Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. AD77469 Deborah J. Chuang, Judge.
Leslie A. Barry; Sharon Grier, for Petitioners and Appellants.
Jesse McGowan, under appointment by the Court of Appeal, for Objector and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellants are the legal guardians of 10-year-old Scott L. (Scottie). Seeking to adopt Scottie, they petitioned the probate court to terminate the parental rights of his father, respondent Scott L., Sr. (Scott), and his mother, Melinda S. The court denied the petition, but appellants maintain the ruling should be reversed because the court failed to order a pretrial report before hearing their petition. We agree the failure to order a pretrial report was prejudicial error. Therefore, we reverse the judgment and remand for further proceedings.
FACTS
Scottie was born in 2000, while Melinda was in prison. Because Scott was unable to care for him, he was placed in appellants’ care through the Orange County Foster-Adoption Program. Melinda failed to reunify, but Scott completed a reunification plan, and he was granted custody of Scottie in February 2002. At that time, Scott was living with his parents in Tustin, and they helped him support and care for Scottie. Appellants also remained in Scottie’s life, looking after him about half of the time.
In the summer of 2002, Scott’s parents moved to Arizona. After that, Scott lacked stable housing and appellants became Scottie’s primary caretakers. Due to Scott’s housing situation, appellants were leery about having Scottie stay with him for extended periods of time. However, they still encouraged Scott to visit Scottie, which he did from time to time. By the time Scottie started preschool, he was spending about 80 percent of his time with appellants.
In 2006, appellants applied to become Scottie’s legal guardians, so they could enroll him in kindergarten. Their application was granted on September 27, 2006, and since then, Scottie has been living with them on a full-time basis.
In March 2009, when Scottie was eight years old, appellants filed a petition to adopt Scottie. They thought the petition would be unopposed, but when Scott was contacted by a case worker, he said he did not want his son to be adopted. Melinda, who was still incarcerated, did not respond to attempts to contact her.
Given Scott’s position, appellants changed tactics and amended their petition. Rather than relying on parental consent, they alleged Scott and Melinda’s parental rights should be terminated on the grounds of abandonment, pursuant to Family Code section 7822. That section allows for the adoption of a child who has been left in the care of another person for six months without provision for support, or without communication from his parents, with the intent on the part of the parents to abandon the child. (Id., subd. (a)(2).)
In support of their petition, appellants alleged Scott “has been flaky. After initially agreeing to the adoption, he has now decided he is against it[.] Scott had originally signed [a consent form] expressing his acknowledgment and approval [of the adoption].... We feel that he is emotionally regretful but not in touch with his own reality.” Contending it would be in Scottie’s best interests, appellants asked the court to free him from parental custody and control and to grant their petition for adoption. In conjunction with their request, appellants also submitted a copy of an adoption consent form that bears Scott’s signature.
On October 29, 2009, a court investigator filed a report on appellants’ petition. The investigator concluded that grounds for adoption under Family Code section 7822 did not exist since both parents have kept in contact with Scottie. While mother has been incarcerated for most of Scottie’s life, she has kept in touch with him through appellants. And while Scott’s limited resources have prevented him from supporting Scottie financially, he has visited Scottie on a regular basis.
When the investigator asked Scottie where he wanted to live, he said, “I want to live [at appellants’ house] with my mom and dad and visit my mom Melinda and my dad Scott.” Scottie also said he would like to be adopted by appellants, but it was clear to the investigator he did not understand the nature of the proceedings to terminate Scott and Melinda’s parental rights.
Melinda apparently did not understand the nature of the proceedings either. Responding from prison, she told the investigator she did not want her parental rights terminated but would consent to adoption upon her release from prison, which was scheduled for January 2010. For his part, Scott remained steadfast in his opposition to appellants’ adoption request.
Based on all the circumstances, the investigator concluded “it does not appear the parents meet the criteria for termination of parental rights [since Scottie] keeps in regular contact with [them] and wishes to continue to see them. The parents do not appear to have financially provided for [Scottie, ] however, there is no evidence they have physically abandoned [him] in the care of [appellants], which the code requires.”
The investigator also opined that “termination of the parental rights would not be in [Scottie’s] best interest if he wants to remain in contact with his parents. Ideally, if [Scottie] wants to be adopted, the parents would sign consent, with a post-adoption agreement made for continued contact.” However, absent such consent, it was the investigator’s recommendation that appellants’ petition to declare Scottie free from parental custody and control be denied.
No ruling was ever made on appellants’ petition. Instead, appellants hired an attorney who filed a new petition under Probate Code section 1516.5. Pursuant to that section, the court may declare a child free from the custody and control of his parents if the child has been in a guardianship for at least two years and the court determines the child would benefit from being adopted by his guardians. (§ 1516.5, subd. (a).) To facilitate the court in making this determination, a court investigator or other qualified professional must investigate the case and file a written report on the best interests of the child. (Id., subd. (b).)
Unless noted otherwise, all further statutory references are to the Probate Code.
As explained above, there was a report filed in connection with appellants’ Family Code petition back in October 2009. But no report was generated in connection with appellants’ subsequent petition under section 1516.5. That became an issue when the case was called for trial on September 24, 2010. Appellants’ attorney argued the trial should not go forward without a section 1516.5 report. However, the court determined there was no need for another report and commenced trial on appellants’ petition.
At the trial, appellants testified they have dedicated their lives to raising Scottie and love him like a son. In fact, both of them changed their careers so they can spend more time with Scottie. They tend to his daily needs, pick him up from school every day and take him to his baseball games and practices. They also go on long driving vacations with Scottie during the summer.
Appellants claimed Scott has never asked them if Scottie needs anything or how he’s doing in school. And while Scott has offered to chip in a little money toward Scottie’s support from time to time, “$100 here and there, ” appellants have been the boy’s primary financial supporters. They have Scottie on their healthcare plan and see to it that all of his medical needs are met.
Appellants testified they have always had an open relationship with Scott and encouraged him to visit Scottie. However, after Scott’s parents moved away, his living situation became sketchy, and they didn’t want Scottie going over to his place. Therefore, visitation usually takes place at their residence. While Scott usually visits Scottie every couple of weeks, there have been periods where he has gone longer without visiting. As for Melinda, appellants testified that since she was released from prison in January 2010, she has been working at their house on the weekends and sees Scottie during that time.
Although appellants believe Scottie wants to be adopted, and adoption would be the best thing for him, they also acknowledged that Scottie loves Scott and Melinda and it would be beneficial for him to maintain contact with his parents. Therefore, they would encourage continued visitation, even if Scott and Melinda’s parental rights were terminated.
Scott testified that visitation over the last six months has been difficult because appellants have been pushing him away from Scottie. Oftentimes when he calls appellants to arrange a visit with Scottie, they tell him Scottie is not available for one reason or another. Nevertheless, he tries to keep in contact with his son, and when they do see each other, Scottie calls him “dad.”
Contrary to appellants’ suggestion, Scott said he does take an interest in Scottie’s affairs. Despite a limited income, he has also purchased toys and presents for Scottie over the years. And, he has offered appellants money toward Scottie’s financial needs, even though they have never accepted his offers. He suspects this is part of appellants’ effort to slowly edge him out of Scottie’s life. But he said he loves Scottie and wants to spend more time with him. While he recognizes appellants have been a positive influence in Scottie’s life, he does not want Scottie “growing up in somebody else’s backyard.”
Scott said his sister Jennifer is currently one of his roommates. And when he visits with Scottie, she is usually present with her children, and they all get along well. Scott said his family is very supportive of his relationship with Scottie, and he thinks Scottie would benefit by spending more time with them.
Scott said he did not sign any adoption consent agreement, but when pressed on the issue, he conceded he may have signed an agreement without knowing exactly what it entailed. He insisted he would never have signed any agreement or let appellants become Scottie’s legal guardians if he thought it would lead to his parental rights being terminated. Despite the guardianship, he always believed he had legal custody of Scottie, and that’s why he never bothered to set up any type of formal visitation schedule with appellants. He said that was never a problem in the past, but it is now because appellants have become a lot stingier with regard to letting him spend time with Scottie.
Appellant’s sister Jennifer testified that she and her family often spend time with Scottie when he visits Scott. In addition, she and Scottie keep in touch by texting one another. Jennifer testified Scottie was upset over the prospect of being adopted by appellants, and he felt appellants were mad at him for not wanting to change his last name to theirs.
The court issued a lengthy written statement of decision on the matter. The court found appellants are Scottie’s “primary parental figures” and Scottie has acquired a “deep and significant attachment” to them. However, the court found “it is equally evident that Scottie has significant attachments to [Scott and Melinda], and would like to remain in contact with them.” “Based on the circumstances leading to the guardianship, [Scott and Melinda’s] efforts to maintain contact with Scottie, evidence of [Scott’s] commitment to parental responsibilities, and the nature and extent of the relationships between Scottie and [his parents] and Scottie and [appellants], clear and convincing evidence do[es] not support a finding that it is in the best interest of Scottie to be adopted by [appellants].” Therefore, the court denied appellants’ petition to free Scottie from parental custody and control.
DISCUSSION
Appellants contend the trial court prejudicially erred by failing to obtain an investigative report under section 1516.5. We agree.
Section 1516.5 “authorizes the termination of parental rights when [a] guardianship has continued for at least two years, and the court finds that adoption by the guardian[s] would be in the child’s best interest.” (In re Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1118.) “In making this determination, the court shall consider all factors relating to the best interest of the child, ” including the nature and extent of his relationship with 1) his parents, 2) his guardians and members of their family, and 3) any siblings or half-siblings he may have. (§ 1516.5, subd. (a).) Section 1516.5, subdivision (b) requires the court to appoint a court investigator to investigate those factors. The investigator must then “include his or her findings in a written report that conforms to Family Code section 7851.” (§ 1516.5, subd. (b).)
“Family Code section 7851 specifies in subdivision (a) that the investigator ‘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, ’ and mandates in subdivision (b) that the report ‘include all of the following: [¶] (1) A statement that the person making the report explained to the child the nature of the proceeding to end parental custody and control. [¶] (2) A statement of the child’s feelings and thoughts concerning the pending proceeding. [¶] (3) A statement of the child’s attitude towards the child’s parent or parents and particularly whether or not the child would prefer living with his or her parent or parents. [¶] (4) A statement that the child was informed of the child’s right to attend the hearing on the petition and the child’s feelings concerning attending the hearing.’ Subdivision (d) adds that, ‘The court shall receive the report in evidence and shall read and consider its contents in rendering the court’s judgment.’” (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1379.)
In this case, the trial court did not appoint an investigator to look into the factors bearing on the best interests of the child. Consequently, it did not have a report on all the information that the statutory scheme requires it to consider in rendering its decision. Scott argues that doesn’t matter because “all relevant statutory factors were either addressed in the October 2009 report or presented and considered during trial.”
The October 2009 report was filed in response to appellants’ petition to terminate Scott and Melinda’s parental rights under Family Code section 7822. Because that section focuses on the issue of abandonment, the October 2009 report simply discussed whether contact was occurring between Scott and Scottie. It did not discuss the nature or the quality of the contacts. Nor did it discuss the nature and extent of Scottie’s relationship with appellants, the members of their family, or Scottie’s half-siblings. These are all important considerations under section 1516.5. Therefore, it cannot be said the report’s conclusion regarding Scottie’s best interests was based on an analysis of all the appropriate statutory factors.
The record indicates Scott has a daughter from a relationship with a woman other than Melinda.
The report did state that, when interviewed, Scottie said he wanted to be adopted and to be able to continue visiting his parents. However, it was clear to the interviewer that Scottie, then age 9, did not understand the nature of the proceedings. Scottie is now almost 11 years old. It is entirely possible he would have a better understanding of the proceedings and be better able to articulate his preferences in the case if he were interviewed at the present time.
Since the October 2009 report was nearly a year old by the time of trial, and Scottie did not testify at trial, the court did not have any current information from Scottie regarding his feelings and thoughts about the case or his attitude toward his parents and whether or not he would prefer living with them. Nor was there any evidence as to whether the nature of the proceeding was explained to Scottie recently or he was informed of his right to attend the hearing. (Fam. Code, § 7851, subd. (b).) Moreover, there was no evidence presented as to the nature and extent of Scottie’s relationship with members of appellants’ family or his half-siblings. (§ 1516.5, subd. (a).) Therefore, we must disagree with Scott’s contention the trial effectively filled in all the missing gaps that appear in the October 2009 report.
We also disagree with Scott’s argument the failure to obtain a report under section 1516.5 was harmless error. In so arguing, Scott relies on In re Noreen G., supra, 181 Cal.App.4th 1359, but in that case an investigative report was actually prepared and filed under section 1516.5. Although the report was technically deficient for failing to include certain information, including the investigator’s recommendation for disposition of the matter, the investigator testified at trial and the parents were allowed to fully cross-examine her about her investigation and her opinions in the case. Under these circumstances, the trial court “possessed complete and accurate information” about all of the relevant statutory factors, and the deficiencies in the report were deemed to be harmless. (In re Noreen G., supra, 181 Cal.App.4th at p. 1381.)
Here, in contrast, no investigation was ever conducted under section 1516.5, no report was ever prepared under that section, and because of that, no investigator was available to fill in the missing information at trial. Therefore, In re Noreen G. is clearly distinguishable. Because the trial court here did not have “complete and accurate information” about all of the statutory considerations contemplated under section 1516.5, the judgment must be reversed and the matter remanded for compliance with that statute.
DISPOSITION
The judgment is reversed and the matter is remanded for the court to comply with the procedures set forth in section 1516.5.
WE CONCUR: ARONSON, J., IKOLA, J.