From Casetext: Smarter Legal Research

Matthew G. v. Erika S. (In re Adoption of Aiden G.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 7, 2020
F078821 (Cal. Ct. App. Jan. 7, 2020)

Opinion

F078821

01-07-2020

Adoption of AIDEN G., a Minor. MATTHEW G. et al., Plaintiffs and Respondents, v. ERIKA S., Defendant and Appellant.

Patricia K. Saucier, under appointment by the Court of Appeal, for Objector and Appellant. Gillett Green, Gregory F. Gillett, and Nichola G. Krebsbach for Petitioners and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VAD008289)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Bret D. Hillman, Judge. Patricia K. Saucier, under appointment by the Court of Appeal, for Objector and Appellant. Gillett Green, Gregory F. Gillett, and Nichola G. Krebsbach for Petitioners and Respondents.

-ooOoo-


INTRODUCTION

Respondents Matthew G. and JoAnna G., legal guardians of six-year-old Aiden G., filed a petition to terminate the parental rights of appellant Erika S., birth mother of Aiden, as a precursor to adoption. The trial court sustained the petition under Probate Code section 1516.5 and terminated appellant's parental rights. Appellant appeals the judgment terminating her parental rights, contending section 1516.5 is unconstitutional as applied to her because no finding of parental unfitness was made by the trial court before terminating her rights. In the alternative, she contends the trial court abused its discretion by finding the adoption was in Aiden's best interest. We affirm.

All undesignated statutory references are to the Probate Code.

FACTUAL AND PROCEDURAL BACKGROUND

Aiden was born to appellant and the biological father in January 2013. Appellant and the father were not married at the time of Aiden's birth and shared legal and physical custody. On February 6, 2015, the father passed away due to sustaining multiple gunshot wounds inflicted by the hand of another. Appellant was arrested for and charged with the father's murder. From February 2015 throughout the length of the proceedings at issue in this appeal, appellant was incarcerated pending trial.

On February 26, 2015, the father's brother and his wife—respondents—obtained temporary guardianship of Aiden. On August 25, 2016, respondents obtained permanent guardianship.

After taking custody of Aiden, respondents took him to therapy and learned it would not be good for Aiden to visit appellant while she was incarcerated, and they should revisit the issue when he was older. Respondents shared the information with the maternal grandparents, who initially advocated for visits between appellant and Aiden but later agreed it would not be a good idea. Respondents allowed frequent visitation between Aiden and his maternal grandparents until May 2017, when Aiden's preschool teachers informed respondents his behavior had begun to change and he appeared to be more agitated, aggressive, and emotional. Respondents began to also notice a change in the way he behaved at home and heard Aiden making comments such as "'Mommy Erika says I will go home soon.'" Respondents learned the maternal grandparents were facilitating video visits between Aiden and appellant while they visited her in custody. As a result, respondents reduced visitation between Aiden and the maternal grandparents to a near weekly basis.

On May 26, 2017, respondents filed a petition to declare Aiden free from appellant's parental custody and control and to terminate her parental rights so that respondents would be free to adopt him.

The maternal grandparents requested a court order for visitation, and respondents opposed the request. On September 26, 2017, respondents and maternal grandparents agreed that Aiden shall have visitation with the maternal grandparents at respondents' discretion. The parties also agreed that neither party shall allow any contact between Aiden and appellant.

On November 14, 2017, appellant filed a petition requesting visitation with Aiden. Respondents opposed the petition. The trial court trailed appellant's petition for visitation until after the termination hearing.

On April 11, 2018, appellant moved to continue the termination matter until her criminal trial was complete. At the time of the appearance, appellant's criminal trial had been scheduled for April 26, 2018, but had since been continued to an unspecified date. Appellant's counsel advised the court she was informed the case would go to trial within the next couple of months. The trial court declined to continue the matter to an unspecified date but recognized that the outcome of the trial could change the circumstances of the termination matter. The trial court continued the termination matter until July 13, 2018.

On June 1, 2018, the California Department of Social Services (department) filed an informational report. The report indicated the department conducted an interview with respondents and believed them to be suitable for adoption but noted the parental rights of appellant would need to be addressed before the investigation could be complete.

On June 28, 2018, a social worker with the Tulare County Health and Human Services Agency filed a report summarizing her investigation regarding respondents' petition. The report indicated respondents wanted to adopt Aiden to ensure he has a permanent, stable, and loving home. At the time of the writing of the report, Aiden had lived with respondents for three years and had adjusted and bonded to respondents' family. The report indicated respondents were committed to maintaining Aiden's relationship with his maternal family because Aiden loves them, and respondents would not want to take him away from them.

Respondents told the social worker that when Aiden started living with them, they took him to see a mental health therapist. Aiden was discharged from this therapy and seemed to be adjusting. Respondents restarted therapy about three months before the writing of the report because Aiden had been talking about his parents, and respondents wanted the situation to be discussed in age appropriate terms at an appropriate time.

The social worker spoke to appellant, who said Aiden was not happy at respondents' home and wanted to be with her parents. Appellant told the social worker respondents did not allow her to have contact with Aiden. Appellant stated she had videos of Aiden not wanting to leave her parents' home.

The social worker reported Aiden presented as happy and comfortable with respondents, as well as healthy and developmentally on track. When the social worker met with Aiden alone, Aiden told her he likes everyone he lives with and denied being afraid of anyone. Aiden said he missed his old house but could not clarify if his old house meant respondents' previous home, his grandparents' and appellant's home, or his father's home. Due to Aiden's young age, and the "circumstances of his parents," the social worker did not ask Aiden about his birth parents or adoption.

The social worker concluded her report by recommending Aiden remain in the care and control of respondents. The social worker opined it would be detrimental for him to be removed from the home of respondents and not detrimental that the parental rights of appellant be terminated.

On August 20, 2018, appellant filed a written brief requesting the trial court to trail the termination hearing until after appellant's criminal trial. Appellant contended that if the termination hearing were to be conducted while her criminal trial was still pending, she would be "forced to choose between her constitutional criminal trial rights and her right to defend her fundamental liberty interest in parenting her child" on the grounds that if she were to testify at the termination hearing, she risked disclosing confidential information related to her criminal case. Respondents opposed the motion, contending termination proceedings require expeditious determinations in the best interest of the child, and appellant's being acquitted would have no bearing on the outcome of the termination hearing. Respondents also contended appellant's testimony at the termination hearing would not necessarily include matters at issue in her criminal trial.

On August 31, 2018, appellant's counsel informed the trial court appellant's criminal trial was set for October 22, 2018. The trial court ruled the policy in Family Code section 7870 required the termination matter to proceed as expeditiously as possible. The trial court noted there was an interest in stability and continuity for Aiden. The trial court also noted there was no guarantee when the criminal trial would take place because it was set for October but the court had been informed another motion to continue the October date had been filed. The trial court stated it did not intend to inquire into the substance of the underlying criminal matter at that juncture, and if appellant were to testify, the court would consider a limiting instruction and an order for use-related immunity should appellant brief the issue. The termination matter was set for court trial on October 5, 2018.

"It is the public policy of this state that judicial proceedings to declare a child free from parental custody and control shall be fully determined as expeditiously as possible." (Fam. Code, § 7870, subd. (a).)

On August 31, 2018, Aiden's counsel filed a report detailing her investigation. Aiden's counsel stated she had read, agreed with, and joined in the social worker's assessment of Aiden's show of comfort around respondents. Aiden's counsel witnessed Aiden tell respondents he loved them and crawled into JoAnna G.'s arms and laid his head on her chest during the meeting.

In Aiden's counsel's interview with Aiden, he presented as happy and open to talking to her and referred to respondents as "Mommy" and "Daddy." Aiden referred to respondents' daughter as his sister. Aiden's counsel told Aiden the judge wanted her to meet with him in order to make sure the judge knew how Aiden felt about being adopted. Aiden did not know what adoption was in the legal sense, but when JoAnna G. asked Aiden, "'are you my son?'" Aiden responded "'yes!'" "with a large smile [and] shaking his head up and down rapidly." JoAnna G. then asked Aiden, "'Can we tell judge you want to live with us forever?'" and "'Can we take care of you forever?'" and Aiden responded "'yes!'" "'yes!'" "'yes!'"

Aiden's counsel asked Aiden about appellant, whom Aiden referred to as "Mommy Erika." Respondents informed counsel Aiden has no independent memories of appellant, and Aiden's maternal grandparents have explained the reason why appellant has not returned to him is because she is "at work." Aiden's counsel opined, "To continue this mysterious idea that 'Mommy Erika' is a[t] work is to continue a confusing and anxiety provoking construct for Aiden. In all probability, 'Mommy Erika' is not coming home, and Aiden should be freed from this misplaced idea and allowed to work with his therapist to come [to] an understanding about the truth as he ages."

Counsel stated her belief is that Aiden is bonded to respondents, referring to the social worker's report as well as a bonding study conducted in 2016, which she attached to her report. Counsel opined it would not be in Aiden's best interest to allow an open adoption in an effort to effectuate limited visitation with appellant.

Aiden's counsel reported appellant's statements to the social worker regarding Aiden not being happy with respondents "are baseless and without credibility." Counsel went on: "[Appellant] indicates she has not had contact with Aiden, thus, she would not know of his desires and feelings regarding the adoption or level of his happiness. Moreover, in contrast to her ... statement, Aiden has made it abundantly clear he is bonded to [respondents], happy, and wants to be a family unit with [respondents]. Additionally, Aiden has flourished while under [respondents'] care." Counsel reported there was not a strong bond between Aiden and appellant. Counsel opined it is clear there is no remaining bond between Aiden and appellant, and "[a]ny visitation would be detrimental to his well-being."

The bonding assessment attached to minor counsel's report was conducted by The Sullivan Center for Children in 2016. The examiner concluded the results of the assessment proved by clear and convincing evidence that a significant bond exists between Aiden and respondents. The examiner noted respondents demonstrate a clear understanding of how to assist Aiden with emotional and behavioral regulation and a marked capacity to nurture Aiden during periods of distress, and Aiden consistently responded in a manner similar as to what would be expected for a child to his or her parents. The examiner also concluded there is significant evidence of a bond between Aiden and respondents' daughter similar to that between siblings.

On September 5, 2018, appellant filed a motion to continue the October 5, 2018, termination trial. Respondents opposed the motion. At the hearing on the motion, appellant's counsel informed the court she filed the motion in order to preserve her ability to file a petition for writ of mandate. The court held the motion was not properly noticed but adopted the findings from the August 31, 2018, ruling.

On September 28, 2018, appellant filed a petition for writ of mandate in this court. This court ordered a stay of the lower court proceedings. Briefing was requested from appellant to address the facts surrounding the allegations in the criminal prosecution and how they are relevant to the petition to terminate her parental rights, and why placing limitations upon the scope of examination of the witnesses and the relevance of their testimony would not adequately protect her Fifth Amendment right and her ability to present a complete case at the termination trial. After receiving briefing, this court denied appellant's petition without prejudice, noting appellant's petition was conclusional and could have presented facts regarding the allegations in the criminal proceedings based upon parts of the record that were not confidential or privileged. This court stated appellant "did not present any verified facts regarding her efforts to maintain contact with [Aiden] and the opposition by [respondents] to those efforts, and did not raise the constitutional requirement in Guardianship of Ann S. (2009) 45 Cal.4th 1110."

On November 28, 2018, appellant again filed a motion to stay the termination trial until after her criminal trial. This time, seemingly in reaction to this court's order, appellant contended section 1516.5 was unconstitutional as applied to her because it did not require a finding of parental unfitness prior to terminating parental rights, citing Guardianship of Ann S. Respondents opposed the motion. The trial court ruled the motion untimely and moot because it raised the same issue the court had already denied. The trial court held appellant's constitutionality argument was not dispositive of the motion and could be raised at trial. Trial for the termination was scheduled for January 10, 2019.

On December 4, 2018, appellant filed another motion to stay the trial until after her criminal trial. Aiden's counsel and respondents opposed the motion. The trial court denied the motion as moot and adopted its reasons from the previous August 31, 2018, denial.

On January 8, 2019, appellant filed another petition for writ of mandate in this court. On January 9, 2019, this court filed an order denying appellant's petition, stating appellant had failed to show her remedy of seeking immunity for her testimony at trial was inadequate.

At the termination trial on January 10, 2019, Matthew G. testified on behalf of respondents. He testified he and JoAnna G. had been married for nine and a half years and have a five-year-old daughter of their own. Matthew G. said Aiden has not lived with anyone else but respondents since February 13, 2015.

Matthew G. is an attorney and his wife is a schoolteacher. Aiden turned six just before the trial and was in kindergarten. Aiden does well in school and enjoys it. When respondents first gained custody of Aiden, they noticed he was not able to communicate well and they sought assistance from local programs. Aiden started receiving individual speech therapy, and within six months he had caught up in the developmental areas in which he was behind. Aiden has a pediatrician, and has health insurance. Aiden is current on his well-child checkups and vaccinations and has a dentist. Respondents put Aiden in counseling as a "preventative measure" so they could have a resource to help them learn the most appropriate way to answer questions or address issues as they arose.

Matthew G. testified Aiden refers to respondents as his "parents." Respondents spend time with Aiden and have conversations with him every day. Aiden likes wrestling, playing hide-and-go seek, building forts, tickling, playing board games, and coloring. When Aiden requires comfort, he goes to respondents. Matthew G. has attended parent-teacher conferences for Aiden. Aiden is involved in wrestling and choir and would start basketball the week after the trial.

Matthew G. said Aiden has a close relationship with Matthew's extended family and has become a part of JoAnna G.'s family "completely." Aiden sees his maternal aunt and uncle and his maternal grandparents regularly, and he attends their family functions.

Matthew G. said he and his wife are seeking adoption of Aiden because they feel it would be best if Aiden were to remain in their care. Respondents feel they have consistently put Aiden's needs first and want him to have a normal, stress-free, happy, and loving life. Matthew G. testified he loves Aiden and wants him to stay a part of his family. He wants to be able to take care of Aiden not just until he is an adult, but long after that. He wants to make sure Aiden is safe and happy, and give Aiden everything he deserves.

Matthew G. said he believes Aiden is happy because Aiden tells Matthew he is happy. He testified Aiden has some understanding of the proceedings and wants to live with respondents. Matthew G. said Aiden randomly walks up to Matthew and hugs him, saying "'I love you.'" Matthew G. related a story of when their family was at Disneyland the previous Saturday and Aiden told Matthew, "'I'm happy'" and "'Daddy [biological father] is happy.'" When Matthew asked Aiden why Aiden thought his father was happy, Aiden responded, "'Because I'm happy and he sees that I'm happy. That makes him happy.'"

Appellant did not cross examine Matthew G.

Appellant's sister-in-law, Gloria P., testified on behalf of appellant. Gloria P. testified she had known appellant since 2001. She testified she had a good relationship with appellant when appellant was pregnant with Aiden, and appellant was very happy to be expecting Aiden. During appellant's pregnancy, appellant was working at a dermatologist's office and was in school to become a registered nurse. Appellant wanted to accomplish her goals of becoming a registered nurse in order to offer Aiden a better future. Appellant was very excited the day Aiden was born. Appellant provided for Aiden financially. Appellant was very punctual in making sure Aiden got his vaccinations and doctor's checkups. Gloria P. described a photograph she took of appellant and Aiden at Sequoia National Park in January 2014. Gloria P. said it was a family trip and a great day at the snow. Gloria P. said she had seen letters appellant had written to Aiden.

On cross-examination, Gloria P. said she visits with Aiden regularly and spent the whole day with him the Friday before the trial. She said that when she saw Aiden, he was healthy and "very happy." On cross-examination, Gloria P. said she "personally disagree[d]" with respondents adopting Aiden.

After hearing argument from counsel for Aiden, respondents, and appellant, the court granted respondents' petition and ordered termination of appellant's parental rights. The trial court found section 1516.5 was appropriately applied to appellant, and that her case did not diverge from Guardianship of Ann S. so as to require a finding of parental unfitness prior to termination.

DISCUSSION

Section 1516.5 authorizes termination of parental rights if (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, and (3) the court finds the child would benefit from being adopted by his or her guardian. In determining whether the child would benefit from being adopted by his or her guardian, 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: the child and the birth parent; the child and the guardian, including family members of the guardian; the child and any siblings or half siblings.

I. Constitutionality of Section 1516.5 as Applied to Appellant

Appellant contends section 1516.5 is unconstitutional as applied to her. Specifically, she contends due process required the court to determine appellant was an unfit parent before terminating her parental rights.

The California Supreme Court, in Guardianship of Ann S., rejected the argument that section 1516.5 violates due process on its face by failing to require a finding of parental unfitness before the court frees a child for adoption. The court concluded that while section 1516.5 was not facially unconstitutional, the statute could be challenged as applied to particular parents. (Guardianship of Ann S., supra, 45 Cal.4th at pp. 1132-1133 (Ann S.).)

The court in Ann S. explained that due process does not invariably require a finding of parental unfitness before the termination of parental rights. (Ann S., supra, 45 Cal.4th at p. 1128.) Rather, the court emphasized, due process requires some showing of parental unfitness before a custodial parent's rights are terminated. A section 1516.5 proceeding, however, does not separate the child from parental custody. "The family," the court explains, "is dismembered not at the time of a section 1516.5 hearing, but at least two years earlier when the guardianship is established. 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., at p. 1133, id. at pp. 1130-1132.)

Family Code section 3041 requires that before granting custody to a nonparent over parental objection, the court must find by clear and convincing evidence that "granting custody to a 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.)
Family Code section 3041 has been held to comport with constitutional due process with respect to rights of parents, even though it permits custody to be awarded to a nonparent without a finding of parental unfitness. The statute includes a requirement of detriment to the child from parental custody, and the detriment requirement focuses on the child's interest. (H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 11411142.) "Because the parental relationship can still be maintained notwithstanding an award of custody to a nonparent, and because of the state's compelling interest in protecting the child's wellbeing, the Legislature could properly conclude that the determinative factor should be harm to the child rather than parental fitness." (Id. at p. 1142.)

The court in Ann S. pointed out there had existed instances in which a noncustodial parent was entitled to a finding of parental unfitness before parental rights could be terminated. The court gave the example of a parent who has demonstrated a full commitment to parental responsibility, but whose efforts to secure custody have been thwarted, as in Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). In Kelsey S., the court reviewed a statutory scheme permitting the termination of an unwed father's parental rights if adoption was 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; Ann S., supra, 45 Cal.4th at p. 1130.)

In Kelsey S., the court was "concerned with the unequal treatment of natural fathers under the adoption statutes, as compared with mothers and presumed fathers." (In re Charlotte D. (2009) 45 Cal.4th 1140, 1147 (Charlotte D.).) In the statutory scheme in question in Kelsey S., "'[t]he child's best interest is the sole criterion' for terminating the parental rights of a natural father. [Citation.] On the other hand, 'a mother or a presumed father must consent to an adoption absent a showing by clear and convincing evidence of that parent's unfitness.'" (Charlotte D., supra, at pp. 1147-1148; see Kelsey S., supra, 1 Cal.4th at pp. 824-825.) In Kelsey S., the protection was extended 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., at p. 849; see Charlotte D., at p. 1148.) "In particular," the Kelsey S. court wrote, "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." (Kelsey S., at p. 849; see Charlotte D., at p. 1148.)

In light of situations similar to that in Kelsey S., the Ann S. court reasoned: "There are imaginable scenarios 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. [The appellant] 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.) The Ann S. court refused to invalidate section 1516.5 "'simply because in some future hypothetical situation constitutional problems may arise.' [Citations]." (Ann S., at p. 1132.) The court further noted, "section 1516.5 requires the court to consider 'all factors relating to the best interest of the child,' which would 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. [Citation]." (Ibid.)

A companion case to Ann S., Charlotte D., similarly points out, "It seems unlikely that a 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 finds 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.)

It is within the foregoing context we examine appellant's constitutional claim. We review whether the trial court was required to make a finding of parental unfitness prior to terminating parental rights pursuant to section 1516.5 for substantial evidence. (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.) To the extent that the issue is a mixed question of law and fact, we exercise our independent judgment in measuring the facts against the applicable legal standard. (Ibid.)

Appellant contends she is a "'fully committed, responsible, and capable parent'" "'who [found] an extended probate guardianship unavoidable under exigent circumstances,'" citing Charlotte D., supra, 45 Cal.4th at pages 1148-1149, because she had not been convicted of the murder of Aiden's father and thus her incarceration was "involuntarily imposed upon her by the government." Appellant claims that until the time she was arrested, she was a committed, custodial parent, and that she did not consent to the guardianship. We recognize that with Aiden's father being deceased, and appellant being incarcerated, it was impossible for either of Aiden's parents to continue exercising custody over Aiden and, in that sense, the legal guardianship was necessary. In the present case, we need not consider the reason for the guardianship in determining whether the statute is unconstitutional as applied to appellant. That is, whether the guardianship was "unavoidable" is not dispositive in our view. This is because the California Supreme Court suggests that for a parent to be successful in an "as-applied" constitutional challenge, a parent would have to show circumstances similar to the Kelsey S. factors. (Charlotte D., at pp. 1148-1149; see Adoption of Myah M., supra, 201 Cal.App.4th at pp. 1540-1541.) In the context of this case, we look at whether appellant "demonstrated the necessary commitment to [her] parental responsibilities," so as to place her in a different position than the majority of parents who face termination under section 1516.5. (Kelsey S., supra, 1 Cal.4th at p. 850.) She has not done so.

Appellant suggests any Kelsey S. analysis is inappropriate because up until her arrest, she was—unlike Kelsey S. fathers—a fully committed custodial parent, and thus she is entitled to the constitutional protections of custodial parents. However, this argument ignores the fact that from the time of her arrest until the time the matter was litigated in the trial court, a period of four years, she was in fact a noncustodial parent. This is true because "[d]uring that time all parental rights and custodial responsibilities are suspended, with the possible exception of visitation." (Charlotte D., supra, 45 Cal.4th at p. 1147.) We agree it is appropriate to consider the limitations placed on appellant's ability to parent caused by her incarceration. Nonetheless, in examining appellant's overall commitment to her parental responsibilities to Aiden, we must also consider the four-year time period during which Aiden was in guardianship.

The record, however, shows appellant's efforts to maintain a relationship with Aiden while she was incarcerated were minimal. We acknowledge the record shows respondents were not in favor of appellant visiting with Aiden. When they found out the maternal grandparents were facilitating these visits, respondents attempted to put a stop to them, including requiring the maternal grandparents to stipulate to not allowing any contact between appellant and Aiden. These efforts, however, did not prevent appellant from formally requesting visitation. In fact, appellant finally made a formal request for visitation, but not until November 2017. This was two and a half years after appellant was arrested. Further, the request was made only after respondents filed their petition to terminate her parental rights. Below and on appeal, appellant has failed to provide any explanation for not seeking visitation with Aiden any earlier.

Gloria P. testified she had seen letters appellant wrote to Aiden, but we do not know anything else about any such letters, including their content, when they were written, nor the frequency with which they were written. --------

In addition, appellant did not show she was able to take immediate custody of Aiden. Appellant claims she was willing and able to take custody of Aiden in the case of her acquittal. She filed declarations in the trial court indicating she had made arrangements to live with her parents, who had agreed to help her and Aiden financially until appellant found employment. However, her acquittal and release from custody were pure speculation based on wishful thinking—not evidence or facts.

Appellant's incarceration, however, was not the only impediment to her ability to take custody of Aiden. In the case of appellant's acquittal, as a practical matter, to obtain custody of Aiden the guardianship would have to be terminated. In the probate guardianship statutory scheme, unless ended by court order, the guardianship continues until the child attains majority or dies. (§ 1600.) The court may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child's best interest. (§ 1601.) "The fitness of the parent to assume custody [after a probate guardianship has been in place] is not a controlling consideration." (Ann S., supra, 45 Cal.4th at p. 1124.) In the present matter, the social worker, Aiden's counsel, and the bonding study evaluator all agreed Aiden was bonded to respondents and separating him from their care would be detrimental to him. Moreover, with the continuing passage of time, it is unlikely appellant can show termination of the guardianship would be in Aiden's best interests.

We end our analysis by noting our Supreme Court has suggested the enactment of section 1516.5 codifies a shift of interests after a certain period of guardianship, which the Legislature has decided is a minimum of two years. The court stated, "After years of guardianship, the child has a fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver," and "[t]he guardian, after fulfilling a parental role for an extended period, has also developed substantial interests that the law recognizes." (Ann S., supra, 45 Cal.4th at p. 1136, fn. omitted.) The court in Ann S. said, "The parental unfitness criterion urged by [the appellant] fails to account for these competing interests, whereas the best interest of the child standard allows the court to appropriately balance all the relevant factors arising from the child's family relationships." (Ibid.) Simply stated, the evidence did not support appellant's claim that the best interest of the child standard in section 1516.5 was unconstitutional as applied to her. (Charlotte D., supra, at pp. 1148-1149.)

II. Aiden's Best Interests

In the alternative, appellant contends the trial court erred by finding adoption by respondents was in Aiden's best interests.

While the trial court's ruling regarding the best interest of the child must be based on clear and convincing evidence (Fam. Code, § 7821), our role is limited to determining whether substantial evidence supports the conclusions reached by the trial court in utilizing that standard. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.) On appeal, we indulge in all reasonable inferences to uphold the judgment. (Ibid.) "[W]e do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. [Citation.] We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. [Citation.]" (Adoption of Myah M., supra, 201 Cal.App.4th at p. 1539.)

Appellant first argues the trial court "lacked sufficient evidence regarding the nature of the relationship between Aiden and [appellant]." Appellant's primary argument is that more evidence was required to be adduced from Aiden himself regarding the nature and extent of the relationship between he and appellant. In support of her argument, appellant points out neither the social worker nor Aiden's counsel asked Aiden about his relationship with appellant and instead relied on statements by respondents. Appellant argues, to "simply ignore Aiden's relationship with [appellant] and his feelings regarding that relationship was not only a disservice to Aiden, but also left the [trial] court with insufficient evidence regarding the nature of the relationship between [appellant] and Aiden." We note that to the extent appellant is arguing the reports were somehow legally insufficient, she has forfeited the issue by failing to object to the reports below.

In any event, the trial court had sufficient evidence regarding the relationship between appellant and Aiden to determine it was not contrary to Aiden's best interest to sever the relationship. Appellant presented evidence about her relationship with Aiden before her incarceration, and evidence the visits she had with Aiden during her incarceration were positive. The record indicates, however, the visits appellant had were not frequent and only occurred over a period of five months. In support of her November 2017 request, appellant wrote she had had "a few opportunities" to speak with Aiden on the phone or over video chat. In a declaration supporting one of her motions to stay the proceedings, she specified she had had video visits with Aiden between the months of January 2017 and May 2017. This would mean by her own account she did not have any contact with Aiden between the time she got arrested in February 2015 and when her parents began to facilitate video visits in January 2017, a period of almost two years. Further, these visits were unauthorized by respondents at the suggestion of Aiden's therapist, and respondents reported Aiden became agitated seemingly as a result of these visits. Appellant was free to offer more evidence. We note appellant expressed she did not testify because of her concerns regarding her Fifth Amendment right against self-incrimination, but she also did not explain why she did not seek a limiting instruction or immunity for her testimony so that she could testify on her behalf.

Appellant claims the court denied her request for a bonding study. But as respondents point out, appellant's claim is a mischaracterization of the record. The court informed appellant she would have to make a formal request for such a study, and appellant did not do so. Appellant was entitled to formally request a bonding study or call the social worker or minor's counsel as witnesses to cross-examine them about their claims or present evidence rebutting any of the social worker's or minor's counsel's claims. Appellant did not do so.

As to whether Aiden should have been asked directly what his relationship with appellant was like or what his thoughts were about terminating the parental relationship, we turn to this court's in depth discussion regarding the duty of the court to determine a child's wishes before terminating parental rights, In re Leo M. (1993) 19 Cal.App.4th 1583. Though Leo M. was a dependency case in which a statute required the court to consider a child's wishes, we find our discussion there applicable to the present case. There, the issue was whether direct evidence needed to be obtained regarding the child's wishes before the termination of parental rights. This court held the issue of whether to obtain a direct statement from the minor regarding his or her thoughts is one best left to the sound discretion of the trial judge. (Id. at p. 1592.) This court said:

"In the event the trial court determines that it is not appropriate to obtain such a statement, it may still be possible to explore the minor's feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. Where practicable and consistent with the best interests of the minor, an attempt should be made to obtain this information so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court." (Ibid.)

In the present case, the trial court expressly noted it had considered Aiden's wishes based on Aiden's counsel's report and Matthew G.'s testimony. Appellant cites no authority the trial court was required to obtain a statement directly from Aiden regarding his wishes. We decline to adopt such a requirement, and find no abuse of discretion.

Appellant also claims the trial court could not consider her arrest and incarceration because she had not been found guilty of the crime. Appellant seems to suggest her entitlement to a presumption of innocence in her criminal matter and lack of conviction meant the trial court could not take into account the fact appellant was incarcerated. Appellant ignores the effects of her incarceration on her parent-child relationship. Incarceration, whether due to a conviction or not, is a clear impediment to the parent-child relationship. Again, turning to dependency cases for guidance, we note a trial court may deny reunification services to incarcerated parents if it finds by clear and convincing evidence those services would be detrimental to the child. (Welf. & Inst. Code, § 361.5, subd. (e)(1).) "Incarcerated" in this context does not mean "'incarcerat[ed] following imposition of sentence,'" but simply means "'imprisoned or confined'" and thus is also applicable to a parent who is incarcerated while awaiting trial. (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 17-18.) We recognize there is a difference between dependency cases and probate guardianship cases. We conclude, however, it was not improper for the trial court to consider the effects of long-term incarceration in determining what was in Aiden's best interest.

Appellant also claims the trial court "should ... have considered [appellant's] efforts to maintain contact with Aiden and exigencies [that] hampered those efforts," but points to nothing in the record to show the trial court refused to do so. Instead, appellant appears to argue the trial court did not put enough weight on the evidence from which inferences in her favor could be drawn. Reweighing the evidence on review, however, is not within our province.

Here, substantial evidence supports the trial court's finding Aiden would benefit from adoption by respondents because it would be in his best interest. Both the social worker and Aiden's counsel recommended termination of parental rights so that respondents would be able to adopt Aiden. Aiden presented to both as happy, healthy, and bonded to respondents as well as to respondents' daughter. Aiden referred to respondents as his parents and expressed his desire to live with respondents permanently. Respondents made an effort to address any emotional or developmental issues Aiden had or could have by taking him to therapy. Respondents also helped Aiden maintain a relationship with his maternal relatives despite some disagreements. Respondents' home appeared to be a stable one for Aiden where he was happy. Aiden had not lived with appellant or had any substantial relationship with her for over four years, including having no contact with her for almost two years. Substantial evidence demonstrates Aiden would benefit from being adopted by respondents.

The trial court did not abuse its discretion by finding adoption was in Aiden's best interest.

DISPOSITION

The judgment is affirmed.

/s/_________

PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.


Summaries of

Matthew G. v. Erika S. (In re Adoption of Aiden G.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 7, 2020
F078821 (Cal. Ct. App. Jan. 7, 2020)
Case details for

Matthew G. v. Erika S. (In re Adoption of Aiden G.)

Case Details

Full title:Adoption of AIDEN G., a Minor. MATTHEW G. et al., Plaintiffs and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 7, 2020

Citations

F078821 (Cal. Ct. App. Jan. 7, 2020)