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Minors. Linda C. v. T.C. (In re Taylor C.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Apr 9, 2018
F076005 (Cal. Ct. App. Apr. 9, 2018)

Opinion

F076005

04-09-2018

In re TAYLOR C., et al., Minors. LINDA C., Petitioner and Respondent, v. T.C., Objector and Appellant.

Lauren K. Johnson, under appointment by the Court of Appeal, for Objector and Appellant. Karen L. Mathes for Petitioner and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CEFL04554)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Lauren K. Johnson, under appointment by the Court of Appeal, for Objector and Appellant. Karen L. Mathes for Petitioner and Respondent.

Before Franson, Acting P.J., Peña, J. and Smith, J.

-ooOoo-

T.C. (mother) appeals from a judgment terminating her parental rights over her now 16-year-old daughter Taylor C. (Taylor) and 12-year-old son, Byron C. (Byron). The judgment frees the children to be adopted by their legal guardian, paternal grandmother Linda C. (grandmother), who petitioned the court to terminate mother's parental rights pursuant to Probate Code section 1516.5. Mother contends (1) substantial evidence does not support the trial court's finding that it was in the children's best interest to be adopted by grandmother, and (2) the court failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We reject her first contention, but remand the matter for purposes of compliance with ICWA's notice and inquiry provisions.

Undesignated statutory references are to the Probate Code.

FACTUAL AND PROCEDURAL BACKGROUND

Mother married Michael C. (father) in 2001 and they had two children together - Taylor, born in September 2001, and Byron, born in August 2005. In August 2008, Child Protective Services (CPS) took the children into protective custody. Allegations against mother included drug abuse, domestic violence, and failure to provide appropriate care. Grandmother and paternal grandfather Terry C. (grandfather) (collectively grandparents), petitioned the court for temporary guardianship of the children. With the consent of mother and father, grandparents were granted temporary guardianship over the children on October 1, 2008, and permanent guardianship on December 1, 2008. The children have lived with grandparents since July 2008.

Father's parental rights were terminated by court order in December 2014. He is not a party to these proceedings.

Mother's Petitions for Visitation and to Terminate the Guardianship

In November 2012, mother entered an 18-month inpatient drug treatment program to address her methamphetamine addiction. In the four years after the guardianship was granted, mother had limited contact with the children, was not actively involved in their daily care, and did not take the steps necessary to reestablish custody. In December 2012, she petitioned the probate court to establish visitation with the children. The following month, the court ordered weekly phone contact for one month and bi-weekly visits at mother's inpatient treatment facility, and allowed mother to attend the children's school and extracurricular activities. Grandparents immediately filed an objection to the visitation request.

In May 2013, mother filed a petition to terminate the guardianship, which grandparents opposed. The court investigator recommended denial of mother's petition, but that visitation increase. In addition, the investigator recommended that father not be allowed to reside in the home with the children, as it appeared grandparents were allowing him to live there despite his substance abuse history. In July 2013, the court denied grandparents' request to dismiss the investigative report, ordered grandparents to work with mother to increase visitation, and ordered an investigation of grandparents' home. During the investigation, grandparents acknowledged father often stayed with them, but claimed he rarely interacted with the children. The investigator was unable to make contact with father and the investigation was closed, as grandparents were in the process of evicting father.

In September 2013, at grandparents' request, the court ordered an evaluation of the children by professional psychologist Dr. Robert M. Bernstein and that the parties participate in a mediation to discuss mother's visitation schedule. The following month, the court ordered visits to occur two Saturdays per month.

In December 2013, Dr. Bernstein submitted his evaluation and report in which he recommended the children remain with grandparents, as mother had yet to demonstrate she was able to provide extensive, unsupervised parenting. In addition, while she had maintained sobriety for the past year while living in a structured residential rehabilitation center, she had not demonstrated the capacity to maintain her sobriety or establish healthy personal relationships outside the center. Moreover, the children needed a stable, secure and structured childrearing environment that grandparents, who were the parental figures in the children's lives, were providing.

Dr. Bernstein interviewed the children. Taylor recalled living with her parents, but they had a fight and mother "packed her clothes and left." She enjoyed living with her grandparents. While she had missed her mother in the past, she did not think about why she did not see her. Taylor enjoyed visiting mother, but she did not think about seeing mother when she was not with her. Byron, who did not recall spending time with mother when he was younger, did not miss her. He enjoyed visiting mother, but he did not miss her at other times. Nevertheless, he wanted more time with mother so he could play more and get ice cream. According to Dr. Bernstein, Taylor was at risk of becoming a caretaker who prioritized others' needs before her own, and Byron manifested poor impulse control and limited attention span which could render him vulnerable to school and work failure, and addiction later in life.

Dr. Bernstein recommended that mother be granted bi-weekly supervised visits and weekly phone calls, and that mother and the children participate in weekly therapeutic visits to define appropriate parent-child boundaries, enhance mother's parenting skills, and address the family's background with the children. He also recommended that Byron be evaluated to assess the presence of attention deficit disorder.

In February 2014, the court ordered, in addition to visitation at mother's treatment program, that the children participate in therapeutic supervised visits with mother. The court also granted mother three phone calls per week with the children, and set a contested hearing. In response, grandparents filed a petition to disqualify the trial judge, which was denied. In April 2014, the court ordered visits with mother every other weekend at mother's treatment facility, weekly therapeutic supervised visits with mother, and telephone contact three times per week, monitored by grandparents. Eventually a trial was set for September 2014.

Mother completed the treatment program and moved out of the treatment facility on August 1, 2014. On August 20, 2014, mother filed an ex parte request to modify the visitation schedule and identified the attempts she had made since August 1, 2014 to negotiate visits with grandparents. Grandparents stopped taking the children to therapeutic visits in September 2014 because they believed the clinician was not focusing on the goals outlined by the court and instead visits were being used to prepare the children to return to mother's primary care.

Grandparents filed requests for adoption in August 2014. In September 2014, they withdrew their objection to mother's petition for visitation and requested the trial be vacated, since the visitation order expired when mother moved from the treatment program and was no longer enforceable.

Grandparents' 2014 Petitions to Terminate Parental Rights

In September 2014, grandparents filed petitions in the family law department to free the children from mother's custody and control pursuant to section 1516.5 and Family Code section 7822 (abandonment). Due to this filing, the probate court ruled it would not proceed on mother's petitions for visitation and termination of the guardianship.

On October 21, 2014, mother filed a response in opposition to the petitions. Shortly thereafter, a Family Court Services investigation was conducted by court investigator Cheryl Scott, who interviewed the parties. Both children expressed a "clear desire" to reestablish regular visits with mother, as well as having unsupervised visits. Byron enjoyed his visits with mother and did not know why they had suddenly stopped. Taylor believed the judge would decide to keep her and her brother with grandparents, and she was "ok" with that. She was interested in continuing to have telephone contact with mother. Byron did not know if the judge would decide to keep he and his sister with grandparents, but he was "alright" if the judge decided to do so. Neither child described any distress related to the changes in their level of contact with mother over the past two years, or any fears or concerns related to losing their placement with grandparents. Scott recommended that the petitions be denied, concluding mother's parental rights should not be terminated and it was not in the children's best interest to be adopted.

After a contested hearing before the Honorable Jane Cardoza, the family court issued a statement of decision on April 28, 2015 denying the petitions. The family court found that while grandparents had diligently met the children's needs throughout the guardianship, they were "openly hostile and uncooperative with Mother's efforts to visit the children." The evidence supported mother's contentions that father and grandparents had kept the children from her and intentionally denied her contact with the children over the past several years, and grandparents' inflexibility appeared to have overtly limited mother's ability to maintain contact with the children. Moreover, mother had always been appropriate during visits and the children enjoyed them. The family court found that grandparents' unilateral decision to stop taking the children to therapeutic visits with mother, as ordered by the probate court, was "extremely problematic and unacceptable[,]" and the probate court should deal "swiftly and decisively" with their resistance to visits. In addition, mother had successfully followed through with drug rehabilitation efforts and had remained sober for a significant period of time. The family court concluded that grandparents failed to prove that mother abandoned the children or that it was in the children's best interest to be adopted by them. Judgment was entered on May 15, 2015.

On June 11, 2015, mother again filed a petition to terminate the guardianship; she also filed a petition for visitation. Grandparents filed their declaration in opposition to mother's petition for termination.

Grandparents' 2015 Petitions to Terminate Parental Rights

On September 30, 2015, grandparents filed a second set of petitions by which they sought to free the children from parental control pursuant to section 1516.6 only. The petitions were assigned the same case number as the 2014 petitions.

On January 25, 2016, the Honorable D. Tyler Tharpe struck the petitions, as they were improperly filed under the same case number as the petitions ruled on by Judge Cardoza. While the court agreed with grandparents that a second action to terminate mother's parental rights was not necessarily barred by the doctrines of res judicata or collateral estoppel, grandparents could not file a second petition covering the same time period as the earlier one that was already litigated, and they were not entitled to seek out a more sympathetic judge and endlessly re-litigate the issues on the same set of facts. The court believed there needed to be an actual second action based on new facts and a new time frame, and not just a second petition in the first action, and stated that if grandparents wished to pursue termination, they must do so in a new action.

Grandmother's 2016 Petition to Terminate Parental Rights

Grandfather passed away in December 2015, so on January 28, 2016, grandmother alone filed the instant petition to declare the children free from parental custody and control pursuant to section 1516.5, under a new case number. A hearing was set for March 14, 2016. The court ruled that any request for custody or visitation was stayed pending the resolution of grandmother's petition pursuant to Family Code section 7807, subdivision (b).

The hearing was continued from March 14 to March 18, 2016, so counsel could be appointed for mother. At the March 18 hearing, an attorney was appointed for mother and, over grandmother's objection, another attorney was appointed to represent the children. The matter was continued to April 8, 2016, to allow appointed counsel to review the case files. On March 24, 2016, the court issued an order consolidating the current petition into the older cases.

At the April 8, 2016 hearing, the court stated the matter needed to be sent to Family Court Services for an investigation. Grandmother's attorney asked the court to decide the petitions based on the information already in the court's file rather than conduct another investigation or, in the alternative, asked that Dr. Bernstein conduct the investigation. After hearing lengthy argument, the court referred the matter to Family Court Services for an investigation, to be conducted on April 26, 2016, and set a further hearing for May 23, 2016.

Robert Preston, Ph.D., from Family Court Services, conducted the investigation and submitted a report on May 20, 2016. Dr. Preston met with grandmother, the children, and mother, and reviewed Scott's investigative report from the prior matter, which he considered to be a " 'snap shot' of the family dynamics at the time." Taylor, age 14, identified grandmother and her recently deceased grandfather as having been actively involved in her daily care since she was very young. Taylor felt safe in grandmother's care. Taylor clarified that her aunt, uncle, and other paternal family members had become more directly involved in her care after grandfather died and grandmother's mobility was seriously impacted by back pain.

Taylor confirmed she had not had visits with mother in two years. Mother called Taylor on multiple occasions, but Taylor often did not want to talk to mother because she was busy or the calls interrupted her daily routines. It appeared to Dr. Preston that Taylor was annoyed by the calls and disinterested in them, rather than afraid or anxious. Despite her attitude, when asked about her ideas regarding a future relationship with mother, Taylor was open to participating in unsupervised visits. She made clear, however, that apart from being open to contact with mother, she "absolutely endorsed the adoption" by grandmother. Taylor was frustrated that the adoption had not occurred and believed her past comments during previous interviews were not accurately reflected to the court.

Ten-year-old Byron wanted the adoption with grandmother to be granted. He confirmed he did not like having to talk to mother on the telephone, as he had other things to do at home, like homework. Byron commented his prior visits with mother were "ok," but he had no desire to visit her. When Taylor expressed a willingness to continue visits, however, Bryon reevaluated his position and offered to participate in visits if Taylor accompanied him.

Grandmother told Dr. Preston that grandfather had a wonderful relationship with the children and his loss had been a difficult adjustment for them. Grandmother had back pain issues, and in December 2016, she and the children had moved in with the paternal aunt and uncle. Grandmother believed terminating mother's parental rights was appropriate because mother failed to support or consistently communicate with the children between 2008 and 2012, and continued to have very limited contact with them.

While mother expressed appreciation for grandparents' assistance in providing care for the children when she was struggling with addiction and instability, she was frustrated with grandmother's refusal to communicate or work collaboratively with her. Mother also was frustrated with the lack of progress in developing a relationship with her children, which she attributed to the ongoing litigation and grandmother's resistance to her having contact with them.

Dr. Preston noted that Scott's recommendation in the prior case was based on a number of considerations, including (1) the lack of evidence that mother's attempts to reestablish a relationship with the children was harmful to them; (2) that the children had some attachment to mother and desired to maintain the relationship; (3) the guardianship was beneficial to the children and provided adequate protection for them; and (4) by terminating parental rights and allowing grandparents to adopt, grandparents could permanently discontinue the children's contact with mother.

Based on the information in the prior report, Dr. Preston concurred with Scott's conclusions and recommendations. While grandmother struggled to describe any change of circumstances since the last proceeding, Dr. Preston could think of two possible relevant changes. First, through court filings and significant litigation, the children had no physical contact with mother since late 2014 and limited phone contact with her, therefore any benefit visitation accomplished between 2012 and 2014 had diminished due to the two-year disruption in the relationship, which was unlikely to survive long durations of limited contact. Second, while the children were open to visits with mother, they related to mother with apathy or a sense of inconvenience, and clearly supported grandmother adopting them, which was a "very different description" of their desire to maintain a relationship with mother than Scott reported in 2014.

Dr. Preston believed mother had taken reasonable actions to obtain a consistent visitation schedule with the children, but the court record demonstrated a pattern in which every time she took legal action to establish visits or further her relationship with the children, grandmother responded with legal action to prevent this from occurring. There was little doubt that grandmother had provided the children with a stable, loving environment and Dr. Preston opined the most appropriate situation for the children was to remain where they were for the immediate future. Dr. Preston was concerned the children may not benefit from adoption, however, because it appeared adoption would effectively terminate their ability to have any significant relationship with mother. Regardless of whether grandmother may be a better choice to care for the children, it did not appear to be in their best interest to terminate mother's parental rights when guardianship was sufficient to protect them from a premature return to mother, mother was willing to continue to reunify with them at a pace that considered their best interests, and even if reunification did not occur, improvements in the relationship with mother would have long-term benefits for them.

Dr. Preston recommended the petition be denied, as the children would not benefit from the termination of parental rights and a subsequent adoption, since mother's relationship with the children was sufficiently intact to be of possible benefit to them. Dr. Preston noted, however, that could change if the relationship continue to decline due to lack of contact.

On May 23, 2016, the matter was set for a settlement conference on June 6, 2016. On June 6, 2016, a settlement conference hearing was set for September 1, 2016, and the parties were ordered to file exhibit and witness lists, motions in limine, and other pre-trial documents 10 days before the hearing.

On August 22, 2016, grandmother's attorney filed the following documents: (1) objections to Dr. Preston's report; (2) a motion to exclude the report; (3) a trial brief; (4) grandparents' declaration filed on August 17, 2015, in opposition to mother's petition to terminate the guardianship; (5) the attorney's declaration stating that she prepared a proposed joint statement of stipulated and disputed facts, which she forwarded to mother's attorney, who did not respond; and (6) witness and exhibit lists, which included paternal aunt L.S. (paternal aunt), who would testify about the quality and extent of the relationship of herself and her family with the children.

At the September 1, 2016 hearing, the court, noting it had previously stated on the record that grandmother would not be allowed to advance this action on the same evidence and arguments Judge Cardoza ruled on in the earlier section 1516.5 petition, requested briefing from the parties on the issue. The court set another settlement conference for October 19, 2016, and a tentative trial date for December 8 and 9, 2016. Grandmother subsequently filed a brief on the issue.

On November 18, 2016, the court set a hearing for November 28, 2016, on the issue of appointing a court investigator to investigate all the factors enumerated in section 1516.5, subdivision (a), and vacated the December trial dates. At the November 28, 2016 hearing, grandmother's attorney argued it was not necessary to appoint a probate investigator. After hearing testimony from the attorneys for mother and the children, the court took the matter under submission and on December 13, 2016, issued a written ruling in which it found it unnecessary to refer the matter for investigation by a probate investigator. The court, however, ordered Dr. Preston to conduct a supplemental investigation specifically to comply with section 1516.5, subdivision (b), and to interview paternal aunt.

On January 18, 2017, the court set a hearing for January 30 to appoint new counsel for mother, as her attorney had been selected to become a court commissioner, and to discuss apparent non-compliance with its December 13, 2016 order. At the January 30 hearing, the court appointed another attorney for mother. The court explained that it had ordered an interview of paternal aunt because section 1516.6, subdivision (a)(3)(b), requires the court to consider the nature and extent of the relationship between the children and the guardian's family members, and grandmother had listed paternal aunt as a witness. The court stated that grandmother's attorney and paternal aunt refused to abide by the order. Grandmother's attorney asserted that grandmother complied with the order by giving the court's order to paternal aunt, but grandmother could not force paternal aunt to comply. Grandmother and mother both provided the court with contact information for paternal aunt. The court ordered grandmother and her attorney not to frustrate its ability to interview paternal aunt, and set a continued status conference for February 27, noting that mother's new attorney needed time to "get up to speed" on the matter.

Subsequent references to dates are to dates in 2017.

Dr. Preston, however, was unable to submit an amended investigative report because paternal aunt failed to attend several scheduled interviews. While paternal aunt eventually asked to be interviewed by telephone so she would not miss work, Family Court Services was unable to clear Dr. Preston's schedule to set another appointment for her that would give him enough time to interview her and write a supplemental report in time for the February 27 hearing.

At the February 27 hearing, the court decided not to pursue an interview with paternal aunt. The court thought the trial needed to be set as soon as mother's attorney was ready to proceed and believed the trial would take at most two days. Mother's attorney sought clarification on what time frame would be tried. The court responded that it did not plan on limiting the evidence to the four-month time period between the judgment on the prior petition and the new petition, but rather would consider evidence over the entire life of the children on the issue of whether it was in their best interest to be adopted. The court set a hearing on motions in limine for March 22, at which time it would set a trial date.

On March 1, mother filed a motion in limine to preclude evidence of matters that were litigated in the 2015 trial under the doctrine of collateral estoppel, and asked the court to take judicial notice of documents filed in the prior proceeding, including grandmother's prior filings seeking termination of mother's parental rights. Mother also filed a brief in opposition to grandmother's objection to Dr. Preston's report and motion in limine.

At the March 22 hearing, the court denied grandmother's request to find Dr. Preston's report unreliable, noting the report was a tool for the trial court to use, giving it the weight it deserved after considering all other evidence. The court also declined to find, as a matter of law, that the children would benefit from adoption and denied mother's motion in limine. Stating that the case needed to proceed to trial "ASAP," the court set the matter for trial on May 30, with a three-day time estimate, after considering the attorneys' schedules.

In May, grandmother filed a motion to strike portions of Dr. Preston's report and requested the court take judicial notice of, among other things, prior case records and transcripts, Dr. Bernstein's psychological evaluation, investigative reports from the prior proceedings, judicial council forms, and case law.

The children's attorney filed a trial brief, in which she asserted the children would not benefit from adoption by grandmother, as they would benefit more from having a relationship with mother which would include regular visits. If the adoption were granted, it was likely the children would never be able to visit mother again, which was contrary to Taylor's wishes.

Thereafter, grandmother moved to have minor's counsel removed from the case. The court denied the motion on June 1.

Mother filed a trial brief, in which she argued the children would not benefit from adoption, as the children would benefit from having her remain in their lives. Mother acknowledged that grandmother shared a positive bond with the children and was a parental figure, and asserted she was not requesting that the children be removed from grandmother. Instead, mother simply wished to be provided visitation under the guardianship case, to which grandmother was adamantly opposed. Mother stated the children's needs were being fulfilled under the guardianship and there was nothing positive to be gained from terminating her parental rights.

Mother asked the court to take judicial notice of grandmother's petitions filed in the 2014 proceeding, Judge Cardoza's statement of decision and the ensuing judgment, grandmother's petitions filed in September 2015, the court's minute orders from January 25 and September 1, 2016, the 2013 investigator's report, and Scott's 2014 investigative reports. Mother also filed a renewed motion in limine to preclude evidence of matters that were litigated in the 2015 trial under the doctrine of collateral estoppel and a brief in opposition to grandmother's request to strike portions of Dr. Preston's report.

On May 30, Judge Tharpe, who had been presiding over the hearings, assigned the matter to the Honorable Timothy Kams, under the master calendar, for immediate trial. After conferring with Judge Kams in chambers, the parties agreed to forego presentation of live evidence and submit the matter on the following documents: (1) the parties' trial briefs; (2) grandmother's and mother's requests for judicial notice; and (3) grandmother's motion to strike portions of the investigative report, and points and authorities in support of and opposing the motion.

On June 5, grandmother filed a supplemental request for judicial notice of mother's June 2015 petition to terminate the guardianship, mother's December 2012 petition for visitation, mother's May 2013 petition to terminate the guardianship, and the duties of guardian signed and filed by grandparents in September 2008. She also filed an opposition to mother's motion in limine on grounds of collateral estoppel and res judicata.

A statement of decision was issued on June 14, which was later amended at the request of grandmother's attorney. The court granted grandmother's request for judicial notice of the following: (1) Dr. Bernstein's December 2013 psychological evaluation; (2) the 2013 report by social worker Keith M. Hodge regarding the investigation of grandparents' home; (3) the fact that the children had been subject to prolonged (9 year) legal and court-related proceedings which necessitated multiple contacts and interviews of the children; (4) the August 2015 supplemental investigator's report by Jennifer L. Daniel; (5) a joint statement of stipulated and disputed facts, and trial stipulations filed February 27, 2015; (6) mother's September 2008 consent to the appointment of guardian, the October 1, 2008 order appointing temporary guardians, and December 1, 2008 order appointing guardian; (7) Duties of Guardian, Judicial Council Form GC0248 (2001); (8) specified California statutes; (9) all of the court filings and judicial orders made in connection with the consolidated action; and (10) 18 California cases. The court also took judicial notice of the documents listed in grandmother's supplemental request for judicial notice and in mother's request for judicial notice. Finally, the court denied grandmother's request to strike portions of Dr. Preston's report.

Apparently grandmother's attorney claimed, via email sent to the court on June 8, that she did not agree to submit the matter on the pleadings. Before it issued the statement of decision, Judge Kams called the attorneys into court and placed on the record that he was tasked with deciding the case based on over 400 pages of pleadings that were filed in the case, all of which he had reviewed and considered. Judge Kams stated the in-chambers discussion with the attorneys "most definitely established that the matter would be submitted on the pleadings unless the Court felt the need to have a certain witness or witnesses testify[,]" which procedure was memorialized on the record on May 31.

The court first denied mother's motion to bar prosecution of the petition on grounds of res judicata and collateral estoppel, or to consider only evidence covering the time period since the conclusion of the first trial. The court reasoned that because section 1516.5 requires the court to determine whether adoption is presently in the children's best interest, and two years had passed since the trial on grandparents' prior petition, it would be unfair to deny a request for careful analysis at present. In addition, strictly limiting evidence presentation to the period subsequent to the renewed filing would hamper, if not defeat, the court's assigned task.

On the issue of whether it was in the children's best interest to be adopted by grandmother, the court declined grandmother's request to find that adoption was in the children's best interest as a matter of law. The court found that grandmother had presented substantial evidence that she had "done an exemplary job of providing a loving home for the Children." With respect to the relationship between the children and grandmother's family, the court noted there was not much evidence to consider, although there were a few references to the children's paternal aunt, uncle and cousins participation in the children's functions or extracurricular activities. There also was not much information provided about father, but it appeared from the investigative reports that he had, at best, a very weak relationship with the children.

There was a dearth of current information on the relationship between children and mother. In Dr. Preston's report, which was the most recent investigation into the relationship, he described a somewhat tepid bond between the children and mother, and that the children seemed fairly indifferent to her, in contrast to information Scott provided in her earlier report. The court noted that "[o]ne may surmise that this may be due in part to the fact" the children had not visited mother in the last two years, which was a collateral consequence of the current petition, as Family Code section 7807 provides that any visitation or custody requests are stayed until the court issues a final ruling on the petition to terminate parental rights.

The court had little doubt that two years without any real contact had weakened mother's relationship with the children and hurt her legal position. The court noted that if the matter had been adjudicated within 45 days of the filing of the petition, the facts and relationships might have been different. The court did not want to assign blame or criticism for the two year delay, although the Family Code clearly mandated an expedited hearing, noting that "[p]erhaps fault lies with the Court." Regardless, it was a "true state of affairs" that the mother's relationship with the children had diminished during that time.

The court noted that it was required to consider the investigative report, the purpose of which was to provide a full understanding of the factual setting of the petition. The court agreed with many of grandmother's criticisms of Dr. Preston's and Scott's report, such as it being clear that visitation rights and reunification considerations should play no part in the investigative report or recommendations. It was irrelevant whether the children would benefit from regular visits with mother or whether reunification should occur, and consideration of parental fitness was not required. Instead, it need only be proved that termination of parental rights and adoption were in the children's best interest. Thus, to the extent visitation, custody, parental fitness, or other non-relevant matters were included in Dr. Preston's report and recommendation, the court declined to consider them.

The court was mindful that a parent has a substantial interest in this matter, but after careful consideration of the factors relating to the children's best interest in this case, the court found that grandmother had demonstrated by clear and convincing evidence it was in the children's best interest to be freed from their mother's parental rights so grandmother could adopt them. For most of their lives, the children had known grandmother as their parent, and it was time to make that permanent, so the children would know their home would never be disrupted. In addition to potential financial benefits, they would realize emotional and other mental health benefits knowing that nine years of poking and prodding by court-related personnel would end and their future would be certain. While this result was painful to mother, it would provide the children with the stability, permanence, and peace of mind they deserved.

The court subsequently entered judgment freeing the children from their mother's custody and control so they could be adopted by grandmother.

DISCUSSION

I. Termination of Parental Rights

Mother contends the trial court erred in finding that adoption by grandmother would benefit the children because the finding is unsupported by substantial evidence. We disagree.

A. Applicable Law

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. (In re Ann S. (2009) 45 Cal.4th 1110, 1133 (Ann S.).) Probate guardianships provide an alternative placement for children who cannot safely remain with their parents. (Id. at p. 1122.) "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 section 1516.5." (Ann S., supra, 45 Cal.4th at p. 1122.)

When the court appoints a guardian, the parent's authority ceases. (Ann S., supra, 45 Cal.4th at p. 1123.) While the court has discretion to grant visitation, parental rights otherwise are completely suspended for the duration of the probate guardianship and the guardian assumes the care, custody and control of the child. (Id. at pp. 1123-1124.) "Unless ended by court order, the guardianship continues until the child [either] 'attains majority or dies.' " (Id. at p. 1124.) "The court may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child's best interest." (Ibid.)

Section 1516.5 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. (§ 1516.5, subd. (a).) The guardian bears the burden of making the requisite showings under section 1516.5 by clear and convincing evidence. (See Ann S., supra, 45 Cal.4th at p. 1127.)

" 'Benefit' in this context means that adoption would be the best alternative for the child . . .[,]" and 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 his or her birth parents, his or her guardian and the guardian's family, and any siblings or half siblings. (§ 1516.5, subd. (a).) 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., supra, at p. 1132.) Trial courts have broad discretion in assessing the relevant factors. (Id. at p. 1138.)

Citing to section 1516.5's legislative history, mother claims the statute was designed to apply to situations unlike this, such as where the parent is not likely to reclaim the child or where a drug-addicted mother places the child in guardianship hoping to rehabilitate herself, yet fails to do so. In determining statutory intent, however, we look first to the statute's language, giving effect to its plain meaning. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Mother does not contend the statute is ambiguous. Accordingly, we look only to the statute, which clearly required the court to consider all factors relating to the best interest of the child in determining that the child would benefit from being adopted by his or her guardian. (§ 1516.5, subd. (a)(3).)

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 (Noreen G.).) 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." (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.)

B. Analysis

Here, the only issue before the trial court was the third prong of section 1516.5 - that the children would benefit from being adopted by grandmother. The evidence showed that grandmother, along with grandfather until his death, had been the children's primary caregiver since 2008, when the children were seven and three years old. The children were closely bonded to her and clearly considered her to be the parental figure in their lives. Grandmother provided all material support for the children and gave them a stable, supportive, and loving home. The children knew their paternal aunt and her family, who participated in functions with the children or attended their extracurricular activities.

Mother had not been a parental figure in the children's lives since at least 2008. For the first four years of the guardianship, she was minimally involved in the children's lives and took no effective steps to terminate the guardianship and regain custody of the children. During that period, the children became bonded to grandmother. By the time mother petitioned for visitation, the children, who were now 11 and seven years old, had no relationship or bond with mother. While the children enjoyed visits once they began in mother's treatment facility in 2013, and developed an interest in visiting her, there is no evidence that they developed a bond with her. Due to the nature of the proceedings and the legal filings, mother's visits were disrupted. There is nothing to suggest the children were negatively affected once visits with mother ended and over the next two years, the children's interest in mother waned to the point that they had little desire even to engage with her over the telephone. By the time of trial, it was in the children's best interest to be adopted because they had little relationship with mother and were not bonded to her.

Although mother commendably remedied many of the problems that necessitated the guardianship, she was not able to act as a full-time parent for her children. Despite having filed several petitions to terminate the guardianship, by the time of the section 1516.5 hearing, mother acknowledged the children's bond with grandmother and that grandmother was fulfilling their needs, and told the court that she did not want custody of the children, only visitation.

"After years of guardianship, the child has a fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver. [Citations.] The guardian, after fulfilling a parental role for an extended period, has also developed substantial interests that the law recognizes." (Ann S., supra, 45 Cal.4th at p. 1136, fn. omitted.) Grandmother was a fully committed caregiver and had been for the majority of the children's lives, providing them with a stable home environment.

Mother blames grandparents' decision to stop therapeutic visits and the delay in the proceedings for her diminished relationship with the children. As for the effect of grandparents' decision to stop therapeutic visits, it was not the lapse in visitation that led to the deterioration in mother's relationship with the children. Instead, whatever bond the children had with her was effectively extinguished by her inaction during the first four years of the guardianship. Thereafter, a new bond was not created through visitation and no parent-child relationship was present when mother was visiting the children in 2013 and 2014.

Citing to the trial court's statement that "[p]erhaps fault lies with the Court" because the matter was not heard on an expedited basis, mother contends the trial court could not use the effect of its failure to timely hear the case, namely her lack of contact with the children, against her. She asserts she had a due process right to prompt resolution of her case and the failure to timely hear the matter well outside the time requirements of Family Code section 7870 was reversible error.

A proceeding to declare a child free from parental custody and control under section 1516.5 is to proceed on an expedited basis. (§ 1516.5, subd. (c); Fam. Code, § 7870, subd. (a).) 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. (Fam. Code, § 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." (Fam. Code, § 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. (Fam. Code, § 7871.)

Here, the matter was set for hearing within 45 days of the filing of the petition. Mother appeared to contest the petition, so the matter was continued to appoint counsel for mother and to give counsel time to review the file. Over the next year, numerous continuances were granted for a variety of reasons, ranging from the preparation of an investigative report, the trial court's decision to request additional investigation, and the need to appoint new counsel for mother after her attorney became a court commissioner. At no time did mother object to any of these continuances or demand the case be set for trial. Consequently, she cannot fault the trial court for failing to bring the matter to trial sooner. Moreover, she does not argue on appeal that there was not good cause for any of the continuances. As such, she has not shown the trial court erred in continuing the matter and holding the trial a year and a half after the petition was filed.

As for the effect of any delay in the proceedings, Dr. Preston interviewed the children within four months of the petition's filing. At that time, the children, who had not visited mother for two years, were indifferent to maintaining a relationship with her. By the time the trial was held, nothing had changed. The lack of contact for the prior two years was not the fault of the court or grandmother, but a by-product of the legal process, as Family Code section 7807, subdivision (b) required the court to stay mother's petitions when grandmother filed hers.

Section 7807, subdivision (b), provides that all proceedings affecting a child under specified provisions of the Family and Probate Codes, including any motion or petition for custody or visitation "filed in a proceeding under this part, shall be stayed[,]" and a "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." The court, however, retains jurisdiction with respect to domestic violence protective orders and dependency proceedings. (Fam. Code, § 7807, subd. (c).) --------

The trial court, after carefully considering the evidence, determined it was in the children's best interest to be freed from mother's custody and control so grandmother could adopt them. It is apparent from this record that the children benefit greatly from their relationship with grandmother, and there is no evidence they would be harmed by terminating parental rights. Substantial evidence supports the trial court's finding that termination of parental rights and adoption was in the children's best interests.

II. ICWA Notice

Mother contends the trial court failed to comply with the notice requirements of the ICWA. We agree that a limited remand is necessary.

Section 1516.5, subdivision (d), provides: "This section does not apply to . . . any Indian child." Thus, when the petition to terminate parental rights was filed, the court, the court-connected investigator, and the petitioner in this case had the affirmative and continuing duty to inquire whether the children were or might be Indian children. (See Noreen G., supra, 181 Cal.App.4th at p. 1387, citing Cal. Rules of Court, rule 5.481(a)(1).) There is, however, nothing in the record indicating the requisite inquiry was undertaken or even considered. Grandmother asserts the inquiry was made when she and grandfather petitioned for guardianship in 2008, and therefore the court was not required to inquire again. She also contends it was not error to fail to mention ICWA inquiries in the written reports, as neither section 1516.5, subdivision (b) nor Family Code section 7851, subdivision (b) include an IWCA inquiry in the mandated contents.

We refuse to speculate or assume that ICWA inquiries were made in the guardianship proceeding. If an inquiry was made, the trial court will be able to easily confirm that ICWA was complied with and confirm the judgment. That an ICWA inquiry is not listed in section 1516.5, subdivision (b) or Family Code section 7851, subdivision (b), does not absolve the court, investigator, and grandmother of the obligation to make the requisite inquiry.

We therefore remand the matter for the limited purpose of effectuating proper inquiry and complying "with the notice provisions of the ICWA if Indian heritage is indicated." (See Noreen G., supra, at p. 1390 [declining to reverse the judgment terminating parental rights under section 1516.5 and ordering a limited remand].) If, after proper inquiry and notice, the children are found to be Indian children, mother may petition the trial court to invalidate the termination of parental rights upon a showing that such action violated the provisions of the ICWA. (See Noreen G., supra, at p. 1395.)

DISPOSITION

The matter is remanded to the trial court to comply with the notice and inquiry provisions of the ICWA. If, after proper inquiry and notice, the children are found to be Indian children, mother may petition the trial court to invalidate the termination of parental rights upon a showing that such action violated the provisions of the ICWA. If the children are not found to be Indian children, the judgment is affirmed.


Summaries of

Minors. Linda C. v. T.C. (In re Taylor C.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Apr 9, 2018
F076005 (Cal. Ct. App. Apr. 9, 2018)
Case details for

Minors. Linda C. v. T.C. (In re Taylor C.)

Case Details

Full title:In re TAYLOR C., et al., Minors. LINDA C., Petitioner and Respondent, v…

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

Date published: Apr 9, 2018

Citations

F076005 (Cal. Ct. App. Apr. 9, 2018)