Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VAD006463, Lloyd L. Hicks, Judge.
Linda J. Conrad, under appointment by the Court of Appeal, for Objector and Appellant.
Luke & Barron and Linda A. Luke, for Petitioners and Respondents.
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
T.H. (mother) appeals from an order terminating parental rights to her son, B.P., pursuant to Probate Code section 1516.5. 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. 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.).) In a termination proceeding under section 1516.5, a showing of parental unfitness is not constitutionally required. (Id. at p. 1118.)
All statutory references are to the Probate Code unless otherwise indicated.
Mother contends section 1516.5 is nonetheless unconstitutional as applied in this case because: there was no prior showing of her unfitness when the guardianship was granted; and she either made a full commitment to her son or was thwarted from doing so by his guardians, the child’s paternal grandparents. According to mother, the grandparents interfered with her efforts to visit with B.P. and alienated the child from her. For similar reasons, she also argues the court’s best interest finding was not supported by substantial evidence. In addition, she joins in arguments raised by B.P.’s father in his appeal (F055919, In re B.P.) from the termination order.
On review, we affirm.
PROCEDURAL AND FACTUAL HISTORY
B.P. was born in August 1998 to mother and J.P. (father). B.P. was mother’s third child, in addition to an adult daughter and two-year-old daughter E. In 2000, B.P.’s brother, Z., was born. Father and mother had an on-again, off-again relationship, fueled in part by their substance abuse. Since roughly 2001, father has had very little contact with B.P.
From the outset, however, father’s mother, S.N., and stepfather, R.N., (the grandparents) were concerned grandparents and self-proclaimed enablers who have helped B.P. and his family for years. At first the parents and later mother, on her own, left B.P. in the grandparents’ care for varying lengths of time. The grandparents also periodically bought groceries, diapers and clothing for the family. However, even when B.P. was with mother, she did not support him. Although she received public assistance, any available money went for drugs. It was customary for the grandparents to feed B.P. and his younger brother because there was frequently no food in mother’s home.
By the summer of 2003, B.P., and to a lesser extent his younger brother, Z., were spending at least as much, if not more, time in the grandparents’ care than with mother. At this point, the grandparents provided mother weekly groceries at her request as well as paid utility bills for her on more than one occasion when services were cancelled. The maternal grandmother also repeatedly came to mother’s assistance over the years, by paying her bills and providing her housing. Mother later admitted she left B.P. with the grandparents for the sake of stability when she had “housing problems,” that is she was being evicted and the electricity had been cut-off.
Around the same time, mother failed to register B.P. for kindergarten despite her promises to do so. She eventually agreed to the grandparents’ enrollment of B.P. at an elementary school in the grandparents’ area. Consequently, by the start of kindergarten in 2003, B.P. was essentially living in the grandparents’ home.
Throughout this period and on into 2004, mother saw B.P. with relative frequency. The court later would characterize this as a “commendable effort by the [grandparents] to allow her to see B.P. when she wanted to.”
Then, in May 2004, mother took Z., who also was living in the grandparents’ home, to live in the maternal grandmother’s home. Mother wanted to take B.P. as well but he would not go with her and she relented.
Probate Guardianship Proceedings (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 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. B.P. had been living with the grandparents for many months when the parents came to his fourth birthday party in August 2002. The parents
“snatched him, and took him away kicking and screaming saying that it was time that he live with his parents. They later returned him but [B.P.] has never forgotten that and has hated leaving home to see them ever since, constantly needing reassurance that he will return and that he will not be taken away.”
Each parent was personally served with the temporary and permanent guardianship petitions as well as notices of hearing. Mother was personally served within a matter of days while it took approximately two months to locate and serve father. He made an appearance at a December 2004 hearing at which he entered a denial. It appears mother did not personally appear in the proceedings until the summer 2005 when an attorney, recently retained on her behalf, filed a motion for visitation.
He next attended a hearing on the probate guardianship in September 2007.
There are no minute orders, until June 27, 2005, reflecting mother’s appearance or attendance at any hearing. However, mother testified at trial that she did appear by herself at the first hearing to oppose the petition. The record does reveal a court investigator interviewed mother in the later part of September 2004. In that interview, she voiced her opposition to the grandparents’ petition and her love for her children. On October 4, 2004, mother also attended a court-ordered mediation session. Further, there was an October 4, 2004, order for mother to attend drug/alcohol and domestic violence assessments. She did not enroll for services and have an intake appointment, however, until August 2005.
Mother’s absence from the early stages of the guardianship proceedings may be explained by criminal court records of which the court was asked to take judicial notice. In early September 2004, mother was convicted of petty theft (Pen. Code, § 484), only to be charged a month later with felony petty theft with a prior (Pen. Code, § 666), an offense which allegedly occurred September 28, 2004. She pled no contest to the felony at a January 2005 preliminary hearing. In March 2005, the court sentenced her to three years of felony probation and 180 days in local custody. Although the court stayed execution of the sentence to mid-April 2005, mother apparently failed to appear, leading the court to issue a bench warrant.
Meanwhile, 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 2005, the maternal grandmother petitioned for guardianship of both B.P. and Z. She too wished to keep the boys living together.
The grandparents in their August 2004 petition also sought guardianship over Z. in order to permit the boys to maintain their relationship. As previously noted, Z. had been living with the maternal grandmother and her husband since May 2004. Eventually, the competing requests for guardianship over Z. were withdrawn.
In mid-2005, the court presiding over the probate guardianship issued a visitation order. According to a July 2005 minute order,
“Both boys shall be with the [grandparents] on Saturdays and Sundays and with their mother two days during the week. The boys are to sleep at [the maternal grandmother’s] home. The receiving parent shall pick the children up. All parties are not to speak negative about the other.”
Trial on the various guardianship petitions was repeatedly continued for a variety of reasons into 2006.
Juvenile Dependency Proceeding for B.P.’s Siblings (Sup. Ct. Nos. JJV060516A & B)
Meanwhile, in January 2006, child welfare services in Tulare County (CWS) filed a juvenile dependency petition (Welf. & Inst. Code, § 300) on behalf of E. and Z. The children’s maternal grandfather allegedly struck Z. with a belt, causing a bruise. E. and Z. were apparently detained and dependency proceedings in the juvenile court were initiated.
At a February 2006 detention hearing for E. and Z., the judge presiding over the dependency case (the dependency judge) heard testimony from B.P. as well as E. and Z. The grandparents in turn sought: disclosure of dependency records (Welf. & Inst. Code, § 827) for use in the probate guardianship to craft appropriate visitation orders; and consolidation of the guardianship and dependency proceedings for reasons of judicial economy. Mother similarly sought consolidation but from the judge hearing the guardianship proceeding. That judge denied her request.
In early March 2006, the dependency judge issued a lengthy order, outlining the information summarized above and ruling on the grandparents’ requests. A copy of the order appears in the probate guardianship record. The order consolidated the actions, for purposes of trial only, because there were common, but undisclosed, issues of fact. The guardianship and dependency actions would otherwise remain separate. The order also denied the grandparents’ Welfare and Institutions Code section 827 petition without prejudice.
The dependency judge anticipated the parties could examine one or more of the children at what it described as “the contested jurisdictional hearing.” Upon conclusion of the single hearing on common questions of fact, separate proceedings would be conducted.
A few days later, a minute order filed in the guardianship case reveals the dependency judge clarified the cases were not consolidated, but rather joined, for purposes of trial only. Trial remained set for March 16, 2006.
Permanent Guardianship Order in Superior Court Case Number VPR041750
On March 16, 2006, the parties reached a stipulation “as to all issues” in the probate guardianship case. According to the minute order for that date:
“Parties state a stipulation has been reached as to all issues in this matter. [¶] Court grants Guardianship of minor [B.P.] to [the grandparents]. [¶] [The maternal grandmother] withdraws request for guardianship. [¶] [Mother] withdraws objection. [¶] As part of this stipulation, the [s]anctions hearing is vacated. [¶] Upon mother having appropriate housing, visitation with minor [B.] will be from Sunday at 6:00 pm through Tuesday at 6:00 pm, on non 3[-]day weekends; Monday at 6:00 pm through Wednesday at 6:00 pm on 3[-]day weekends. [¶] [The grandfather] is to provide transportation for the minors [sic] visitation with mother.”
The record does not reveal what transpired on that date regarding the dependency matter. Apparently, however, both E. and Z. were formally removed from parental custody and placed in separate foster/relative homes for at least a year.
More than a year later, in July 2007, the dependency judge 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.
The next entry in the probate guardianship was an April 2006 minute order stating “[c]ounsel are not in agreement as to the Findings and Orders of the Court as to the last hearing. [¶] Mother to continue to have supervised visitation with the minor pending further order of the Court.” The terms of the supervised visitation the court had in mind are not set forth in the record.
Mother appealed from this order (F050612, Guardianship of B[.]P[.]) as well as an apparent April 2006 disposition in the dependency matter (F050620, In re E[.]H. et al.). This court dismissed both appeals in November 2006 under In re Sade C. (1996) 13 Cal.4th 952 for lack of an arguable issue.
The parties returned to court on the probate guardianship in October 2006. According to minute orders, this was over an undisclosed, sibling visitation issue. A November 2006 minute order reveals the dependency judge “adopt[ed] visitation as stated in the siblings[’] Addendum Review Report, unsupervised with mother. Visitation limitation, [maternal grandfather] not to visit with child.” Although the record does not include a copy of the report, it was undisputed by the time of trial that the dependency judge ordered twice-a-week, two hour visits. At the November 2006 hearing, copies of B.P.’s weekly schedule, broken down by day of the week and hour, were presented to all counsel.
While these visitation-related issues were pending, mother filed a petition to terminate B.P.’s guardianship. She declared she had been incarcerated between mid-May and mid-June 2006 during which she came to the conclusion that her life was not “in the right direction.” Upon her release, she began attending church, volunteering, and participating in 12-step recovery groups. Her petition did not allege how it would be in B.P.’s best interest to terminate the guardianship.
In early January 2007, mother dismissed her petition to terminate B.P.’s guardianship without prejudice. Later that month, the dependency judge vacated his 2006 order of consolidation/joinder.
Current Proceeding to Terminate Parental Rights (Sup. Ct. No. VAD006463)
Meanwhile on January 3, 2007, the grandparents filed separate petitions to terminate the parental rights and adopt B.P. The face of the termination petition cited Family Code section 7821, which authorizes 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 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. There is no dispute on appeal that the 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 social worker filed a report (Fam. Code, § 7851) recommending the court grant the grandparents’ termination of rights petition as it was in the child’s best interests. The social worker’s report detailed separate interviews they conducted with the grandparents, the parents and B.P. Relevant to the issues on appeal, the social workers reported the following as to each individual.
The 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 as ordered in the guardianship case and would have allowed the parents telephone and written contact with B.P. had the parents attempted such contact over the years. The grandparents characterized B.P.’s relationship with his siblings as one a child might have with a cousin.
Mother believed B.P. missed his family and wanted to live with her full time. In her view, the grandparents intimidated B.P. so that he was afraid to tell them that he wished to live with her. She also felt the grandparents interfered with contact between her and B.P. She claimed she tried to call and leave messages for B.P. without success and the child had to sneak to call her. She also claimed the grandfather only brought B.P. to visit when it was convenient for him and even then usually picked B.P. up early. B.P. purportedly missed four recent sibling visits.
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.
B.P. stated if he could live anywhere he chose, he 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. His relationship with his mother was essentially neutral. The child did not regard her as a mother figure.
Father historically had chosen not to be involved in the child’s life in any appreciable manner. Mother chose to be involved only 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.
Further Proceedings in the Probate Guardianship Case
In the interim, mother filed a second petition to terminate the guardianship. She also filed an order to show cause (OSC) re: contempt alleging the grandparents violated the November 2006 visitation order in April, May and June 2007. In response, the court commissioner assigned to the probate guardianship set a hearing for clarification of the dependency judge’s orders while the guardianship and dependency cases were joined. As previously mentioned, the dependency judge’s November 2006 minute order did not spell out the actual visitation order.
The dependency judge subsequently issued a ruling clarifying his orders for visitation (clarification ruling). The dependency judge stated throughout “consolidation” of the guardianship and the dependency cases, his objective was to preserve the sibling relationship. Consequently, at his direction, the parties met and developed a detailed visitation plan, which the dependency judge approved in November 2006. It applied to both the guardianship and the dependency. As to B.P., the mother was entitled to unsupervised visitation with B.P. Mondays and Wednesdays from 3:30 to 5:30 p.m.
The dependency judge added that he made orders in January 2007 regarding E. and Z.’s dependency and in the process left intact his November 2006 visitation order as to B.P. The dependency judge relied on his January 2007 dependency order to the extent it stated “[a]ll prior orders not specifically vacated or modified by the Court remain in full force and effect” and directed the court clerk to serve a copy of the dependency judge’s order on all counsel in the guardianship and dependency cases.
Attached to the clarification ruling was a copy of the January 2007 dependency order. It disclosed the dependency judge had conducted a 90-day review hearing of E. and Z.’s dependency, with appearances by the parties and their counsel to the dependency. The hearing did not include the grandparents or their attorney. Based on documents he reviewed, the dependency judge set terms for the father’s case plan and detailed each parent’s visitation rights as to E. and Z. Two paragraphs describing the parents’ supervised visits contained references to B.P. which the dependency judge struck and replaced with Z.’s name. The order also stated Z.’s visits with the grandparents were limited to one weekend per month. The only explicit references to B.P. in the order were the directions to the child welfare agency “to ensure that [Z. and E.] visit with their brother, [B.P.], as a sibling unit, as much as possible” and to the court clerk to “serve a copy of this Order After Hearing on all counsel in the instant action and in In re B[.] P.”
After the dependency judge issued his clarification ruling, the court commissioner then presiding over the probate guardianship issued a series of minute orders. In part, the commissioner ordered that the hearing on the mother’s OSC re contempt would follow her petition to terminate the probate guardianship and both of these matters would trail the trial on the grandparents’ petition to terminate parental rights. In a separate minute order, the commissioner ordered that B.P. should have contact with mother but suspended the existing visitation order pending conjoint therapy sessions with Dr. Scott Van de Putte, the child’s therapist. The minute order added: “If Dr. Van de Putte indicates [B.P.] is ready for unsupervised visitation with Mother, the guardians are warned by the Court to respect Dr. Van de Putte’s recommendation.” The commissioner’s minute order did not state how frequently the therapy sessions should occur.
The last entries in the probate guardianship file before the trial on the grandparents’ petition to terminate parental rights related to an ex parte matter brought by mother’s counsel. The record does not disclose the nature of the ex parte request. At best, a March 13, 2008, minute order reveals: “[m]atter heard and argued. [¶] Counsel met in chambers with the Court. [¶] Letter of Scott Van de Putte submitted in open court and filed. [¶] Comments by [mother’s attorney] and [grandparents’ attorney].” The probate guardianship record does not contain a copy of the letter. Under the title “ORDERS” the court commissioner directed mother’s attorney to contact the therapist to arrange visitation “pursuant to court orders.” What those orders were is not disclosed. The commissioner also ordered the grandparents to ensure the child was present for all scheduled visitation.
Trial on Petition to Terminate Parental Rights
The evidentiary phase of the trial occurred over four days in April 2008. Although the grandparents pursued termination of the parents’ rights on alternative grounds, the trial focused principally on whether each of the parents abandoned B.P. for six or more months at some point in his life. (Fam. Code, § 7822, subd. (a)(2).) Numerous witnesses testified in what can easily be described as a very contentious trial.
Although we have reviewed the entire trial record, we do not summarize it here since abandonment is not an issue on this appeal.
With regard to termination under section 1516.5, the evidence from the court investigator’s 2007 report was undisputed that: the grandparents had been B.P.’s temporary probate guardians since August 2004 and his permanent guardians since March 2006; they were his psychological parents; and he favored adoption by them.
Grandmother’s Testimony
The grandmother testified in large part about the first years of B.P.’s life and the time leading up to the probate guardianship. She described the numerous periods of time B.P. spent in her home and the money and/or groceries she delivered weekly for B.P. and the family. Mother moved around a lot then and was once homeless. She was also twice evicted. There were times the mother would say she could not take the boys and told the grandmother to take them. Also, the mother would sometimes keep B.P. for a couple of days and then call the grandmother and tell her to come get B.P. There were times even in the early years where mother would occasionally call and ask the grandmother to bring the boys to the mother. Even then, B.P. did not want to go and so he did not. Sometimes, when the grandmother took B.P. back, the mother would not be there to receive the child.
In June 2003, mother called to say the water was being turned off, the electricity had been turned off, and she needed someone to pay the bills. Mother also said she needed the grandparents to bring her ice when they brought weekly food because without electricity there was no way to keep the food from spoiling. By the first part of July 2003, the grandparents took B.P and Z. back to their (the grandparents’) home. B.P. essentially stayed with the grandparents ever since. The mother and maternal grandmother moved Z. out in May 2004 but B.P. would not go.
B.P. developed such a relationship with the grandparents that the child considered their home his home and looked to the grandparents as his parent figures. He had a normal life in the grandparents’ home. He attended church every Sunday, was involved in baseball and in soccer, and had friends who would come to visit him. The grandparents had coached and sponsored his teams. The grandmother had been his team mom every sports season and his room mom every year since he started school. She also worked in B.P.’s classroom once a week.
Regarding B.P. and his younger brother, Z., the grandmother testified the two boys were close when they lived together. However, they were no longer close. The boys began to grow apart when Z. stopped coming to the grandparents’ home. This was approximately when the juvenile court case was dismissed and mother regained custody. The grandmother denied ever interfering with B.P.’s and Z.’s visits. Rather, it was mother who interfered and would not let Z. come to the grandparents’ home.
Dr. Van De Putte’s Testimony
Dr. Van de Putte 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 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 could 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.”
When 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.
Although B.P. previously had no recollection of ever living with his mother, through therapy sessions, he had some specific recollections of living with her. 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. When asked did he feel like B.P. had been coaxed when making such statements, the therapist replied he did not feel like B.P. has been coaxed but acknowledged he had no way of knowing for sure.
Sometime after October 2007, the therapist starting seeing B.P. with his mother every other week. At the time of his testimony, the therapist was seeing them every week. Coming into those visits, B.P. was very angry with his mother. As they had more visits, B.P. had 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.
On one occasion the therapist did have to separate B.P. and his mother. B.P. was angry and had decided to tell mother how he felt about living with her, which was that he did not want to live with her. Mother and B.P. got into an argument about whether he was going to live with her. B.P. became upset and eventually the therapist had to intercede.
When 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. However, the therapist stated B.P.’s relationship with the grandparents was more important 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 visit Z. That would be in B.P.’s best interest. Continued contact with the mother also would be in B.P.’s best interests. The therapist later added he did not see anything wrong with B.P. having contact with all of the members of his family.
The therapist was also asked if he had any indication the grandfather interfered with the mother coming to the therapeutic visits or with B.P.’s stated opinions. The therapist never had any such indication. He had never seen the grandfather interfere with B.P.’s stated opinions about anything. In trying to arrange visits for therapy, sometimes the grandfather and he had conflicting schedules. The therapist did not see that as an attempt by the grandfather to purposefully put up barriers to B.P. seeing mother.
When mother came to the therapeutic visits, she tried very hard and was very motivated. Given appropriate direction she could respond appropriately to B.P.’s feelings, but sometimes she needed to be steered in that direction. At times, she tried so hard that she did not pay attention to the cues B.P. gave her, that he may not be comfortable with her effort.
The therapist also testified he had overheard 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.”
On cross-examination, the therapist testified his understanding of the visitation conducted in his office between B.P. and his mother was that he (Dr. Van de Putte) was a visitation therapist, not a reunification therapist. 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.
Mother’s counsel asked the therapist about a letter he had written around March 12, 2008. In that letter (Exh. D), the therapist offered his opinion that B.P.’s anger would take some time to work through. Once that happened and if B.P. decided to forgive his mother, increased visitation toward a goal of establishing a more normal mother/child relationship might be warranted. However, until such a time, increasing visits or changing visits to unsupervised was not in B.P.’s best interests. The therapist was referring to more normal contact, not that mother should be B.P.’s primary care caregiver.
The attorney also asked the therapist if he knew the juvenile court had returned the mother’s other children to her sole custody. The grandparents’ counsel objected to the question as irrelevant adding fitness was not an issue before the court. The court sustained the objection.
Later that first day, the court reversed itself to allow some questioning about parental fitness. At the start of the fourth day of trial, the trial court acknowledged it previously made inconsistent rulings regarding whether parental fitness evidence was relevant.
The therapist could not predict when unsupervised visits could 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 was probably not going to happen. Although B.P.’s overall comfort with mother had gradually improved with the therapeutic visits, it would be a bad idea to have unsupervised visits without someone to mediate the conflict between mother and B.P., which the therapist witnessed. The therapist was trying to lay the groundwork of some positive interaction so that when B.P. was ready to talk to mother about his anger, he would feel comfortable doing so.
B.P. had memories that caused him to feel his mother had mistreated him at times. In the child’s mind, there were reasons for him not to trust mother and to be angry with her. Therapeutic visitation had been useful because it gave B.P. some direct experience with his mother and not just experience based on his memories of her or on their previous visits, which tended not to go very well.
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.
During cross-examination by B.P.’s court-appointed counsel, the therapist testified the child 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 he had to go back and live with mother, he would give up his brother.
Grandfather’s Testimony
The grandfather testified B.P. had been in his and his wife’s custody for the last five years. B.P. had had visits but “we’ve had him.” When asked what he meant, the grandfather testified it was he and the grandmother who put B.P. in school, taught him to ride a bike and “how to go to the bathroom.” They had taught him everything.
In an apparent effort to impeach the grandfather, the father’s counsel asked the grandfather leading questions that the situation at mother’s house was “pretty awful,” she used the children to get food, she was twice evicted, she had trashed houses she lived in, she slept all day and she did not care for her children. The grandfather agreed. The attorney then asked if the conditions were so bad and mother was so neglectful, why did the grandfather not call child protective services (CPS)? The grandfather replied that the mother once threatened him “if anybody ever called CPS on her that they would never see those kids again.” He took it to heart. Eventually, the grandfather did call the police department when the children reported their other grandfather was beating them with a studded belt. Distinguishing the mother’s parental neglect from physical abuse, the grandfather explained “[the physical abuse] gets a call to the police department.”
On redirect, the grandfather testified that if B.P. was adopted, there would not be any trouble at all if he wanted to see his siblings. The grandfather would also let B.P. see his mother or his father under a responsible person’s supervision and provided the parents quit the emotional abuse and saying certain things they were always saying to the child.
Mother’s Testimony
Mother who was then 40 years old testified she previously had “run-ins with the law” over the years and spent time in custody. She started using drugs as a teenager. As of 2002 and 2003, she was using methamphetamine “pretty heavily.” She claimed she had been drug free since June 12, 2005, the same day she was arrested for giving a false identity. She later testified that at the time of the juvenile court proceedings, which commenced in January 2006, she had a problem with substance abuse. Her drug of choice then was also methamphetamine. She did not start random drug testing until the time of the six-month review. Currently, she was neither on parole nor probation.
Over the course of the juvenile dependency proceedings, she successfully completed all the required courses under her case plan. She submitted to random drug tests, completed a court-ordered out patient drug treatment program and participated in parenting, child development and child abuse prevention classes.
At some point, the juvenile court returned E. and Z. to her care and awarded her sole legal and physical custody of Z. As of the time of trial, she was attending Narcotics Anonymous or Alcoholics Anonymous meetings at least once a week.
She disagreed with the grandparents’ testimony that she did not provide her children with food. “I had food stamps.” She also testified she never called the grandparents for help. Instead, it was the grandfather who called, asking how she was doing and if they needed anything and offering her food.
As for the circumstances surrounding B.P. starting school in 2003, mother testified she, the maternal grandmother, and the paternal grandfather got together and agreed the neighborhood school in her area was not a very good school. The paternal grandfather offered to enroll B.P. in the grandparents’ school district. She later testified she, the father, and the paternal grandfather enrolled B.P. in school in August 2003. The paternal grandfather offered to transport B.P. to and from school returning him to her home afterward.
That plan changed after she lost her electricity in late July. Although power was restored for awhile, it was turned off again in October. As a result, B.P. spent his nights with the grandparents and a portion of each day with her. Mother moved in with the maternal grandmother in January 2004 because mother still had no electricity and was then evicted. The end of 2003 and beginning of 2004 was a period when she was not “doing too well.”
During B.P.’s kindergarten year, mother testified she attended two school functions, an open house and a teacher conference. She also thought she took cupcakes to school that year. She knew the kindergarten teacher’s name was a hard one but mother did not remember it. She also remembered going to B.P.’s school once during second grade which would have been the 2005 - 2006 school year. She did not attend events during his first grade year. “[T]hey would not give me any kind of information.” She claimed the school was unwilling to initiate her participation. Mother testified she did call the school to attend a teacher conference and open house but she had missed the date.
She also knew B.P. was involved in sport activities. However, she could not track down where the practices or games were. She asked B.P. but he did not know. She did find out where some practices were held and she would go out and watch. However, she claimed B.P. was not allowed to come over and speak to her and then the practices were moved. This was apparently before the guardianship petition was filed. She accused the grandparents of never giving her schedules despite her several requests and despite the judge saying she was to be made aware of his schedule. She also testified she was never invited to attend the child’s games.
As previously mentioned, according to a November 2006 minute order in the probate guardianship, copies of B.P.’s weekly schedule were presented to all counsel.
Mother testified there was never a time when B.P. did not want to visit her. The “only time” they ever had problems “was the visits at the park.” However, mother attributed those problems to the grandfather.
According to mother, the visitation, based on the November 2006 dependency judge order, was for unsupervised two-hour visits, two days a week. It “started out fine” for a few months. The routine was to meet at a park and take B.P. to her home. Then they met back at the park when the grandfather would pick up B.P.
Around Easter or April 2007, the grandfather told her if she did not stay at the park where he could watch them, he would not allow B.P. to come. Mother refused to stay at the park because visits were supposed to be unsupervised. She did not want to stay there while the grandfather watched over them, from his truck. She claimed those visits were uncomfortable for everyone.
Mother actually was uncertain whether this was 2006 or 2007.
B.P. was more than willing to visit. It was not just a visit with her. He was visiting with his siblings. She also claimed there was never a time she would not allow B.P. to visit with his younger brother, Z.
According to mother, the next time she visited with B.P. was in the therapist’s office. Even then there were problems; she claimed the grandparents stopped bringing B.P. after six visits.
Again, mother appeared confused as to time. She thought the first therapeutic visit was in April 2007.
Rebuttal Testimony
The grandfather disagreed with mother’s version of enrolling B.P. in school. The grandfather had actually already enrolled B.P. because mother had not done so. She would not even talk about it. During that period in 2003, she stayed “loaded” most of the time. The grandfather told mother he could enroll B.P. in the grandparents’ neighborhood school and she would not have to worry about it. She said sure. She never mentioned putting B.P. elsewhere. The grandfather also did not remember taking B.P. to visit after school in kindergarten, first or second grade.
By the first grade, the grandparents had “given up pretty much” on advising mother about school events. As to B.P.’s sporting activities, the child played T-ball and soccer in kindergarten. The grandfather provided a T-ball game schedule and information as to where the soccer games were to the maternal grandmother. The child played baseball and soccer in the first grade. The grandfather did not remember whether he provided information about those sports. He did recall once seeing mother attend a practice. At some point though the grandparents stopped providing sport activity information because the mother’s family had not come to anything.
The grandfather at some point believed there was no longer a visitation order for B.P. in effect after the juvenile court proceedings. The last order he received from the juvenile court did not contain an order for B.P. to visit. There had been a reference to B.P. in the order but it was crossed out. The grandfather claimed this was very confusing to him. He later called the CWS social worker who said there was no order for B.P. to have any visits with his parents. So, he no longer took B.P. anywhere to visit, except he took him a few times to visit B.P.’s siblings and father. He did not think he was required to do this.
The grandfather also testified he stopped taking B.P. for the twice-a-week visits after the child reported mother became physical with him and hurt him and he would not go. The grandfather feared the child was going to be hurt. According to the grandfather, he “made a deal” with B.P. that if he would go, the grandfather would tell mother she had to visit in the park. The grandfather would sit in his car where B.P. could see him. That was how the grandfather got B.P. to go to the visit. But when they arrived, mother refused to visit that way.
Regarding B.P.’s therapeutic visits with mother, the grandfather testified he failed only once to take B.P. to a scheduled visit. That occurred a week earlier when he could not take the time off from work. He had already taken off two days for court and his employer was getting annoyed. The grandmother was in the midst of a state audit at her hospital and could not take the time off. B.P. attended every scheduled visit except those the therapist cancelled.
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 purportedly had a constitutionally protected interest in B.P.’s care, custody and control, which 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 older children to parental custody. Alternatively, the parents claimed termination was not in B.P.’s best interest based on the testimony of his therapist.
Court’s Decision
The trial court subsequently issued a written decision in which it granted the grandparents’ petition. On the issue of abandonment under Family Code section 7822, the court concluded only the father abandoned B.P. As to mother, the court found she saw B.P. with relative frequency except for a 16-month period in 2001 and 2002. The court characterized this as a “commendable effort by the [grandparents] to allow her to see [B.P.] when she wanted to (up until the guardianship proceedings).” The court also found mother did not support B.P., even when he was with her. Any available money went for drugs. The grandparents and others supplied food. Nonetheless, the evidence showed that mother never intended to abandon B.P.
By contrast, the court concluded by clear and convincing evidence that the grandparents proved the elements for termination of both parents’ rights under section 1516.5. The 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 grandparents, the court also made the following express findings. B.P. considered the grandparents to be his parents. His only stable and secure attachment was with the grandparents. B.P. was angry with his mother, felt abandoned by her, and was subjected to fear, stress and insecurity when around her. She did not attend B.P.’s school or sports functions. She also did not know the name of B.P.’s teacher. 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 (Quillon) 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, the trial court concluded there was no constitutionally protected interest involved and thus a finding of parental unfitness was unnecessary. Alternatively, the court found the parents unfit.
DISCUSSION
I. The Question of Parental Fitness in a Section 1516.5 Proceeding
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. In March 2009, the court issued its decision in companion cases, Ann S., supra, 45 Cal.4th 1110and In re Charlotte D. (2009) 45 Cal.4th 1140 (Charlotte D.).
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.)
In its discussion, Ann S. observed in limited circumstances the court had held the 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 p. 1130.)
“In [Kelsey S., supra, 1 Cal.4th 816…], we reviewed a statutory scheme permitting the termination of an unwed father’s parental rights if adoption were in the child’s best interest, even though the mother had prevented the father from receiving the child into his home and establishing the status of ‘presumed father.’ ([Id.] at pp. 824-825.) We concluded that ‘[i]f an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.’ (Id. at p. 849.) However, we emphasized that the father would be deprived of his constitutional right ‘if (but only if) … [he] demonstrated the necessary commitment to his parental responsibilities. [Citations.] Otherwise, the statutory best interest of the child standard would be ‘constitutionally sufficient.’ (Kelsey S., at p. 849.)
“... A prolonged guardianship, during which all parental rights and custodial responsibilities are suspended, with the possible exception of visitation rights, is generally inconsistent with ‘a full commitment to … parental responsibilities—emotional, financial, and otherwise.’ (Kelsey S., supra, 1 Cal.4th at p. 849.)” (Ann S., supra, 45 Cal.4th at pp. 1130-1132.)
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, 45 Cal.4th 1140 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. (Charlotte D., supra, 45 Cal.4th 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[, 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 pp. 1148-1149.)
II. Mother’s Claims of Error
It is against this legal backdrop that we consider mother’s claims of error. In her opening brief, filed before Ann S., supra, 45 Cal.4th 1110 and Charlotte D., supra, 45 Cal.4th 1140 mother argued: (1) section 1516.5 was facially unconstitutional for reasons rejected in Ann S.; (2) the trial court’s reliance on Quillon and Kelsey S. was misplaced and so that it erred when it found she had no constitutionally protected interest; (3) she had a constitutionally protected interest because she was B.P.’s biological mother, she had custody of him before the probate guardianship, she successfully reunified with her other children and she fought for B.P.’s return after the court granted the guardianship; (4) section 1516.5 was unconstitutional as applied because she purportedly stipulated to the probate guardianship in exchange for increased visitation and thus her parental unfitness had never been determined; (5) there was no substantial evidence to support the trial court’s unfitness finding and the trial court compromised her ability to prove her fitness; and (6) even assuming section 1516.5 was constitutional on its face and as applied to her, the trial court’s best interest determination was not supported by substantial evidence. With the benefit of Ann S., supra, 45 Cal.4th 1110 and Charlotte D., supra, 45 Cal.4th 1140 mother concedes in her reply brief that section 1516.5 is facially constitutional and the trial court’s legal premise was correct, that is only a parent who has demonstrated a full commitment to parental responsibility is entitled to constitutional protection. Nonetheless, she expands upon her remaining arguments.
As discussed below, we reject mother’s argument that section 1516.5 is unconstitutional as applied here. We consequently need not and do not review appellant’s issues regarding the court’s alternative finding that she was unfit. This leaves the question of B.P.’s best interests. On the record before us, we conclude there was substantial evidence to support the trial court’s finding and order of termination.
III. Section 1516.5 is Constitutional As Applied
Mother argues section 1516.5 is unconstitutional as applied here because: (A) she stipulated to the probate guardianship; and (B) she demonstrated a commitment to B.P. by successfully reunifying with her other children, visiting with B.P. as often as allowed, and by twice petitioning to terminate the probate guardianship. She further contends the grandparents thwarted her relationship so as to apparently excuse any shortcoming on her part.
A.
Mother’s argument over her stipulation to the probate guardianship (see AOB 75, 84-88 & 36-39) is difficult to fathom. In reliance upon juvenile dependency case law, she appears to contend she could not be deprived of custody in the probate guardianship proceeding without a finding by clear and convincing evidence of her unfitness or detriment to the child. She goes on to claim she did not lose that right just because she agreed to the probate guardianship. Stipulating to it, in her view, was not tantamount to a finding of unfitness. She adds in this regard that no unfitness finding is made prior to ordering a probate guardianship and a finding of detriment, necessary to establish a probate guardianship, does not require any finding of parental unfitness. (Fam. Code, § 3041.) She further argues she stipulated to the probate guardianship in exchange for specific visitation rights as though that should have some bearing on the outcome of her argument.
To the extent we understand mother’s argument, we conclude Ann S., supra, 45 Cal.4th 1110 has addressed, resolved, and dismissed it. Her reliance on juvenile dependency cases is misplaced because dependency proceedings are fundamentally different from either a section 1516.5 or a probate guardianship proceeding. (Ann S., supra, 45 Cal.4th at pp. 1132-1133.) At the outset of a probate guardianship, the parent’s interest in maintaining custody is protected by the parental preference doctrine codified in Family Code section 3041. (Ann S., supra, 45 Cal.4th at p. 1133.) Before granting custody to a nonparent over parental objection, the court must find by clear and convincing evidence that “granting custody to the parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.” (Fam. Code, § 3041, subds. (b), (a); Ann S., supra, 45 Cal.4th at p. 1123.) Finally, mother, like the mother in Ann S. consented to establishment of the probate guardianship so that the constitutional sufficiency of the protections provided to parents by Family Code section 3041 is not before the court. (Ann S., supra, 45 Cal.4th at p. 1134.) Indeed, a probate guardianship is often established with parental consent. (Id. at p. 1122.)
B.
Urging our de novo or independent review of the record, mother contends substantial evidence established she demonstrated her commitment to B.P. and the grandparents thwarted her relationship with B.P.
Standard of Review
Mother’s argument for de novo review is confused at best. She cites numerous authorities regarding statutory interpretation, standard of proof, pure questions of law, and mixed question determinations. What is clear is mother’s claim that we are not bound by the evidence below or the trial court’s interpretation of it. Rather, in her view, the trial court committed some unarticulated error at law which renders the substantial evidence rule inapplicable. Mother would have us ignore the trial court’s factual findings and conclusions, independently review the evidence, and rule in her favor.
Appellate courts do apply a de novo standard to questions of law, such as statutory interpretation, where the relevant facts are not in dispute. (International Engine Parts, Inc. v. Fedderson & Co. (1995) 9 Cal.4th 606, 611-612.) However, neither is the issue here a question of law nor are the facts undisputed. Mother undoubtedly claims the question is whether section 1516.5 is unconstitutional as applied. However, the threshold question is a factual one: did mother demonstrate a full commitment to her parental responsibilities as to B.P. akin to Kelsey S.? In addition, this was a hotly contested case in which there was conflicting evidence on virtually every point.
The Supreme Court has not articulated a standard of review for decisions regarding Kelsey S. father status. (See In re J.L. (2008) 159 Cal.App.4th 1010, 1023, fn. 5.) However, the appellate courts that have had the opportunity to address the issue have reviewed such determinations for substantial evidence. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679-680; In re J.L., supra, 159 Cal.App.4th at p. 1023, fn. 5; Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717; Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1395.) To the extent that the issue is a mixed question of law and fact, some of these decisions acknowledge we exercise our independent judgment in measuring the facts against the applicable legal standard. (Adoption of O.M., supra, 169 Cal.App.4th at p. 680; In re J.L., supra, 159 Cal.App.4th at p. 1023, fn. 5; Adoption of Arthur M., supra, 149 Cal.App.4th at pp. 717-718.)
Here, the trial court anticipated and applied the correct legal standard, as noted above, for determining whether the parents had a constitutionally protected right so as to require a finding of parental unfitness. Consequently, we do not ignore the trial court’s finding that neither parent demonstrated a full commitment to parental responsibilities as to B.P. We conclude the appropriate standard of review is substantial evidence.
Mother’s Lack of Commitment to Her Parental Responsibilities
Mother does not address, let alone directly challenge, the trial court’s finding that neither she nor the father provided a stable, secure environment for or developed a true parental relationship with B.P. Likewise, she does not dispute the court’s many factual findings, to wit: although she never intended to abandon him, mother did not support B.P., even when he was with her; any available money went for drugs; B.P.’s only stable and secure attachment was with the grandparents; B.P. was angry with mother, felt abandoned by her, and was subjected to fear, stress and insecurity when around her; mother did not attend B.P.’s school or sports functions nor did she know the name of B.P.’s teacher; and she admittedly left B.P. with the grandparents for stability.
Mother also pays lip service to the Supreme Court’s direction in Ann S. and Charlotte D. to consider factors similar to those set out in Kelsey S. in evaluating commitment to parental responsibility. Instead, she claims, as previously mentioned, there was substantial evidence she demonstrated a commitment to B.P. by successfully reunifying with her other children, visiting with B.P. as often as allowed, and by twice petitioning to terminate the probate guardianship. She alternatively argues the grandparents thwarted her attempt to establish a relationship with B.P.
Mother’s argument is essentially an invitation -- to reweigh the evidence before the trial court -- that we decline. This court’s review begins and ends with a determination as to whether or not there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. All 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. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
It was up to mother to demonstrate a full commitment to her parental responsibilities -- emotional, financial, and otherwise -- to B.P. (Kelsey S., supra, 1 Cal.4th at pp. 849, 850.) However, she presented little evidence on this issue, much less made a persuasive showing. What little evidence she did present was refuted by the grandparents. In addition, as discussed above, she relied in the trial court on her biological relationship to claim a constitutionally protected status. Although the biological connection between parent and child is unique, standing alone it does not create a constitutionally protected interest. (Id. at pp. 830-838.) It is only worthy of constitutional protection if the parent grasps the opportunity to develop that biological connection into a full and enduring relationship. (Id. at p. 838.)
To the extent mother now relies on her successful reunification with her other children in 2007, her visits with B.P. during the probate guardianship, and her two petitions to terminate the probate guardianship, none of these, considered individually or collectively, amount to a showing of full commitment to parental responsibility along the lines of Kelsey S., supra, 1 Cal.4th 816 .
First, mother’s focus on her conduct during the probate guardianship is far too narrow under Ann S., supra, 45 Cal.4th 1110and Charlotte D., supra, 45 Cal.4th 1140. A prolonged guardianship, during which all parental rights and custodial responsibilities are suspended, with the possible exception of visitation rights, is generally inconsistent with a full commitment to parental responsibilities -- emotional, financial, and otherwise. (Ann S., supra, 45 Cal.4th at pp. 1130-1132.) Thus, a court should consider the parent’s efforts to develop a meaningful relationship and make a full commitment to parental responsibilities prior to the probate guardianship. In this regard, mother overlooks the requirement in Kelsey S. that a parent “promptly” come forward and demonstrate a full commitment to parental responsibilities. (Kelsey S., supra, 1 Cal.4th at p. 849.) In Charlotte D., supra, 45 Cal.4th at pages 1149 and 1150, the court analyzed the parent’s conduct prior to the probate guardianship, noting the parent’s subsequent conduct only confirmed his irresponsibility. While mother may overlook or minimize her conduct prior to the probate guardianship and thus during the first six years of B.P.’s life, the trial court properly did not.
No doubt mother’s reunification with her other children through the dependency proceeding is commendable. It does not necessarily address, however, any parental commitment on her part to B.P. Indeed, it appears essentially to be another way of arguing she is parentally fit.
Similarly, the fact that she visited with B.P., even in a therapeutic setting, does not prove a full commitment to her parental responsibility under Kelsey S., supra, 1 Cal.4th 816 . There is no showing in the record that she used those opportunities to build a positive and enduring relationship with B.P. Indeed, a goal of the therapeutic visitation sessions was to facilitate the child’s perception of safety and reduce the emotional problems he was having with their visits. Visits with mother had been stressful for B.P. due to statements she made and arguments that broke out between them. While the therapist characterized mother as currently “very motivated”, her effort appears to be a case of too little, too late.
Further, mother’s two petitions to terminate the probate guardianship say little, if anything, about a full commitment to her parental responsibility toward B.P. The court could well have found those petitions said much more about her animosity towards the grandparents who filled the parental void created by her lack of commitment to B.P. We note mother’s first petition, which she subsequently dismissed, focused solely on her claim to sobriety, without mention of her relationship with or commitment to B.P. While it is laudable that mother sought to deal with her history of drug abuse, her first petition is little more than a claim of fitness. Her second petition is likewise of little consequence. It does not address why it allegedly would be in B.P.’s best interest to terminate the probate guardianship, let alone establish any effort on appellant’s part to be a fully committed, responsible and capable parent to B.P. We also note mother filed her second petition pending trial in this case, suggesting more of an effort to block B.P.’s adoption, rather than a willingness to assume full custody. (Charlotte D., supra, 45 Cal.4th at p. 1148.)
This leaves mother’s alternative claim that she made “a reasonable and meaningful attempt to establish a relationship” with B.P. but the grandparents thwarted it. (Kelsey S., supra, 1 Cal.4th at p. 837.) We note she neither describes nor supports her claim of a reasonable and meaningful effort on her part with citations to record evidence.
Instead, she points a finger of blame at the grandparents. In large part, she complains the grandparents did not comply with visitation orders during the probate guardianship. She also accuses the grandparents of having ulterior motives in helping her before the probate guardianship and in seeking temporary guardianship in 2004 on an ex parte basis.
Mother does little more than obfuscate the facts as well as the issue before us. She left B.P. with the grandparents for them to support and raise. They did not prevent her from promptly coming forward and demonstrating a full commitment to her parental responsibilities—emotional, financial, and otherwise. (Charlotte D., supra, 45 Cal.4th at p. 1148 & Ann S., supra, 45 Cal.4th at pp. 1130, citing Kelsey S., supra, 1 Cal.4th at p. 849.) The fact that they obtained a probate guardianship to which she stipulated and they subsequently petitioned to provide B.P. a permanent home through adoption did not thwart any effort on her part to secure custody. (Ann S., supra, 45 Cal.4th at pp. 1130.) Her claims regarding visitation during the probate guardianship go more to the issue of B.P.’s best interests which we discuss below.
In conclusion, this is not a case imagined by the court in Ann S., supra, 45 Cal.4th 1110 or Charlotte D., supra, 45 Cal.4th 1140 in which a fully responsible parent might find it necessary to place a child in probate guardianship and, despite maintaining a parental commitment as full as the circumstances permit, eventually faces a termination proceeding under section 1516.5. (Charlotte D., supra, 45 Cal.4th at p. 1143; Ann S., supra, 45 Cal.4th at p. 1132.) The evidence did not support, much less compel, mother’s claim that the best interest of the child standard in section 1516.5 was unconstitutional as applied to her. (Charlotte D., supra, 45 Cal.4th at pp. 1148-1149.)
IV B.P.’s Best Interests
Alternatively, mother challenges the trial court’s finding that B.P. would benefit from adoption by the grandparents. The parties disagree over which standard of review -- substantial evidence or abuse of discretion -- we should apply in reviewing the record. Appellate courts review required findings to support a judgment for substantial evidence. (E.g., Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053; In re Laura F., supra, 33 Cal.3d 826, 836.) For a judgment terminating parental rights pursuant to section 1516.5, the law required the court to find that the child would benefit from being adopted by his guardians. (§ 1516.5, subd. (a)(3).) We therefore review for substantial evidence the trial court’s finding that it was in B.P.’s best interest to be adopted by the grandparents.
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 1132, the court noted 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.
The 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 and written reports 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 that B.P.’s only stable and secure attachment was with the grandparents; and B.P. was angry with mother, felt abandoned by her, and had been subjected to fear, stress and insecurity when around her. Mother notably does not challenge these findings.
Mother’s Argument over Whether a Parent to Likely to Regain Custody
Mother contends “all factors relating to the best interest of the child” in section 1516.5, subdivision (a)(3) necessarily includes whether the parent is likely to regain custody of the child. She claims that section 1516.5’s legislative history clarifies this is a factor the court must take into consideration. Based on her reunification with her other children and her participation in therapeutic visitation sessions with B.P., she contends there was substantial evidence that she could regain custody of B.P. and therefore the court could not make its best interests finding.
There are several problems with this argument. 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.) While mother claims our examination of the legislative history is appropriate because section 1516.5 is ambiguous, she fails to explain why that is so. However, section 1516.5 is not facially ambiguous in this regard. It clearly requires the court to consider all factors relating to the best interest of the child in determining that the child would benefit from being adopted by his or her guardian. (§ 1516.5, subd. (a)(3).)
In addition, the child’s best interest standard allows the court to appropriately balance all the relevant factors arising from the child’s family relationships. (Ann S., supra, 45 Cal.4th at p. 1136.) Mother’s argument ignores the balancing process in which the court must engage. Instead, she would require a court: to find under section 1516.5 that the birth parents are not likely to regain custody before it could make a best interest finding; or to deny a section 1516.5 petition if there was any evidence the parent might regain custody in the future. However, Ann S. expressly states “nothing in [section 1516.5] suggests that 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.)
Finally, there was compelling evidence before the court that it was unlikely mother would regain custody of B.P. because, according to the child’s therapist, it was in B.P.’s best interest to be with his grandparents. For all of these reasons, we conclude mother’s argument in this regard is meritless.
Mother’s Argument That She was Not Unfit
To the extent mother continues to claim there was no substantial evidence that she was currently unfit, we also are not persuaded. As Ann S., supra, 45 Cal.4th 1110 observes, a parental unfitness criterion fails to account for a child’s fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver and the guardian’s substantial interests that the law recognizes after the guardian has fulfilled a parental role for an extended period. (Ann S., supra, 45 Cal.4th at p. 1136.)
Mother’s Claim that the Grandparents Thwarted Her Visitation
This leaves mother’s remaining claim. According to her, the court’s best interest determination was not supported by substantial evidence because the grandparents thwarted her relationship with B.P., they were unwilling to allow B.P. continued contact with her, his father or his siblings, and the grandparents’ testimony was inherently incredible.
In large part, she claims the grandparents thwarted her visitation with B.P. by refusing to comply with agreed to or court-ordered visitation during the probate guardianship. However, her argument ignores the evidence regarding the first six years of B.P.’s life prior to the probate guardianship. Mother had a limited relationship with B.P. due, in some part, to her drug abuse. All the while the grandparents did not restrict her ability to visit B.P. while he lived with them. In addition, to the extent mother claims the grandparents refused to cooperate with visitation, based on allegations she made over the course of the probate guardianship, our review of the probate guardianship record does not support her claim so as to compel such a finding.
Mother first filed an OSC re contempt in December 2005. However, as part of the March 2006 stipulation establishing the permanent probate guardianship, a sanctions hearing she sought presumably on the OSC re contempt was vacated.
In addition, minute orders from hearings conducted by the dependency court in October and November 2006 suggest mother apparently claimed some visits had been missed. However, there was no supporting evidence in the probate guardianship record.
In any event, as of November 2006 the dependency court in fact reduced her visits, which also included the siblings, to two-hour visits, twice a week with the proviso that the maternal grandfather was not to visit with the child. This suggests not that the grandparents refused to cooperate with visitation but that some issue arose that persuaded the dependency court to reduce the length of the visits.
Next, in August 2007, the mother filed a second OSC re contempt against the grandparents. It had not been litigated prior to the trial and was not a pending issue for the trial court to resolve in this case.
It was undisputed at trial that visits between mother and B.P. did not occur for several months in 2007. However, mother and the grandfather offered conflicting testimony regarding what led to the lack of visits. Although the trial court did not make an express factual finding regarding appellant’s claim that the grandfather prevented her from visiting with B.P. in 2007, we resolve the evidentiary conflict in the grandparents’ favor given the outcome in the case as it is supported by the record. (In re Laura F., supra, 33 Cal.3d at p. 833.) The court properly may have concluded: it was not a lack of visits in 2007 that thwarted appellant’s relationship with B.P.; or the lapse in visitation was not an effort on the grandfather’s part to thwart appellant’s visits or her relationship with B.P.
As trial approached, mother again accused the grandparents, this time of not bringing B.P. to all of his therapy appointments where she could visit with him. However, as the therapist advised in a March 2008 report, it was he who cancelled, altered or postponed the visits. In part, he elected to accommodate the more pressing needs of other patients and the appointment changes had not worked well with the grandfather’s work schedule. Also, the therapist had been ill for two to three weeks which forced him to cancel or reschedule the majority of his appointments during that period.
Mother’s Charge that the Grandparents Alienated B.P. from Her
To the extent mother charges the grandparents with alienating B.P. from her, there was once again conflicting evidence on the point. The court properly could have resolved the issue against her charge based on the therapist’s reports and testimony.
In his March 2008 report, the therapist addressed mother’s concerns that the grandfather was interfering with visits.
“In private conversations with me [the grandfather] has expressed worry and concern regarding [B.P.’s] safety with his mother and father. However, when [B.P.] is present he has always been encouraging and supportive of the visits. When [B.P.] complains to [the grandfather] about something he has not been happy with in regard to the visits [the grandfather] has consistently made excuses for [B.P.’s] mother. I am relying on him in large [p]art to give me reports about how [B.P.] reacts after visits with his mom. If he were actively involved in undermining visitation I would expect reports of [B.P.’s] behavior after visits to be very negative and to differ a great deal from [B.P.’s] positive reports. To this point in time [B.P.’s] reports and [the grandfather’s] reports have been consistent with one-another and generally positive. This indicates to me that while [the grandfather] feels protective and worried he is not attempting to control the visitation by distorting information. In my opinion his worry and concern is most likely a positive indicator of his strong feelings of attachment to [B.P.] rather than an attempt to undermine [B.P.’s] relationship with his mother.”
During trial, the therapist testified he could not say that any relative was alienating B.P. as to another relative. In particular, the therapist who had counseled B.P. for over two years, had seen no indication that the 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.
According to the therapist, a great deal of B.P.’s anger towards mother revolved around any attempt that the child felt was a threat to his relationship with his grandparents. The child reported multiple times that his mother told him he would come to live with her permanently. This caused the child stress with somatic symptoms. B.P. was also concerned that mother was encouraging him to make negative statements about his grandparents.
Mother’s own statements during therapy sessions confirmed B.P.’s concerns. According to the therapist, she did make negative comments about the grandparents in front of B.P. and the therapist. The therapist also testified about once having to separate mother and B.P. as they argued about whether B.P. was going to live with her. He also wrote about this in March 2008 report,
“Finally [B.P.] is angry with his mother and during his second visit made this known to her in a very explicit way. He does not feel she validates his angry feelings and this makes him angrier. He feels she blames his grandfather for his anger at her and this makes him angrier.”
Mother’s Claim that the Grandparents’ Testimony was Inherently Not Credible
Finally, mother seeks to overcome the rules regarding substantial evidence review as well as to charge the grandparents as not being trustworthy to provide for B.P.’s best interests. She contends the grandparents’ testimony was inherently incredible such that we should reject the trial court’s factual determination and either decide credibility for ourselves or find the trial court did not properly consider the grandparents’ trustworthiness in determining B.P.’s best interest. She cites in this regard Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.
Once again, mother’s argument is fatally flawed. Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, such is not the case here. To warrant an appellate court’s rejection of statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. (Evje v. City Title Ins. Co., supra, 120 Cal.App.2d at p. 492.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (Ibid.) Mother cannot point either to a physical impossibility that the grandparents’ statements were true nor that their falsity is apparent without resorting to inferences or deductions. (Evje v. City Title Ins. Co., supra, 120 Cal.App.2d at p. 492.)
I. Mother’s Joinder
Finally, mother joins in the father’s appeal and the issues he raises. In our opinion on that appeal, we have rejected each of his claims as meritless.
DISPOSITION
The order terminating parental rights is affirmed.
Section 1516.5 provides in this regard:
“(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.”
“So I did some research, and the parental fitness is relevant. Bears on the issue of detriment to the child, if they’re returned to the parents’ custody, even though there’s a guardianship here, noting that there can be detriment to the child without any finding of parental unfitness. Plus parent’s prior conduct is relevant to the best interest of the child. And the past conduct is an indicator, although not definitive of future conduct. So the fitness of the parent is an issue.”
Mother’s counsel did not attempt to recall the therapist. To the extent mother tries to make an issue out of the court’s initial ruling, we conclude it is meritless given the court’s later change of opinion.