not in a child's best interest." In the circumstances here, we conclude that substantial evidence supports the trial court's conclusion: "It is unjust and unfair to make [Minor] wait indefinitely for his father to remedy his ills. It is not in his best interest to do so."
To support his position that the trial court's ruling is not supported by substantial evidence, Father focuses on the evidence showing the existence of a positive bond between Father and Minor, but as we have explained, that does not prevent a finding that terminating Father's parental rights is in Minor's best interest. For example, in Noreen G., a mother's parental rights were terminated where "[t]he advantage of a stable, permanent adoptive home . . . outweigh[ed] the benefit" of a continued parental relationship, where mother "failed to successfully overcome" the behavior that led to the guardianship, despite her efforts and a positive visitation record. (Noreen G., supra, 181 Cal.App.4th at p. 1385.)
Father claims that his relapses in 2016 are not dispositive as to Minor's best interest, but that claim misses the point. Father's relapses are just part of the evidence that supports the trial court's decision here. Father's lying about his relapses, and his lack of credibility in his testimony, weighed heavily in the trial court's conclusion that it is in Minor's best interests to allow him to remain with Guardians and that it would be harmful to Minor for Father to have custody.
Relying on Adoption of Myah M., supra, 201 Cal.App.4th 1518, Minor's appellate counsel argues that the trial court did not properly balance the factors related to Minor's best interests. (See Id. at p. 1544 ["Probate Code section 1516.5 mandates a balancing test, where the court balances all of the facts related to the child's best interests"].) Minor's appellate counsel concedes that Minor "is well bonded to [Guardians] and their children and that a disruption of these bonds could be detrimental to [Minor]," and essentially asserts that the detriment of disrupting those bonds is outweighed by the detriment Minor will suffer "from the loss of his relationship with Father, his siblings and his other relatives that will result from the termination of Father's parental rights." But no authority is cited, and we are aware of none, to suggest that Minor's relationships with Father, siblings and other relatives should necessarily outweigh his very strong relationships with Guardians and their family or negate the possibility of a finding that adoption would benefit Minor. Minor's appellate counsel claims that Guardians "cut [Minor] off from Father, his siblings and his entire family," and that terminating Father's parental rights will necessarily lead to the loss of Minor's relationships with other family members. But there is ample support in the record for the trial court's findings that Guardians did not impede visitation with Minor's siblings or family members, including Father, as well as support for the finding that Guardians would "continue to allow [Minor] to have healthy contact with his siblings, family members, and his father." The trial court found credible Guardians' testimony they expect Minor to have contact with Father after adoption, as long as Father was sober. The court also found credible Guardians' testimony that they welcome visits at their home by family members other than Father, and the testimony of Guardians and others that family members, including Grandmother and Minor's half siblings, had visited with Minor during the guardianship.
In sum, we conclude that substantial evidence supports the trial court's decision that it is in Minor's best interest to terminate Father's parental rights so that Guardians can adopt him.
2. Consideration of Future Contact Does Not Require Reversal
Father argues that the trial court abused its discretion by placing some emphasis, even though it is not clear how much, on Guardians' "alleged agreement" to continue contact between Minor and Father, and that therefore the court's ruling must be reversed. Minor's appellate counsel similarly claims that the trial court's order should be reversed because the trial court abused its discretion by considering the "unrealistic and unenforceable promise that [Minor] would continue to have contact with father." We disagree.
"[O]ur focus is upon the ultimate decision rather than the underlying analysis of the trial court." (Noreen G., supra, 181 Cal.App.4th at p. 1384.) " ' " 'If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" [Citation.] "We review the trial court's ruling, not its reasoning." [Citations.]' " (Ibid., quoting As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 447-448.)
As an initial matter, we do not accept the premise that the trial court erred simply by considering the likelihood that Guardians would allow future contact between Minor and other family members. Nothing in Family Code section 7825 or Probate Code section 1516.5 suggests that such a consideration is improper. To the contrary, the trial court is required to consider the best interests of the child, and the Legislature has explicitly stated that "some adoptive children may benefit from either direct or indirect contact with birth relatives, including the birth parent or parents . . . after being adopted," (Fam. Code, § 8616.5, subd. (a)) and that "[n]othing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives . . . and the child from voluntarily entering into a written agreement to permit continuing contact between the birth relatives . . . ." (Fam. Code, § 8616.5, subd. (b)(1).)
"Agreements that provide for birth parents to continue visitation with their children following termination of parental rights or adoption are . . . recognized by statute and enforceable, but any such agreements must be in writing and must be found by the court to be in the best interests of the children." (Noreen G., supra, 181 Cal.App.4th at p. 1394.) In giving the parties the opportunity to reach an agreement after the contested hearing and before he issued his ruling, the trial judge recognized that Minor's extended family "appear to love and care for each other," despite having "vastly different perception[s] of the situation." Although the record before us does not show any agreement for postadoption visitation, nothing precludes the parties from entering into such an agreement in the future. (See In re Zachary D. (1999) 70 Cal.App.4th 1392, 1397-1398.) --------
This is not a case where the termination of parental rights is conditioned on an impermissible order or unenforceable agreement of future visitation. And the court here did not find that continued contact would mitigate any detriment from termination of parental rights. (See Noreen G., supra, 181 Cal.App.4th 1384-1385 [outlining circumstances where termination of parental rights might be improper].) In any event, under Probate Code section 1516.5, "the detriment of terminating parental rights is not balanced directly against the benefits of adoption; it is only a factor to be considered when evaluating the child's best interest." (Id. at p. 1383.) And here, the court did not find detriment to Minor in terminating Father's parental rights, but rather found that it would be detrimental to remove Minor from Guardians.
Father's brief and Minor's appellate counsel's brief both point to In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) for the proposition that an unenforceable visitation agreement is not a valid consideration for the court in deciding whether to terminate parental rights. But S.B. is distinguishable. S.B. was a dependency proceeding where, in the face of the beneficial relationship exception to termination of parental rights, the trial court nevertheless terminated parental rights "on the basis of an unenforceable promise [by prospective adoptive parents] of future visitation" with the parent. (Id. at pp. 300-301; see also Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) This is not a dependency proceeding, there is no beneficial relationship exception, and there is no promise of future visitation, only a finding that Guardians are credible in testifying that "contact between [Minor] and his father would continue as long as [Father] was sober."
But even if we agreed that the trial court should not have considered the possibility of future contact between Minor and other family members, we would not reverse because the error would not be prejudicial. (Code Civ. Proc., § 475.) That is because even if we disregard the evidence relating to future contact, substantial evidence still supports the trial court's decision. The record is clear that there is a strong primary bond between Minor and Guardians, and that Minor wishes to remain with Guardians and have them adopt him. The record is also clear that Father is not prepared to take custody of Minor and does not know when, or whether, he will be able to do so. In these circumstances, the trial court did not err in concluding that the advantage of a permanent adoptive home for Minor with Guardians outweighs any benefit of a continued relationship with Father, who, even after more than two years, did not overcome the problems that led to the guardianship. (See Noreen G., supra, 181 Cal.App.4th at p. 1385.)
DISPOSITION
The judgment of the probate court is affirmed. Respondents shall recover their costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.