Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05PR00174
BUTZ, J.Heather M., mother of the minor, appeals from orders of the superior court granting a petition to free the minor from her custody and control pursuant to Probate Code section 1516.5. Appellant contends there were procedural errors which require reversal of the order and that there was insufficient evidence to support the order freeing the minor from her custody and control. We shall affirm.
FACTUAL BACKGROUND
The minor was a dependent of the court and in foster care for nearly two years in 2002 and 2003, after which the juvenile court terminated jurisdiction and returned the minor to appellant’s care. In May 2005, appellant was arrested. Child Protective Services delivered the five-year-old minor to respondents and encouraged them to seek a probate guardianship of the minor.
Respondents filed a petition for a probate guardianship in May 2005. The court investigator’s report at that time found respondents’ home to be a “wonderful and loving environment.” The minor felt secure with respondents and wanted to stay with them. Appellant filed objections to the petition; however, the petition was granted and respondents were appointed the minor’s guardians in August 2005.
In September 2007, respondents petitioned the court to declare the minor free from parental custody and control pursuant to Probate Code section 1516.5 and Family Code sections 7822, subdivision (a) (abandonment) and 7825, subdivision (a) (unfitness due to felony conviction). Concurrently, respondents filed an adoption request. The hearing on the petition was continued twice at the request of the California Department of Social Services, which apparently needed time to file its report.
The hearing commenced in May 2008. No report having been received, the court heard testimony over two days from appellant, respondents and their witnesses on the issues raised by the petition. At the conclusion of the testimony, the court found that freeing the minor from parental custody and control was beneficial to the minor pursuant to Probate Code section 1516.5 and that the minor had been abandoned within the meaning of Family Code section 7822 and terminated parental rights.
DISCUSSION
I. The Appellate Record
At the outset, some discussion of the state of the record on appeal is required. As originally filed in September 2008, the record consisted only of the clerk’s transcript and confidential reports. No reporter’s transcript was available because the proceedings were not reported by a court reporter. In October 2008, appellant informed this court that the proceedings had been electronically recorded and requested this court augment the record with a transcript of the electronic recording. Respondents objected to the transcription and indicated the need for a settled statement, the preparation of which might be facilitated by the electronic recording. The motion was granted although the order did not specify that the transcript should be used to prepare a settled statement. A transcription of the electronic recording was prepared and filed with this court.
Upon inspection it appeared that not only were some portions of the electronic recording unintelligible but portions of the testimony were missing altogether, rendering the transcription useless except as a guide for preparing a settled statement. Appellant was aware of the problem and did not procure a settled statement.
Use of electronic equipment produces an official record only where ordered by the superior court in a limited civil case, or a misdemeanor or an infraction case. (Gov. Code, § 69957.) The transcript produced in this case was not an accurate reflection of the proceedings and there is no settled statement of the testimony and the court’s ruling. Accordingly, our consideration of the issues on appeal are limited to the factual matters that appear in the clerk’s transcript. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellant has responsibility to provide an adequate record or settled statement]; Engasser v. Engasser (1946) 75 Cal.App.2d 80, 82.)
II. Lack of Investigative Report
Appellant contends reversal is required because the court did not have a report as required by Probate Code section 1516.5 and did not comply with the procedures set forth in the Family Code, which also require investigation and a report.
Subdivision (b) of Probate Code section 1516.5 provides that “The court shall appoint a court investigator or other qualified professional to investigate all factors enumerated in subdivision (a). The findings of the investigator or professional regarding those issues shall be included in the written report required pursuant to Section 7851 of the Family Code.”
Probate Code section 1516.5 provides, in pertinent part:
Sections 7800 to 7895 of the Family Code provide procedures and alternate grounds for termination of parental rights. The procedures include notice, appointment of counsel, investigation of the circumstances of the child and preparation of reports. (Fam. Code, §§ 7850, 7851, 7860-7863, 7870-7871, 7880-7884, 7895.) Specifically, Family Code sections 7850 and 7851 require the court to notify a qualified investigator, who is to investigate the circumstances of the child and the facts that may justify termination of parental rights under Family Code sections 7821 to 7829 and file a report with the court for its consideration in ruling on a petition for termination of parental rights.
The record is clear that the court did not appoint a qualified investigator pursuant to either Probate Code section 1516.5 or Family Code section 7851. Thus the required report was never filed. The court erred in failing to follow the statutory procedures. However, this conclusion does not end our inquiry. Where there is a failure to comply with a statutory procedure and there is no consequence for noncompliance, an appellant must demonstrate prejudice to prevail on appeal. (In re M.F. (2008) 161 Cal.App.4th 673, 680; In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.)
Based upon the minutes of the hearings, it appears that the court and the parties believed that a report to be prepared by the California Department of Social Services would suffice. However, that report was triggered by the petition for adoption and had a different, although related, focus. In any case, the adoption report was not filed until after parental rights were terminated.
No prejudice is apparent from the record and appellant demonstrates none. The purpose of the investigation and report required by statute is to provide the court with a full understanding of the factual setting of the petition for termination of parental rights. The prior report for the guardianship petition informed the court of the historical context of the case and the court had a full contested hearing on the matter. The parties were free to place any relevant information before the court in support of or in opposition to the petition for termination. In the absence of a showing of prejudice, reversal for failure to have the statutorily required report is not required.
Cases cited by appellant do not compel a different result. In Neumann v. Melgar (2004) 121 Cal.App.4th 152, the court failed to consider the evidence presented to it and in In re Marcel N. (1991) 235 Cal.App.3d 1007, there was no evidence of current circumstances or the children’s wishes. Here, at the contested hearing, the court did consider all the testimony and documentary evidence presented, including any evidence of current circumstances, in making its decision.
Appellant argues, without citation to authority, that the requirement of the report is jurisdictional. We disagree. There is no indication in the statute that the Legislature intended to strip the court of jurisdiction if the report was not filed. (In re Melinda J., supra, 234 Cal.App.3d at p. 1419.)
III. Sufficiency of Evidence for Termination
Appellant also argues there was insufficient evidence to support a finding to free the minor from parental custody pursuant to Family Code section 7822, which allows termination of parental rights when the child has been abandoned.
Abandonment is only one of the alternative grounds for termination of parental rights relied on in the petition. In the absence of an adequate record, we assume that substantial evidence supported the court’s finding that Family Code section 7822 applied. (Engasser v. Engasser, supra, 75 Cal.App.2d at p. 82.)
In any case, the primary ground for termination, which appellant does not challenge, was Probate Code section 1516.5. “Section 1516.5 authorizes the termination of parental rights after two years of probate guardianship, if adoption by the guardian is in the child’s best interest.” (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1124; Prob. Code, § 1516.5, subd. (a).) It is an alternative to the grounds for termination set forth in the Family Code and does not require proof of parental unfitness, only that adoption by the guardian is in the best interests of the minor, which proof will allow the court to appropriately balance “all the relevant factors arising from the child’s family relationships.” (Guardianship of Ann S., at pp. 1124, 1135-1136.) In the absence of a complete record, we presume that the evidence presented at the hearing adequately showed that the minor would benefit from being adopted by the guardians.
DISPOSITION
The judgment is affirmed.
I concur: CANTIL-SAKAUYE , J.,
I concur in the result: RAYE , Acting P. J.
“(a) A proceeding to have a child declared free from the custody and control of one or both parents may be brought in the guardianship proceeding pursuant to [sections 7800 to 7895] of the Family Code, 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, 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.
“(b) The court shall appoint a court investigator or other qualified professional to investigate all factors enumerated in subdivision (a). The findings of the investigator or professional regarding those issues shall be included in the written report required pursuant to Section 7851 of the Family Code.
“(c) The rights of the parent, including the rights to notice and counsel provided in [sections 7800 to 7895] of the Family Code, shall apply to actions brought pursuant to this section.”