Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-01968
Margulies, J.
T.H. was found to be a dependent child following her detention by the Contra Costa County Children & Family Services Bureau (Bureau) in 2006. After appropriate proceedings, the parental rights of T.H.’s birth parents, D.H. (Father) and T.M. (Mother), were terminated, and the juvenile court designated prospective adoptive parents for T.H. At the hearing, Father’s counsel requested that the court require the prospective adoptive parents to mediate with Father in an effort to reach an agreement that would maintain contact between T.H. and Father after the adoption. The juvenile court denied the requested mediation. Father contends the denial constituted an abuse of discretion. We affirm.
I. BACKGROUND
T.H., a three-year-old girl, was detained from Mother’s custody in November 2006, after Mother tortured and starved to death T.H.’s older brother. T.H. was found to be a dependent child under Welfare and Institutions Code section 300, subdivisions (a), (b), (c), and (j).
Father was not living with Mother at the time of the detention, having separated from her more than two years earlier. Because of the entry of a restraining order, Father had limited contact with T.H. prior to her detention. During the reunification process, however, he worked diligently with the Bureau in attempting to form a relationship with T.H. Father proved a devoted parent, attending 30 weekly attachment therapy sessions, but, the Bureau believed, he was slow to grasp basic parenting techniques and showed little empathy for the trauma inflicted on T.H. by Mother. Despite Father’s diligence, T.H. failed to form a personal bond with him. In June 2008, the juvenile court terminated reunification services to Father, a decision affirmed on writ to this court. (Damian H. v. Superior Court (Sept. 2, 2008, A122031) [nonpub. opn.].)
At a hearing on September 25, 2008, the juvenile court terminated the parental rights of Father and Mother, and continued T.H.’s placement with her foster parents, who were designated as prospective adoptive parents. Near the close of the hearing, Father’s attorney asked the court to “make a referral to mediation or to engage an agency that does post-adoption agreements to see whether or not there can be an agreement between [Father] and the adoptive parent[s] for ongoing contact as to [T.H.].” In response, the Bureau’s counsel represented that the prospective adoptive parents were willing to rent a post office box to which Father could send letters, thereby maintaining contact. Relying on this assurance, the juvenile court denied the request for mediation.
II. DISCUSSION
Father and Mother contend that the juvenile court abused its discretion in denying Father’s request to require the prospective adoptive parents to engage in mediation with respect to a postadoption contact agreement.
Postadoption contact agreements (PCA’s) are governed by Family Code section 8616.5, which reads in relevant part: “(a) The Legislature finds and declares that some adoptive children may benefit from either direct or indirect contact with birth relatives, including the birth parent or parents or an Indian tribe, after being adopted. Postadoption contact agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children and the agreements are voluntarily entered into by birth relatives, including the birth parent or parents or an Indian tribe, and adoptive parents.... [¶] (b) [¶] (1) Nothing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives, including the birth parent or parents or an Indian tribe, and the child from voluntarily entering into a written agreement to permit continuing contact between the birth relatives, including the birth parent or parents or an Indian tribe, and the child if the agreement is found by the court to have been entered into voluntarily and to be in the best interests of the child at the time the adoption petition is granted.”
Other subdivisions of Family Code section 8616.5 limit the terms of PCA’s to contact, visitation, and the sharing of information with birth relatives of the child, provide for enforcement by the court, and specify the circumstances under which the court can modify or terminate a PCA. (Fam. Code, § 8616.5, subds. (b)(2), (f) & (h).) As the terms of section 8616.5 suggest, the court may encourage adoptive parents to agree to the terms of a PCA, but it cannot require them to do so. (In re Celine R. (2003) 31 Cal.4th 45, 55.) By express statute, PCA’s are available to adopted dependent children, such as T.H. (Welf. & Inst. Code, § 366.26, subd. (a).)
Although Welfare and Institutions Code section 366.26 makes clear that adopted dependent children may be the subject of a PCA, the dependency statutes contain no provisions requiring, or even authorizing, PCA mediation. Two published decisions have relied on this silence in holding that the juvenile court has no obligation to inform birth parents of the potential availability of a PCA or to provide them with an opportunity to negotiate such an agreement. (In re Kimberly S. (1999) 71 Cal.App.4th 405, 415 (Kimberly S.); In re Zachary D. (1999) 70 Cal.App.4th 1392, 1395 (Zachary D.).)
Father attempts to distinguish these cases by noting that they concern kinship adoptions—those in which the adoptive parents are biological relatives of the adopted child. With respect to the issue before us, however, the terms of the earlier kinship adoption statutes were not materially different from current law. Father points to no difference between the language of Family Code section 8616.5 and that of the statutes considered in Kimberly S. and Zachary D. that would create greater rights for birth parents in a nonkinship adoption. On the contrary, as Kimberly S. noted, the case for postadoptive contact is stronger with kinship adoptions than with third party adoptions. (Kimberly S., supra, 71 Cal.App.4th at p. 412.) Further, although the applicable statutes have been amended somewhat since Kimberly S. and Zachary D. were decided in 1999, nothing in those amendments indicates a legislative intent to require birth parents to be given notice and an opportunity to negotiate a PCA prior to a dependent child adoption.
The statutes at issue were Family Code section 8714.5, which governs kinship adoptions, and an earlier version of Family Code section 8616.5, Family Code former section 8714.7, which at the time was restricted to kinship adoptions. (See In re Zachary D., supra, 70 Cal.App.4th at p. 1396, fns. 2 & 3.) In 2000, the Legislature broadened Family Code former section 8714.7 by removing the restriction to kinship adoptions. (Stats. 2000, ch. 910, § 4, p. 5077.) Former section 8714.7 was renumbered Family Code section 8616.5 in 2003. (Stats. 2003, ch. 251, § 8, p. 2036.)
Any lingering doubt about the availability of compelled PCA mediation in these circumstances was resolved when the Legislature added subdivision (k)(1) and (2) to Family Code section 8616.5 in 2006. (Stats. 2006, ch. 838, § 9, p. 4965.) Subdivision (k) of Family Code section 8616.5 states that a court may not set aside a decree of adoption or modify an order to terminate parental rights because of the failure to comply with a PCA, except that “[p]rior to issuing the order of adoption, in an adoption involving an Indian child, the court may, upon a petition of the birth parent, birth relative, or an Indian tribe, order the parties to engage in family mediation services for the purpose of reaching a postadoption contact agreement if the prospective adoptive parent fails to negotiate in good faith to enter into a postadoption contact agreement, after having agreed to enter into negotiations....” (Fam. Code, § 8616.5,subd. (k)(1), italics added.)
The Legislature’s express restriction of this subdivision to Indian children implies that court-mandated referral to mediation is not available in adoptions involving non-Indian children. Further, and more important, the restriction in Family Code section 8616.5, subdivision (k)(1) of compelled PCA mediation to situations in which a prospective adoptive parent has already “agreed to enter into negotiations” over a PCA suggests that, even with respect to Indian children, the Legislature did not intend that prospective adoptive parents would be compelled to mediate with respect to a PCA unless they had previously, of their own volition, manifested a willingness to enter into such an agreement. There was no such manifestation here. Accordingly, the juvenile court did not abuse its discretion in refusing to require PCA mediation, and it arguably would have abused its discretion had it granted the request.
Father argues, more generally, that the juvenile court abused its discretion because maintaining contact with Father would have been in T.H.’s best interests. The amount and type of contact, if any, that should be permitted between birth parents and an adopted child is a complex and difficult question with potentially serious consequences. It depends heavily upon the personal characteristics and circumstances of all parties involved, including the adoptive parents. The fact that Family Code section 8616.5 makes entry into a PCA voluntary suggests that it is the judgment of the Legislature that this decision should be left to the discretion of the adoptive parents. It is the adoptive parents, after all, who have responsibility for the nurture and care of the adopted child and who, once the adoption is approved, are the judges and guardians of the child’s best interests. It would be inappropriate for us to second-guess the judgment of the Legislature, the juvenile court, and the prospective adoptive parents by concluding that Father’s case for postadoptive contact is so strong that, as a matter of law, the prospective adoptive parents must mediate with him. It is important to note that a PCA is not required in order to provide for postadoption contact, as T.H.’s prospective adoptive parents demonstrated by agreeing to maintain a post office box to facilitate such contact with Father.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.