Opinion
F087185
06-07-2024
In re P.P., a Minor. v. B.K. et al., Objectors and Respondents K.P., Petitioner and Appellant,
Law Office of Robin N. McStay and Robin N. McStay for Petitioner and Appellant. Jacob I. Olson, under appointment by the Court of Appeal, for Objector and Respondent B.K. Liana Serobian, under appointment by the Court of Appeal, for Objector and Respondent Q.P.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. FL-21-000961. Marcus L. Mumford, Judge.
Law Office of Robin N. McStay and Robin N. McStay for Petitioner and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Objector and Respondent B.K. Liana Serobian, under appointment by the Court of Appeal, for Objector and Respondent Q.P.
OPINION
HILL, P. J.
P.P.'s paternal grandmother, K.P. (Guardian), appeals the superior court's judgment pursuant to Family Code section 7822 and Probate Code section 1516.5 that denied Guardian's petition to declare P.P. free from the custody and control of Q.P. (father) and B.K. (mother) (collectively, parents). Guardian raises four issues on appeal: (1) the evidence was not sufficient to prove that parents did not intend to abandon P.P.; (2) the court erred in denying the petition pursuant to Probate Code section 1516.5; (3) the court failed to meet the statutory timing requirements for the trial; and (4) the court violated section 7807 by trailing Guardian's petition to terminate parental rights behind mother's petition to terminate the guardianship in the guardianship case.
The notice of appeal states it is from the "[j]udgment after court trial," entered on September 20, 2023. The appellate record only includes a "Notice of Entry of Judgment," filed on that date and attached to the court's "Statement of Decision," dated August 21, 2023. (Boldface and some capitalization omitted.) We exercise our discretion to deem the statement of decision an appealable final judgment and hereinafter refer to that order as the judgment. (See In re Clarissa H. (2003) 105 Cal.App.4th 120, 122, fn. 2.)
Undesignated statutory references are to the Family Code.
We may also refer to proceedings under this section as a termination of parental rights. (See In re Charlotte D. (2009) 45 Cal.4th 1140, 1142.)
We conclude that the trial court abused its discretion by applying the wrong legal standards in denying Guardian's petition to terminate parental rights. We will reverse the judgment and remand the matter to the trial court with instructions to conduct further proceedings.
PROCEDURAL AND FACTUAL SUMMARY
On January 24, 2024, we granted Guardian's request for judicial notice of the court records in Stanislaus County Superior Court case No. 3001579 (the guardianship case) and ordered the record on appeal augmented to include the clerk's transcript from that case.
On February 5, 2018, when P.P. was almost two months old, Guardian filed petitions for appointment as temporary guardian and as guardian. Both petitions alleged that parents had a long history of opiate use, had used drugs within six to 12 hours of P.P.'s birth, were homeless, only visited P.P. in the intensive care unit two or three times after her birth, and had not visited P.P. since Guardian took custody of P.P. on January 7, 2018. Both petitions were set for hearing on April 9, 2018.
P.P. tested positive for amphetamines and opiates at birth.
According to the petition for appointment of Guardian, P.P. has a sister and a half sister. Child Protective Services (CPS) was involved with P.P.'s sister in 2014, and neither mother nor father had custody of her.
On April 9, 2018, the court granted Guardian's petition for temporary guardianship until further hearing on May 29, 2018. Parents did not appear at the hearing. At the May 29, 2018 hearing, the matter was continued until July 10, 2018, and again until August 21, 2018, when all parties failed to appear on July 10, 2018.
The report prepared by a court-appointed evaluator recommended Guardian's appointment because P.P. had lived with Guardian since her release from the hospital. The evaluator reported that mother had a CPS history of substance abuse and neglect and mother intended to enter a recovery program on August 9, 2018. Mother had seen P.P. only once or twice since her birth, used heroin regularly during her pregnancy, and lost custody of one other daughter. Father was incarcerated, his release date was not known, and he had only seen P.P. once since her birth. The court appointed Guardian on August 21, 2018, and issued letters of guardianship. Neither mother nor father appeared at the hearing.
Thereafter, on November 8, 2018, mother filed a petition to terminate the guardianship and alleged that it was in P.P.'s best interest to do so because she had changed and could be a good mother. The court set the matter for a contested hearing on February 20, 2019, and then continued it until July 30, 2019. On July 24, 2019, mother filed a declaration explaining that she could not attend the hearing as she was completing a 90-day inpatient program in Texas. The court denied mother's petition without prejudice on July 30, 2019.
Mother filed a petition to establish or modify visitation on November 16, 2020. The matter was set for hearing on December 16, 2020, but dropped because Guardian had not been served and mother failed to appear. Mother filed petitions to terminate the guardianship and establish or modify visitation on February 19, 2021. The court continued mother's petition from March 22, 2021, until April 19, 2021, because Guardian had not been served. Mother, C.D. (maternal grandmother), and J.D. (maternal grandfather) (collectively, maternal grandparents) appeared in court on April 19, 2021, but Guardian did not appear. The court called Guardian and ordered her to appear on April 26, 2021, for hearing to address maternal grandparents' petitions for appointment as guardians, appointment as temporary guardians, and to remove Guardian and appoint maternal grandparents as successor guardians. Guardian appeared on April 26, 2021, but the court continued the hearing on maternal grandparents' and mother's pending petitions until June 21, 2021, and ordered that visitation for mother commence on May 1, 2021.
Mother filed a request to appear by telephone when she filed the petition, but the record on appeal does not indicate whether her request was granted.
In their petition for appointment as temporary guardians, maternal grandparents alleged that maternal grandmother finally met P.P. in December 2020, when maternal grandmother accompanied mother to deliver Christmas gifts to P.P. Guardian sent a text message to mother shortly thereafter and advised that Guardian intended to adopt P.P.
II. Guardian's petition to terminate parental rights
Guardian filed a petition to free P.P. from the custody and control of her parents pursuant to section 7822 and Probate Code section 1516.5, subdivision (a) on April 26, 2021. The petition described parents' drug use just prior to P.P.'s birth, P.P.'s hospitalization for six weeks while withdrawing from opiates, parents' failure to visit P.P. in the hospital, and failure to support or communicate with P.P. until December 2020, when P.P. was approximately three years old.
Guardian also stated that she intended to file an "Adoption Request" to adopt P.P. Evidence that the request was filed is attached as exhibit B to Guardian's first trial brief, which is the "Report of the California Department of Social Services Pursuant to Family Code section 7663" in Stanislaus County Superior Court case No. FL-21-000966.
III. Additional proceedings on petitions filed by Guardian, mother, and maternal grandparents
On June 21, 2021, the court appointed counsel for parents, set a settlement conference for August 20, 2021, and set a court trial for October 27 and 28, 2021. The court ordered Guardian's petition to terminate parental rights to trail proceedings in the guardianship case because it could not "make any orders in this case until the [guardianship case] is adjudicated." (Boldface omitted.)
Since June 21, 2021, each court hearing addressed matters in both the guardianship case and the termination of parental rights cases.
Mother filed a substitution of attorney to remove appointed counsel and represent herself on July 21, 2021, and petitions to transfer the proceedings to Placer County and modify visitation on July 30, 2021. On August 20, 2021, the court denied mother's petition for a change of venue, set a status conference for December 10, 2021, and reset the court trial for April 25 and 26, 2022. The court appointed counsel to represent mother on August 27, 2021, pursuant to section 7862.
On December 10, 2021, the court modified mother's visitation schedule and set a settlement conference hearing for March 11, 2022. At the March hearing, the court modified visitation, ordered mother to submit a hair follicle sample by April 22, 2022, and confirmed the trial date. However, on April 25, 2022, the court ordered Guardian's counsel to notice the Citizen Potawatomi Nation and continued the trial until November 7 and 8, 2022.
According to the clerk's transcript, maternal grandmother completed the Stanislaus County Superior Court Investigator Guardianship Questionnaire and responded that P.P. may have Potawatomi and Cherokee Native American blood. According to the report of the State Department of Social Services filed in Stanislaus County Superior Court case No. FL-21000966, mother claimed that she might have Native American heritage with Cherokee tribes. Only one of three Cherokee tribes had responded to inquiries and verified that P.P. was not eligible for membership at the time the report was written.
IV. Court trial
Guardian's counsel filed a notice of child custody proceeding for an Indian child on September 19, 2022, and provided such notice to the Citizen Potawatomi Nation. Trial was held on November 7 and 8, 2022, but was then continued six months until May 10, 2023. On April 10, 2023, the court referred the case to a licensed marriage family therapist (evaluator) for preparation of a report pursuant to section 7851. Trial resumed and concluded on May 10, 2023. The court ordered the parties to file posttrial briefs by June 16, 2023, and filed its statement of decision on August 21, 2023.
The contents of this report are part of the trial evidence. (§ 7851, subd. (d) ["The court shall receive the report in evidence and shall read and consider its contents in rendering the court's judgment."].)
Evaluator's report included results of interviews with Guardian, mother, and P.P. Guardian explained that parents were using methamphetamine and heroin and homeless when mother became pregnant. Guardian would sometimes assist them with hotel accommodations and food. P.P. spent 16 days in the hospital after testing positive for opiates when she was born. P.P. was released to Guardian from the hospital after CPS involvement. According to Guardian, parents continued with their addiction for the next two and a half years. When P.P. was two months old, Guardian arranged for a hotel room for parents and brought P.P. to the room. However, neither parent was interested in P.P. nor attempted to even hold her. Guardian sometimes heard from father and took him food, but he did not ask about P.P.
Guardian described that the court ordered visitation for mother when P.P. was three years old, but mother missed several visits. When mother did attend visits, she was unprepared and only attempted to provide activities for P.P. in the more recent visits. According to Guardian, P.P. did not enjoy the visits and did not understand why she had to participate. Mother never provided for P.P. financially but had given P.P. gifts at times.
According to Guardian, father was not involved in P.P.'s life until two years before her interview. After completing a recovery program in Washington, he attempted to develop a relationship with P.P., saw her at family gatherings, and kept her overnight. Father saw P.P. once a week but was agreeable to termination of his parental rights so long as mother's rights were also terminated.
At the time of Father's interview, he had a 12-year-old daughter with a woman who had custody of her. However, Guardian maintained regular contact with father's 12-year-old daughter, and P.P. had a relationship with her half sister. P.P. did not have a relationship with parents' first child, an eight-year-old girl in the custody of her great grandmother.
Mother told evaluator that she had been addicted to heroin "for most of her twenties." P.P. tested positive for heroin at birth, and CPS became involved. CPS offered to allow her to go into a recovery program with P.P., but she was not ready at that time and agreed that Guardian should have custody of P.P. Mother attended several drug rehab programs but was not able to get sober until May 2019, after participating in the program in Texas. Mother told evaluator that she filed a petition to terminate the guardianship when P.P. was nine months old. Mother stated that Guardian was initially good staying in contact, they had sporadic video chats, and Guardian once brought P.P. to mother's work for a visit in 2021, also attended by maternal grandmother, that "went well."
Mother reported that P.P. told her, "My real mommy told me just because I came of out of your tummy doesn't mean that you're my mom," mother is mean, and P.P. did not like mother. Mother believed Guardian coached P.P. to make these comments.
Guardian reported that P.P. was aware she was born from mother's "tummy" and that father is her father. P.P. was sometimes resistant to visiting mother, but Guardian tried to encourage P.P., explaining that mother wants to know P.P.
Evaluator spoke with P.P. but did not explain the circumstances of the interview due to P.P.'s age and inability to understand. While P.P. was initially shy, she warmed up to evaluator, and evaluator concluded that P.P. seemed developmentally appropriate for her age. P.P. told evaluator that "she lives with her mom and Papa." Evaluator reported that P.P. knew who father was and also acknowledged that she came from mother's stomach who she sees at the park. When asked, P.P. mentioned she likes the park but did not discuss her feelings about mother.
B. Court's Summary of Testimony and Evidence
There is no reporter's transcript of the trial in this matter. The California Rules of Court provide an appellant with a choice of several types of records upon which to take an appeal, including an agreed statement and a settled statement. (Cal. Rules of Court, rules 8.120 & 8.121.) Guardian provided this court with a clerk's transcript. Therefore, we rely upon the court's summary of the testimony in this case as set forth in its statement of decision.
(1) Father
Father testified that he became addicted to drugs in 2010. He had a daughter in 2011 (half sister to P.P.) and a daughter with mother in 2014 who was in the custody of mother's grandmother. Father explained that he never had custody of P.P. because he and mother were both addicted to drugs and homeless when P.P. was born. P.P was placed into the neonatal intensive care unit at the hospital and CPS became involved. The social worker advised parents that they needed to place P.P. with a family member or friend. Parents made an agreement with Guardian that P.P. would stay with Guardian until they had housing.
Father testified that while he visited P.P. in the hospital, he continued to make bad life decisions and was in and out of jail. He saw P.P. once or twice a month under the supervision of his mother. Father testified that he started seeing P.P. in the later part of 2020 on a daily basis. He had been sober since participating in an inpatient treatment facility in Washington between March 2021 and August 2, 2021. At the time of his testimony, he was employed, rented a home, and saw P.P. once or twice a week. If mother's parental rights were terminated, father agreed to terminate his parental rights as well.
The court's summary of father's testimony is not clear as to the time frame to which father referred for these events.
(2) Mother
Mother admitted using drugs the morning P.P. was born. She met with a CPS worker before leaving the hospital and was given the option of entering a live-in rehabilitation center with P.P. or placing P.P. with a temporary guardian until she was stable. Mother agreed to allow Guardian to have custody of P.P. because Mother believed that she would be allowed to see P.P., although CPS had informed mother that she could only do so if sober. Mother never intended to give up P.P. permanently and first applied to terminate the guardianship in November 2018 because Guardian did not allow mother to see P.P. and mother feared that she would not get P.P. back if she waited.
Mother testified that she did participate in a detoxification program with Stanislaus Recovery Center but was kicked out because she used drugs in August 2018.On September 14, 2018, Guardian sent mother a text message that stated, "Stay strong [mother]. You have babies that need you. It'd be hard to part with [P.P.] but when all is good and right she needs to be with mom &dad. She is saying mama maamaa.. .almost walking. A true blessing."
Mother filed petitions to terminate the guardianship and establish or modify visitation and a declaration on February 19, 2021. The declaration included her letter explaining her efforts to address her drug addiction and records from the facilities involved in that process. Mother described her first attempt at Stanislaus Center Recovery Center where she experienced 30 days of success before failing. Records from that facility show that mother was admitted in August 2018, and treated for severe opioid use and moderate marijuana use. During establishment of a treatment plan on August 27, 2018, mother identified one of her goals was "to get her kids back." She was discharged for using drugs and unsatisfactory progress on September 8, 2018.
Mother described her enrollment in a methadone clinic a week later, eventually followed by enrollment in Bright Future Recovery in Hollister until she finally was admitted to a rehabilitation facility in Texas in May 2019, where she completed a 120-day program that segued into a second program until May 3, 2020. At that point, mother entered a program in Sacramento and had not used drugs since May 2019.
Mother's letter described that she spent 14 days in a detoxification program at Bright Future Recovery in Hollister before entering a program at Bringing Real Change in Texas in May 2019.
Mother's declaration in support of her petition to terminate the guardianship also included records that she attended Alcoholics or Narcotics Anonymous meetings October 5, 2018, through November 28, 2018. Records from an outpatient program in Monterey County show that that mother enrolled on November 1, 2018, and included a treatment plan established on November 11, 2018. As of November 29, 2018, mother had attended nine group sessions and received two negative drug test results on November 5, 2018, and November 26, 2018. Mother's letter described that she relapsed after this program, unsuccessfully attempted a methadone program for one to two months, but still used drugs.
Records mother submitted in support of her petition to terminate the guardianship provide that as of December 10, 2020, mother successfully completed the Phoenix Rising Treatment Services program in Sacramento that she began in May 2020. Her personal information sheet indicates that sought help in order to be reunified with her daughters.
Once out of rehabilitation, mother intended to "do the things a mom is supposed to do," "get a job and stay sober." Mother testified that in 2020 she began to send support to P.P. and offered into evidence gift orders and a shipping confirmation receipt for purchases between November 19, and December 7, 2020.
(3) Guardian
Guardian knew that parents were using drugs during the time P.P. was born because she saw track marks on their arms. Parents were homeless and CPS became involved when P.P. was born addicted to narcotics. CPS advised that if parents did not have a plan in place, P.P. would be placed in foster care. Guardian did not allow parents to live with her but agreed to care for P.P. until parents were sober. The six months following her custody of P.P., parents did not frequently visit P.P. and were living in a motel. Neither parent visited P.P. thereafter as father was in custody and mother was in treatment in Texas. Neither parent provided any financial support to P.P. between January 2018 and March 2021. Guardian's relationship with P.P. was like that of a mother and daughter.
C. Court's Ruling
The court concluded that the "procedural history, testimony and evidence presented at trial" made clear that mother "never intended to abandon [P.P.]" The court concluded that parents decided to place P.P. into Guardian's custody to avoid P.P. being placed into foster care and to permit parents to focus on their efforts to get clean and sober. The court further concluded that all parties intended that the arrangement be temporary as corroborated by Guardian's text message to mother on September 14, 2018, that encouraged mother to stay strong because her children needed her. The court noted: mother filed a petition to terminate the guardianship on November 8, 2018, which was denied without prejudice because mother was in a treatment facility; mother was advised to refile upon completion of the treatment program; and Guardian recognized mother's need to refile when Guardian wrote a letter to mother advising her to refile the petition when she wanted to.
Addressing Guardian's argument that parents abandoned P.P. by failing to provide support for her for over a year, the court found that mother was unemployed and financially destitute between 2018 and 2020 but commenced paying child support when her wages were garnished after she obtained employment. The court further noted that mother sent gifts and toys to P.P. when she had money to do so, referring to several exhibits showing documentation of gifts in November or December 2020- Guardian also testified that mother did not communicate with P.P., but the court credited mother's testimony that Guardian did not permit her to have contact with P.P. during this time.
The court concluded that mother's failure to support P.P. "during these timeframes was not willful as she did not have the financial means to provide it" (boldface omitted), written communication would have been futile because of P.P.'s age, and mother's failure to communicate with P.P. verbally was not willful because Guardian made it "difficult if not impossible" for mother to do so. The court found that mother had consistently made efforts to reunite with P.P. and had petitioned the court to either terminate the guardianship or modify its terms since 2018. The court also credited evaluator's report that although "there may have been an extended period where [parents] had no contact or concerns for their child while they were in their drug addiction[,] it was clear that for the 'past several years the parents have had contact with [P.P.] and have been part of her life.' '' Evaluator noted that mother had expressed her desire to have a continued relationship with P.P. through court filings, which was inconsistent with an intent to abandon.
In denying Guardian's petition to terminate parental rights, the court relied upon In re H.D. (2019) 35 Cal.App.5th 42, a case in which the mother had left the children in the father's custody in order to participate in drug treatment but with the full intention to return to the children once treatment was completed. (Id. at p. 45.)
The court similarly found that father's access to P.P. had been prevented because Guardian prevented contact while father was addicted to drugs and in and out of prison. Father testified that he had supervised visits with P.P. once or twice a month between 2018 and 2019, and between 2020 and 2021, father visited P.P. every day. The court concluded that father had given custody to Guardian until such time as he secured housing and attained sobriety and was financially unable to support P.P. during the time of his addiction and until he achieved sobriety in September 2021. The court found that Guardian had not established by clear and convincing evidence that father intended to abandon P.P. during the statutory period of time or willfully failed to provide support for P.P.
(3) Probate Code Section 1516.5-Mother and Father
The court further concluded that it would not be in the best interest of P.P. to permit Guardian to adopt P.P. because the court believed that P.P. would benefit from being permitted to have a relationship with mother and father as "[t]he more people in a child's life to love and care for them, the better." Parents' addiction prevented P.P. from having a relationship with them as they "were struggling to get control of their lives and overcome their addiction" for a significant period of time. The court further concluded that parents "did make efforts to have contact with [P.P.] as much as [Guardian] would allow." The court found that parents were living in California, employed, and each had adequate housing at the time of the trial. Furthermore, P.P. was aware that mother and father are her parents.
The court recognized that P.P. had developed a bond with Guardian as P.P. had been in Guardian's physical custody for several years and Guardian acted as P.P.'s parent. The court recognized that P.P. naturally viewed Guardian as her mother and referred to Guardian as "Mama." The court acknowledged that Guardian loved P.P. and P.P. had established a relationship with father's sister who assisted in caring for P.P. Testimony showed that P.P. had no contact with parents' other daughter and sporadic contact with her half sister (father's other daughter).
The court deferred to evaluator's report and concluded that termination of parental rights would not be in the best interest of P.P. because, despite their flaws, parents "clearly love and care for the wellbeing of [P.P.] and want to be a part of [P.P.]'s life. They have not engaged in conduct that rises to the level of willful abandonment." The court concluded that P.P. would not benefit from being adopted by Guardian and denied Guardian's petition to terminate parental rights pursuant to Probate Code section 1516.5.
(4) Mother's Petition to Terminate the Guardianship
In addressing mother's petition to terminate the guardianship, the court was not convinced that mother was "in a position to consistently provide for [P.P.]'s needs financially and emotionally at [that] time. [Guardian] has provided a wholesome and stable environment for [P.P.] since her birth. The child is healthy and meeting her educational milestones. By all accounts, the child is very content with her current living [arrangement], is happy and thriving both physically and mentally." The court concluded that the guardianship would remain in place for P.P.'s best interest. The court then modified mother's visitation rights in recognition of the "crucial need to establish a bond between [P.P.] and [mother]."
V. Appeal Guardian filed this timely appeal on November 16, 2023.
Father joins in mother's arguments. (Cal. Rules of Court, rule 8.200(a)(5).)
I. Sufficiency of evidence as to parents' intent to abandon pursuant to section 7822
A. Applicable Law
(1) Proceedings to Terminate Parental Rights Generally
The courts may terminate parental rights over the parent's objection or without parental consent under section 7822 and Probate Code section 1516.5. These and other statutes address "a complex group of interrelated, but perhaps conflicting, interests among which are those of (1) the parent and child in a continuing familial relationship; (2) the parent in preserving the integrity and privacy of the family unit, . . .; (3) the child in a permanent, secure, stable, and loving environment; and (4) the state in protecting the child." (In re Angelia P. (1981) 28 Cal.3d 908, 919.) Although a parent's right to have custody and control of his or her child is fundamental and subject to constitutional protection, it is not absolute and is limited by" 'an actual, developed relationship with a child, and [is] tied to the presence or absence of some embodiment of family.'" (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1130, fn. 11 (Ann S.), quoting Troxel v. Granville (2000) 530 U.S. 57, 88 (dis. opn. of Stevens, J.).)
(2) Section 7822
Section 7800 et seq. governs proceedings to have a child declared free from a parent's custody and control. "The purpose of this part is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life." (§ 7800.) The statutes are to be "liberally construed to serve and protect the interests and welfare of the child." (§ 7801.)
A court may declare a child free from the parent's custody and control if the parent has abandoned the child. (§ 7822, subd. (a)(2).) Relevant here, abandonment occurs when "[t]he child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child." (§ 7822, subd. (a)(2).) Thus, a finding of abandonment is appropriate when three elements are met: (1) the child must have been left with another; (2) without provision for support or without communication from the parent for the statutory period; and (3) with the intent on the part of the parent to abandon the child. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.).)
Section 7822 also includes a presumption: "The failure to provide ... support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents." (§ 7822, subd. (b).)
Section 7822, subdivision (b) states the elements of abandonment in the disjunctive; thus, the presumption arises if any one of the alternatives has been satisfied. (In re Adoption of A.B. (2016) 2C al.App.5th 912, 923, fn. 10 (Adoption of A.B.).)
(3) Standard of Review
Whether to terminate parental rights lies squarely within the discretion of the trial court and must be based on specific findings of fact. (Adoption of A.B., supra, 2 Cal.App.5th at p. 924.) These findings of fact, including any finding of abandonment, must be supported by clear and convincing evidence. (§ 7821.) On appeal, we will not disturb the decision to terminate parental rights absent an abuse of discretion. (Adoption of A.B., at p. 924.) The trial court does not abuse its discretion if the order is supported by the appropriate factual findings and the findings are supported by substantial evidence. (Ibid.) This includes any finding under section 7822. (Adoption of A.B., at p. 924; Allison C., supra, 164 Cal.App.4th at p. 1010.) We review the record, as a whole, in the light most favorable to the prevailing party, to determine whether substantial evidence supports the trial court's findings. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005, 1011-1012.) The appellant bears the burden of showing the findings are not supported by substantial evidence. (Allison C., at p. 1011.)
However, even if substantial evidence supports the trial court's findings, we could still find an abuse of discretion if the court misapplied the law, based its decision on improper criteria, or used an incorrect legal standard. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) Where the trial court applies an incorrect legal standard, we review the matter de novo. (See Adoption of A.B., supra, 2 Cal.App.5th at pp. 922, 924; Allison C., supra, 164 Cal.App.4th at p. 1010, fn. 6.)
B. Analysis
A termination of parental rights under section 7822, subdivision (a)(2) requires that the parent leave the child in the care and custody of another person for at least six months. A parent "leaves" a child by voluntarily relinquishing the child to another person's care and custody or by actual desertion and by abandoning their parental role. (In re Amy A. (2005) 132 Cal.App.4th 63, 69.) The court's decision appears to conclude that parents did not "leave" their child because they agreed to Guardian's custody of P.P. to avoid "the very undesirable alternative of having [P.P.] placed in foster care" and to permit parents to "focus[] on their efforts to get clean and sober."
The court relied upon In re H.D., supra, 35 Cal.App.4th 42, a case where mother stipulated to father's custody after he went to court seeking custody based upon mother's use of drugs and alcohol. (Id. at p. 51.) The In re H.D. court recognized that "[l]eaving a child in the care of another does not require a literal physical desertion," but" 'focuses on the voluntary nature of the parent's abandonment of the parental role.'" (Ibid.) In In re H.D., the court found that the facts fell somewhere between a judicial taking and a voluntary relinquishment of the parental role because the mother agreed to custody and to seek treatment to avoid a judicial taking but then "endeavored to regain custody by immediately seeking treatment, getting sober, and returning to the court seek modification of the custody order." (Id at p. 51.)
In this case, however, mother told evaluator that CPS offered to allow her to go into a recovery program with P.P., but she was not ready at that time and relinquished custody of P.P. to Guardian. Mother also testified that she met with a CPS worker before leaving the hospital and was given the option of taking P.P. with her to an inpatient rehabilitation center. Father similarly testified that he agreed that P.P. should live with Guardian until they found housing but that, thereafter, father was in and out of jail because of his addiction and homelessness. Unlike In re H.D., mother here voluntarily abandoned her parental role because she was using drugs and did not want to enter into a recovery program at that time. Also, unlike the mother in In re H.D., parents failed to show they were working to treat their addiction when they left P.P. in Guardian's custody so as to permit an inference that this, not abandonment of P.P., was their intent at the time. Therefore, the six-month period for abandonment commenced on January 7, 2018, when parents voluntarily relinquished P.P. to Guardian, and concluded on July 7, 2018.
Mother testified that she participated in detoxification and therapy at the Stanislaus Recovery Center and was kicked out of the program in August 2018. While mother described several drug programs she attempted, she did not identify any program prior to August 2018. Mother testified that she had been sober since enrollment in the Texas drug program in May 2019, but P.P. had been in Guardian's custody almost one and a half years at that time. Similarly, father testified that he did not achieve sobriety until September 2021, but the evidence does not show that he attempted to address his addiction within the six-month period after Guardian took custody of P.P.
The court also erred in failing to focus on parents' actions within the six-month period after leaving P.P. with Guardian. In Adoption of A.B., the mother's husband sought to terminate the father's parental rights pursuant to section 7822, subdivision (a)(3), which sets forth a one-year period of abandonment. (Adoption of A.B., supra, 2 Cal.App.5th at pp. 915-916.) The father argued that the trial court erred in granting the petition, contending that the one-year period referred only to the year immediately preceding the filing of the petition to terminate parental rights. (Id. at p. 915.) The Court of Appeal concluded that while the statutory period of abandonment must occur prior to the filing of the petition terminating parental rights, there was no limitation requiring the period to occur immediately prior to the termination petition. (Id. at p. 919.) "We also reject [the] contention that interpreting the statute to authorize a termination of parental rights where a parent abandoned a child, but subsequently established frequent and constant contact with him or her, would be 'absurd.' In fact, the interpretation [the party] advocates would allow a parent to abandon a child for many years, only to race to the courthouse to obtain visitation as soon as a new stepparent enters the picture, thereby precluding the court from terminating the abandoning parent's rights and interfering with the child's potential adoption, stability and security." (Id. at p. 922.) While the appellate court recognized that the father "may not have intended to abandon [the child] permanently and his efforts toward self-improvement were admirable, the law does not require that [the child's] life be kept in limbo based on such circumstances. In fact, doing so would not be consistent with the legislative purpose of providing abandoned children with the stability and security of an adoptive home." (Id. at pp. 923-924.) As the Adoption of A.B. court indicated, an interpretation of the statute allowing a parent to abandon a child under section 7822 and then later reconnect with the child to negate the abandonment would interfere with the legislative purpose of providing abandoned children with stability and security. (Adoption of A.B., at pp. 922-924.)
Unlike In re H.D., mother left P.P. on January 7, 2018, rather than enrolling in drug treatment, and there is no evidence that parents only left P.P. with Guardian to address their addiction. The evidence only shows that parents could not care for P.P. and were advised that they needed to address their addiction and homelessness before they could seek custody. While mother testified that she gave custody of P.P. to Guardian because mother believed that she would be allowed to see P.P., mother acknowledged that she knew she could only see P.P. if she was sober but presented no evidence of any efforts to become sober within the six-month abandonment period. As In re H.D. clarified, "our conclusion does not mean that every parent who loses custody of their child because of addiction has not 'left' that child. If mother had not been as diligent as she was in seeking treatment, our conclusion might be different. However, the law should not penalize those parents who acknowledge and then earnestly address their addictions by deeming their agreement to seek treatment a desertion of their child." (In re H.D., supra, 35 Cal.App.4th at pp. 51-52.)
Section 7822, subdivision (b) provides: "The failure to provide ... support, or failure to communicate is presumptive evidence of the intent to abandon." The statute focuses on the parents' demonstrated actions to assume parental responsibilities. (See In re Aubrey T. (2020) 48 Cal.App.5th 316, 327.) Guardian testified that during the sixmonth period, neither parent visited P.P. with any frequency and all parties testified that neither parent provided support during this period. Father testified as to times that he visited P.P. in 2020 and 2021 but failed to address any actions he took in 2018 to assume parental responsibilities for P.P. While the court found that parents failed to support P.P. during this period because they had no financial ability to do so, the court failed to address whether the infrequent attempts to communicate with Guardian and P.P. during the six-month period in time were more than "token efforts" that failed to rebut the presumption of abandonment. (§ 7822, subd. (b).)
Mother testified that prior to filing her petition to terminate the guardianship in November 2018, Guardian was not permitting her to see P.P. The court used this testimony to excuse mother's failure to visit P.P., but we note that the restrictions on parents' visitation were the product of their addiction, and there is no evidence they attempted to address their addiction before August 2018 when mother relapsed in her first attempt. Unlike the mother in In re H.D., supra, 35 Cal.App.5th 42, there is no evidence that parents had committed themselves to taking the necessary steps to obtain visitation and assume their parental responsibilities to P.P. by addressing their drug addiction.
The court characterized the guardianship decision as an agreement between Guardian and parents to permit P.P. to live with Guardian while parents focused their efforts to get clean and sober and, therefore, an arrangement intended to be temporary. The court erred in focusing its inquiry on whether parents intended to abandon P.P. permanently. The relevant inquiry regarding parents' intent is not whether they continued to care about P.P. after leaving her in the care of Guardian, or whether they wanted to have some ongoing role in P.P.'s life. The pertinent issue is whether, during the statutory period, parents intended to sever their parental relation and the obligations that arose from that relation, based on an objective measurement of their conduct during the relevant period. (Adoption of A.B., supra, 2 Cal.App.5th at p. 923; In re Aubrey T., supra, 48 Cal.App.5th at p. 327.) Parents need not have intended to abandon P.P. permanently; section 7822 is satisfied if sufficient evidence supports a finding parents intended to abandon P.P. (that is, intended to sever their parental obligations to P.P.) during the statutory period. (In re Daniel M. (1993) 16 Cal.App.4th 878, 885 [construing predecessor statute].) The Legislature has determined that a child's need for stability cannot be postponed indefinitely to conform to an absent parent's plans to reestablish contact "in the distant future." (Id. at p. 884.)
In analyzing whether mother intended to abandon P.P., the court relied upon communications between Guardian and mother in September 2018 and August 2019 and mother's November 2018 petition to terminate the guardianship as evidence that mother intended the guardianship to be temporary. This was legal error because these events were outside the six-month period of abandonment (Jan. 7, 2018-July 7, 2018).
Evidence that falls outside the statutory period is not relevant to the court's determination of abandonment. (See In re Amy A., supra, 132 Cal.App.4th at p. 71 ["the fact that [the father] opposed the petition to terminate his parental rights is not relevant because the proper inquiry is whether he intended to abandon [the child] during the . . . statutory period before the petition was filed"].)
The court did not identify any actions within the six-month period that demonstrated parents either supported or communicated with P.P. during this time, and we discern none from the record. We conclude the trial court's conclusion that Guardian failed to prove that parents' intent to abandon P.P. during the relevant statutory period under section 7822 is not supported by substantial evidence. The court erred when it denied Guardian's petition to free P.P. from parents' custody and control under section 7822 because it incorrectly calculated the relevant time period under the statute, which was an error of law, and because it considered evidence irrelevant to that period, which cannot support its findings. We will reverse the judgment and instruct the court to conduct a hearing applying the correct legal standard under section 7822 as articulated above.
We note that Adoption of A.B. recognized that a court could reject a petition to terminate parental rights even if substantial evidence supported abandonment by a finding that adoption was not in the best interest of the child. (Adoption of A.B., supra, 2 Cal.App.5th at p. 924.) Section 7822 is to be liberally construed to "serve and protect the interests and welfare of the child." (§ 7801; see Adoption of A.B., at p. 919.) We cannot uphold the court's decision on this basis, however, because the court's analysis of P.P.'s best interest in addressing the termination of parental rights pursuant to Probate Code section 1516.5 was also flawed.
II. The trial court applied the wrong standard in denying Guardian's petition to terminate parental rights pursuant to Probate Code section 1516.5
A. Applicable Law and Standard of Review
(1) Probate Code Section 1516.5
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 juvenile dependency proceedings. (Ann S., supra, 45 Cal.4th at p. 1133.) "It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under [Probate Code] section 1516.5." (Id. at p. 1122.)
Here, Guardian also petitioned to terminate mother's and father's parental rights pursuant to Probate Code section 1516.5, which allows a child in a probate guardianship to be declared free from parental custody and control if (1) the parents do not have legal custody of the child, (2) the child has been in the guardian's physical custody for at least two years, and (3) the court finds that the child would benefit from being adopted by the guardian. (Prob. Code, § 1516.5, subd. (a).) Because parents do not have legal custody of P.P. and P.P. had been in Guardian's custody more than two years when the petition was filed, only the third prong of the statutory analysis-whether P.P. would benefit by being adopted by Guardian-is before us.
(2) The "Best Interest" Test
" 'Benefit' in this context means that adoption would be the best alternative for the child," and it "requires a determination of the child's best interest." (Ann S., supra, 45 Cal.4th at p. 1128, fn. 10.) In making this determination, the court considers all factors relating to the child's best interest, including, but not limited to, the nature and extent of the child's relationship with the birth parents, the guardian, the guardian's family, and any siblings or half siblings. (Prob. Code, § 1516.5, subd. (a)(3).) Other relevant factors "include 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." (Ann S., at p. 1132.)
Probate Code section 1516.5 does not describe how a court considering a petition to terminate parental rights is to weigh the nature and extent of the parent/child relationship against the nature and extent of the guardian/child relationship, and we are not aware of any cases that shed light on the inquiry. However, courts have examined an analogous question in the dependency context under Welfare and Institutions Code section 366.26 whereby parental rights should not be terminated if the court, considering the "best interests of the child," concludes that the parents have maintained contact and visitation with the child and "the child would benefit from continuing the [parent/child] relationship." (Welf. &Inst. Code, § 366.26, subds. (c)(1)(B)(i), (h)(1).)
Our Supreme Court has recognized that the exception applies in the dependency context where the parent proves (1) regular visitation and contact with the child, taking into account the extent of visitation permitted; (2) the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship; and (3) terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. (Caden C., supra, 11 Cal.5th at p. 636.)
"The language of this exception, along with its history and place in the larger dependency scheme, show that the exception applies in situations where a child cannot be in a parent's custody but where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child." (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).)
"As to the second element, courts assess whether 'the child would benefit from continuing the relationship,'" and necessarily, "the focus is the child." (Caden C., supra, 11 Cal.5th at p. 632.) The parent/child relationship may be shaped by a "slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Ibid.) "[C]ourts often consider how children feel about, interact with, look to, or talk about their parents" and "properly focus[] the inquiry on the child." (Caden C., at p. 632.)
The Supreme Court noted that "often expert psychologists who have observed the child and parent and can synthesize others' observations will be an important source of information about the psychological importance of the relationship for the child" and encouraged trial courts, where requested and appropriate, to allow for a bonding study or other appropriate relevant expert testimony. (Caden C., supra, 11 Cal.5th at pp. 632-633 & fn. 4.)
As to the third element, whether terminating the relationship would be detrimental to the child, courts need to determine "how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th p. 633.) Such effects might include "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Ibid.) However, maintaining or obtaining a "stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Ibid.) "The court acts in the child's best interest in a specific way: it decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer,'" and whether" 'severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[]' the child." (Ibid.)
Guardian's petition to terminate parental rights pursuant to Probate Code section 1516.5 is governed by the Probate and Family Codes, not the Welfare and Institutions Code, and it concerns a child who was voluntarily placed with her current guardian by parents, not involuntarily placed by the state. Where the parental-benefit exception is found to apply in a dependency case, the statute deems the termination of parental rights to be detrimental to the interests of the child. (Welf. &Inst. Code, § 366.26, subd. (c)(1)(B)(i); see Caden C., supra, 11 Cal.5th at pp. 633-634.) However, pursuant to Probate Code section 1516.5, a parent's beneficial relationship with the child is only one factor that is balanced with all other factors related to the child's best interest and does not automatically prevent the termination of parental rights. (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1544, 1545 [showing an exception to adoption under Welf. &Inst. Code, § 366.26, subd. (c)(1) is only one of the factors considered as Prob. Code, § 1516.5 directs the court to weigh a variety of factors when deciding what is in the child's best interest].)
Nonetheless, we find the framework developed by the courts in the dependency context to be a useful one in applying the best interest test in Probate Code section 1516.5 because it requires courts not only to evaluate the strength and significance of the parent/child relationship, but to balance the benefit of maintaining that legal relationship against the benefits of permanence provided by adoption. We therefore will rely on this framework in reviewing the court's decision and P.P.'s best interest.
(3) Standard of Review
The guardian bears the burden of making the requisite showings under Probate Code section 1516.5 by clear and convincing evidence. (See Ann S., supra, 45 Cal.4th at p. 1127.) "[W]hen the clear and convincing standard of proof applied in the trial court, an appellate court should review the record for sufficient evidence in a manner mindful of the elevated degree of certainty required by this standard." (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1000-1001.) "In general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Id. at p. 1005.)
We indulge in all reasonable inferences to uphold the judgment. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382 (Noreen G.).) "[W]e do not resolve conflicts in the evidence [or] pass on the credibility of witnesses ._ [Citation.] We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact." (Adoption of Myah M., supra, 201 Cal.App.4th at p. 1539.)
"The decision to terminate parental rights lies in the first instance within the discretion of the juvenile court, and will not be disturbed on appeal absent an abuse of that discretion. [Citation.] While the abuse of discretion standard gives the court substantial latitude, '[t]he scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action ._"' [Citation.] 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.'" (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536, first &fourth bracketed insertions added.) "Accordingly, we look to see whether the court abused its discretion in applying the law ...." (Adoption of MyahM., supra, 201 Cal.App.4th at p. 1542.)
B. Analysis
Guardian argues that the court erred in denying the petition to terminate parental rights because this case was exactly the type of case for which the Legislature enacted Probate Code section 1516.5, relying on the legislative history as set forth in Ann S., supra, 45 Cal.4th at page 1125 (one situation targeted by the bill was that of" 'a drug addicted mother gives the child in guardianship, hoping to get herself rehabilitated but repeatedly fail[s], creating a situation where the child is in the custody of the guardian for years without being in the foster care system' "), quoting pages 8-9 of the report by the Senate Committee on the Judiciary on Senate Bill No. 182 (2003-2004 Reg. Sess.) as amended March 26, 2003. Guardian also argues that the court failed to address P.P.'s right to placement in an environment that is stable, permanent, and that allows the caretaker to make a full emotional commitment to her.
(1) The Trial Court Abused Its Discretion by Relying on Factors that Were Legally Irrelevant or Unsupported by the Evidence
In the present case, the court seemingly acknowledged that P.P. had not developed a bond with mother and attributed the lack of relationship to circumstances beyond P.P.'s control, that is, parents' addiction and Guardian's refusal to allow contact with P.P. during the period of addiction. The court also recognized that Guardian provided P.P. with a stable home since her birth, P.P. considered Guardian to be her mother, and P.P. called Guardian "mama." However, the court failed to weigh the weak or nonexistent bond between P.P. and mother with the strength of the bond with Guardian. Instead, the court concluded that P.P. "would benefit from actually being allowed to have a relationship with" parents because "[t]he more people in a child's life to love and care for them, the better," without identifying any detriment to P.P. if parents' parental rights were terminated. The court relied on several factors that were either legally irrelevant to the analysis pursuant to Probate Code section 1516.5 or were unsupported by the evidence.
There is insufficient evidence that P.P. had "a substantial, positive, emotional attachment to [her] parent[s]-the kind of attachment implying that [P.P.] would benefit from continuing the relationship[s]." (Caden C., supra, 11 Cal.5th at p. 636.) Furthermore, the court failed to address any of the factors that would support such a finding as articulated by our Supreme Court, such as" '[t]he age of [P.P.], the portion of [P.P.']s life spent in [parents'] custody, the "positive" or "negative" effect of interaction between parent[s] and [P.P.], and [P.P.]'s particular needs,'" (id. at p. 632, first bracketed insertion in original) or by considering how P.P. felt about, interacted with, looked to, or talked about mother. Instead, the court relied upon the generality that P.P. would benefit from having more people who love her in her life and failed to examine any evidence specific to P.P.'s relationships with her parents and Guardian. This was error.
The court also found persuasive that P.P. had "not been afforded ... a consistent and complete relationship with her" parents because of their struggle to get control of their lives and drug addictions during the first two years of P.P.'s life. The court placed undue emphasis on the reasons for the lack of relationships between P.P. and her parents rather than on the nature of their relationships at the time. The court emphasized that at the time of the trial, parents were in control of their addictions, employed, and possessed adequate housing, further noting that parents attempted to have contact with P.P., loved P.P., and had not engaged in conduct that rises to the level of willful abandonment. These circumstances relate to parents' actions to address their fitness as parents and their desire to have a relationship with P.P., but a biological parent's unfitness or fitness manifestly is not an element of the analysis pursuant to Probate Code section 1516.5. "The statute specifies in unambiguous terms that the court must find 'that the child would benefit from being adopted by his or her guardian.' ([Prob. Code, ]§ 1516.5, subd. (a)(3).) Evidence of parental unfitness or that terminating parental rights is the least detrimental alternative for the child is not required in a [Probate Code] section 1516.5 proceeding." (Noreen G., supra, 181 Cal.App.4th at p. 1383.)
In Ann S., our Supreme Court noted that Probate Code section 1516.5 was enacted to create" 'another avenue'" for a child to be adopted in cases where adoption is in a child's best interest but his or her parents" 'do not fall under one of the categories covered by existing law' "-that is, the parents have not neglected or abandoned the child. (Ann S., supra, 45 Cal.4th at pp. 1124-1125.) The court explained that the legislative analysis of Probate Code section 1516.5 "summarized the intent of the proposed legislation as follows: 'to institute a new procedure for the court to terminate parental rights when a child has been in the custody of a guardian for at least two years but there is no basis for the termination of parental rights except that it would be in the best interest of the child to be adopted by the guardian.' (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 182, supra, at p. 4.)" (Ann S., at pp. 1125-1126, italics added.)
Because a biological parent's fitness to raise their child is not legally relevant under Probate Code section 1516.5, the court erred in relying on the absence of evidence of current unfitness or willful abandonment to deny the petition to terminate parental rights.
The court emphasized that although P.P. did not have an actual relationship with mother, P.P. was entitled to a chance to develop one. However, the sole statutory criterion for terminating parental rights is whether adoption by the guardian is in the best interest of the child. It may be in a child's best interest to be released for adoption even if their parents are no longer unfit. Moreover, no evidence in the record suggests that the lack of attachment between P.P. and mother could be remedied in the future and, to the contrary, both mother and Guardian advised evaluator that P.P. was reluctant to visit mother even after two years of visitation. In any event, a court has no authority to attempt to facilitate the return of a child in probate guardianship to his or her parent. (See Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1432 [court acted beyond its authority in ordering parties to develop a reunification plan for child in probate guardianship].)
There is, finally, the lack of evidence that P.P. had an attachment to mother, as it affects whether she would be harmed if contact with mother were reduced or eliminated entirely. The court ordered visitation for mother in May 2021 and, by the time of the final day of the trial in May 2023, there should have been sufficient information to determine if P.P.'s relationship or attachment had increased due to visitation. Without considering such evidence, we fail to see how the court could have determined how P.P. would be affected by losing the parental relationship or "what life would be like for [P.P.] in an adoptive home without the parent in [P.P.]'s life." (Caden C., supra, 11 Cal.5th at p. 633.) The court failed to address whether P.P. might experience such effects as "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Ibid.)
The court also concluded that P.P. would not benefit from being adopted by Guardian because P.P. would benefit from having a relationship with her parents. As we discussed, the evidence admitted at trial fails to address whether P.P. would benefit from having a relationship with her parents. The court recognized that Guardian had acted as the only parent P.P. knew and provided P.P. with a wholesome and stable environment, but then deferred to evaluator's report, which failed to discuss P.P.'s feelings toward or attachment to her parents. The report concluded that it would not be in P.P.'s best interest to have her parents' parental rights terminated because even though parents had no contact with P.P. for an extended period, they were currently in P.P.'s life and had no intention of abandoning her. However, evaluator failed to focus on any actual attachment P.P. had developed to her parents or evaluate the effect of parents' extended period of no contact with P.P. Whether P.P. would suffer any detriment from termination of parental rights was also not addressed.
Courts must examine not simply the strength of the bond between the child and the birth parent, but whether that bond is "so significant and compelling in [the child's] life that the benefit of preserving it outweigh[s] the stability and benefits of adoption." (In re Anthony B. (2015) 239 Cal.App.4th 389, 396, disapproved on another ground in Caden C., supra, 11 Cal.5th at p. 638, fn. 7.) In this case, evaluator's report and the court failed to account for the importance of providing P.P. a permanent adoptive home. "The interests served by [Probate Code] section 1516.5 are substantial: affording children in probate guardianships the opportunity to enjoy permanent adoptive homes with familiar caretakers, and giving willing guardians the chance to become adoptive parents." (Ann. S., supra, 45 Cal.4th at p. 1138.) "For young children and those children for whom adoptive parents are available, adoption is usually the preferred placement because it offers the prospect of a secure permanent home." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 258.) "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, superseded by statute on another ground as stated in In re Eli F. (1989) 212 Cal.App.3d 228, 234.) "Children continue to develop, and the Legislature has appropriately determined a child needs a secure and stable home for that development." (In re Daniel M., supra, 16 Cal.App.4th at p. 885.)
The court improperly applied the best interest test by reaching its decision based on parents' love of P.P. and desire to be a part of her life. In assessing whether P.P. would benefit from a relationship with her parents, "the focus is the child." (Caden C., supra, 11 Cal.5th p. 632.) While the evidence might support a conclusion that parents had recently begun to address the circumstances that led to the establishment of the guardianship and demonstrate a commitment to their parental responsibilities, the court failed to weigh this against the evidence that P.P.'s only meaningful and established relationship was with Guardian. The court focused on parents' actions and desires and failed to account for P.P.'s need for the only secure and permanent attachment she had known in the five and a half years since she was born. The trial court's analysis did not consider the benefits that adoption with Guardian would provide to P.P., who told evaluator that she was already living with "mama."
"[T]he court acts in the child's best interest in a specific way: it decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer,'" and whether" 'severing the ... relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[]' the child ...." (Caden C., supra, 11 Cal.5th p. 633, first bracketed insertion added.) The court here failed to do so.
As we have said, while the abuse of discretion standard gives the court substantial latitude,"' "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action.'" '" (Noreen G., supra, 181 Cal.App.4th at p. 1382.)"' "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." '" (Id. at pp. 1382-1383.)
In the present case, the trial court based its order on factors that were irrelevant to the statutory analysis and were unsupported by the evidence. As such, the order denying the petition to terminate parental rights constituted an abuse of discretion and must be reversed. (See Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436 ["an order based upon improper criteria or incorrect assumptions calls for reversal' "even though there may be substantial evidence to support the court's order"' "].)
Our analysis focused upon the court's decision to terminate mother's parental rights because father testified that he did not oppose termination of his parental rights if mother's rights were also terminated. As the court did not differentiate between mother and father in its analysis, Guardian is entitled to reversal of the decision as to father as well.
III. Procedural arguments
A. Statutory Period for Parental Rights Termination Trial
Guardian argues that "[t]he litigation in this matter from start to finish took two years and six months," and "months long continuations were ordered over repeated strenuous objections, and without findings of good cause being made from the bench nor in the minute orders."
A proceeding to declare a child free from parental custody and control under section 7822 and Probate Code section 1516.5 is to proceed on an expedited basis. (§ 7870, subd. (a); Prob. Code, § 1516.5, subd. (c).) The matter must be set for hearing not more than 45 days after the filing of the petition and where, as here, an interested person appears to contest the matter, the court is required to set the matter for trial with the case taking precedence over all other civil matters on the date set for trial. (§ 7870, subd. (b).) "The court may continue the proceeding for not to exceed 30 days as necessary to appoint counsel and to enable counsel to become acquainted with the case." (§ 7864.) A continuance of the hearing may be granted only on a showing of good cause and only for that period of time shown to be necessary by the evidence considered at the hearing on the motion. (§ 7871.) Additionally, "[w]henever a continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court." (§ 7871, subd. (c).)
Here, the court failed to set a hearing within 45 days of the filing of the petition. The court addressed Guardian's petition at the hearing on June 21, 2021, that had been set for mother and maternal grandparent's petitions in the guardianship case to terminate the guardianship or replace Guardian. This hearing was 60 days after Guardian's petition was filed, outside of the statutory period. Because mother appeared to contest Guardian's petition, the court continued the matter for approximately four months after appointing counsel for parents, which was in excess of the 30 days authorized by section 7864. Over the next two years, numerous continuances were ordered by the court, but the minutes fail to indicate the reasons for the continuances in violation of section 7871, subdivision (c).
However, the clerk's transcript fails to support Guardian's argument that she objected to the continuances, nor does it indicate that the continuances were for reasons not supported by good cause. Here, Guardian is proceeding on the clerk's transcript and, although there is no reporter's transcript, Guardian failed to proceed by way of an agreed statement or a settled statement. (See Cal. Rules of Court, rules 8.120, 8.121.) Therefore, our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; see Cal. Rules of Court, rule 8.163.) We must presume the trial court's judgment is correct and adopt all inferences to affirm the judgment unless the record expressly contradicts them. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Brewer v. Simpson (1960) 53 Cal.2d 567, 584.)
Applying these legal principles, we have to presume that the trial court made the necessary findings of good cause during the hearings in which the continuances were granted because Guardian failed to ensure that the court's actual findings were included in the record. Because the clerk's transcript does not show that Guardian ever objected to the continuances, Guardian cannot fault the trial court for failing to bring the matter to trial sooner.
As such, Guardian has not shown the trial court erred by continuing the matter and commencing the trial a year and a half after the petition was filed and rendering its statement of decision nine months after that.
B. Violation of Stay Provision of Section 7807
Guardian also argues that the court erred by trailing her petition to terminate parental rights behind mother's petition to terminate the guardianship. Guardian is correct. According to the court's June 21, 2021 minutes, Guardian's petition to terminate parental rights was trailing the proceedings in the guardianship case and provided: "The Court cannot make any orders in this case until the [guardianship case] is adjudicated." (Boldface omitted.) The court erred in trailing Guardian's petition to terminate parental rights behind mother's petition to terminate the guardianship.
The clerk's transcript contains no objection by Guardian to the court's erroneous pronouncement that it was required to rule on mother's petition first. Nor did Guardian object to the court's various orders as to custody in the guardianship case.
The statutes addressing a child's freedom from custody and control are found at section 7800 et seq. Section 7807, subdivision (b) provides: "Except as provided in this subdivision ... all proceedings affecting a child, including ... Part 1 (commencing with Section 1400), Part 2 (commencing with Section 1500), and Part 4 (commencing with Section 2100) of Division 4 of the Probate Code, and any motion or petition for custody or visitation filed in a proceeding under this part, shall be stayed. The petition to free the minor from parental custody and control under this section is the only matter that may be heard during the stay until the court issues a final ruling on the petition." (Italics added.)
However, where there is a failure to comply with a statutory procedure and there is no consequence for noncompliance, an appellant must demonstrate prejudice to prevail on appeal. (In re M.F. (2008) 161 Cal.App.4th 673, 680; see In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) Guardian does not argue that she suffered prejudice as a result of this error. Each court hearing attended by Guardian and mother addressed both Guardian's parental rights termination petition and mother's petition to terminate the guardianship, and both cases appear to have proceeded together. The evidence adduced at a single court trial served as the basis for the court's statement of decision which, we note, included the court's decision on both Guardian's petition to terminate parental rights and mother's petition to terminate the guardianship.
We cannot discern that the court's error had any practical effect on the proceedings in this matter. In the absence of a showing of prejudice, reversal for violation of section 7807 is not required.
DISPOSITION
The judgment denying Guardian's petition to free P.P. from parents' custody and control is reversed and the matter remanded for the court to conduct a hearing applying the correct legal standards under section 7822, subdivision (a)(2) and Probate Code section 1516.5.
Although not raised by either party, we note that the record contains no finding as to whether P.P. is an Indian child. On remand, the court is required to make findings as to the applicability of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) when ruling on Guardian's petition to terminate parental rights pursuant to Probate Code section 1516.5 and sections 7820 and 7822. (See Adoption of M.R. (2022) 84 Cal.App.5th 537, 541; Noreen G., supra, 181 Cal.App.4th at p. 1387, quoting Cal. Rules of Court, rule 5.481(a)(1); see also Prob. Code, §§ 1459.5, subd. (b) [Welf. & Inst. Code, §§ 224.3-224.6 apply to proceedings where ICWA applies], 1516.5, subd. (d) ["This section does not apply to ... any Indian child."].)
WE CONCUR: DETJEN, J., SMITH, J.