Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VAD006463. Lloyd L. Hicks, Judge.
Teri A. Kanefield, under appointment by the Court of Appeal, for Objector and Appellant.
Luke & Barron, Linda A. Luke, for Plaintiff and Respondent.
Gorman Law Office, Seth F. Gorman, under appointment by the Court of Appeal, for Respondent Minor.
Before Vartabedian, Acting P.J., Levy, J., and Dawson, J.
OPINION
J.P. (father) appeals from a judgment terminating his parental rights, on alternative grounds, to his nine-year-old son, B.P. The court found father abandoned B.P. (Fam. Code, § 7822, subd. (a)(2)) and B.P. had been in a probate guardianship for more than two years and adoption by the probate guardians would be in the child’s best interest (Prob. Code, § 1516.5). B.P.’s probate guardians and adoptive parents are his paternal grandmother and her husband (the paternal grandparents).
All statutory references are to the Probate Code unless otherwise indicated.
Father challenges the sufficiency of the evidence to support the abandonment finding, argues section 1516.5 was unconstitutional as applied here, and disputes the trial court’s best interest finding, among other issues. He also joins in arguments raised in mother T.H.’s appeal, case No. F055979, In re B.P.
On review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Prior to the Probate Guardianship
B.P. was born in August 1998. B.P. was mother’s third child, in addition to an adult daughter and a two-year-old daughter, E. For approximately the first year and half of his life, B.P. lived with his parents, first in California and then in Arizona. While in Arizona, father attended a vocational training program paid for by the paternal grandparents. The paternal grandmother would visit periodically, purchase groceries for the family and pick up B.P. for visits.
In January 2000, the parents and B.P. returned to California and moved in with the paternal grandparents. A few months later, the parents and B.P. moved to a residence referred to as the Evans Street house. B.P. then began spending every weekend with the paternal grandparents. The grandmother would purchase and deliver Costco groceries for the parents and B.P. on a weekly basis. In the summer of 2000, B.P.’s younger brother, Z., was born.
Father moved out at some point and the mother remained in the Evans Street house until she was evicted in January 2002. The parents had an on-again, off-again relationship due to some “pretty severe problems” and marked by some rather dramatic breakups. At the time father moved out, he was employed delivering products for a business he called Walco.
By his own admission, appellant was a methamphetamine addict. Usually, in the periods he was not working, he was on drugs. The first such periods he identified were January to June 2001 and December 2001 to April 2002.
When mother was evicted from the Evans Street house in January 2002, she could not take care of her sons and asked the grandparents to take them. There was conflicting evidence regarding how long this lasted. According to the paternal grandmother, at least B.P. stayed with the grandparents until Father’s Day 2002. Neither parent visited during this period that the paternal grandmother could recall. Mother would telephone occasionally and ask the paternal grandmother to bring the boys for a visit. According to mother’s cousin-in-law, mother and the children, including B.P., lived in his home between February and May 2002. In any event, the cousin-in-law did not recall father coming to visit.
Starting in April 2002, father obtained a job as a long-haul trucker for a company called Swift. He drove routes for Swift between April 2002 and February 2003. He was usually on the road for six weeks at a time with four days off in between trips. He testified on several of his four-day breaks he parked his truck in front of the paternal grandparents’ house. “[P]robably twice,” he stayed in the home with them and B.P. there. The paternal grandfather remembered father parked his truck a few times in front of the paternal grandparents’ home. Sometimes the truck would come and go and the paternal grandparents did not see father.
Meanwhile, in late June 2002, the maternal grandmother rented a house on Tipton Street for mother because she could not qualify to rent. The rental agreement listed the maternal grandmother, grandfather and three children as the residents, but not mother.
During the first year mother apparently lived on Tipton Street, B.P. spent varying lengths of time living with the paternal grandparents. Almost immediately after the maternal grandmother rented the Tipton Street house, mother left with father on one of his long-haul trips. B.P. stayed with the paternal grandparents in the meantime.
The parents returned on the day of B.P.’s fourth birthday party. The child was excited to see his parents but did not want to go with them. He became very upset. Mother nevertheless took B.P. from his birthday party to the Tipton Street house for a couple of days but then called the paternal grandparents to come get the child, which they did. The paternal grandparents provided a home for B.P. off and on while mother lived on Tipton Street.
Once mother moved to Tipton Street and while father was still driving long haul trips for Swift, he sometimes would park his truck in front of her house. He remained separated from mother. However, he would occasionally stay with her and “the kids” when he was in town. Father recalled seeing B.P. there towards the end of his employment with Swift. At that time, father was driving shorter routes and would be “home” three times a week.
Father was again out of work between February and December 2003. During that period he was usually on drugs. The record is otherwise largely silent about father during this period.
By her own admission, mother was using methamphetamine “pretty heavily” while living on Tipton Street. Meanwhile, at her request, the paternal grandparents purchased weekly groceries for mother. Although mother received public assistance, any available money she had went for drugs.
By the summer of 2003, the water at the Tipton Street was about to be turned off, the electricity had been turned off, and mother needed someone to pay the bills. The paternal grandparents paid the amount required to keep the water service from being discontinued as well as mother’s past due telephone bill. They also provided ice at her request to keep the weekly groceries they bought from spoiling.
During this period, at mother’s request, the paternal grandparents took B.P. and Z. into their home. B.P. essentially resided with the grandparents ever since and had visits with mother. Although mother’s electrical power was briefly restored, it was turned off again in October 2003. Mother still had no power when she was evicted from the Tipton Street house in December 2003. The maternal grandmother paid hundreds of dollars to settle the landlord’s claims of damage caused during mother’s tenancy. Mother acknowledged that during the end of 2003 and beginning of 2004, she was not “doing too well.” After her eviction, mother moved in with the maternal grandparents.
As mother’s circumstances worsened in the second half of 2003 and B.P. stayed in the paternal grandparents’ home, father had no contact with B.P. according to the grandparents. Father denied this but offered no details. At most, one of mother’s relatives remembered seeing father occasionally at the Tipton Street property between the end of September and Thanksgiving 2003. However, that witness did not testify he saw B.P. on those same occasions. By father’s own admission, he was also not involved in registering B.P. for kindergarten in 2003. There was also no evidence that father ever attended any of B.P.’s school functions or sporting events since the child started school in 2003.
In 2004, according to the paternal grandparents’ evidence, the father did not maintain contact with B.P. Again, father denied this but offered no details. The maternal grandmother testified father visited at her home from January to August 2004 and was at her home at the same time B.P. was there. She described B.P. as always very excited to see father. Any time she saw the two together it was always a very loving relationship. Mother also testified while she lived in the maternal grandmother’s home in 2004, father visited there. Neither woman testified about the number or frequency of father’s visits.
In May 2004, mother and the maternal grandmother moved Z. out of the paternal grandparents’ residence and into the maternal grandmother’s home. Mother wanted to take B.P. as well but he would not go with her and she relented. The boys thereafter visited one another in both the maternal grandmother’s home and the paternal grandparents’ home.
Starting in the end of May 2004, father was again out of work and usually on drugs. In June 2004, he also let his commercial driver’s license expire and did not renew it for approximately 18 months.
Probate Guardianship (Sup. Ct. No. VPR041750)
The trial court took judicial notice (Evid. Code, § 452, subd. (d)) of its file in the probate guardianship proceedings. The appellate record of these proceedings is limited to a clerk’s transcript.
In August 2004, the paternal grandparents petitioned for both temporary and permanent custody of B.P. (§§ 2250 (temp. guard.) & 1510 (perm. guard.).) B.P. over time had become more resistant to staying or visiting with mother. The child was very fearful mother was going to remove him from the grandparents’ home and not allow him to see the grandparents.
The grandparents obtained an ex parte court order for temporary guardianship and letters of temporary guardianship on August 23, 2004. They requested ex parte relief in order to maintain the status quo and based on B.P.’s fear, dating back to the incident on his fourth birthday.
Each parent was personally served with the temporary and permanent guardianship petitions as well as notices of hearing. It took approximately two months to locate and serve father. A court investigator’s efforts to contact father about the probate guardianship petitions were similarly unsuccessful. Father made an appearance at a December 2004 hearing at which he entered a denial. He did not request visitation with B.P. He next attended a hearing on the probate guardianship in September 2007.
Throughout the remainder of 2004, all of 2005, and early 2006, the superior court periodically reissued temporary guardianship orders and letters as to B.P. In March 2006, the superior court granted the paternal grandparents’ petition for a permanent probate guardianship. At or about the same time in 2006, the superior court, exercising its juvenile dependency jurisdiction (Welf. & Inst. Code, § 300), removed the children E. and Z. from parental custody and placed them in foster care for at least a year.
Meanwhile, during B.P.’s temporary probate guardianship, father was twice arrested. In May 2005, in the vicinity of mother’s then current residence, he was arrested for possession of hypodermic needles. In July 2005, father was also arrested in Kern County for a series of theft-related charges, including receiving stolen property. From August 2005 to July 2006, father, by his own admission, was “on the run,” on his own, out of work, and usually on drugs.
Nevertheless, according to father, he had physical contact with mother and the children at a park whenever she was having visits. He also claimed he called mother six or seven times during her supervised visits with the children and spoke with B.P. every time the child attended such a visit. This was apparently during the other children’s dependency.
In July 2006, father was arrested on the Kern County 2005 theft-related charges. He spent five months in jail as a result and was released in December 2006. In exchange for a no contest plea to the receiving stolen property count, the other charges against father were dismissed and he was granted probation.
After father’s release from jail and as a condition of his probation, he entered a drug rehabilitation program. He spent six months in the outpatient program. He also started drug testing in January 2007. That same month he attended two supervised visits with B.P. The paternal grandfather also took B.P. a few times to visit father later in 2007.
Petition to Terminate Parental Rights
In January 2007, the paternal grandparents filed separate petitions to terminate the parental rights and adopt B.P. The face of their termination petition cited Family Code provisions authorizing a private proceeding to terminate parental rights based on a parent’s abandonment of a child for six or more months. The body of the petition also cited to section 1516.5 which, as stated at the outset, authorizes parental rights termination for children in probate guardianships when the guardianship has continued for at least two years and the court finds adoption by the guardian would be in the child’s best interest. There is no dispute on appeal that the paternal grandparents pursued termination of the parents’ rights on both theories. Each parent was personally served with the pleadings soon thereafter.
Court Investigator’s Report
In February 2007, a court investigator filed a report (Fam. Code, § 7851) recommending the court grant the paternal grandparents’ termination of rights petition as it was in the child’s best interests. The investigator’s report detailed separate interviews he conducted with the paternal grandparents, the parents and B.P. Relevant to the issues on appeal, the investigator reported the following as to each individual.
The paternal grandparents, described as concerned grandparents who loved B.P. very much, reportedly never restricted the child’s contact with the parents. They stated they complied with visitation ordered for the mother in the guardianship case and would have allowed the parents telephone and written contact with B.P. had they attempted such contact over the years. The paternal grandparents characterized B.P.’s relationship with his siblings as one a child might have with a cousin.
Father objected to B.P.’s adoption. He attributed his lack of contact with B.P. to being incarcerated from May to November 2006. Before that, he claimed he spoke with B.P. once on the phone in the spring of 2006 during mother’s visit at a child welfare services office. Father did not tell B.P. where he was or when he would see him because he was on the run from police. Regarding his two visits with B.P. in January 2007, father claimed B.P. appeared afraid of the paternal grandfather and would only mouth the words “I love you” to father.
Father claimed B.P. began living with the paternal grandparents to facilitate his being enrolled in a school closer to their home. He stated he allowed B.P. to stay at the paternal grandparents’ home during the week to ease the paternal grandparents’ ability to get the child to school.
According to father, the paternal grandparents filed for temporary guardianship without first discussing the matter with him. He also believed the court granted the guardianship without his knowledge.
Father stated he was participating in an outpatient drug treatment program and parenting classes as well as attending NA/AA meetings as part of a case plan in a juvenile dependency court proceeding involving Z. Father hoped his family could be all together again someday soon.
While interviewing B.P., the investigator asked who was in his family. B.P, who was then eight and a half years old, replied he lived with his grandma and grandpa, he had two sisters and a brother, and he had “‘a lot of Aunts.’” He did not mention either of his birth parents.
When asked how visits with his mother and siblings were going, B.P. answered they “‘don’t go very well.’” He added “‘[a]ll of us fight.’” B.P. also reported he was usually bored during the visits.
If he could live anywhere he chose, B.P. would live with the grandparents. He stated he did not want to live with his mother and would not want to live with his father. On the other hand, B.P. wanted his father to come visit. According to B.P., his mother did not try to call him and he had not wanted to call her. Having the grandparents become his “‘real parents’” sounded like a good idea to B.P.
The court investigator had not determined the veracity of the adults’ allegations against each other. Nevertheless, it appeared it was “certainly in the child’s best interest to remain with the [grandparents], who are his psychological parents.” All of B.P.’s feelings of security and stability were provided by the grandparents. His relationship with his siblings was positive but not significant. He liked to visit with them even though they fought. His relationship with his father was distant. Father historically had chosen not to be involved in the child’s life in any appreciable manner. The child did not regard mother as a parental figure. She chose to be involved since the guardianship and dependency matters had been pending. Neither parent had maintained a traditional parent-child relationship with B.P.
Although the case was originally set for trial in June 2007, trial did not commence until April 2008. The court admitted the court investigator’s 2007 report, among other exhibits, into evidence. The paternal grandparents, parents, and other relatives were among the witnesses. In addition to the evidence summarized above, the court heard testimony from B.P.’s therapist, Dr. Scott Van de Putte.
Dr. Van de Putte’s Testimony
The therapist testified he was a licensed psychologist with a specialty in clinical child psychology. He began seeing B.P. in September 2005 to evaluate and diagnose whether the child had attention deficit hyperactivity disorder (ADHD). The therapist made the diagnosis over a course of weekly visits and referred the child to his medical doctor for medication.
During the ADHD evaluation, it became obvious B.P. had some emotional issues having to do with feelings of insecurity. The therapist suggested to the paternal grandfather that B.P. continue in therapy. These sessions occurred initially on an every other week basis. As therapy continued, the therapist noticed B.P.’s somatic symptoms. The child complained of some stomachaches and headaches. In general, they were related to stress.
Anything stressful would cause B.P. somatic symptoms but, in particular, visitation with mother would sometimes make the child feel stressed out. B.P. voiced a variety of complaints about seeing his mother but generally speaking his concern centered around the fact he felt mother wanted to take him from the grandparents. On approximately five separate occasions, B.P. reported mother told him he would come to live permanently with her. Each time B.P. was stressed about that. He also expressed concern that mother was encouraging him to make negative statements about his grandparents. At some point, B.P. sufficiently improved and felt secure enough that the therapist reduced their appointments to once a month.
B.P. saw the grandparents as his day to day caregivers. His most recent memories of being taken care of and being safe were with the grandparents. His time with the grandparents seemed to have established for him a secure attachment. He looked to them to feel safe and secure as well as to help him understand and make sense of the world. B.P.’s perspective on the attachment was “very strongly positive.”
Asked what would happen if that attachment were broken, the therapist noted children who have previous experiences of abandonment, such as B.P., would tend to have a harder time coping with another loss. B.P. would definitely struggle. If he were placed with someone else, there would be a significant period of adjustment for him that would be very emotionally upsetting. To move him would be very disruptive.
At least 10 or 15 times, B.P. told the therapist he did not want to visit his mother and he wanted to stay with his grandparents. Asked did he feel like B.P. had been coaxed when he makes such statements, the therapist replied he did not feel as though B.P. has been coaxed but acknowledged he had no way of knowing for sure. There was no indication, however, that the paternal grandfather interfered with B.P.’s stated opinions about anything. The therapist did overhear mother make negative comments about the grandparents in B.P.’s presence. She once told B.P. that the grandfather put the thoughts B.P. was expressing into his head. B.P. responded, “No.”
Sometime after October 2007, the therapist starting seeing B.P. with his mother for therapeutic visitation sessions. The visits were to occur in his office so that B.P. would feel safe and function well, rather than continue to have the emotional problems he had been having as a result of the way visitation was previously set. The therapist saw his role as a facilitator of B.P.’s perceptions of safety.
Coming into those visits, B.P. was very angry with his mother. As they had more visits, B.P. has been able to set that anger aside and interact with his mother in a positive way. Every once in awhile, however, he became angry but he tended to recover. The therapist would say “conflicted” is a good description of B.P.’s current relationship with his mother. The therapist could not predict when unsupervised visits might occur. B.P. had been angry at mother for a long time. It could take anywhere from 10 to 20 additional sessions. If it had not happened by then, it probably was not going to happen.
Underneath B.P.’s anger was an abandonment issue on which they had not really touched as yet. In the therapist’s opinion, there was a need to “get through” the anger first before reaching B.P.’s underlying feelings of abandonment by his mother and vulnerability that the child had. A great deal of B.P.’s anger also revolved around his perception of a threat to his relationship with his grandparents.
Asked about B.P.’s feelings towards his younger brother, Z., the therapist responded B.P. loved Z. very much and liked to be around him. B.P. saw his relationship with his brother Z. as the most important relationship in the mother’s family. B.P.’s initial approach to visitation with the mother was he would see her as long as he could see his brother with her. The therapist told B.P. that was a goal toward which they would work and that was why B.P. agreed to the visitation with mother. In what the therapist described as “negotiations” with B.P., the child let the therapist know if had to go back and live with mother, he would give up his brother.
In any event, B.P.’s relationship with the grandparents was more important than that with his younger brother because they were the people B.P. relied on to take care of him emotionally. It would be optimal if he could be with his grandparents and see Z. That would be in B.P.’s best interest. Continued contact with mother also would be in B.P.’s best interest. The therapist later added he did not see anything wrong with B.P. having contact with all of the members of his family.
In this regard, the therapist described two incidents in which he observed B.P. and father together. At Christmas time in 2007, mother had some presents for B.P. in a car. Father was in the car and B.P. gave him a hug when mother, B.P., and the therapist went to retrieve the presents. Due to the positive interaction, the therapist invited father into the office to watch B.P. open the presents. Another time the therapist, mother and B.P. planned a visit at a park where B.P. could play with his brother, Z. During that visit, father appeared and saw B.P. The child gave father a hug and father interacted with the children for awhile. Over the course of B.P.’s therapy, the child never said he was afraid of father.
Closing Arguments
In written closing arguments relevant to this appeal, the parents’ attorneys argued parental fitness was at issue even though section 1516.5 did not expressly require a finding of parental unfitness. As B.P.’s presumed father and natural mother, the parents claimed a constitutionally protected interest in B.P.’s care, custody and control that could not be severed absent a showing of unfitness.
The parents’ attorneys also argued section 1516.5 could not be used to terminate the rights of a parent who remedies the situation that made the guardianship necessary. In turn, counsel claimed the parents were fit to parent B.P. based on their drug rehabilitation and the dependency court order returning the children to parental custody. Alternatively, the parents claimed termination was not in B.P.’s best interest based on the testimony of his therapist.
In July 2007, the superior court apparently terminated its dependency jurisdiction over E. and Z. Based on a mediated agreement, the court awarded joint legal and physical custody of E. to mother and E.’s father. According to mother’s testimony at trial in this case, the court awarded her sole legal and physical custody of Z.
Court’s Decision
The trial court subsequently issued a written decision in which it granted the paternal grandparents’ petition. On the issue of abandonment under Family Code section 7822, the court found by clear and convincing evidence that father intended to and did abandon B.P.
Father had very little contact with B.P. What contact there was was occasional and sporadic. B.P. was too young to develop an effective relationship with father during the period they lived in Arizona. Thereafter, father simply failed to establish any parental relationship and what few contacts father had with B.P. were token. The court also found father failed to support B.P. for repeated periods well in excess of six months. The court further noted the court investigator’s conclusion that it was in B.P.’s best interests to terminate parental rights and be adopted by the paternal grandparents. The court added the therapist had the same opinion.
As for mother, the court concluded she saw B.P. with relative frequency. Although she did not support B.P., mother never intended to abandon the child. Thus, the court could not find she abandoned B.P. pursuant to the Family Code.
By contrast, the court concluded by clear and convincing evidence that the paternal grandparents proved the elements for termination of both parents’ rights under section 1516.5. !(CT 392-393)! The paternal grandparents had legal and continuous physical custody of B.P. under the probate guardianship for nearly four years. In concluding it was in B.P.’s best interests to be adopted by the paternal grandparents, the court also made the following express findings. B.P. considered them to be his parents. His only stable and secure attachment was with them. B.P. was angry with his mother, felt abandoned by her, and was subjected to fear, stress and insecurity when around her. She admittedly left B.P. with the grandparents for stability. In addition, B.P. did not have significant relationships with his female siblings. He did wish to spend more time with his brother, Z., but, particularly of late, was prevented from doing so by mother. B.P. preferred staying with the grandparents at the expense of a better relationship with Z.
Last, the trial court addressed the constitutional question regarding section 1516.5. Citing Quillon v. Walcott (1978) 434 U.S. 246 and Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), the court found neither parent made the necessary commitment to provide a stable, secure environment for B.P. nor did either parent develop a true parental relationship with B.P. Consequently, there was no constitutionally protected interest involved. A finding of parental unfitness was therefore unnecessary. Alternatively, the court found the parents unfit.
DISCUSSION
I. Preliminary Issues
Appointed Counsel for B.P.
The trial court appointed an attorney to represent B.P. in these termination proceedings pursuant to Family Code sections 3150 and 3151. Family Code section 3150 recognizes a trial court’s discretion, in a custody or visitation proceeding, to appoint private counsel to represent a child’s interests if it would be in the child’s best interest. Family Code section 3151 spells out such an attorney’s duties. The trial court was not at all convinced B.P.’s interests required the appointment of counsel. Nonetheless the court made the appointment at the request of the other attorneys to avoid a potential appellate issue. Ironically, father seeks to create an issue out of this situation.
In private termination proceedings, the court shall consider whether a child’s interests require such an appointment and if so, shall make the appointment. (Fam. Code, § 7861.)
When the time came for closing arguments, B.P.’s private counsel missed the deadline set by the court for filing his written argument regarding the child’s best interests. He filed his argument more than a week after the court rendered its tentative decision which was later reduced to the judgment in this case. In his written argument, B.P.’s private counsel urged, based on his view of the trial testimony, it would be in the child’s best interest to maintain the probate guardianship but not terminate parental rights.
Throughout his appeal, father relies on the private counsel’s position to argue there was insufficient evidence to support the judgment. We are not so persuaded given private counsel’s untimely brief and the fact the court did not have the benefit of it when the matter was deemed submitted. There is also no indication that father ever attempted to reopen the matter based on the private counsel’s belated filing. Perhaps more importantly, father fails to cite any authority, and we know of none, that characterizes the private counsel’s view of the trial evidence as somehow more compelling than the trial court’s own fact and credibility determinations. Father further does not cite any authority so as to require the trial court to alter its tentative decision based on private counsel’s belated position.
Father also makes an unsubstantiated claim that B.P.’s trial counsel was his guardian ad litem and impliedly calls into question the authority of the attorney, whom this court appointed, to represent B.P.’s legal interest on appeal. Appellate counsel filed a brief in support of the trial court’s judgment. Father fails to provide either any record citation or legal authority to support his claim that B.P.’s private counsel was also his guardian ad litem.
Code of Civil Procedure section 372 does require, with rare exceptions, that a child who is a party to a suit must appear through a guardian ad litem or similar representative. (In re Josiah Z. (2005) 36 Cal.4th 664, 678.) However, the statutory schemes of private termination proceedings under the Family Code and section 1516.5 do not characterize the child as a party. Also, this was not a case in which federal law required the trial court to appoint a guardian ad litem for B.P. (In re Josiah Z., supra, 36 Cal.4th at pp. 679-680.)
Court’s Characterization of Therapist Testimony
Father also contends the court made an inadvertent mistake which permeates its decision when it stated the therapist shared the court investigator’s opinion that termination of parental rights and adoption by the paternal grandparents was in B.P.’s best interest. Father notes the therapist never explicitly testified that terminating parental rights was in B.P.’s best interests. Relying on the therapist’s testimony that continued contact with mother and Z. served B.P.’s best interest, father contends the trial court made an inadvertent but material mistake such that the court’s decision is an improvident one. The solution, in father’s view, is to reverse and remand so that the trial court may correct its mistake and reconsider the issue. We disagree.
The trial court’s reasoning is not a matter for this court’s review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Nat. Trust & Savings Assn. (1932) 123 Cal.App. 564, 567.) In any event, although no one ever asked for nor did the therapist volunteer an express opinion that termination was in B.P.’s best interests, the trial court reasonably could conclude based on the therapist’s testimony, as well as the court investigator’s report, that termination was in B.P.’s best interest.
The therapist’s opinion that B.P.’s continuing contact with mother or other members of his birth family would serve the child’s best interest did not necessarily contradict the child’s best interest in favor of termination. In the therapist’s view, it would be optimal if B.P. could remain with the paternal grandparents and see his brother Z. The child saw his relationship with Z. as the most important relationship in mother’s family. The therapist expressly recommended against increased or unsupervised visitation with mother. The therapist further referenced open adoption in which contact with the birth family could be maintained as an option.
II. Court’s Abandonment Finding as to Father
Father contends there was insufficient evidence to support the trial court’s conclusion that he abandoned B.P. within the meaning of Family Code section 7822, subdivision (a)(2). He breaks down his argument in terms in time. First, he argues he did not abandon B.P. before August 2004 when the probate guardianship proceedings commenced. He claims there was evidence he was present during many of the visits mother had with B.P. sufficient to refute the grandparents’ claim of abandonment. Next, assuming we agree with his first claim, father further argues that even if there were six month periods subsequent to the paternal grandparents’ commencement of the probate guardianship in which he did not make contact with B.P., we should not consider such evidence to affirm the trial court for a variety of reasons.
A court may declare a child free from parental custody and control if the court finds by clear and convincing evidence (Fam. Code, § 7821) that “the child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.” (Fam. Code § 7822, subd. (a)(2).) Here, the court found father, but not mother, abandoned B.P. within the meaning of Family Code, section 7822, subdivision (a)(2).
Because the court could not find B.P. had been “left by both parents,” the question arises whether the trial court’s finding that father abandoned B.P. pursuant to Family Code, section 7822, subdivision (a)(2) could serve any legal purpose. (See In re Lisa R. (1975) 13 Cal.3d 636, 646-7.) We note in this regard that the other Family Code grounds for declaring a child free from parental custody and control refer to the qualifying conduct of “either or both parents” or “[a child’s] parent or parents” (see Fam. Code, § 7823 [neglect or cruel treatment], 7824 [a disability due to alcohol or controlled substances], 7825[convicted of a certain felony], 7826 [developmentally disabled or mentally ill] & 7827 [mentally disabled].) Under these grounds, a court clearly could find a separate ground for termination as to each parent. However, Family Code section 7822, subdivision (a)(2) expressly describes an abandonment by “both parents or the sole parent.” This legislative choice of language has previously led the California Supreme Court to observe it would be necessary for a court to find abandonment by both parents. (In re Lisa R., supra, 13 Cal.3d at pp. 646-7.)
None of the parties have addressed this issue on appeal and we need not resolve it here. Because the trial court also found an alternative basis, under section 1516.5, to terminate both parents’ rights, the trial court’s abandonment finding is essentially a moot point (City of Los Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 958) such that we need not address appellant’s argument against the court’s abandonment finding in order to resolve this appeal.
Were it appropriate and incumbent upon us to review the abandonment finding for substantial evidence, we would not hesitate to affirm it. Father’s argument that he was present when the mother visited B.P. prior to the probate guardianship fails in large part because he misstates the record. While he specifically cites to the testimony of three witnesses, their testimony, whether considered separately or in combination, do not support father’s claim of presence during many visits mother had with B.P. His argument also ignores the substantial evidence rule. All evidentiary conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. Issues of fact and credibility are matters for the trial court alone. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
III. Section 1516.5
As previously mentioned, section 1516.5 authorizes the termination of parental rights for children in probate guardianships when the guardianship has continued for at least two years and the court finds adoption by the guardian would be in the child’s best interest. The role, if any, of parental fitness in a section 1516.5 proceeding was pending before the California Supreme Court when this case went to trial and indeed through the early stages of this appeal. Consequently, in the trial court and in his opening brief to this court, father argued that, absent an element of parental unfitness, section 1516.5 was unconstitutional and the trial court erred as a matter of law by concluding he and mother did not have a constitutionally protected interest in B.P. In March 2009, the court issued its decision in companion cases, Ann S., supra, 45 Cal.4th 1110 and In re Charlotte D. (2009) 45 Cal.4th 1140 (Charlotte D.) essentially rejecting each of father’s claims.
Section 1516.5 specifically states:
In Ann S., the court rejected a parent’s claim that section 1516.5 was unconstitutional on its face because it authorizes a parental rights termination without a showing that the parent is currently unfit. (Ann S., supra, 45 Cal.4th at p. 1118, 1126-1136.) In summary, Ann S. held:
“[g]enerally, due process requires some showing of parental unfitness before rights are terminated, to protect the parent’s fundamental interest in child custody. However, it is settled that a showing of current unfitness is not always necessary when a court terminates parental rights. Section 1516.5 applies to parents whose custody rights have been suspended during a probate guardianship. A termination proceeding under this statute occurs only when the parent has failed to exercise any custodial responsibility for a two-year period, with the possible exception of visitation. In this context, it would make little sense to require a showing that the parent is currently unfit. As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child. Section 1516.5 appropriately requires the court to balance all the familial interests in deciding what is best for the child.” (Id. at p. 1118, italics in original.)
Ann S. observed in limited circumstances the court had held a child’s best interest could not justify terminating the rights of a parent who has demonstrated a full commitment to parental responsibility, but whose efforts to secure custody have been thwarted. (Ann S., supra, 45 Cal.4th at pp. 1130.) However, a prolonged guardianship, during which all parental rights and custodial responsibilities are suspended, with the possible exception of visitation rights, was generally inconsistent with a full commitment to parental responsibilities - - emotional, financial, and otherwise. (Ann S., supra, 45 Cal.4th at pp. 1130-1132, citing Kelsey S., supra, 1 Cal.4th at p. 849.)
Ann S. acknowledged imaginable scenarios existed
“in which a fully responsible parent might find it necessary to place a child in guardianship and, despite maintaining a parental commitment as full as the circumstances permit, eventually face a termination proceeding under section 1516.5. Mother posits the plight of a single mother in the National Guard, called to duty overseas, and unable to reclaim custody for two years.” (Ann S., supra, 45 Cal.4th at p. 1132.)
However, the Court would not consider invalidating section 1516.5 simply based on some hypothetical situation. (Ann S., supra, 45 Cal.4th at p. 1132.) The court made two additional observations. One, the section’s requirement that the court consider “all factors relating to the best interest of the child” (§ 1516.5, subd. (a)(3)) included 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. Two, the court noted with reference to its companion case, Charlotte D., supra, that section 1516.5 was open to constitutional challenge as applied to particular parents. (Ann S., supra, 45 Cal.4th at p. 1132.)
In Charlotte D., an appellate court had held section 1516.5 unconstitutional as applied to unwed fathers who have demonstrated a full commitment to parental responsibility, under Kelsey S., and remanded for the trial court to determine whether the father in that case could show the necessary commitment to parental responsibility. (Charlotte D., supra, 45 Cal.4th at p. 1142.) The California Supreme Court reversed, ruling the father was ineligible for Kelsey S. protection. (Id. at pp. 1142-1143.) It nevertheless held section 1516.5 was open to constitutional challenge as applied to an individual parent, observing:
“[t]here may be a case in which a parent who has made the kind of commitment to parental responsibility contemplated in Kelsey S. finds it necessary to place a child in probate guardianship for an extended period, and thereafter faces the termination of his or her parental rights under section 1516.5.” (Charlotte D., supra, 45 Cal.4th at p. 1143.)
It was conceivable a parent in a section 1516.5 proceeding would be in a position to assert “a due process claim based on a showing analogous to the one we outlined in Kelsey S.” (Charlotte D., supra, 45 Cal.4th at pp. 1143 & 1148.) The court explained as follows.
“Due process requires ‘“some showing of unfitness”’ before a custodial parent's rights are terminated. (Quillon v. Walcott [, supra, ] 434 U.S. [at p.] 255; see Ann S., supra, 45 Cal.4th at p. 1130.) In Kelsey S., we extended that protection to the natural father who lacks custody but ‘promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise.’ (Kelsey S., supra, 1 Cal.4th at p. 849.) ‘In particular, the father must demonstrate “a willingness himself to assume full custody of the child—not merely to block adoption by others.” [Citation.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.’ (Charlotte D., supra, 45 Cal.4th at p. 1148.)
It seemed unlikely to the court that a trial court would find it in a child’s best interest under section 1516.5 to terminate the rights of a fully committed, responsible, and capable parent who found an extended probate guardianship unavoidable under exigent circumstances. “Nevertheless, factors similar to those set out in Kelsey S. for evaluating commitment to parental responsibility might support a parent’s claim that the best interest of the child standard is unconstitutional as applied to him or her.” (Charlotte D., supra, 45 Cal.4th at p. 1148-1149.)
IV. Constitutionality of Section 1516.5 as Applied to Father
Father contends, for the first time on appeal, section 1516.5 is unconstitutional as applied to this case. He does not claim the status of a fully committed, responsible, and capable parent pursuant to Charlotte D., supra. Instead, father argues it was unconstitutional to proceed pursuant to section 1516.5 in this case because, according to him, there was substantial evidence the paternal grandparents actively interfered with the parents’ relationship with B.P. as well as actively prevented the parents from visiting and regaining custody of B.P. and alienated B.P. from the parents. Put another way, father contends proof that a guardian actively prevented a parent from visiting or regaining custody or actively interfered with the parent/child relationship during the probate guardianship should invalidate section 1516.5’s two-year requirement, and proof that a guardian actively alienates a child from his parents should negate any showing under the section’s best interest requirement.
We do not decide here the merits of father’s legal issues, that is, whether the proof he alleges either would render section 1516.5 unconstitutional as applied or would invalidate or disprove the elements of a section 1516.5 petition. Those issues depend on an evidentiary showing that is lacking in this case, as discussed below. Any analysis on our part therefore would be dicta. Consequently, father’s legal issues are not properly before us.
In addition, father devotes most of his advocacy to rearguing conflicting evidence regarding mother and the paternal grandparents. This appears to be little more than a boot strapping effort on father’s part given the dearth of evidence regarding the nature of father’s relationship with B.P. or effort on father’s part to visit and regain custody of the child. Nevertheless, in the mother’s appeal, we rejected her claims over the likelihood of her regaining custody as well as that the parental grandparents thwarted her visitation with B.P. and alienated B.P. from her. Consequently, in this appeal we have focused our review on the evidence as it relates, not to mother, but to father and the paternal grandparents. We conclude father’s claims about the paternal grandparents’ conduct towards him are meritless.
A.
Father starts by criticizing the paternal grandparents’ ex parte request for a temporary probate guardianship. We fail to see how the paternal grandparents’ August 2004 ex parte request prevented father from regaining custody or actively interfered with his relationship. The court only issued a temporary guardianship order as a result and the temporary guardianship had to be periodically renewed. Father never came to court before March 2006, when the court issued its permanent guardianship order, to litigate the necessity of the temporary guardianship.
B.
Father also points to testimony by the paternal grandfather that he switched his home telephone line with his fax phone as proof that the paternal grandparents prevented or at least did not facilitate visits between father and B.P. Father leaves out many details that fatally undermine this contention.
First, there was no evidence that father ever telephoned the paternal grandparents during the probate guardianship to request or set up visits with B.P. Second, the paternal grandfather switched his home telephone and fax numbers in response to threatening, vile, and obscene messages father left on the home telephone for the paternal grandmother. It was undisputed that father’s calls were not to make contact with B.P. Third, the lines were not switched for the duration of the probate guardianship. Rather, the paternal grandfather switched the lines “a little over a year ago” or sometime during the first quarter of 2007 after the latest obscene call. Finally, father ignores other evidence contradicting his claim. Paternal grandfather had a cellular phone with the same number for five or six years, maybe longer, which the parents had previously used. Also, the paternal grandparents lived in the same house for years, both before and during the probate guardianship proceedings. Under these circumstances, we are not persuaded by father’s reliance of the phone and fax lines switching evidence as proof the paternal grandparents prevented him from visiting B.P.
C.
In addition, father relies on a claim he made in 2005 for the proposition that whenever he attempted to arrange a visit with B.P., the paternal grandfather refused to allow him to visit. Again, father misstates the evidence.
By way of background, a social worker, Juan Esparza, was assigned the paternal grandparents’ probate guardianship petition in 2004 to investigate on behalf of the court. In the process he wrote three reports. The third report filed in March 2005 contained the following statement:
These reports were part of the probate guardianship file of which the trial court took judicial notice. They were also marked and received as exhibits at trial.
“[Father] informed this worker that whenever he has attempted to arrange a visit with [B.P.], [Paternal grandfather] has frequently refused to allow a visit at the maternal grandparent’s home. [Father] continued to state that [paternal grandfather] usually dictates where and when the visits are to occur.”
Assuming father was to be believed, the paternal grandfather’s acts of refusing to allow a visit at the maternal grandmother’s home or setting the time and place for visits did not constitute an outright refusal to allow father to visit B.P. In any event, the trial court could have determined father’s statement to Esparza was not credible. The following information was also relayed by father and contained in the March 2005 report.
“The biological father informed this worker that he has not used any illegal drugs for at least five (5) years. The father indicated that because he has a class A drivers license, he is subject to random drug tests from his job.”
However, each of these claims was refuted by father’s own trial testimony. First, father testified he usually was on drugs, namely methamphetamine, when he was not working and he did not work for periods totaling more than two and a half of the five years before his March 2005 statement to Esparza. In addition, father let his commercial driver’s license expire in June 2004 and did not renew until December 2006. Furthermore, his previous long-haul trucking job ended in February 2003.
D.
Father also cites to another statement contained in the social worker’s March 2005 report. “[Z.] stated that he becomes very upset when his paternal grandfather[] tells [him] that his biological mother and father are no longer his parents.” Father assumes if the grandparents said this to Z., they no doubt said it to B.P. In so arguing, father ignores the conflicting evidence on this point. The paternal grandfather expressly denied at trial ever telling Z., or B.P. for that matter, the biological parents were no longer the child’s parents. Father also overlooks the rules of appellate review, that is, all conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. (In re Laura F., supra, 33 Cal.3d at p. 833.) Father’s assumption does not amount to a reasonable inference.
E.
Father quotes from the social worker Esparza’s 2008 testimony as proof that the paternal grandfather coached and “cowed” B.P. so as to alienate him from father. Having reviewed the social worker’s testimony as well as all of his reports, we are not persuaded by father’s claim.
Notably, in the three reports he wrote between September 2004 and March 2005, Esparza made no reference to any inappropriate coaching by the paternal grandfather. Indeed, in the social worker’s first two reports, he recommended the court grant the paternal grandparents’ probate guardianship petition.
According to his first report, Esparza visited the paternal grandparents’ home in September 2004 as well as interviewed them and B.P. Then, in November 2004, the social worker interviewed B.P.’s younger brother, Z., because the paternal grandparents had also requested guardianship of him. This led Esparza to amend his first report, by inserting that Z. was in the maternal grandmother’s exclusive care, including a paragraph about his observation of Z., and stating he had been unable to contact mother about the petition regarding Z. Otherwise, his amended report to the court filed in December 2004, was identical to his original report.
Esparza amended his original report one more time in March 2005 after he conducted an evaluation of the maternal grandmother’s home. This time Esparza recommended the probate guardianship petition be denied. It was his opinion the family should be reunited. This apparently concluded Esparza’s involvement in the probate guardianship proceedings.
Three years later, Esparza was called as father’s witness at trial. Referring to his March 2005 second amended report, Esparza testified that in conducting his investigation he talked to both paternal grandparents, but primarily the paternal grandfather, as well as to B.P. and Z. at the paternal grandparents’ home. He asked to speak to the boys separately from the paternal grandfather because:
“Well, because [R.] would always interject things like, for example, an incident that happened in Arizona, how the police were called out, and he was -- he mentioned to the boys, now tell ‘em about the incident that happened with the police they were called out, and tell him about this other incident.
“And so the boys they kind of seemed kind of nervous or kind of -- they didn’t really want to say nothing. So I took them away from [R.] and [S.] into another room with an open door, and I just asked them. And they were -- the boys seemed a little vague. Really didn’t want to talk about it. I didn’t push the issue.”
The social worker apparently made a gesture as to how Z. reacted which father’s counsel later characterized as “kind of a cowed expression.” The court responded counsel could characterize it however she wished but the expression was impossible to put on the record.
Esparza formed an opinion that the paternal grandfather was coaxing the boys to say bad things about the parents. The paternal grandfather did not express any objection to the social worker’s taking the boys to another room although the paternal grandfather did appear concerned.
Despite this memory of an event not recorded in any of his written reports to the court, Esparza testified at various points during cross-examination that he did not know or remember certain details of his investigation. For instance, he testified he could not recall if he spoke with mother more than once even though his three reports suggested he spoke with her three times. Once he offered that he did not keep notes. Another time he testified,“I had a bunch of notes. I may have overlooked my prior notes.” Asked if he did any additional investigation between his first and second report, Esparza could not recall exactly what he did but he did interview Z.
On this record, we conclude the trial court properly may have given little, if any, weight to Esparza’s testimony and it is not within this court’s authority to reweigh the evidence. (In re Laura F., supra, 33 Cal.3d at p. 833.)His written reports contained no reference to this incident and indeed gave no indication that he ever interviewed the boys together. Instead, they disclose Esparza interviewed B.P. once in September 2004. The social worker thereafter interviewed Z. in November 2004 and March 2005. The social worker also admitted he did not remember some details of his investigation. In addition, he made conflicting statements regarding whether he had notes or kept notes.
F.
In conclusion, father ignores the fact that neither he nor anyone else ever testified that the paternal grandparents interfered with his relationship with B.P., prevented him from visiting the child, or alienated the child from him. Instead, he misstates and cherry picks the record to support his claim.
Father also discounts the testimony of B.P.’s therapist. The therapist testified he could not say that any relative was alienating B.P. as to another relative. In particular, the therapist who had been counseling B.P. for over two years had seen no indication that the paternal grandfather had interfered with B.P.’s stated opinions about anything. Although he had no way of knowing for certain, the therapist did not feel as though B.P. had been coaxed.
Further, father disregards the evidence of choices he made, especially during the probate guardianship, which rendered him unavailable to B.P. Father’s choices include his essential default throughout the probate guardianship until after the termination case was set for trial, his drug addiction, his criminal activity and his decision to go on-the-run for roughly a year.
Finally, he overlooks the undisputed evidence that, through all of this, B.P. remained affectionate towards him and happy to see him on the few occasions father had contact with the child. This alone strongly undermines father’s argument of interference and alienation.
V. Father’s Reconstruction of Section 1516.5
Father further contends that section 1516.5 should only apply to parents who refuse to rehabilitate. He points to an example given by the legislative sponsor of section 1516.5:
“where a drug addicted mother gives the child in guardianship, hoping to get herself rehabilitated but repeatedly fail[s], creating a situation where the child is in the custody of the guardian for years without being in the foster care system.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 182 (2003–2004 Reg. Sess.) as amended Mar. 26, 2003, p. 8.)
We are not persuaded.
In determining statutory intent, we look first to the language of a statute, giving effect to its plain meaning. (Burden v. Snowden (1992) 2 Cal.4th 556, 565.) Section 1516.5 does not limit its application to parents who refuse to rehabilitate. Also, nothing in section 1516.5 suggests a showing of current parental fitness would necessarily bar a finding that adoption by the guardian would be in the child’s best interest. (Ann S., supra, 45 Cal.4th at p. 1133, fn. 15.)
Father’s argument also fails to account for the competing interests of B.P. and the paternal grandparents. As the court observed in Ann S., supra, 45 Cal.4th at p. 1136,
“After years of guardianship, the child has a fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver. [(Citations.)] The guardian, after fulfilling a parental role for an extended period, has also developed substantial interests that the law recognizes. [(Citations.)]”
VI. B.P.’s Best Interest
Father alternatively challenges the trial court’s finding that B.P. would benefit from adoption by the paternal grandparents. According to father, B.P.’s close relationship with his brother, Z., was sufficient to defeat a best interest finding. We conclude there was substantial evidence to support the trial court’s finding.
Section 1516.5 directs the court, in making a benefit determination, to 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; and (c) the child and any siblings or half siblings. In Ann S., supra, 45 Cal.4th at page 1136, the court added the best interest standard allows a trial court to appropriately balance all the relevant factors arising from the child’s family relationships.
The appellate record contains substantial evidence to support the court’s finding that adoption by the grandparents was in B.P.’s best interest. There was the court investigator’s 2007 report as well as the therapist’s testimony which addressed the factors outlined in section 1516.5, subdivision (a)(3) and supported the court’s best interest determination.
In addition, the evidence supported the court’s factual findings on this point. B.P.’s only stable and secure attachment was with the grandparents. B.P. was angry with mother, felt abandoned by her, and had been subjected to fear, stress and insecurity when around her. His relationship with father was minimal. B.P. did not have significant relationships with his female siblings. He did wish to spend more time with his brother, Z., but, particularly of late, was prevented from doing so by mother. B.P. preferred staying with the grandparents at the expense of a better relationship with Z.
Father interprets the court’s factual finding regarding Z. to mean B.P. had no significant relationship with his younger brother which father in turn attacks. Again, father misinterprets the appellate record. The court acknowledged B.P.’s relationship with Z. However, the court properly could find the child’s relationship with the paternal grandparents was a more significant relationship to the child. On this record, it is clear the court balanced all the relevant factors arising from B.P.’s family relationships. (Ann S., supra, 45 Cal.4th at p. 1136.)
Although father assumes the termination of his rights is the death knell for any ongoing sibling relationship, father’s assumption is speculative in our view. There was no dispute that the paternal grandparents care for Z. and would like him to come and visit. There was no evidence that they were opposed to the boys having ongoing contact. Indeed, the paternal grandfather expressly testified there would not be any trouble at all if B.P. wanted to see his siblings.
VII. Father’s Joinder
Last, father joined in mother’s appeal and the issues she argues. In our opinion on that appeal, we have rejected each of her claims as meritless.
DISPOSITION
The judgment terminating parental rights is affirmed.
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 a juvenile dependency proceeding. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1133; Ann S.) Most notably, in a termination proceeding under section 1516.5, a showing of parental unfitness is not constitutionally required. (Id. at p. 1118.)
“(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 Part 4 (commencing with Section 7800) of Division 12 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.”