Opinion
D076333
08-05-2020
In re B.H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. BRADY B. et al., Objectors and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Objectors and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A62674) APPEAL from an order of the Superior Court of San Diego County, Edlene C. McKenzie, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Objectors and Appellants.
When B.H. was just shy of his first birthday, his Father murdered his Mother. After suffering this horrendous loss very early in his life, B.H. is now fortunate to have two couples who love and care for him, B.H.'s maternal grandparents and temporary guardians, Brady B. and Maria B. (together Petitioners) and the Petitioners' daughter and son-in-law, Brandi B. and Karim B. (together the Bs).
Petitioners filed a petition for freedom from parental custody and control (the petition) seeking to terminate Father's parental rights under Family Code sections 7822 and 7825. The juvenile court joined the Bs in the action to address whether it would be in B.H.'s best interest to grant the petition. After conducting an evidentiary hearing, the court denied the petition, finding that B.H.'s continued guardianship was in his best interest to insure no interruption in his relationship with either Petitioners or the Bs.
Undesignated statutory references are to the Family Code.
Petitioners appeal, arguing that the court (1) violated their due process rights when it failed to provide notice and an opportunity to be heard before granting an ex parte request by the Bs for weekend visitation with B.H., and (2) improperly granted the Bs standing in the freedom from custody case. They also contend that applicable Family Code sections compelled the court to grant the petition and terminate Father's parental rights.
The Bs did not filed a respondent's brief. Accordingly, we "decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) The failure to file a respondent's brief is not treated as a default or a concession that the trial court erred; instead, we must examine the record and points raised in the opening brief to determine if reversible error occurred. (Hogue v. Hogue (2017) 16 Cal.App.5th 833, 835, fn. 1.)
The issue before the juvenile court was not which couple could better love, care, or provide for B.H., but what was in B.H.'s best interest. The juvenile court determined that it was in B.H.'s best interest to deny the petition to ensure that both couples remain in his life. We agree and reject Petitioners' assertions.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009 or 2010, B.H.'s parents met. They started dating about four years later. In the interim, Mother gave birth to B.H.'s half-sibling. In 2014, Mother and Father started living together. In 2015, Mother gave birth to B.H. In 2016, the couple experienced problems in their relationship. In late 2016, Father shot Mother in the back as she held B.H. and while the half-sibling watched. Father pleaded guilty to second degree murder and is serving a 35-years to life sentence.
Petitioners have cared for B.H. since his Mother's death. The half-sibling went to live with his father and the boys have daily contact. In December 2016, the Bs expressed an interest in caring for B.H. and made plans to move to San Diego from Arizona to do so. Meanwhile, Petitioners were fully committed to B.H.'s long-term care and told others that they intended to care for B.H. until he reached adulthood. In March 2017, the court granted the Petitioners' unopposed request for guardianship of B.H.
In July 2017, Brandi moved into Petitioners' home. The following month, Karim moved into Petitioners' home. Brandi and Karim told Petitioners that they wished to permanently care for B.H. According to the Bs, Petitioners were in poor health and their home so cluttered that it was a fire hazard. By October 2017, the Bs moved from Petitioners' residence to their own home. They continued to have regular contact with B.H. In April 2018, the Bs sought guardianship of B.H. and to terminate Petitioners' guardianship. Petitioners disagreed with this position and the relationship between Petitioners and their daughter and son-in-law deteriorated.
On May 30, 2018, the probate court deemed the Bs' petition to terminate guardianship to be a petition for removal of B.H. under Probate Code section 2651, granted the Bs' ex parte request for the appointment of a guardian ad litem (GAL) for B.H., ordered that the Bs have weekend visitation with B.H., and that an investigator visit Petitioners' home and prepare a report on the conditions of the home and Petitioners' medical status.
In June 2018, Petitioners filed their petition alleging that Father's parental rights should be terminated due to Father's abandonment of B.H. (§ 7822) and his felony conviction showed his unfitness (§ 7825). Should Father's parental rights be terminated, Petitioners sought to adopt B.H. The probate court transferred the Bs' guardianship petitions to the juvenile court, and the petition was consolidated with the guardianship case.
At a hearing in September 2018, the Petitioners argued that the probate court improperly granted the Bs visitation at an ex parte hearing and requested that visitation be terminated. The court stated that it would allow the visitation to continue, but would entertain a motion to exclude the Bs from the action and terminate visitation. The juvenile court authorized the GAL to prepare a report on B.H.'s best interest. At some point, the Bs withdrew their petition to terminate the Petitioners' guardianship. At the next hearing in November 2018, the court set the matter for an evidentiary hearing.
At the evidentiary hearing, the juvenile court heard testimony from a number of witnesses, received exhibits, and took judicial notice of the probate case. After considering counsel's written closing arguments, the juvenile court issued a statement of decision finding by clear and convincing evidence that Father had abandoned B.H. within the meaning of section 7822 and that Father's felony conviction proved his unfitness to parent B.H. under section 7825. The court then turned to whether terminating parental rights would be in B.H.'s best interest. The court concluded that granting the petition and allowing B.H. to be adopted would "seriously curtail[ ]" the beneficial relationship that B.H. has with the Bs, that this would be detrimental and not in B.H.'s best interest. Based on these findings, the juvenile court denied the petition, returned the Bs' guardianship petition to the probate court, and ordered that all visitation orders remain in full force and effect pending further court order. Petitioners' timely appealed.
DISCUSSION
I. Propriety of Visitation Order
Petitioners contend that the probate court violated their due process rights by allowing the Bs weekend visitation with B.H. without notice or an opportunity to be heard. We disagree.
" ' "The fundamental requisite of due process of law is the opportunity to be heard." [Citation.] This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. [¶] . . . [¶] An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information, [citation], and it must afford a reasonable time for those interested to make their appearance.' " (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 706.)
A probate court minute order dated May 30, 2018, ordered, among other things, that the Bs have weekend visitation with B.H. The minute order indicated that Petitioners and their attorney appeared at the hearing. Accordingly, Petitioners received notice of the hearing, they appeared with counsel, and had an opportunity to object to the visitation order. No due process violation occurred.
After the probate court issued the visitation order, it transferred the matter to the juvenile court. (Prob. Code, § 1510, subd. (i) ["If the proposed ward is or becomes the subject of an adoption petition, the court shall order the guardianship petition consolidated with the adoption petition, and the consolidated case shall be heard and decided in the court in which the adoption is pending."].) The juvenile court addressed the visitation order multiple times. At a hearing on September 28, 2018, the juvenile court informed Petitioners that it would entertain a motion to exclude the Bs from the freedom of custody proceeding. The court then stated:
"[B]ut there are orders in effect, and it appears that the visitation has gone forward. Unless there's a motion to terminate that, I'm going to allow for that [visitation] to continue.
"So if you want to go ahead and file a motion giving me the points and authorities I need to make any appropriate legal order, I am happy to consider that. But I expect everyone to behave in a really civil manner towards one another. And I'm going to honor and respect the orders that are in effect until I overturn them. . . .
"So please put your motion in writing, and I will consider it, but at this point the orders will remain. And
then if you want to file it, I'll go ahead and give you a filing date, and then I'll give [Petitioners'] counsel an opportunity to respond and [the GAL]."
At the next hearing on November 30, 2018, Petitioners again raised the visitation order and the Bs' standing. After a colloquy between Petitioners' counsel and the court, the Bs' counsel noted that before the evidentiary hearing the court gave Petitioners the opportunity to file a motion on that issue and the Bs would have an opportunity to respond. The juvenile court stated:
"[O]ne judge made a decision that it was in [B.H.'s] best interest to have visitation [with the Bs], that order was never appealed. And so it continues to go on, and so because that is in place, I think the Court is mandated to look at that relationship and determine whether or not that should be a factor in determining whether or not parental rights should be terminated or whether or not there should be any sort of post adoption contract in place. So I just need to look at all that, that's all."
Petitioners' counsel then asked the juvenile court to modify the Bs' visitation schedule. The court responded:
"THE COURT: Let's see. On September 28, 2018, the Court ordered that [Petitioners' counsel] files points and authorities regarding the visitation issue, the current visitation orders will remain until the Court receives a motion filed by [Petitioners' counsel], and the Court encouraged all parties to meet and confer prior, which you
did do, but the Court was not going to modify anything unless it receives something in writing.
"[PETITIONERS' COUNSEL]: Your Honor, my concern is that going back and reviewing the code, it says that all visitation motions will be stayed pending the determination -- termination of the father.
"THE COURT: Counsel, I made a very specific order on September 28 that if you wanted to modify the visitation order, a motion needed to be filed, points and authorities need to be filed, it's very specific. And I did not receive anything to date for that, so the Court is going to stand by the order.
If you want me to do something, you put it in writing and you serve it on counsel and you give the Court an opportunity to review the information and the points and authorities in advance, and then we can have a meaningful hearing. So I'm not going to entertain anything unless something is advanced in writing and served on all counsel before. So I'm going to go ahead and confirm the February 8 date."
Petitioners note that the juvenile court considered two oral motions by the Bs and characterize the juvenile court's requirement that they file a written motion to address the probate court's visitation order as "disparate treatment." We reject this argument. The juvenile court did not make the visitation order and did not have any information before it regarding the circumstances leading to the visitation order. The juvenile court's refusal to change the probate court's visitation order without a written motion providing this information simply displayed appropriate deference to the orders of another court.
II. The Bs' Standing
Petitioners assert that the juvenile court committed reversible error on September 28, 2018, when it gave the Bs standing to participate in the freedom from custody proceeding.
" 'Standing' is a party's right to make a legal claim and is a threshold issue to be resolved before reaching the merits of an action." (Said v. Jegan (2007) 146 Cal.App.4th 1375, 1382.) " 'Standing requirements will vary from statute to statute based upon the intent of the Legislature and the purpose for which the particular statute was enacted.' " (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000.) "Lack of standing may be raised at any time in the proceeding, including at trial or in an appeal." (Ibid.)
The Bs filed a petition to terminate guardianship, which the probate court deemed to be a petition for removal of B.H. under Probate Code section 2651. Probate Code section 2651 provides that "any relative . . . of the ward . . ., or any interested person may apply by petition to the court to have the guardian . . . removed."
Petitioners cited no authority showing that after the Bs properly petitioned to remove Petitioners as B.H.'s guardians and be appointed successor guardians, that the probate court erred in granting the Bs visitation. Rather, the Probate Code specifies that the appointment of a guardian is governed by the Family Code chapters beginning with sections 3020 and 3040. (Prob. Code, § 1514, subd. (b)(1).) Family Code section 3020, subdivision (a), declares that "the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children." Here, the probate court necessarily considered B.H.'s best interest before ordering that the Bs be granted visitation.
After Petitioners filed the freedom from custody proceeding, the probate court consolidated this proceeding with the guardianship proceeding. (§ 8802, subd. (d); Prob. Code, § 1510, subd. (i).) As parties to the guardianship proceeding in the probate court, the Bs were necessarily made parties to the adoption proceeding by the consolidation order.
To the extent consolidation of the guardianship and freedom from custody proceedings did not confer standing to the Bs to participate in the freedom from custody proceeding, the juvenile court subsequently heard the Bs' oral motion to join the proceeding. Petitioners argued that the Bs no longer had any right to join the freedom from custody proceeding because they dismissed their motion to terminate the Petitioners' guardianship. The GAL argued that consolidating the actions was appropriate because of the visitation order. The juvenile court agreed, stating:
"I think it would be appropriate. Like I said, this is an incredibly unusual case. I don't think that I've -- in all of the years that I've been doing these, I don't think I've ever had a case where I've had 7822 action, and I have a relative who has a viable active visitation order from probate court coming in here and objecting to the 7822, but I will just reiterate, and it -- maybe if it's appealed, we'll see what happens, but I think really in the best interest of the child and for other reasons I think it's important to have them joined for purposes of being able to shed light on the best
interest aspect of this case, and the ultimate decision [regarding B.H.'s best interest]."
Procedural due process focuses on the fairness of a procedure that may deprive an individual of important rights. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) Petitioners' freedom from custody proceeding had the potential to eliminate the Bs' visitation rights. Under these circumstances, the juvenile court did not err in allowing the Bs to participate in the action. (See also, Cal. Rules of Court, rule 5.534(b)(1) [with the trial court's permission, for good cause shown, relatives can be present at juvenile court proceedings and address the court].)
III. Alleged Error in Failing to Terminate Father's Parental Rights
Petitioners do not challenge the juvenile court's findings that Father had abandoned B.H. within the meaning of section 7822 and Father's felony conviction proved his unfitness to parent B.H. under section 7825. Rather, Petitioners assert that these findings compelled the juvenile court to terminate Father's parental rights and free B.H. for adoption. They contend that the court's denial of their petition exceeded the bounds of applicable law governing the court's discretion.
"Section 7800 et seq. governs proceedings to have a child declared free from a parent's custody and control." (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009 (Allison C.).) The purpose of terminating a parent's rights and freeing a child for adoption "is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life." (§ 7800.) The statutory scheme is "liberally construed to serve and protect the interests and welfare of the child." (§ 7801.) The best interests of a child are "paramount in interpreting and implementing the statutory scheme" governing when and how to free a child from parental custody and control. (Neumann v. Melgar (2004) 121 Cal.App4th 152, 162.) Accordingly, any petition under section 7800 et seq. requires a best interest analysis. (See In re Noreen G. (2010) 181 Cal.App.4th 1359, 1383 [affirming termination of parental rights as being in the best interests of the minors].)
Here, within the first hour of trial, the juvenile court found that sections 7822 and 7825 applied. After making these findings, the juvenile court stated "we're going to shift the trial to the best interest" issue. The court then heard two days of testimony on whether terminating parental rights and freeing B.H. for adoption was in B.H.'s best interest. The court explained to counsel at sidebar that "[T]he best interest really goes to what would happen if the adoption were approved? How would that impact this child's life in terms of the relationships that he has with others?" The court further explained that the focus of the proceeding was "on this petition and whether or not [Petitioners] should be permitted to adopt," not which couple should care for B.H.
The court's statement of decision acknowledged that adoption is a preferred plan for someone as young as B.H., "[i]t would minimize the trips to court over familial visitation and competing guardianship requests and possibly put an end to the contention that has existed between" the Bs and Petitioners. Nonetheless, the juvenile court denied Petitioners' request to terminate parental rights, explaining:
"[T]he court believes that [B.H.] has formed very important attachments to the [Bs]. Despite the assurances given by [Petitioners] in court that they would not seek to end [B.H.'s] relationship with the [Bs], the court believes that the contact that [B.H.] has come to expect with the
[Bs] and benefits he derives directly from his relationship with the [Bs] would be seriously curtailed if the court were to allow [Petitioners] to adopt. The court believes this would have a detrimental impact on [B.H.] and therefore would not be in his best interest. Continuing a plan of guardianship, at least for now, insures no interruption in the important attachments he has formed with both with [Petitioners and the Bs]. Continuing these significant relationships is in [B.H.'s] best interest."
We review the juvenile court's findings for substantial evidence. (In re Amy A. (2005) 132 Cal.App.4th 63, 67.) A trial court must make its findings based on clear and convincing evidence. (§ 7821.) On appeal, we "must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before [us] is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting [our] review, [we] must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (July 27, 2020, S254938) — Cal.5th — [p. 28], — Cal.Rptr.3d —, — P.3d —, 2020 WL 4280960.)
"Also, the decision to terminate parental rights lies in the first instance within the discretion of the trial court, 'and will not be disturbed on appeal absent an abuse of that discretion. [Citation.] While the abuse of discretion standard gives the court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action. . . .' " [Citation.] "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." ' " (In re Noreen G., supra, 181 Cal.App.4th at pp. 1382-1383.)
The juvenile court properly considered B.H.'s best interests in ruling on the freedom from custody petition. Accordingly, we reject Petitioners' argument that this action amounted to an abuse of discretion. We turn to whether the evidence supported the juvenile court's ultimate finding that it would not be in B.H.'s best interest to grant the petition.
At the evidentiary hearing, Brady testified that if he and Maria were allowed to adopt B.H., they intended to allow the Bs to visit him. The juvenile court, however, rejected this testimony and found that if Petitioners were allowed to adopt B.H., that B.H.'s relationship with the Bs "would be seriously curtailed." Substantial evidence supports this finding.
Prior to Mother's death, Brandi was "very close" to her parents. After Mother's death, Brandi stated that "things became a little . . . rougher." Since May 2018, Brandi has had infrequent contact with Petitioners. Karim stated his relationship with Petitioners has been estranged since he and Brandi filed to terminate Petitioners' guardianship. In fact, after the Bs filed for guardianship, Petitioners have not invited the Bs over. Petitioners also changed their locks which prevented Brandi from using her key to enter Petitioners' home. From this evidence the juvenile court could reasonably conclude that B.H.'s beneficial relationship with the Bs would be constrained if Petitioners adopted B.H.
Finally, Petitioners assert that removing the Bs from B.H.'s life did not justify denying the petition because the record did not show this action would cause B.H. permanent and irreparable harm. They claim that the Bs needed to present a bonding study opining that severing B.H.'s relationship with the Bs would harm B.H.
A "bonding study" is a report, based on observations of a mental health professional, which assesses how bonded or attached a child is to a parent or other caretaker and vice versa. (See Arredondo & Edwards, Attachment, Bonding, and Reciprocal Connectedness (2000) 2 J. Center for Families, Children & Cts. 109, 119.) Our review of the record, however, does not show that Petitioners requested a bonding study and, therefore, this issue is forfeited. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 [failure to request bonding study waives issue on appeal].)
In any event, a juvenile court is never required to appoint an expert when making a factual determination unless "it appears to the court . . . that expert evidence is . . . required." (Evid. Code, § 730.) The Bs testimony sufficiently established the existence of a beneficial relationship between them and B.H. from which the juvenile court could determine that severing the relationship would be detrimental to B.H.
In summary, we conclude that the juvenile court did not error in considering B.H.'s best interests in ruling on Petitioners' request to terminate parental rights.
We are aware that after the remittitur issues this matter will be returned to the probate court to address which couple should be B.H.'s guardians. In this regard, we urge the parties to put their differences aside and focus not on what each couple wants or what each couple thinks B.H. needs, but on what is best for B.H.—having both couples in his life. Each couple needs to place B.H.'s needs first. For Petitioners, this means they need to accept the fact that they are older, not in perfect health, and that before B.H. reaches the age of majority they may no longer be capable of taking care of him. For the Bs, this means accepting that Petitioners have loved and cared for B.H. for almost his entire life, this bond is beneficial to B.H. and is something that must be respected.
B.H. is reaching an age where he will be able to perceive the unhealthy tension between Petitioners and the Bs. Although this matter will be sent back to the probate court to rule on the Bs' request to terminate Petitioners' guardianship and be named successor guardians, we urge all parties to carefully consider whether such adversarial proceedings are in B.H.'s best interest.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.