Opinion
A148374
02-15-2017
In re D.L., a Minor. C. C., Petitioner and Respondent, v. C. C., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CVSF-15-1828)
Mother appeals from an order under Probate Code section 1516.5 terminating her parental rights to her son D.L. On appeal, she argues the termination of her parental rights violated her constitutional right to due process. She argues further that the court erred by failing to properly weigh the statutorily enumerated criteria prior to termination and by terminating her parental rights without a showing that respondent, the child's maternal grandfather and court-appointed guardian (grandfather), is likely to be approved to adopt the child. Finally, she argues the order must be reversed and a limited remand granted to ensure compliance with Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) We find no error in the order terminating parental rights but agree that the failure to comply with ICWA requires a limited remand.
All statutory references are to the Probate Code unless otherwise noted.
Background
When D.L. was born he lived with, among others, his mother and his maternal grandfather. In May 2013, when D.L. was just over a year old, mother, then age 15, ran away from home with him. In June 2013, grandfather filed a petition for guardianship under section 1510, alleging that mother was using drugs and was unable to care for D.L.
Section 1510, subdivision (b) authorizes a relative to file a petition for the appointment of a guardian of the minor when "the appointment is necessary or convenient."
As required by section 1513, subdivision (b), the probate court referred the matter to the local child protective services agency for further investigation under Welfare and Institutions Code section 329. The social worker conducted her investigation and declined to file dependency proceedings because the "family has agreed to a formal supervision, voluntary case, to ensure the safety of the child."
Section 1513, subdivision (b) reads: "If the proposed ward is or may be described by Section 300 of the Welfare and Institutions Code, the court may refer the matter to the local child welfare services agency to initiate an investigation of the referral pursuant to Section[]329 of the Welfare and Institutions Code and to report the findings of that investigation to the court. . . . If dependency proceedings are initiated, the guardianship proceedings shall be stayed in accordance with Section 304 of the Welfare and Institutions Code. . . . If a dependency proceeding is not initiated, the probate court shall retain jurisdiction to hear the guardianship matter." Welfare and Institutions Code section 329 requires the social worker who receives the court referral to "immediately investigate as he or she deems necessary to determine whether proceedings in the juvenile court should be commenced."
On August 8, 2013, the probate court appointed grandfather to be child's temporary guardian and issued letters of temporary guardianship. The minutes of the unreported hearing state: "The court advises parties of the court process regarding temporary guardianship up to permanent guardianship. The court polls parties on their understanding of the process and if they do not oppose the guardianship. Parents do not oppose."
On October 9, 2013, after receipt of the guardianship investigation report, the court appointed grandfather to be child's guardian and letters were issued the same date.
In November 2013, mother was arrested for alleged violation of Health and Safety Code section 11350, subdivision (a). On December 10, 2013, the juvenile court placed mother on formal probation and placed her in grandfather's custody. On February 20, 2014, mother was found to have violated her probation and was ordered by the juvenile court into a residential drug treatment program. Mother had regular visitation with child while in the treatment program.
In September 2014, following her graduation from the treatment program, mother returned to grandfather's home. In November 2014, mother was ordered to attend Narcotics Anonymous meetings after reportedly violating her probation by using methamphetamine.
On January 30, 2015, mother left grandfather's home again, leaving a note stating she felt she could never be the mother her child needed. A bench warrant was issued and on July 7, 2015, mother was arrested while reportedly in a stolen vehicle. Thereafter, mother was ordered to remain in juvenile hall for approximately two months, until her18th birthday.
On September 22, 2015, grandfather filed a petition to terminate the mother's parental rights under section 1516.5. Grandfather alleged he has filed, or would be filing, a request to adopt D.L. and that D.L. had been living continuously in his custody since February 1, 2013, and that he had legal guardianship since October 9, 2013.
Section 1516.5 provides: "(a) A proceeding to have a child declared free from the custody and control of one or both parents may be brought . . . within an existing guardianship proceeding, in an adoption action, or in a separate action filed for that purpose, if all of the following requirements are satisfied: [¶] (1) One or both parents do not have the legal custody of the child. [¶] (2) The child has been in the physical custody of the guardian for a period of not less than two years. [¶] (3) The court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following: [¶] (A) The child and the birth parent. [¶] (B) The child and the guardian, including family members of the guardian. [¶] (C) The child and any siblings or half siblings. [¶] (b) 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. [¶] (c) 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. [¶] (d) This section does not apply to any child who is a dependent of the juvenile court or to any Indian child."
Mother visited with child for the last time upon her release from juvenile hall in September 2015.
On February 5, 2016, mother appeared for the first time on the petition to terminate her parental rights and counsel was appointed to represent her.
On February 20, 2016, mother was arrested on charges of being under the influence of a controlled substance, transporting marijuana for sale, and felony assault on a police officer. She was incarcerated in the Mendocino County Jail.
Following a trial on May 4, 2016, the court terminated mother's parental rights. Mother timely filed a notice of appeal.
Discussion
The termination order in this case arose in the context of a probate guardianship, which provides "an alternative placement for children who cannot safely remain with their parents." (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1122.) "The differences between probate guardianships and dependency proceedings are significant. [Citation.] Probate guardianships are not initiated by the state, but by private parties, typically family members. They do not entail proof of specific statutory grounds demonstrating substantial risk of harm to the child, as is required in dependency proceedings. [Citations.] Unlike dependency cases, they are not regularly supervised by the court and a social services agency. No governmental entity is a party to the proceedings. It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under section 1516.5." (Ibid.) "When the court appoints a guardian, the authority of the parent 'ceases.' [Citation.] The court has discretion to grant visitation [citation], but otherwise parental rights are completely suspended for the duration of a probate guardianship [citation]. The guardian assumes the care, custody, and control of the child. [Citation.] There is no periodic court review of the placement, as there is in dependency proceedings. [Citation.] Nor is the parent given the reunification services that the county provides to parents of dependent children. [Citation.] [¶] Unless ended by court order, the guardianship continues until the child 'attains majority or dies.' [Citation.] The court may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child's best interest." (Guardianship of Ann S., supra, 45 Cal.4th at pp. 1123-1124; see also Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 600-601 [Indigent parents are represented by attorneys at government expense in dependency proceedings, whereas counsel is not provided for adult litigants at public expense in probate guardianship proceedings.].)
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. The purpose of section 1516.5 is to create "another avenue for a guardian where the child has been in the custody of the guardian for a long time and the parent or parents are not likely to reclaim the child but the parent or parents do not fall under one of the categories covered by existing law." (Guardianship of Ann S., supra, 45 Cal.4th at p. 1125.) In Guardianship of Ann S., the court offered the following example of the statute's possible application: "Another example given by the sponsor is where a drug addicted mother gives the child in guardianship, hoping to get herself rehabilitated but repeatedly fail[s], creating a situation where the child is in the custody of the guardian for years without being in the foster care system. The sponsor contends that in [this] case, a guardian should be able to adopt the child without having to obtain consent or prove neglect, abandonment, or the mental disorder or mental illness of the parent who gave them [sic] guardianship in the first place." (Ibid.)
Here, the trial court found that the termination of parental rights was in child's best interest. The court explained, "This petition was brought pursuant to Probate Code 1516.5 which is a determination by the legislature that after a child has been in a legal guardianship for at least two years that the interest in the child's long term stability and placement with the person that's been their caretaker legally and practically takes precedence really over the rights of the parents to reunify with that child. [¶] I listened carefully and understand the arguments being advanced on behalf of [mother]. And it's really kind of heartbreaking to see a young lady who is fairly overly mature for an 18 year old. She's lived a tough life these last couple of years. And when she is clean and sober, by her own father's testimony today, she's nurturing and is able to provide for her three-year-old son. But she's struggling with her addiction and with her behaviors for lack of a better word. [¶] She really has elected to be in and out of this child's life. I think there had been some opportunities in the past where if she had been able to just stay put and continue with the gains that she had been showing, we wouldn't be here today. But it's been months, a long time in a three-year old's life since [mother] has been able to have hands on active parenting of her child. He's not required to wait until she gets clean and sober, finishes her probation, moves to terminate the guardianship. It's just not how it works."
Mother contends that the termination of her parental rights based upon a mere best interest showing rather than a determination that she was presently unfit to parent violated her constitutional right to due process. In Guardianship of Ann S., supra, 45 Cal 4th at pages 1127-1128, the court rejected a mother's argument that section 1516.5 was unconstitutional because it permits the termination of parental rights based only on the child's best interest and without a finding that the parent is unfit. The court explained "Generally, due process requires some showing of parental unfitness before rights are terminated, to protect the parent's fundamental interest in child custody. However, it is settled that a showing of current unfitness is not always necessary when a court terminates parental rights. Section 1516.5 applies to parents whose custody rights have been suspended during a probate guardianship. A termination proceeding under this statute occurs only when the parent has failed to exercise any custodial responsibility for a two-year period, with the possible exception of visitation. In this context, it would make little sense to require a showing that the parent is currently unfit. As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child. Section 1516.5 appropriately requires the court to balance all the familial interests in deciding what is best for the child." (Guardianship of Ann S., p. 1118.) The court recognized, however, that although the statute is not unconstitutional on its face, the statute "is open to constitutional challenge as applied to particular parents." (Id. at p. 1132.) The court explained, "There are imaginable scenarios in which a fully responsible parent might find it necessary to place a child in guardianship and, despite maintaining a parental commitment as full as the circumstances permit, eventually face a termination proceeding under section 1516.5. . . . However, 'we may not invalidate a statute simply because in some future hypothetical situation constitutional problems may arise.' " (Id. at p. 1132, see also In re Charlotte D. (2009) 45 Cal.4th 1140, 1148 [Finding it "conceivable that a parent faced with the termination of his or her rights under section 1516.5 would be in a position to assert a due process claim based on a showing analogous to the one we outlined in [Adoption of Kelsey S. (1992) 1 Cal.4th 816]" but noting that it "seems unlikely that a court would find it in a child's best interest under section 1516.5 to terminate the rights of a fully committed, responsible, and capable parent who finds an extended probate guardianship unavoidable under exigent circumstances."].)
Mother contends that hers is the unusual situation in which termination of parental rights based on the best interest of the minor is unconstitutional because no "presumption of a voluntary surrender and abandonment of parental rights for a prolonged period can be made" in her case. She argues that her consent to the guardianship is invalid because she was not represented by counsel or a guardian ad litem and that as an unrepresented minor she could not take the necessary steps to challenge or terminate the guardianship and that she was reliant on the guardian, her father, to protect her rights.
The record does not support mother's claim that she did not voluntarily consent to the guardianship of her son or that she was without means to challenge the guardianship at a later date. First, mother was appointed a guardian ad litem (Attorney John Passalacqua) prior to the granting of the guardianship petition. According to the guardianship report submitted by the probate investigator, the investigator met with mother and Passalacqua to explain the guardianship proceedings to her. "Mr. Passalacqua advised [mother] that she may wish to ask for an attorney to represent her in the probate guardianship matter since she is a minor. He also cautioned her that if she agreed to the guardianship, that termination of the guardianship is not automatically granted, advising her that the court considers a safe, stable home environment important when considering the best interests of the minor." Mother indicated that "she had to agree because she did not want [her son] to end up in foster care" and "stated that [grandfather] is supportive of terminating the guardianship once she completes what is necessary to resume care, custody and control and believes that he will do this." The investigator contacted mother after their meeting "to inform her that she would need to make a formal request of the court to have an attorney appointed to her and referred her to the Self-Help Legal Access Clinic to inquire the method to do so."
At the guardianship hearing, the court inquired whether mother wanted an attorney to represent her and mother waived her right to an attorney. Mother was given an opportunity to comment on the guardianship report and recommendation and other than correcting an alleged factual error regarding the results of her drug testing, she did not oppose the guardianship. After granting the guardianship petition, the court informed mother of her right to request the guardianship be terminated in the future. Mother does not dispute that she was represented by appointed counsel throughout the contested proceedings on the petition to terminate her parental rights.
Given the above, we find that mother was properly and fully advised of the potential ramifications of guardianship and freely gave her consent. As a result of her voluntary and prolonged abdication of her parental duties, this is not an exceptional circumstance in which termination of parental rights without a present finding of unfitness would amount to a constitutional violation.
Mother also contends the trial court erred in terminating her parental rights without making a finding that grandfather would be approved to adopt the child. She argues that "[t]he record does not contain substantial evidence that [grandfather] could adopt [the child], and substantial doubts exist that he would be approved to adopt." Initially, we note that mother did not raise this issue at the hearing on the motion to terminate her parental rights. Nonetheless, no such finding is required and the evidence in this record does not support mother's argument that adoption would likely be denied.
Unlike in dependency proceedings in which the court must make an express finding that there is a probability of adoption before terminating parental rights, under section 1516.5 the court must find only that the child would benefit from being adopted by his or her guardian. Under Family Code section 8811, subdivision (b), a prospective adoptive parent's criminal history must "be taken into consideration when evaluating . . . the ability of the prospective adoptive parent to provide adequate and proper care and guidance to the child," but the court need only find that "the interest of the child will be promoted by the adoption" before entering the order of adoption. (Fam. Code, § 8612, subd. (c).) The only evidence in the record regarding grandfather's criminal and dependency history is found in the 2013 guardianship report. After detailing his criminal contacts and dependency referrals, the report states, "The second question to be answered in all guardianship investigations is whether or not the petitioner is a suitable guardian. The petitioner, [grandfather], does not have a spotless record. He has been involved with CPS and some allegations of general neglect against him have been substantiated in the past. He and his wife have been noted to have communication difficulties and according to CPS notes were referred to counseling and voluntary services. It is unclear if they engaged in any counseling or services to address their communication issues. In addition, [grandfather] also has a juvenile dependency case where he is a litigant after his daughter, the minor's mother, was detained due to her out of control behaviors and her refusal to remain in his 'stable' home. It is unusual for CPS to recommend placement of a child with a person who has an open juvenile dependency case, but they have made it clear to this investigator that they believe the best placement for the minor at this time is with petitioner." Given that no additional evidence of criminal conduct or child welfare referrals was presented at the hearing, substantial evidence supports the court's finding that adoption by grandfather was in the child's best interest.
While certain criminal offenses preclude adoption as a matter of law, mother does not allege that grandfather has suffered any such offense. (Fam. Code, § 8811, subd. (c)(1) ["The department or a delegated county adoption agency shall not give final approval for an adoptive placement in any home in which the prospective adoptive parent or any adult living in the prospective adoptive home has either of the following: [¶] (A) A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. . . . [¶] (B) A felony conviction that occurred within the last five years for physical assault, battery, or a drug-or alcohol-related offense. --------
Mother also argues the trial court failed to properly weigh the statutory criteria for determining the best interest of the child by placing undue emphasis on her "consent" to the guardianship and her failure to move to terminate the guardianship. In the trial court, mother argued the probate court erred in establishing the guardianship in 2013 by improperly allowing "the case to move forward as a guardianship proceeding rather than demanding that social services initiate formal juvenile proceedings," thereby depriving her of "important rights only afforded to participants in dependency proceedings." The court expressly considered "the arguments raised by mother about alleged deficiencies or legal errors that happened in the probate guardianship case" but found that mother waived any irregularities by consenting to the guardianship. The court explained, "The time for appeals has passed and she hasn't since brought a motion to terminate the guardianship to show a change in circumstances. So for all these reasons I can't give much weight to those legal arguments about what happened in the underlying probate guardianship proceeding." Contrary to mother's argument, the court did not ignore other relevant criteria or place undue emphasis on her consent and failure to challenge the guardianship. A fair reading of the court's comments show that the court was primarily concerned with mother's unsuccessful attempts to become sober and able to care for her child within the two year period. The court understood and considered her legal arguments, but found that they were outweighed by her conduct during the guardianship period. We find no abuse of discretion.
Finally, mother contends the court failed to comply with ICWA prior to terminating her parental rights. In In re Noreen G. (2010) 181 Cal.App.4th 1359, 1387, the court held that the court, court-connected investigator, and petitioner were vested with an "affirmative and continuing duty" to inquire whether the child is or may be an Indian child prior to terminating parental rights. (See also Cal. Rules of Court, rule 5.481(a) ["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 . . . ."]; § 1459.5, subd. (a) [ICWA "shall apply to the following guardianship . . . proceedings under this division when the proposed ward . . . is an Indian child: [¶] (1) In any case in which the petition is a petition for guardianship of the person and the proposed guardian is not the natural parent or Indian custodian of the proposed ward, unless the proposed guardian has been nominated by the natural parents pursuant to Section 1500 and the parents retain the right to have custody of the child returned to them upon demand. [¶] (2) To a proceeding to have an Indian child declared free from the custody and control of one or both parents brought in a guardianship proceeding."].)
Here, grandfather checked the boxes on his petition for guardianship indicating that the child is not an Indian child and he has no reason to know the child is an Indian child. The record is silent as to further compliance with ICWA. It does not appear that the court ordered the child's father or mother to complete a parental notification of Indian status (form ICWA-020), as required by California Rules of Court, rule 5.481. On appeal, mother makes an "offer of proof" that she believes that James E., not grandfather, is her biological father and the maternal grandparents of James E. were members of the federally recognized San Carlos Apache tribe. Mother "asserts that Mr. E. also affirms that he believes he may be the biological father of [mother] and his Indian ancestry." Finally, mother cites to a reference in the probate investigators report that there was a "question of paternity" at mother's birth and that the grandmother told the investigator that grandfather was not mother's biological father.
Mother's offer of proof and affirmative assertion of Indian heritage require "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. [Citations.] 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 Noreen G., supra, 181 Cal.App.4th at pp. 1389-1390.)
Disposition
The order terminating parental rights is reversed and the case is remanded to the probate court with directions that the court ensure compliance with the notice provisions of ICWA. If, after proper notice, a tribe determines the child is an Indian child, then the court shall proceed in conformity with all provisions of ICWA. If, alternatively, no tribe claims the child as an Indian child, then the court shall reinstate the judgment terminating parental rights.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.