|
(Cite
as: 181 Cal.App.4th 1359, 105 Cal.Rptr.3d
521) |
Court
of Appeal, First District, Division 1, California.
In
re NOREEN G., et. al., Minors.
Ronald
R., et al., Petitioners and Appellants,
v.
Jamie
R., et al., Objectors and Appellants.
No.
A122651.
Feb.
9, 2010.
Review
Denied Apr. 22, 2010.
Certified
for Partial Publication.FN*
FN*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part I of the Discussion of
the Appeals of the Parents.
**530
Fishel and Fishel, James J. Fishel, Esq., Martinez, for Petitioners and
Appellants Ronald R., and Juliana R.
Gorman
Law Office, Seth F. Gorman, Esq., First District Appellate Project, Half Moon
Bay, for Objector and Appellant Jamie R.
Mary
R. Williams, First District Appellant Project, Novato, for Objector and
Appellant Raymond G.
DONDERO,
J.
*1367
Two appeals have been taken from a judgment that granted a petition brought
pursuant to Probate Code section 1516.5 (section 1516.5), to declare two minors,
Emma and Noreen, free from care, custody, and control of their biological mother
and father, Raymond and Jamie, and granted the parents visitation
rights.FN1
The parents claim in their appeal that section 1516.5 is impermissibly vague and
violates due process. They also argue that the minors were denied right to
counsel in the case, an investigator's report was not properly submitted, the
evidence fails to support the termination of their parental rights, and the
court failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25
U.S.C. ? 1901 et seq.). The guardians of the minors, Juliana and Ronald, who
filed the petition, have also appealed from the court's visitation order, in
which they claim that the visitation rights granted to the parents was beyond
the authority of the trial court and an abuse of the court's
discretion.
FN1.
For the sake of confidentiality and clarity, we will refer to the parties,
including the minors, individually by their first names; we will also refer to
the biological parents of the minors, Jamie and Raymond, individually as mother
and father and collectively as objectors or the parents; we will refer to
petitioners Juliana and Ronald collectively as petitioners or the
guardians.
We
find that section 1516.5 does not have any constitutional infirmities, no denial
of the right to counsel occurred, any deficiencies in the investigator's report
were not prejudicial to the parents, and the evidence amply supports the
termination of parental rights. We conclude that we must make a limited remand
of the case to the trial court to comply with the inquiry provisions of the
ICWA. We also conclude that the order granting visitation rights to the parents
must be reversed as in excess of the trial court's authority.
*1368
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The
minor Emma was born in May of 2002; her sister Noreen was born in May of 2003.
Jamie is the biological mother of the minors. Raymond and Jamie were married in
2002, and he is the presumed father of the minors, although his paternity of
Emma has not been established. At the request of Jamie, in August of 2004 the
minors began temporarily residing with petitioners Ronald and Juliana, their
maternal uncle and aunt. Jamie was seeking treatment for a chronic substance
abuse problem, and her relationship with Raymond was volatile, physically
abusive, and **531
intermittent.FN2
Raymond also has a history of drug and alcohol addiction. In September of 2004,
again with the approval of Jamie, petitioners were appointed the legal guardians
of the minors.FN3
FN2.
On one occasion Raymond was arrested after physically assaulting Jamie, but the
charges were subsequently dropped at Jamie's request.
FN3.
Raymond apparently voiced opposition to the guardianship, but did not appear at
the hearing to contest it.
Within
a month, the guardianship became a contentious matter between Jamie and
petitioners, and has remained so. In October of 2004, Jamie filed a petition to
terminate the guardianship based on accusations against petitioners that were
not substantiated; the petition was denied. Subsequent petitions filed by Jamie
to terminate the guardianship were also denied. Jamie continued to engage in
visitation with the minors, but did not follow through with drug and alcohol
rehabilitation efforts.
In
April of 2005, petitioners filed a motion to terminate visitation by the parents
based upon an accusation made by Emma that she was sexually molested by Raymond
during an overnight visit with Jamie. The accusation was not prosecuted due to
Emma's young age and lack of physical evidence of abuse, but Raymond was
arrested on unrelated outstanding warrants and taken to Nevada, where he was
subsequently incarcerated in state prison until September of 2007. On April 25,
2005, unsupervised visitation with the minors was suspended pending an
investigation. In May of 2005, Juliana obtained a restraining order that
compelled Raymond to stay away from her residence and prohibited him from any
contact with Emma or Noreen.FN4
Raymond has neither had any contact with the minors nor sought visitation with
them since April of 2005.
FN4.
The restraining order was later extended, and is effective until May of
2011.
*1369
By August of 2005, Jamie's unsupervised visitation with the minors was
increased. Her drug tests were negative and she was attending domestic violence
classes. In February and August of 2006, at the request of counsel for the
minors the court further expanded Jamie's visitation rights to include a portion
of six days a week and three overnight stays per week, or a timeshare with the
guardians of between 50 and 55 percent. Jamie was directed to complete a
parenting class prior to filing for termination of the guardianship. The minors'
counsel recommended termination of the guardianship in February of
2007.
By
March of 2007, however, Emma was diagnosed with an adjustment disorder caused by
the visitation arrangement that resulted in frequent transitions between the
homes of the guardians and Jamie. The guardians also accused Jamie of at least
one instance of alcohol and drug use-based on a report from the father of one of
Jamie's older children (not involved in these proceedings)-although Jamie denied
any relapse into illegal drug use, and a drug test was negative.
Jennifer
Emerson, a registered child-parent therapist with the Early Childhood Mental
Health Program, was appointed by the court to evaluate the minors and provide
family therapy. She observed that on several occasions Jamie suffered injuries
that included a black eye and serious abrasions or bruises on her arms. Emerson
suspected from Jamie's evasive answers to inquiries about the source of the
injuries that Jamie was being abused by her boyfriend Scott Armas. Then in
August of 2007, Emma reported to Emerson that during overnight visitation the
minors repeatedly**532
witnessed acts of physical abuse committed upon Jamie by her boyfriend. Both
Emma and Noreen stated that they periodically observed Jamie and Armas hitting
each other, which frightened and upset them. When Emerson confronted Jamie with
the issue of domestic violence in the home that had been witnessed by the
minors, Jamie became ?very angry? and asked Emerson to leave, although she did
acknowledge to Emerson that some ?incidents of violence in the home? had
occurred.
Also
in August of 2007, Emerson and Juliana observed bruises on Emma's lower left
side that were in the shape of a belt or waistband. Emma claimed that after she
hit her mother Jamie struck her ?really hard.? FN5
Jamie at first denied that Emma's injury occurred as a result of infliction of
physical abuse. She subsequently acknowledged that she hit Emma ?back? in anger
after Emma hit her, and expressed that she was ?justified in doing
it.?
FN5.
Noreen subsequently corroborated her sister's claim of abuse.
*1370
A Child Protective Services (CPS) investigation was commenced, Jamie's petition
for termination of the guardianship was denied, and unsupervised visitation was
suspended pending completion of the investigation. Emerson advised CPS that
unsupervised visits by Jamie with the children were no longer appropriate, and
CPS agreed. Dr. Joseph Bongiovanni was assigned to conduct the CPS guardianship
investigation of the welfare of the minors. He described the minors as ?normal,?
well adjusted and ?happy? in the home of the guardians. Dr. Bongiovanni,
concluded in his investigative narrative that Jamie was not committing ongoing
abuse, but he found a ?[s]ubstantial risk? to the children in the mother's home
due to the domestic violence between her and Armas. According to Dr.
Bongiovanni, ?no foundation? existed for CPS to file a dependency petition. He
also thought the children were adequately protected by the existing guardianship
and the ability of the probate court to intercede on behalf of the
children.
On
September 7, 2007, by stipulation the unsupervised visits with the minors by
Jamie as specified in prior visitation orders were suspended in favor of
supervised visitation only, twice a week for two hours per visit. Following the
stipulated supervised visitation order, Jamie visited with the minors only four
times. Jamie ended her relationship with Armas in September of
2007.
The
present petition to terminate the objectors' parental rights was filed by the
guardians on January 10, 2008. After the petition was filed, Jamie left a
succession of harassing, threatening and somewhat irrational telephone messages
to petitioners in April of 2008, in which she implored Juliana to abandon the
proceedings. Tape recordings of these messages were played during the hearing
before the trial court. On April 17, 2008, Jamie was observed by Juliana pacing
outside the guardians' home. Thereafter, Juliana obtained a restraining order
against Jamie.
Trial
on the petition was held in June of 2008. Juliana testified that she and Ronald
decided to file the petition due to the ?dramatic improvement in Emma's
symptoms? of anxiety after unsupervised visitation with Jamie was terminated,
the lack of progress made by Jamie, and the detriment to the children from the
instability caused by the continued guardianship. Juliana indicated that she and
Ronald brought the petition for termination of parental rights to relieve the
minors' anxiety and instability that has occurred with the **533
long, protracted and bitterly contested guardianship. She testified that the
prolonged guardianship and associated confusion ?is hurting the children.?
According to Juliana, the objective of the petitioners is to adopt the children
*1371
upon the termination of parental rights. Juliana agreed that the minors have an
attachment to their mother and want to visit her, but testified that their
primary need is to reach an end to the litigation and obtain a stable, permanent
home through adoption.
Rose
Parson, a court investigator for the Contra Costa County Superior Court,
testified that in February of 2008 she was assigned by the court to investigate
the guardianship and submit a report. She reviewed the guardianship file,
including the letters and reports from Jennifer Emerson, and visited the home of
the guardians on March 3, 2008, where she interviewed them and the minors.
Parson found that the minors and the guardians have a loving parent-child
relationship. Emma disclosed to Parson that she ?likes living with the
petitioners, but also likes ... staying at her mother's home.? When asked by
Parson about staying at her mother's home Noreen responded, ?it's
dangerous.?
In
February of 2008, Parson also unsuccessfully attempted to contact and interview
Jamie, both by sending her letters by certified mail to two purported addresses
for her, and repeatedly calling a telephone number provided by the
guardians.FN6
Parson was not able to interview either Jamie or Raymond, and did not observe
Jamie interact with the minors. According to the investigative report filed by
Parson in March of 2008 and her testimony at trial, petitioners' home is the
?only stable home environment? the minors have known since August of 2004.
Parson found that petitioners made a ?compelling argument why it is in the
minors' ?best interest? to terminate parental rights at this time,? but deferred
offering a formal recommendation and suggested in her report that the court not
rule on the petition until after a hearing. Parson also testified that if she
was aware of the recommendation of Emerson to terminate parental rights, she
?would probably be inclined? to make the same recommendation to the court.
Parson was cross-examined by counsel for the parents.
FN6.
One of the addresses was the one given by Jamie in the most recent petition to
terminate the guardianship. Jamie testified that she would ?skip? payment of her
phone bill and the phone would be ?shut off a couple of days,? so no one could
reach her.
Emerson
testified at trial that in March of 2007 she diagnosed Emma with adjustment
disorder with mixed aggression and anxiety. She thereafter began to provide
counseling services to the minors and Jamie. Emerson found in her assessment of
the minors that they particularly suffered during transitions between the homes
of the guardians and Jamie. Emma demonstrated a pronounced increase in symptoms
of anxiety and depressive disorder immediately following visits with Jamie.
Emerson testified that although Emma loves *1372
Jamie and wants to continue to see her, she exhibited ?a tremendous amount of
relief? and an extensive improvement in her functioning when away from her
mother. Emerson concluded that Emma ?would face significant risk to her social,
emotional, behavioral, and intellectual development? if she were returned to her
mother. The risks associated with insecure or disorganized attachment such as
characterized by the relationship of the minors with their mother range from
?mild social, emotional, and behavioral impairment to more serious problems such
as substance abuse, mental illness, delinquency and domestic violence.?
According to Emerson, the minors are confused and **534
anxious about ?where they are going to be living long-term.? Emerson offered the
firm opinion that termination of parental rights is in the best interests of the
minors to provide them with the necessary stable and secure home.
Jamie
testified that she has not used alcohol or illegal drugs since April of 2006.
She has been tested often for drugs or alcohol, and has not been advised of any
positive test results. Jamie admitted that for the last two years she has been
addicted to Vicodin, which she began taking for pain in her hands and arms. Her
doctor is attempting to ?wean? her off Vicodin by prescribing lower doses of the
drug for her. Jamie described her most recent visits with the minors as ?happy
and loving.? Her goal is to terminate the guardianship and reunify with the
minors.
Following
the trial, the court found in a commendably thorough and extensive statement of
decision that clear and convincing evidence ?supports the presumption that
parents are now unfit to properly care for the minors and that it would be
detrimental to the minors not to terminate parental rights.? The court further
found ?by clear and convincing evidence? that the minors will benefit from
adoption by the guardians, and their ?best interests? will be achieved by
termination of parental rights. The court therefore ordered the termination of
parental rights of both Jamie and Raymond pursuant to section 1516.5, but
granted supervised visitation to them. The parents have appealed from the
judgment terminating their parental rights; the guardians have separately
appealed from the order granting the parents visitation.
DISCUSSION
THE
APPEALS OF THE PARENTS
I.
The Due Process Challenge to Section 1516.5.FN**
FN**
See footnote *, ante.
*1373
II. The Vagueness Challenge to Section 1516.5.
[1][2]
We turn our attention to Jamie's complaint that section 1516.5 is impermissibly
vague.FN8
She specifically challenges the ? ?physical custody? prong? of the statute,
which she contends ?fails to give a parent adequate notice as to what actions he
or she must take to avoid the termination of his or her parental rights.? Jamie
maintains that the ?physical custody? element of section 1516.5 is not further
defined or detailed in the statute, and may be subject to ?various
interpretations.? She points out that the term ?physical custody? may have a
wide range of ?meanings,? from ?sole custody? to ?any custody? by the guardians,
which is not clarified in the legislative history of the statute or by reference
to other sources. Jamie argues that without any definitive ?knowledge of the
scope of the statute,? she ?could not have properly evaluated the consequences
of agreeing to a general guardianship? with petitioners. She therefore claims
that section 1516.5 did not afford her with ?fair warning? or ?adequate notice
of the conduct? which might subject her to deprivation of her fundamental
parental rights, in violation of the tenets of substantive due
process.
FN8.
We note that the Jamie did not allege in the trial court that the statute is
vague, and in fact agreed that the physical custody prong of section 1516.5 was
not in issue in the case. Despite her failure to object below, Jamie's challenge
to the statute on the ground of unconstitutional vagueness or overbreadth
presents a pure question of law that is capable of resolution without reference
to the evidence adduced at trial, and thus has not been forfeited. (See
In
re P.C.
(2006) 137 Cal.App.4th 279, 287, 40 Cal.Rptr.3d 17.)
**535
[3][4] ? ?It is a basic principle of due process' that an enactment is void for
vagueness if its prohibitions [and requirements] are not clearly defined.?
(Mason
v. Office of Admin. Hearings
(2001) 89 Cal.App.4th 1119, 1126, 108 Cal.Rptr.2d 102.) Under the federal
Constitution (U.S. Const., Amends.V, XIV) and the California Constitution (Cal.
Const., art. I, ? 7), substantive due process of law in the context of vagueness
requires two elements: a statute must be definite enough to provide (1) a
standard of conduct for those whose activities are proscribed and (2) a standard
or guide against which conduct can be uniformly judged by courts. (Kolender
v. Lawson
(1983) 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903; Walker
v. Superior Court
(1988) 47 Cal.3d 112, 141, 253 Cal.Rptr. 1, 763 P.2d 852; People
v. Truong
(2001) 90 Cal.App.4th 887, 897, 108 Cal.Rptr.2d 904.)
[5][6]
?[T]he underpinning of a vagueness challenge is the due process concept of ?fair
warning.? ? (In
re Sheena K.
(2006) 40 Cal.4th 875, 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) ? ? ?The
void-for-vagueness doctrine reflects the principle that ?a statute which either
forbids or requires the doing of an *1374
act in terms so vague that [persons] of common intelligence must necessarily
guess at its meaning and differ as to its application, violates the first
essential of due process of law.? [Citation.] The requirement that government
articulate its aims with a reasonable degree of clarity ensures that state power
will be exercised only on behalf of policies reflecting an authoritative choice
among competing social values, reduces the danger of caprice and discrimination
in the administration of the laws, enables individuals to conform their conduct
to the requirements of law, and permits meaningful judicial review.?
[Citation.]' [Citation.]? (People
ex rel. Brown v. IMERGENT, Inc.
(2009) 170 Cal.App.4th 333, 339, 87 Cal.Rptr.3d 844.) ? ? ? ?A statute must be
definite enough to provide a standard of conduct for those whose activities are
proscribed as well as a standard for the ascertainment of guilt by the courts
called upon to apply it. [Citations.]? ? [Citations.] However, ?[a] statute is
not vague if, as here, any reasonable and practical construction can be given to
its language. Reasonable certainty is all that is required. [Citations.]?
[Citations.]' [Citation.]? (American
Liberty Bail Bonds, Inc. v. Garamendi
(2006) 141 Cal.App.4th 1044, 1066, 46 Cal.Rptr.3d 541.)
[7]
?The Supreme Court has articulated two guiding principles for evaluating
vagueness claims. ?The first principle is derived from the concrete necessity
that abstract legal commands must be applied in a specific context. A contextual
application of otherwise unqualified legal language may supply the clue to a
law's meaning, giving facially standardless language a constitutionally
sufficient concreteness. Indeed, in evaluating challenges based on claims of
vagueness, the [United States Supreme Court] has said ?[t]he particular context
is all important.? [Citation.]? [Citation.] Such context, our high court has
observed, properly includes the purpose or objectives that the challenged law
was designed to serve. [Citations.] [?] ?The second guiding principle is the
notion of ?reasonable specificity? [citation] or ? ? ?[r]easonable certainty.? ?
? [Citations.] ... ?[F]ew words possess the precision of mathematical symbols,
most statutes must deal with untold and unforeseen variations in factual
situations, and the practical necessities of discharging the business of
government inevitably limit the specificity with which legislators can spell out
prohibitions. Consequently, no more than a reasonable degree of certainty can be
demanded. Nor is it unfair to require that one who deliberately goes perilously
**536
close to an area of proscribed conduct shall take the risk that he may cross the
line.? [Citation.]' [Citation.]? (Amaral
v. Cintas Corp. No. 2
(2008) 163 Cal.App.4th 1157, 1180, italics omitted 78 Cal.Rptr.3d 572.)
?Finally, ?[a]ll presumptions and intendments favor the validity of a
statute....? [Citation.]? (Ortiz
v. Lyon Management Group, Inc.
(2007) 157 Cal.App.4th 604, 613, 69 Cal.Rptr.3d 66.)
[8][9][10]
Subdivision (a) of section 1516.5 provides that if, as in the present case, a
guardianship is in place, a proceeding to terminate parental rights may
*1375
be brought if three requirements are met: ?[o]ne or both parents do not have the
legal custody of the child,? the ? child has been in
the physical custody of the guardian
for a period of not less than two years,? and the child will ?benefit from being
adopted by his or her guardian.? (Italics added.) While the ?physical custody?
requirement is not more specifically defined or elucidated in section 1516.5,
the statute does not for that reason fail to meet substantive due process
standards. The concept of ?physical custody? is not one that is incapable of
understanding by persons of common intelligence or eludes meaningful judicial
review. To the contrary, by referencing common meaning and preexisting law, the
term ?physical custody? is readily understood. When the words used in a statute
are not precisely defined, ? ? ?the requisite standards of certainty can be
fleshed out from otherwise vague statutory language by reference to any of the
following sources: (1) long established or commonly accepted usage; (2) usage at
common law; (3) judicial interpretations of the statutory language or of similar
language; [and] (4) legislative history or purpose.? ? [Citation.] Additionally,
we presume that ?[t]he enacting body is deemed to be aware of existing laws and
judicial constructions in effect at the time legislation is enacted.?
[Citation.] In particular, when the Legislature uses a word that has been
construed judicially, we can presume the word was intended in the sense placed
on it by the courts.? (Zilog,
Inc. v. Superior Court
(2001) 86 Cal.App.4th 1309, 1318, 104 Cal.Rptr.2d 173.)
[11][12]
We need neither resort to an examination of the legislative history of Probate
Code section 1516.5 nor reform the statute to determine that the term ?physical
custody? is not vague.FN9
While Jamie suggests that physical custody may have a range of meanings from
?any,? to ?significant,? or even ?primary? custody, those terms have no
established legal meaning. (See In
re Marriage of Richardson
(2002) 102 Cal.App.4th 941, 945, 126 Cal.Rptr.2d 45, fn. 2, 126 Cal.Rptr.2d 45;
In
re Marriage of Lasich
(2002) 99 Cal.App.4th 702, 714, 121 Cal.Rptr.2d 356; In
re Marriage of Biallas
(1998) 65 Cal.App.4th 755, 759-760, 76 Cal.Rptr.2d 717; Brody
v. Kroll
(1996) 45 Cal.App.4th 1732, 1736-1737, 53 Cal.Rptr.2d 280.) The law-which was in
effect when Probate Code section 1516.5 was enacted-identifies two distinct
forms of physical custody, both of which are clearly defined: sole or joint
physical custody. (In
re Marriage of Richardson, supra,
at p. 945, fn. 2, 126 Cal.Rptr.2d 45.) ? ?Sole physical custody? means that the
child resides with and is supervised by one parent, subject to *1376
court-ordered visitation by the other. (Fam.Code, ? 3007.)? (Ruisi
v. Thieriot
(1997) **537
53 Cal.App.4th 1197, 1205, fn. 5, 62 Cal.Rptr.2d 766.) According to Family Code
section 3004, ? ?Joint physical custody? means that each of the parents shall
have significant periods of physical custody. Joint physical custody shall be
shared by the parents in such a way so as to assure a child of frequent and
continuing contact with both parents, subject to Sections 3011 and 3020.? (See
also Niko
v. Foreman
(2006) 144 Cal.App.4th 344, 378, fn. 3, 50 Cal.Rptr.3d 398.) A court may be
required to look at the existing de facto arrangement between the parties to
decide whether physical custody is joint or one parent has sole physical custody
with visitation rights accorded the other parent, but those, and only those,
forms of well-delineated physical custody are recognized. (People
v. Mehaisin
(2002) 101 Cal.App.4th 958, 963-964, 124 Cal.Rptr.2d 683; In
re Marriage of Biallas, supra,
at pp. 759-760, 76 Cal.Rptr.2d 717.)
FN9.
We observe that the California Supreme Court has already removed a potentially
ambiguous element from section 1516.5 by adopting a construction of the statute
that requires both ?physical and legal custody by the guardian for two years?
before a termination proceeding may be filed. (Guardianship
of Ann S., supra,
45 Cal.4th 1110, 1131, fn. 13, 90 Cal.Rptr.3d 701, 202 P.3d 1089.)
[13][14]
A statute is not vague if it may be made reasonably certain by reference to
other definable sources. (State
Bd. of Equalization v. Wirick
(2001) 93 Cal.App.4th 411, 420, 112 Cal.Rptr.2d 919.) We conclude that the term
?physical custody? in section 1516.5 grants adequate notice of its meaning and
is rendered reasonably certain by reference to other statutory provisions and
judicial decisions that define joint and sole physical custody. We further
conclude that as so defined, petitioners proved the physical custody element of
section 1516.5 by clear and convincing evidence that they had either joint or
sole custody of the minors at all times during the past four years of the
guardianship. The statute is not void for vagueness.
III.
The Minors' Right to Counsel.
Raymond
argues that the failure of the trial court to appoint counsel for the children
until the commencement of trial was error. The record shows that after the
guardianship was initiated attorney Leigh Johnson was appointed counsel for the
children in June of 2005. Johnson thereafter continued to represent the minors
intermittently during the guardianship proceedings. She sought increased
visitation by Jamie in 2006, and on behalf of the minors recommended termination
of the guardianship in February of 2007. After the petition to terminate
parental rights was filed, on March 4, 2008, Jamie requested appointment of
counsel for the minors. At a hearing six days later, the court appointed counsel
for Jamie and Raymond, but withheld appointment of counsel for the minors. Trial
on the petition was continued while the parties engaged in mediation and
discussed settlement, but when the case was called for trial on June 16, 2008,
Johnson appeared for the minors. She *1377
offered an opening statement at the commencement of trial and thereafter
represented the minors throughout the proceedings. Raymond argues that according
to the statutory scheme the trial court was required to ?consider? appointment
of counsel for the minors, and under the facts of the case ?the failure to
appoint independent counsel for the children until the very morning of a
contested trial on whether the court should terminate parental rights, was
error, and prejudicial.?
[15]
Petitioners maintain that Raymond lacks standing to complain of the failure of
the trial court to appoint counsel to represent the minors. They rely on the
general principle that while an aggrieved party in an action may file a notice
of appeal, ?the ability to appeal does not confer standing to assert issues when
he is not aggrieved by the order from which the appeal is taken. [Citations.]
[?] Standing to challenge an adverse ruling is not established merely because a
parent takes a **538
position on an issue that affects the minor [citation]; nor can a parent raise
the minor's best interest as a basis for standing [citation]. Without a showing
that a parent's personal rights are affected by a ruling, the parent does not
establish standing. [Citation.] To be aggrieved or affected, a parent must have
a legally cognizable interest that is affected injuriously by the juvenile
court's decision. [Citation.] In sum, a would-be appellant ?lacks standing to
raise issues affecting another person's interests.? [Citation.]? (In
re D.S.
(2007) 156 Cal.App.4th 671, 673-674, 67 Cal.Rptr.3d 450, fn. omitted.) ?Issues
which do not affect the parent's own rights may not be raised in the parent's
appeal.? (In
re Holly B.
(2009) 172 Cal.App.4th 1261, 1265 [92 Cal.Rptr.3d 80].)
Raymond
submits that the standing of a parent on appeal to raise the issue of failure to
appoint counsel for the children in a proceeding to terminate parental rights
?is well settled,? but the cases he cites do not in the least stand for that
proposition. (See In
re Laura F.
(1983) 33 Cal.3d 826, 840, 191 Cal.Rptr. 464, 662 P.2d 922; In
re Richard E.
(1978) 21 Cal.3d 349, 354-355, 146 Cal.Rptr. 604, 579 P.2d 495; Adoption
of Jacob C.
(1994) 25 Cal.App.4th 617, 625-626, 30 Cal.Rptr.2d 591.) In those cases, the
right of the minors to representation by counsel in termination proceedings was
raised by other parties, but the issue of standing was neither presented on
appeal nor mentioned in the opinions. Cases not authority for propositions are
not considered in the opinions. (People
v. Barragan
(2004) 32 Cal.4th 236, 243, 9 Cal.Rptr.3d 76, 83 P.3d 480; People
v. Accredited Surety & Casualty Co., Inc.
(2004) 125 Cal.App.4th 1, 7-8, 22 Cal.Rptr.3d 375.)
However,
other authority exists that directly supports Raymond's assertion of standing.
Cases have uniformly held that in a proceeding to terminate parental rights ?[a]
father has standing to assert his child's right to independent counsel, because
independent representation of the children's *1378
interests impacts upon the father's interest in the parent-child relationship.?
(In
re Elizabeth M.
(1991) 232 Cal.App.3d 553, 565, 283 Cal.Rptr. 483; see also In
re Devin M.
(1997) 58 Cal.App.4th 1538, 1541-1542, 68 Cal.Rptr.2d 666; In
re Patricia E.
(1985) 174 Cal.App.3d 1, 6, 219 Cal.Rptr. 783; In
re David C.
(1984) 152 Cal.App.3d 1189, 1206, 200 Cal.Rptr. 115.) We proceed to the merits
of the issue of the minors' right to counsel.
Probate
Code section 1516.5 does not explicitly provide for appointment of counsel for
the minors in an action to terminate parental rights, but specifies in
subdivision (c) that, ?The
rights of the parent,
including the rights to notice and counsel provided in Part 4 (commencing with
Section 7800) of Division 12 of the Family Code, shall apply to actions brought
pursuant to this section.? (Italics added.) Family Code section 7861, in turn,
provides that in actions to terminate parental rights: ?The court shall
consider whether the interests of the child require the appointment of
counsel.
If the court finds that the interests of the child require representation by
counsel, the court shall appoint counsel to represent the child, whether or not
the child is able to afford counsel. The child shall not be present in court
unless the child so requests or the court so orders.? (Italics
added.)
[16][17][18][19]
Although Family Code section 7861 does not require appointment of counsel for a
minor, it demands that the court at least ?consider? whether the minor should be
represented by counsel, then ? ?exercise its discretion? to appoint counsel for
a minor in termination proceedings absent an immediate showing that counsel is
not required to protect the child's interests.?**539
(Adoption
of Jacob C., supra,
25 Cal.App.4th 617, 625, 30 Cal.Rptr.2d 591.) ? ?[W]hen the court finds a child
has separate interests not protected in the contest between parents and a
petitioner, the court must exercise its discretion by appointing separate
counsel.? [Citation.]? (In
re Laura F., supra,
33 Cal.3d 826, 840, 191 Cal.Rptr. 464, 662 P.2d 922.) ?However, error in failing
to appoint counsel is not reversible in the absence of a showing of prejudice.?
(Adoption
of Jacob C., supra,
at p. 625, 30 Cal.Rptr.2d 591.) ?Accordingly, failure to appoint counsel for a
minor in a freedom from parental custody and control proceeding does not require
reversal of the judgment in the absence of miscarriage of justice.?
(In
re Richard E., supra,
21 Cal.3d 349, 355, 146 Cal.Rptr. 604, 579 P.2d 495.)
[20]
Even if we assume, without deciding, that the ?rights of the parent? to counsel
in a section 1516.5 action also extend to counsel for the minor, we find that no
error occurred in the present case. As we read the record, the trial court did
consider whether the minors needed representation by independent counsel. Before
trial commenced counsel was appointed for the minors for the entirety of the
remaining proceedings. Their attorney, Leigh Johnson, had represented them
throughout the guardianship, so she was intimately familiar with all aspects of
the case and its history. A review of the proceedings *1379
supports this conclusion. She acted vigorously in the case to represent the
children. Nothing in the record indicates to us that the failure of the court to
appoint Johnson as attorney for the children at an earlier stage of the
proceedings was either necessary or adversely impacted their rights at trial. No
prejudicial deprivation of the minors' right to counsel occurred.
IV.
The Investigator's Report.
Jamie
and Raymond join in contending that the trial court failed to comply with the
requirements of Probate Code section 1516.5, subdivision (b), which provides:
?The court shall appoint a court investigator or other qualified professional to
investigate all factors enumerated in subdivision (a). The findings of the
investigator or professional regarding those issues shall be included in the
written report required pursuant to Section 7851 of the Family Code.? Family
Code section 7851 specifies in subdivision (a) that the investigator ?shall
render to the court a written report of the investigation with a recommendation
of the proper disposition to be made in the proceeding in the best interest of
the child,? and mandates in subdivision (b) that the report ?include all of the
following: [?] (1) A statement that the person making the report explained to
the child the nature of the proceeding to end parental custody and control. [?]
(2) A statement of the child's feelings and thoughts concerning the pending
proceeding. [?] (3) A statement of the child's attitude towards the child's
parent or parents and particularly whether or not the child would prefer living
with his or her parent or parents. [?] (4) A statement that the child was
informed of the child's right to attend the hearing on the petition and the
child's feelings concerning attending the hearing.? Subdivision (d) adds that,
?The court shall receive the report in evidence and shall read and consider its
contents in rendering the court's judgment.?
The
parents complain that the investigator's evaluation and report were flawed for
two reasons: first and foremost, the failure of the investigator to interview
either of them; and second, for that reason the investigator deferred any formal
recommendation on the petition until the hearing and a therapeutic evaluation of
the minors **540
was completed to determine ?the detriment to the children from termination of
Jamie's parental rights, and the appropriateness of future visitation.? They
submit that an ?independent investigation by a court investigator is an
essential requirement of a private termination of parental rights? to provide
the court with ?the information for it to be able to make a reasoned and
informed decision.? They claim that the deficient investigation and report
therefore require reversal per se.
[21][22]
As a procedural matter we point out that the parents have forfeited their right
to complain of inadequacies in the report by failing to object at trial.
(In
re Aaron B.
(1996) 46 Cal.App.4th 843, 846, 54 Cal.Rptr.2d 27.) *1380
Nevertheless, we will review the sufficiency of the investigation and report to
respond to the claim of incompetence of counsel made by Jamie. (People
v. Marshall
(1996) 13 Cal.4th 799, 831-832, 55 Cal.Rptr.2d 347, 919 P.2d 1280; People
v. Ashmus
(1991) 54 Cal.3d 932, 975-976, 2 Cal.Rptr.2d 112, 820 P.2d 214; People
v. Yarbrough
(2008) 169 Cal.App.4th 303, 310, 86 Cal.Rptr.3d 674.)
[23][24]
While the report was submitted to the court and considered as demanded by
Probate Code section 1516.5, subdivision (b), we agree with the parents that the
investigation and report were incomplete due to the inability of the
investigator to locate and interview the parents before trial and the resulting
lack of any definitive recommendation for disposition of the matter. The fact
that the investigator made reasonable efforts to contact and meet with the
father and mother does not constitute compliance with Family Code section 7851,
subdivision (a), which mandates ?a
recommendation of the proper disposition
to be made in the proceeding in the best interest of the child.? (Italics
added.) The ?statutory purpose of the report is to inform the court of the best
interests of the child, and the interests of the children are fundamental to the
proceeding,? so it is ?the trial court's obligation to read and consider the
report sua sponte.? (Neumann
v. Melgar
(2004) 121 Cal.App.4th 152, 169, 16 Cal.Rptr.3d 754.) Family Code section 7851
does not explicitly require the investigation and report to include an interview
with the parents-the statute focuses instead on obtaining the ?child's feelings
and thoughts? on the proceeding as a means of evaluating the child's best
interests-but the failure of the report to provide a recommendation of the
proper disposition constitutes procedural noncompliance with the
statute.
[25][26][27][28][29]
We disagree with the parents' contention that the error is reversible per se.
Per se reversal is required only in rare cases where the structural integrity of
a trial is compromised. (People
v. Flood
(1998) 18 Cal.4th 470, 501-502, 76 Cal.Rptr.2d 180, 957 P.2d 869; People
v. Bell
(1996) 45 Cal.App.4th 1030, 1066, 53 Cal.Rptr.2d 156.) Errors such as the one at
issue here that may be quantitatively assessed in the context of the evidence to
determine prejudice are not structural defects. (See In
re James F.
(2008) 42 Cal.4th 901, 917, 70 Cal.Rptr.3d 358, 174 P.3d 180.) To the contrary,
the fundamental rule in California is that judgments cannot be set aside
?unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.? (Cal. Const., art. VI, ? 13; see also People
v. Steele
(2000) 83 Cal.App.4th 212, 224, 99 Cal.Rptr.2d 458.) Nor did the court act in
excess of its jurisdiction in the present case, as Jamie suggests. The court is
not stripped of jurisdiction if an incomplete
report is filed. (See In
re Melinda J.
(1991) 234 Cal.App.3d 1413, 1419, 286 Cal.Rptr. 239.) This is not a case in
which the **541
parties' due process rights were violated because they did not receive the
report or no investigation was conducted. (Cf. In
re *1381
Linda W.
(1989) 209 Cal.App.3d 222, 226-227, 257 Cal.Rptr. 52; In
re George G.
(1977) 68 Cal.App.3d 146, 156-157, 137 Cal.Rptr. 201.) The report was
filed and submitted in accordance with statutory requirements; the only flaw was
the lack of a conclusive dispositional recommendation due to the inability of
the investigator to contact the parents. ? ?Deficiencies in an assessment report
surely go to the weight of the evidence, and if sufficiently egregious may
impair the basis of a court's decision to terminate parental rights[,]? ? but
are not prejudicial per se.? (In
re Valerie W.
(2008) 162 Cal.App.4th 1, 14, 75 Cal.Rptr.3d 86.)
We
view the error as one of procedural statutory dimension only; it did not affect
the parties' due process rights. The parents received the report and were given
the opportunity to cross-examine the investigator about the failure to interview
Jamie. Thus, the parents must affirmatively demonstrate prejudice to prevail on
appeal. (In
re M.F.
(2008) 161 Cal.App.4th 673, 680, 74 Cal.Rptr.3d 383; In
re Melinda J., supra,
234 Cal.App.3d 1413, 1419, 286 Cal.Rptr. 239.) Reversal is appropriate ?only if
we conclude ?... it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.?
[Citations]? (In
re Marriage of Jones
(1998) 60 Cal.App.4th 685, 694, 70 Cal.Rptr.2d 542; see also Neumann
v. Melgar, supra,
121 Cal.App.4th 152, 170, 16 Cal.Rptr.3d 754.)
[30]
Upon review of the record, we find that the error was harmless beyond any
reasonable doubt. The purpose of the investigation and report required by the
statute is to provide the court with a full understanding of the factual setting
of the petition for termination of parental rights. Not only did Parson testify
about the contents of her report and the reasons for the lack of a
recommendation, but the information that was omitted from the report-that is,
the results of interviews with the parents-was thoroughly presented and
considered at trial. Jamie testified at trial, and evidence of interviews with
her was presented in the form of testimony, reports and letters from Emerson and
Dr. Bongiovanni. Parson also offered testimony that articulated her
recommendation for resolution of the action. We find the court possessed
complete and accurate information concerning the minors, the parents, the
guardians, and the professional recommendations of the appointed experts in the
case. Any noncompliance with section 1516.5, subdivision (b), did not result in
a miscarriage of justice or any prejudicial inadequate assistance of counsel.
(In
re Dakota S.
(2000) 85 Cal.App.4th 494, 503, 102 Cal.Rptr.2d 196.)
V.
The Evidence in Support of the Decision to Terminate Parental
Rights.
We
proceed to the argument that the evidence does not support the trial court's
decision to terminate parental rights. Raymond's brief engages in a lengthy
discourse to present the claim that the evidence fails to prove the *1382
essential element pursuant to section 1516.5 ?that the benefit to Emma and
Noreen of being adopted by their guardians outweighs the detriment they would
suffer from termination of parental rights.? He proposes that the standard for
termination of parental rights under section 1516.5 is not merely ?some benefit
to the child from adoption,? but rather whether, ? considering all factors
relevant to the child's best interests, including any detriment the child would
suffer, it would be in the child's best interests to terminate parental rights.?
From this **542
premise he argues that ?it is not possible to conclude that substantial evidence
supports the trial court's decision,? particularly in light of the
investigator's failure to complete the investigation and provide the court with
a recommendation.
The
parents also contend that the trial court exceeded the bounds of appropriate
judicial discretion by taking into consideration the order for continuing
visitation as a factor that ameliorates the detriment to the children from the
termination of parental rights. They point out that a posttermination visitation
order is unenforceable, and the court must presume that termination of parental
rights will result in cessation of all contact between parent and child. (See
In
re. S.B.
(2008) 164 Cal.App.4th 289, 300, 79 Cal.Rptr.3d 449.) They claim that the court
thus did not apply proper criteria or reasoning to reach the decision to
terminate parental rights.
[31]
Our review of the evidence is constrained. ?Although a trial court must make
such findings based on clear and convincing evidence ( [Fam.Code,] ? 7821), this
standard of proof ? ?is for the guidance of the trial court only; on review, our
function is limited to a determination whether substantial evidence exists to
support the conclusions reached by the trial court in utilizing the appropriate
standard.? ? [Citation.] Under the substantial evidence standard of review, ?
?[a]ll conflicts in the evidence must be resolved in favor of the respondents
and all legitimate and reasonable inferences must be indulged in to uphold the
judgment.? ? [Citation.]? (Adoption
of Allison C.
(2008) 164 Cal.App.4th 1004, 1010-1011, 79 Cal.Rptr.3d 743, fn. omitted; see
also In
re Amy A.
(2005) 132 Cal.App.4th 63, 67, 33 Cal.Rptr.3d 298.) ?It was the trial court's
duty to determine whether? the petitioners met their ?burden of proof; it is our
duty to determine whether there is substantial evidence to support the trial
court's findings that it did.? (In
re Robert J.
(1982) 129 Cal.App.3d 894, 901, 181 Cal.Rptr. 188.)
[32]
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
*1383
transgresses the confines of the applicable principles of law is outside the
scope of discretion and we call such action an ?abuse? of discretion.?
[Citation.]? (In
re Baby Girl M.
(2006) 135 Cal.App.4th 1528, 1536, 38 Cal.Rptr.3d 484.)
[33][34][35]
The prerequisites to termination of parental rights under section 1516.5 are
straightforward. ?Section 1516.5 authorizes the termination of parental rights
after two years of probate guardianship, if adoption by the guardian is in the
child's best interest.? (Ann
S., supra,
45 Cal.4th 1110, 1124, 90 Cal.Rptr.3d 701, 202 P.3d 1089.) The statute specifies
in unambiguous terms that the court must find ?that the child would benefit from
being adopted by his or her guardian.? (? 1516.5, subd. (a)(3).) Evidence of
parental unfitness or that terminating parental rights is the least detrimental
alternative for the child is not required in a section 1516.5 proceeding.
(Ann
S., supra,
at p. 1128, 90 Cal.Rptr.3d 701, 202 P.3d 1089.) ?[T]he parental fitness
standard, which protects parents' interest in child custody, is not necessarily
required at a section 1516.5 hearing. By that stage, the parent-child family
unit has ceased to exist and the parent's entitlement to custody is **543
not at issue. It would be anomalous to require proof in every case, by clear and
convincing evidence, that a mother or father who has had no custodial
responsibilities for two or more years is currently an unfit parent.?
(Id.
at p. 1135, 90 Cal.Rptr.3d 701, 202 P.3d 1089.) Nothing more must be proved than
that termination of parental rights and adoption by the guardian are ?in the
?best interests of the child.? ? (Id.
at p. 1125, 90 Cal.Rptr.3d 701, 202 P.3d 1089.) And in determining the best
interests of the child, the trial court must consider all factors, ?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. (? 1516.5, subd.
(a)(3).)? (Id.
at p. 1132, 90 Cal.Rptr.3d 701, 202 P.3d 1089.) Under section 1516.5, the
detriment of terminating parental rights is not balanced directly against the
benefits of adoption; it is only a factor to be considered when evaluating the
child's best interest.
[36]
We have no difficulty in finding that the evidence supports the trial court's
decision that termination of parental rights and adoption by petitioners is in
the best interests of the minors. During the guardianship of nearly four years,
Jamie failed to successfully remedy the problems, particularly of domestic
abuse, that necessitated the guardianship in the first place. The guardianship
was created due to Jamie's inability to provide a stable home for the children
free from substance abuse, severe emotional discord, and violence. For the most
part, that conduct and environment persisted throughout the course of the
guardianship. Even after the petition was filed, Jamie continued to exhibit
unstable behavior by harassing the guardians. The children also acquired a deep
attachment to the guardians and a secure home with them. Evidence was presented
that the children were well adjusted and happy in the guardians' home, but
displayed increased symptoms of anxiety and depression when they visited Jamie.
The California Supreme Court has recognized: ?After *1384
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 1110, 1136, 90 Cal.Rptr.3d 701, 202 P.3d 1089, fn.
omitted.)
The
evidence adduced from the various experts also uniformly established that the
minors were at substantial risk in the mother's home of social, emotional and
behavioral detriment. The experts definitively asserted that the minors would
benefit from the stability that would accompany permanent placement with the
guardians and cessation of their continued transitional existence. We do not
agree with the parents' assertion that their parental rights were improperly
terminated to prevent Jamie from continuing to seek termination of the
guardianship. The court instead found that continuation of the guardianship due
to the ongoing failure of Jamie to improve and control her behavior was
detrimental to the children. Although we acknowledge, as did the experts and
Juliana, that the minors demonstrated a loving bond with their mother, we
discern substantial evidence in the record in support of the finding of benefit
to the minors. (In
re Brittany H.
(1988) 198 Cal.App.3d 533, 551-552, 243 Cal.Rptr. 763.)
[37]
Finally, the finding that termination and adoption by the guardians is in the
minors' best interest is not flawed by **544
any mistaken consideration by the trial court of the mitigating influence of the
order for continuing visitation. First, our focus is upon the ultimate decision
rather than the underlying analysis of the trial court. ? ?Our task is to
determine whether the judgment should be affirmed or reversed. Thus, we review
the judgment for reversible error, not merely to determine whether the trial
court's interpretation ... was correct, but whether the judgment is correct on
any theory. [Citation.] ?No rule of decision is better or more firmly
established by authority, nor one resting upon a sounder basis of reason and
propriety, than that a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If right upon any
theory of the law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its conclusion.?
[Citation.]? [Citation.] ?We review the trial court's ruling, not its
reasoning.? [Citations.]? (As
You Sow v. Conbraco Industries
(2005) 135 Cal.App.4th 431, 447-448, 37 Cal.Rptr.3d 399.)
Further,
we do not discern any indication in the record that the court based its
assessment of the minors' best interests on the expectation of continued
visitation by the parents. As we view the evidence and the trial court's
statement of decision, the visitation and termination orders were neither
dependent upon each other nor even considered in conjunction with each other.
The court also did not in any fashion find that detriment from *1385
termination of parental rights would be mitigated by continued visitation.
Instead, the court made entirely separate findings on termination and
visitation, with the latter being based on the perceived consent of the parties,
not any determination that detriment to the children would be moderated by
visitation.
The
advantage of a stable, permanent adoptive home for the minors outweighs the
benefit of a continued relationship with Jamie, who despite her efforts and
somewhat positive visitation record failed to successfully overcome the
disruptive, offending behavior that led to the guardianship. (In
re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1351-1352, 93 Cal.Rptr.2d 644.) The trial court did
not err by terminating the parental rights of Raymond and Jamie.
VI.
The Indian Child Welfare Act.
The
parents' final contention, presented by Jamie and joined by Raymond, is that the
judgment must be reversed due to the failure of the trial court to comply with
the requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. ?
1901 et seq.) Jamie points out that subdivision (d) of Probate Code section
1516.5 explicitly provides: ?This section does not apply to any child who is a
dependent of the juvenile court or to any Indian child.? The parents therefore
argue that the failure of the court, the court investigator or petitioners ?to
comply with the notice and inquiry requirements of California's implementation
of the [ICWA] compels conditional reversal? of the judgment and a remand for the
trial court to satisfy the necessary inquiry and notice provisions of the
ICWA.
We
begin our examination of this issue by observing that no claim was made in the
trial court that the minors have Indian ancestry, and no evidence is found in
the record that they may be Indian children. Hence, at least on the record
before us, the termination of parental rights is not precluded by subdivision
(d) of section 1516.5. The remaining issue is whether the court, the
petitioners, or the court investigator had a duty in the trial court proceedings
to inquire into Indian ancestry **545
of the minors without either any challenge on that ground or hint in the
evidence of its existence.
?Admittedly,
it has been held-including by this court-that a parent does not necessarily
waive an ICWA notice issue by failing to raise it below.? (In
re S.B.
(2005) 130 Cal.App.4th 1148, 1159, 30 Cal.Rptr.3d 726; see also In
re J.T.
(2007) 154 Cal.App.4th 986, 991, 65 Cal.Rptr.3d 320.) These cases ?reason that ?
?[t]he notice requirements serve the interests of the Indian tribes
?irrespective of the position of the parents' and cannot be waived by the
parent. [Citation.]? [Citation.]? [Citations.]? (In
re S.B., supra,
at p. 1159, 30 Cal.Rptr.3d 726.) We advance to the issue of compliance with the
ICWA.
[38]
*1386
First, the ICWA itself does not require an inquiry,
where, as here, no evidence of an Indian child has been presented. The
fundamental procedural safeguard in the ICWA ?is a provision for notice, which
states in part: ?In any involuntary proceeding in a State court, where
the
court knows or has reason to know that an Indian child is involved,
the party seeking the foster care placement of, or termination of parental
rights to, an Indian child shall notify the parent or Indian custodian and the
Indian child's tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.? (25 U.S.C. ? 1912(a).)?
(in
rE D.T.
(2003) 113 caL.app.4th 1449, 1454, 5 caL.rptr.3d 893, italics added; see also
In
re Mary G.
(2007) 151 Cal.App.4th 184, 209, 59 Cal.Rptr.3d 703.) ?In In
re H.B.
(2008) 161 Cal.App.4th 115, 120, 74 Cal.Rptr.3d 27, the court explained that
neither the ICWA nor controlling federal regulations ?expressly
impose any duty to inquire as to American Indian ancestry.? [Citation.]?
(In
re A.B.
(2008) 164 Cal.App.4th 832, 838, 79 Cal.Rptr.3d 580.)
?However,
the ?ICWA provides that states may provide ?a higher standard of protection to
the rights of the parent ... of an Indian child than the rights provided under
[ICWA]? [citation], and long-standing federal guidelines provide ?the state
court shall make inquiries to determine if the child involved is a member of an
Indian tribe [or] if a parent of the child is a member of an Indian tribe and
the child is eligible for membership in an Indian tribe.? ? [Citations.]?
(In
re A.B., supra,
164 Cal.App.4th 832, 838-839, 79 Cal.Rptr.3d 580.) The California Legislature
has ?adopted statutes and rules of court to implement the ICWA. (See [Cal. Rules
of Court,] rule 5.480.)? (Id.
at p. 838, 79 Cal.Rptr.3d 580.) ?Section 224, subdivision (d) [of the Welfare
and Institutions Code also] expressly provides if a state or federal law
provides a higher standard than more lenient ICWA requirements, the higher
standard shall prevail.? (In
re Damian C.
(2009) 178 Cal.App.4th 192, 197, 100 Cal.Rptr.3d 110.)
Pursuant
to California law found in Welfare and Institutions Code ?[s]ection 224.3,
subdivision (a) provides: ?The court, county welfare department, and the
probation department have an affirmative and continuing duty to inquire whether
a [dependent
] child
... is or may be an Indian child in all dependency
proceedings.
...? [Citation.]? (In
re A.B., supra,
164 Cal.App.4th 832, 838, 79 Cal.Rptr.3d 580, italics added.) FN10
While the action before us is **546
not a dependency proceeding as referred to in Welfare and Institutions Code
section 224.3, the California Rules of Court mandate a duty of inquiry which
extends beyond *1387
dependency proceedings to other related actions.FN11
Rule 5.481(a) specifies: ?The court, court-connected investigator, and party
seeking a foster-care placement, guardianship, conservatorship, custody
placement under Family Code section 3041, declaration freeing a child from the
custody or control of one or both parents, termination
of parental rights, or adoption
have an affirmative and continuing duty to inquire whether a child is or may be
an Indian child in all proceedings identified in rule 5.480.? (Italics added.)
Rule 5.481(a) (1), adds: ?The party seeking a foster-care placement,
guardianship, conservatorship, custody placement under Family Code section 3041,
declaration
freeing a child from the custody or control of one or both parents, termination
of parental rights, or adoption
must ask the child, if the child is old enough, and the parents, Indian
custodian, or legal guardians whether the child is or may be an Indian child and
must complete the Indian
Child Inquiry Attachment
(form ICWA-010(A)) and attach it to the petition unless the party is filing a
subsequent petition, and there is no new information.? Further, rule 5.480
states in pertinent part: ?This chapter addressing the Indian Child Welfare Act
(25 United States Code section 1901 et seq.) as codified in various sections of
the California Family, Probate, and Welfare and Institutions Codes,applies
to all proceedings involving Indian children that may result in
an involuntary foster care placement; guardianship
or conservatorship placement;
custody placement under Family Code section 3041; declaration
freeing a child from the custody and control of one or both parents; termination
of parental rights; or adoptive placement.
...? FN12
(Italics added.)
FN10.
Subdivision (a) of Welfare and Institutions Code section 224.3 reads: ?The
court, county welfare department, and the probation department have an
affirmative and continuing duty to inquire whether a
child for whom a petition under Section 300, 601, or 602 is to be, or has been,
filed is or may be an Indian child in all dependency proceedings and in any
juvenile wardship proceedings
if the child is at risk of entering foster care or is in foster care.? (Italics
added.)
FN11.
All further references to rules are to the California Rules of
Court.
FN12.
The provisions addressing the Indian Child Welfare Act explicitly do ?not apply
to voluntary foster care and guardianship placements where the child can be
returned to the parent or Indian custodian on demand.? (Rule
5.480.)
[39][40]
Under the broad language of rule 5.481, the duty of inquiry attaches to
any
proceeding which may result in termination of parental rights or adoptive
placement. Thus, during the course of the guardianship proceeding no duty of
inquiry was created, but when the petition to terminate parental rights was
filed the court, court-connected investigator, and petitioners were vested with
the affirmative and continuing duty pursuant to rule 5.481(a) to inquire whether
the minors are or may be Indian children. Nothing in the court investigator's
report or the remainder of the evidence indicates that the requisite rule
5.481(a) inquiry was undertaken or even considered. (In
re N.E.
(2008) 160 Cal.App.4th 766, 769-770, 73 Cal.Rptr.3d 123.)
[41]
The breach of duty to inquire into the Indian heritage of the minors was error
that necessitates ?a limited reversal of an order or judgment and remand for
proper inquiry and any required notice [that] may be necessary. [Citation.]
Reversal is not warranted, however, when the court's noncompliance with the
*1388
inquiry requirement constitutes harmless error.? (
in rE A.B., supra,
164 caL.app.4th 832, 839, 79 caL.rptr.3d 580.) where the record below fails to
demonstrate and the parents have made no offer of proof or other affirmative
assertion of Indian heritage on appeal, a miscarriage of justice has
**547
not been established and reversal is not required. (See In
re N.E., supra,
160 Cal.App.4th 766, 769-771, 73 Cal.Rptr.3d 123; In
re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1430-1431, 49 Cal.Rptr.3d 951.) Here, although
evidence of Indian heritage is entirely lacking in the record before us, Jamie
has made a claim on appeal that an ancestor-her father's grandmother named Ella
Morgan-is listed on the ?Dawes Rolls? as a Seminole Indian. She has also
requested that we take additional documentary evidence on appeal that she
asserts supports her claim of the minors' Indian ancestry. Petitioners have also
asked that we take additional evidence in rebuttal, in the form of Ronald's
declaration and attachments that purport to show the person identified by his
sister Jamie as her ancestor Ella Morgan is not a Seminole Indian, and is a male
rather than a female. Petitioners argue that if we consider the mother's
additional evidence we should also consider the proffered additional evidence in
opposition to her claim of Indian heritage.
[42]
We decline to take any additional evidence in this matter. Code of Civil
Procedure section 909 governs the taking of additional evidence on appeal; it
provides in pertinent part: ?The reviewing court may for the purpose of making
the factual determinations or for any other purpose in the interests of justice,
take additional evidence of or concerning facts occurring at any time prior to
the decision of the appeal, and may give or direct the entry of any judgment or
order and may make any further or other order as the case may require. This
section shall be liberally construed to the end among others that, where
feasible, causes may be finally disposed of by a single appeal and without
further proceedings in the trial court except where in the interests of justice
a new trial is required on some or all of the issues.? ?Code of Civil Procedure
section 909 allows appellate courts to ?accept evidence in dependency cases ?to
expedite just and final resolution for the benefit of the children involved.? ?
[Citation.]? (In
re A.B., supra,
164 Cal.App.4th 832, 843, 79 Cal.Rptr.3d 580.)
[43][44][45][46][47]
In practice, Code of Civil Procedure section 909 has quite limited application.
? ? ?Although appellate courts are authorized to make findings of fact on appeal
by Code of Civil Procedure section 909 and rule [8.252] of the California Rules
of Court, the authority should be exercised sparingly. [Citation.] Absent
exceptional circumstances, no such findings should be made.
[Citation.]? [Citations.]? [Citation.]? (In
re Valerie W., supra,
162 Cal.App.4th 1, 9, 75 Cal.Rptr.3d 86.) The statute does ?not affect the
respective provinces of the trial and reviewing courts, nor change the
established rule against appellate weighing of evidence. The power to invoke the
statute should be exercised sparingly, ordinarily only in order to affirm the
lower court decision and *1389
terminate the litigation, and in very rare cases where the record or new
evidence compels a reversal with directions to enter judgment for the appellant
[citation]. The procedure under Code of Civil Procedure section 909 is not a
substitute for a motion for a new trial on the basis of newly discovered
evidence. [Citations.] The reviewing courts are not equipped to undertake an
appreciable amount of evidence taking on appeal.? (Monsan
Homes, Inc. v. Pogrebneak
(1989) 210 Cal.App.3d 826, 830, 258 Cal.Rptr. 676.) ?The evidence-taking and
fact-finding powers of the appellate courts do not convert them into triers of
fact or abrogate the general rule that findings of the trial court based on
substantial evidence are conclusive on appeal. [Citation.] The purpose of the
statute and the rule implementing it ?is to enable appellate **548
courts, in appropriate cases, to terminate litigation by affirmance, or
modification and affirmance, of the judgment, or by reversal with directions to
enter judgment for appellant if it appears that on no reasonable theory could
respondent make a further showing in the trial court. [Citations.]? [Citation.]
They do not warrant an appellate court's general reversal of a judgment on the
basis of newly discovered evidence presented in the appellate court.?
(People
v. Pena
(1972) 25 Cal.App.3d 414, 421-422, 101 Cal.Rptr. 804.)
The
parties before us are seeking to have us consider new, conflicting evidence to
decide an issue that was not litigated in the trial court. Mother's motion would
seek to effectuate a reversal
of the judgment based on newly discovered evidence and a newly presented issue
on appeal. Petitioners' motion seeks to present directly contradictory evidence
on the same issue. This case does not offer any ?exceptional circumstances? that
warrant the taking of additional evidence from either party. (In
re Valerie W., supra,
162 Cal.App.4th 1, 9, 75 Cal.Rptr.3d 86.)
[48][49][50][51][52]
We therefore deny the motions to take additional evidence to decide the issue of
compliance with the ICWA.FN13
Given the offer of proof and assertions by Jamie of her Indian heritage,
however, without reversal of the judgment *1390
we must make a limited remand with directions to the trial court to effectuate
proper inquiry and comply with the notice provisions of the ICWA if Indian
heritage is indicated. (In
re Damian C., supra,
178 Cal.App.4th 192, 199-200, 100 Cal.Rptr.3d 110; In
re A.B., supra,
164 Cal.App.4th 832, 839, 79 Cal.Rptr.3d 580; In
re Cody B.
(2007) 153 Cal.App.4th 1004, 1014, 63 Cal.Rptr.3d 652.) If, after proper inquiry
and notice, a tribe determines the minors are Indian children, the parents may
petition the court to invalidate the termination of parental rights upon a
showing that such action violated the provisions of the ICWA. (In
re Damian C., supra,
at pp. 199-200, 100 Cal.Rptr.3d 110.)
FN13.
The parties have also filed motions to augment the record and to take judicial
notice of various documents. The motion of Jamie filed February 6, 2009, to
augment the record or take judicial notice of proposed statements of decision is
denied. The motion of the parents filed February 9, 2009, to take judicial
notice of legislative documents associated with the enactment of section 1516.5
is granted, although we may consider that material without a formal motion. (See
In
re Jorge M.
(2000) 23 Cal.4th 866, 886, fn. 10, 98 Cal.Rptr.2d 466, 4 P.3d 297; Quelimane
Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 45, fn. 9, 77 Cal.Rptr.2d 709, 960 P.2d 513; People
v. Eubanks
(1996) 14 Cal.4th 580, 591, fn. 3, 59 Cal.Rptr.2d 200, 927 P.2d 310;
People
v. Cruz
(1996) 13 Cal.4th 764, 773-774, fn. 5, 55 Cal.Rptr.2d 117, 919 P.2d 731.) The
motion of Juliana filed May 13, 2009, to take judicial notice of court documents
is granted, with the exception of Exhibit 38, the article in the Contra Costa
Times Newspaper. The existence of the newspaper article is irrelevant, and the
truth of its contents is not judicially noticeable. (Mangini
v. R.J. Reynolds Tobacco Co.
(1994) 7 Cal.4th 1057, 1063, 31 Cal.Rptr.2d 358, 875 P.2d 73.)
THE
APPEAL OF THE GUARDIANS
I.
The Authority of the Trial Court to Order Visitation.
[53]
The appeal of the guardians contests only the visitation orders that accompanied
the termination of parental rights.FN14
The court granted Jamie one supervised visit per month for up to eight hours;
**549
Raymond was granted two four-hour supervised visits per year. The guardians'
challenge to the visitation orders is three-pronged: First, that the court had
no ?authority to make visitation orders after the termination of parental
rights? in the case; second, the court ?did not make required findings that
visitation would actually benefit the children;? and third, the evidence shows
?that continuing visitation with the mother and resuming visitation with the
father would in fact be detrimental to these young and vulnerable children.?
Their essential position is that the trial court exceeded its authority and
abused its discretion by granting the mother and father supervised visitation
with the children.
FN14.
We find that the combined brief of the guardians has adequately distinguished
the discussion of the issues presented in their separate cross-appeal from their
reply to the issues presented in the parents' appeal. We also find that the
termination and visitation orders are discrete and based on separate findings,
such that we may separately consider and resolve them on appeal.
[54]
We first consider the trial court's authority to grant visitation upon
termination of parental rights. The guardians have presented this argument in a
most cursory fashion, and failed to provide any supporting citation to authority
until their reply brief. We nevertheless confront the issue, as it reflects upon
the fundamental authority of the court in a section 1516.5 action to award
visitation to a parent who is concomitantly deprived of all parental
rights.
We
begin our analysis by observing that neither Probate Code section 1516.5 nor any
other statutory provisions that govern guardianship actions pursuant to part 4
(commencing with ? 7800) of division 12 of the Family Code, either expressly
provide for or proscribe visitation by the birth parents upon termination of
parental rights. The statutory scheme is entirely silent on the issue of
*1391
posttermination visitation. We therefore turn for guidance to related statutory
proceedings and existing case law to determine the authority of the court in a
Probate Code section 1516.5 proceeding to order posttermination or postadoption
visitation.
[55][56]
In dependency proceedings, an order terminating parental rights is not only
conclusive and binding upon the birth parents, but also effectuates a complete
and final legal termination of the parental relationship. (Welf. &
Inst.Code, ? 366.26. subd. (i); In
re Angelia P.
(1981) 28 Cal.3d 908, 915-916, 171 Cal.Rptr. 637, 623 P.2d 198; In
re Robert J., supra,
129 Cal.App.3d 894, 904-905, 181 Cal.Rptr. 188.) The parent-child relationship
enjoys no legal recognition after termination of parental rights. (In
re S.B., supra,
164 Cal.App.4th 289, 300, 79 Cal.Rptr.3d 449.) Thus, nothing in Welfare and
Institutions Code section 366.26 requires the court to address postadoption
visitation when terminating parental rights under Welfare and Institutions Code
section 366.26, and the court has no authority to essentially modify a
termination order by granting visitation to the parent. (See In
re Hector A.
(2005) 125 Cal.App.4th 783, 799, 23 Cal.Rptr.3d 104; In
re Jacob E.
(2004) 121 Cal.App.4th 909, 925, 18 Cal.Rptr.3d 15; In
re Diana G.
(1992) 10 Cal.App.4th 1468, 1482-1483, 13 Cal.Rptr.2d 645.) And, an order that
terminates parental rights and selects adoption as the permanent plan-which is
analogous to a termination order pursuant to Probate Code section 1516.5-frees
the child from all parental rights, custody or control, and does not sanction
the maintenance of reasonable visitation. (In
re Jacob E., supra,
at p. 925, 18 Cal.Rptr.3d 15; In
re Steven A.
(1993) 15 Cal.App.4th 754, 765-766, 19 Cal.Rptr.2d 576; In
re Diana G., supra,
at pp. 1482-1483, 13 Cal.Rptr.2d 645; In
re Albert B.
(1989) 215 Cal.App.3d 361, 385, 263 Cal.Rptr. 694.)
[57][58]
Further, once a child is adopted, by whatever means, under the ?general?
adoption provisions of Family Code section 8617 the birth parents of an adopted
child ? ?are, from the time of the **550
adoption, relieved of all parental duties towards, and all responsibility for,
the adopted child, and have no right over the child,? ? (Sharon
S. v. Superior Court
(2003) 31 Cal.4th 417, 426, 2 Cal.Rptr.3d 699, 73 P.3d 554), unless the parties
?plainly have stated their intention to waive section 8617's benefits.?
(Id.
at p. 434, 2 Cal.Rptr.3d 699, 73 P.3d 554; see also Marckwardt
v. Superior Court
(1984) 150 Cal.App.3d 471, 475, 198 Cal.Rptr. 41.) ?When a child is adopted, the
law creates a parent-child relationship between the adopting parent(s) and the
child and severs the child's relationship with his or her natural family.
(Civ.Code, ?? 228, 229.)? (Huffman
v. Grob
(1985) 172 Cal.App.3d 1153, 1155, 218 Cal.Rptr. 659.) The basic purpose of
termination of parental rights and adoption is to promote the welfare,
protection and betterment of the child by providing the security of a stable
adoptive home when those conditions have been otherwise missing from the child's
life, and to confer upon the new parents discretion to provide for the best
interests of the adopted child unfettered by interference from the former
relatives. (See Sharon
S. v. Superior Court, supra,
at p. 437, 2 Cal.Rptr.3d 699, 73 P.3d 554; In
re *1392
Robert J., supra,
129 Cal.App.3d 894, 904, 181 Cal.Rptr. 188; Huffman
v. Grob, supra,
at pp. 1157-1158, 218 Cal.Rptr. 659.) Adoption thus ?results in a complete
substitution of parents, as opposed to a guardianship, for example, which only
suspends the rights of parents. Adoption extinguishes the rights of natural
parents forever.? (Estate
of Cleveland
(1993) 17 Cal.App.4th 1700, 1707, 22 Cal.Rptr.2d 590.) Absent an explicit
agreement to the contrary, a birth parent is not entitled to postadoption
visitation with his or her children. (See In
re Sylvia R.
(1997) 55 Cal.App.4th 559, 563, 64 Cal.Rptr.2d 93; Huffman
v. Grob, supra,
at p. 1158, 218 Cal.Rptr. 659.)
We
assume that in enacting section 1516.5 the Legislature was aware of existing law
which does not provide for visitation following termination of parental rights
and adoption of the child, and intended to maintain a consistent body of laws.
(Starrh
& Starrh Cotton Growers v. Aera Energy LLC
(2007) 153 Cal.App.4th 583, 607, 63 Cal.Rptr.3d 165; Burlington
Northern & Santa Fe Ry. Co. v. Public Utilities Commission
(2003) 112 Cal.App.4th 881, 889, 5 Cal.Rptr.3d 503.) If the Legislature had
intended to depart from established law in section 1516.5 actions to authorize a
visitation order upon termination of parental rights in the absence of an
agreement, a provision to do so could have easily been expressly added to the
statute. That it was not indicates to us a legislative intent to leave the law
as it stands. (See Real
Estate Analytics, LLC v. Vallas
(2008) 160 Cal.App.4th 463, 480, 72 Cal.Rptr.3d 835; Velez
v. Smith
(2006) 142 Cal.App.4th 1154, 1174, 48 Cal.Rptr.3d 642; Zilog,
Inc. v. Superior Court, supra,
86 Cal.App.4th 1309, 1318, 104 Cal.Rptr.2d 173; Massa
v. Southern Cal. Rapid Transit Dist.
(1996) 43 Cal.App.4th 1217, 1221, 51 Cal.Rptr.2d 164.) As the evidence presented
in the present case also illustrates, the policy of promoting the security and
stability of the children that is furthered by adoption is best served by
foreclosing continuing visitation upon cessation of a guardianship and
termination of parental rights absent an agreement to the contrary.
[59]
We of course recognize an important distinction between dependency and Probate
Code section 1516.5 proceedings: a Welfare and Institutions Code section 366.26
action to terminate parental rights generally but not always, ?requires some
showing of parental unfitness before rights are terminated, to protect the
parent's fundamental interest in child custody,? whereas a termination
proceeding brought under Probate Code section 1516.5 after the **551
?parent has failed to exercise any custodial responsibility? other than
visitation for a two-year period, does not demand proof that ?the parent is
currently unfit? and instead ?appropriately requires the court to balance all
the familial interests in deciding what is best for the child.? (Ann
S., supra,
45 Cal.4th 1110, 1118, 90 Cal.Rptr.3d 701, 202 P.3d 1089.) A finding of parental
unfitness certainly furnishes an additional basis in dependency proceedings for
concluding that continued visitation is *1393
not in the best interests of the child. We are nevertheless persuaded that the
fundamental reasons for foreclosing visitation upon termination of parental
rights or adoption, whether pursuant to Welfare and Institutions Code section
366.26 or Probate Code section 1516.5-that is, to serve the best interest of the
child and promote the stability that attaches to the impending adoptive
relationship-are best served by severing visitation rights upon termination of
parental rights pursuant to Probate Code section 1516.5. We therefore conclude
that as in other proceedings for termination of parental rights as a prelude to
contemplated adoption, if parental rights are terminated in an action pursuant
to Probate Code section 1516.5 the court does not have authority to order
continuing visitation by the birth parents.
II.
The Claim that the Guardians Stipulated or Agreed to Grant Visitation to the
Parents.
The
parents argue that the guardians stipulated or agreed to a visitation order at
trial, and therefore cannot object to it on appeal.FN15
Their claim of stipulation or agreement to visitation is based upon Juliana's
expression of concurrence to her counsel's query that if the petition was
granted and Emerson advised her ?it was in the best interests of the children to
see their mother from time to time,? she was ?willing to allow? visitation by
Jamie. Juliana subsequently testified that she was ?fine with [Jamie] having
supervised visitation, because that is what [the] court ordered and that is what
we have provided.? She also articulated vague concurrence with a prior offer of
one hour of visitation by the children per year with Raymond if his parental
rights were terminated.
FN15.
The trial court recognized the lack of ?power to make visitation orders for a
parent whose rights have been terminated,? but perceived that the parties had
?stipulated that the court could make a visitation order, even if parental
rights were terminated.?
[60][61]
We acknowledge that a stipulation by the guardians to grant visitation would bar
them from advancing the issue on appeal. (See Adoption
of Arthur M.
(2007) 149 Cal.App.4th 704, 719, 57 Cal.Rptr.3d 259; In
re Jennifer V.
(1988) 197 Cal.App.3d 1206, 1209, 243 Cal.Rptr. 441.) FN16
We also discern two other means by which visitation may be granted to parents
despite an order of termination of parental rights or adoption.
FN16.
We also appreciate that the guardians did not object to the trial court's
authority to order visitation, perhaps because the court announced that an
agreement for visitation had been reached. In any event, the claim that the
trial court exceeded its statutory authority by ordering visitation presents a
legal question that does not implicate the court's discretion, and thus may be
reviewed and corrected by an appellate court without an objection below.
(People
v. Welch
(1993) 5 Cal.4th 228, 235-236, 19 Cal.Rptr.2d 520, 851 P.2d 802; People
v. Slattery
(2008) 167 Cal.App.4th 1091, 1095, 84 Cal.Rptr.3d 672.)
[62][63][64]
*1394
First, the statutory provisions in section 8617 of the Family Code that relieve
the birth parents of all rights with regard to an adopted child are for the
benefit of the parties to an adoption petition, and are thus ?waivable by the
parties **552
thereto, rather than a mandatory prerequisite to every valid adoption.?
(Sharon
S. v. Superior Court, supra,
31 Cal.4th 417, 427, 2 Cal.Rptr.3d 699, 73 P.3d 554.) However, ? ? ? ?waiver is
the ?intentional relinquishment or abandonment of a known right.? [Citations.]?
[Citation.]? [Citation.]' [Citation.]? (In
re Stier
(2007) 152 Cal.App.4th 63, 74, 61 Cal.Rptr.3d 181.) ? ?The burden is on the
party claiming a waiver of right to prove it by clear and convincing evidence
that does not leave the matter to speculation. As a general rule, doubtful cases
will be decided against the existence of a waiver....? [Citation.]?
(Garamendi
v. Golden Eagle Ins. Co.
(2004) 116 Cal.App.4th 694, 721, 10 Cal.Rptr.3d 724; see also Rinaker
v. Superior Court
(1998) 62 Cal.App.4th 155, 168, 74 Cal.Rptr.2d 464.)
[65]
Agreements that provide for birth parents to continue visitation with their
children following termination of parental rights or adoption are also
recognized by statute and enforceable, but any such agreements must be in
writing and must be found by the court to be in the best interests of the
children. (Fam.Code, ? 8616.5; see also Adoption
of Hannah S.
(2006) 142 Cal.App.4th 988, 1000, fn. 1, 48 Cal.Rptr.3d 605; In
re Zachary D.
(1999) 70 Cal.App.4th 1392, 1396, 83 Cal.Rptr.2d 407.) FN17
?In order to remove barriers to adoption by relatives and to preserve family
relationships, the Family Code provides for adoption by a relative of a
dependent child and for a written and signed kinship adoption agreement between
the relative and a birth parent, which shall be attached to and filed with a
petition for adoption by the relative. (Fam.Code, ?? 8714.5, 8714.7.)
[FN18]
The agreement may include, but is limited to, visitation and future contact with
the child and his or her siblings and half-siblings and the sharing of
information about the child. (Fam.Code, ? 8714.7, subd. (a).)? (In
re Zachary D., supra,
at pp. 1395-1396, 83 Cal.Rptr.2d 407.)
FN17.
Family Code, section 8616.5, subdivision (a) provides in pertinent part: ?The
Legislature finds and declares that some adoptive children may benefit from
either direct or indirect contact with birth relatives, including the birth
parent or parents or an Indian tribe, after being adopted. Postadoption contact
agreements are intended to ensure children of an achievable level of continuing
contact when contact is beneficial to the children and the agreements are
voluntarily entered into by birth relatives, including the birth parent or
parents or an Indian tribe, and adoptive parents.? Subdivision (b)(1) of section
8616.5 adds: ?Nothing in the adoption laws of this state shall be construed to
prevent the adopting parent or parents, the birth relatives, including the birth
parent or parents or an Indian tribe, and the child from voluntarily entering
into a written
agreement
to permit continuing contact between the birth relatives, including the birth
parent or parents....? (Italics added.)
Rule
5.400 also provides for postadoption visitation agreements in ?any adoption of a
child.?
FN18.
Since In
re Zachary, supra,
70 Cal.App.4th 1392, 83 Cal.Rptr.2d 407, the Legislature has renumbered section
8714.7 to section 8616.5. Section 8714.5 remains the same numbered
section.
[66][67][68][69]
*1395
We do not construe comments made during Juliana's testimony as a stipulation or
an expression of a waiver that the court had discretion to order visitation
under any particular terms, or visitation in any form. ?[I]n determining whether
the parties entered into a binding settlement of all or part of a case, a trial
court should consider whether (1) the material terms of the settlement were
explicitly defined, (2) the supervising judicial officer questioned the parties
regarding their understanding of those terms, and (3) the parties expressly
acknowledged their understanding of and agreement to be bound by those
**553
terms. In making the foregoing determination, the trial court may consider
declarations of the parties and their counsel, any transcript of the stipulation
orally presented and recorded by a certified reporter, and any additional oral
testimony.? (In
re Marriage of Assemi
(1994) 7 Cal.4th 896, 911, 30 Cal.Rptr.2d 265, 872 P.2d 1190.) Parties must
?plainly? state ?their intention to waive section 8617's benefits.?
(Sharon
S. v. Superior Court, supra,
31 Cal.4th 417, 434, 2 Cal.Rptr.3d 699, 73 P.3d 554.) Nothing stated by Juliana
or counsel for the guardians has any of the aspects of an express or implied
stipulation or waiver. As we read the record, the guardians merely reiterated
the content of prior settlement negotiations and expressed their intent to abide
by the terms of visitation if so ordered by the court.
[70]
Nor, we conclude, did the parties enter into any agreement for posttermination
or postadoption visitation rights that complies with Family Code section 8616.5.
No definitive agreement for visitation was reached; no terms for visitation were
delineated; no written agreement was submitted to the court; no understanding or
express consent to the terms of a visitation order was conveyed by the
guardians. We find that the references to visitation in the record do not
constitute a stipulation, waiver, or valid agreement for visitation.FN19
Accordingly, the trial court erred by granting visitation rights to the
parents.
FN19.
Nothing we have said precludes the parties from entering into a voluntary
agreement for postadoption visitation, at least before entry of a final adoption
order. (See In
re Zachary D., supra,
70 Cal.App.4th 1392, 1397-1398, 83 Cal.Rptr.2d 407.)
DISPOSITION
Although
the matter must be remanded with directions to the court to ensure ICWA
compliance, we decline to reverse the judgment that terminated parental rights.
Instead, we order a limited remand with directions to the trial court to
effectuate proper inquiry, and compliance with the notice provisions of the ICWA
if Indian heritage is indicated. If, after proper inquiry and notice a tribe
determines the minors are Indian children, the parents may petition the court to
invalidate the termination of parental rights upon a showing that such
*1396
action violated the provisions of the ICWA. If the minors are not found to be
Indian children, the judgment is affirmed, with the exception of that part of
the judgment that granted visitation to the parents. The visitation order is
reversed.
We
concur: MARCHIANO, P.J., and MARGULIES, J.