Opinion
F082863
01-26-2022
In re B.P., a Person Coming Under the Juvenile Court Law. v. AMANDA R., Objector and Appellant. DAVID P., Petitioner and Respondent,
Michelle L. Jarvis, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. BAT-18-003065 Therese M. Foley, Judge.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Petitioner and Respondent.
OPINION
DE SANTOS, J.
Amanda R. appeals the family court's order freeing her biological daughter, then nearly five-year-old B.P., from her parental custody and control based on the court's finding she had been convicted of a felony, the facts of which proved the unfitness to have future custody and control of the child, pursuant to Family Code section 7825. Appellant argues the evidence is insufficient to support the court's finding she was unfit to have the future custody and control of B.P. Finding no error, we affirm.
All further undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 2018, David P., B.P.'s father and respondent in the present appeal, filed a petition to declare B.P. free from the parental custody and control of appellant alleging she had been convicted of a felony, the facts of which were of such a nature so as to prove her unfitness to have future custody and control over the child, pursuant to section 7825. A trial was held on January 24, 2020, and August 14, 2020.
An amended petition was filed on July 26, 2018, but it does not appear any substantive amendments were made.
The petition also alleged appellant had abandoned B.P. under section 7822, but at the trial, respondent indicated he would not be pursuing that allegation, and the family court indicated in its ruling it could not make a finding that appellant had abandoned B.P. within the meaning of section 7822.
In October 2015, appellant was convicted by jury of one felony count of willful cruelty to a child likely to cause great bodily harm or death (Pen. Code, § 273a, subd. (a) ), arising out of an incident where her then boyfriend, Jared R., killed her 15-month-old daughter, Sophia T., after appellant left her in his care.
Penal Code section 273a, subdivision (a) provides: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
We refer to Jared by his first name to protect B.P.'s privacy.
Sophia was born in October 2011. In November 2012, appellant and Sophia moved into a home occupied by five adults and four children. One of the adults was Jared, whom appellant had started dating approximately a month before. Appellant, Jared, and Sophia slept in the living room of the home.
Jared was not the biological father of Sophia.
In December 2012, while Sophia was in the care of Jared and Jared's stepmother, and appellant was not present, Sophia incurred injuries to her face. Appellant later noticed Sophia's face was red but did not initially ask what had happened. Within the next couple of days, bruises appeared. Shortly after, appellant took Sophia to the doctor because she thought Sophia might have pneumonia. Appellant testified at trial she did not take Sophia to the doctor because of any injuries though she acknowledged Sophia had had a bruise near her eye at the time, stating it was "small-it wasn't a big black eye. It was just a mark." At the time of the appointment, Sophia's doctor asked appellant how Sophia received the injuries, but appellant stated she did not know. At some point, appellant asked Jared and his stepmother what happened and was told Sophia had fallen on a corner of the coffee table in the living room. Appellant acknowledged at trial she did not know "if that's actually what happened or not."
The doctor reported the injuries to the child protective services (CPS) agency, and the agency initiated an investigation. The agency conducted at least one interview with appellant. According to the family court services investigator's report prepared in connection with respondent's petition, agency reports indicated the injuries consisted of bruises to Sophia's temple and cheek. Appellant reported to the agency investigator that the injuries occurred when Sophia was in the care of "other people and were the result of her falling and hitting her head." The report indicated appellant changed her explanations for the injuries, and the social worker "was never able to get a clear answer as to where [appellant] was living with [Sophia]." The report indicated appellant was questioned about Sophia's safety with Jared in connection with the CPS investigation, and appellant stated she trusted him with Sophia. The CPS referral for general neglect was substantiated.
The court admitted the family court services investigator's report into evidence at trial.
The CPS investigation was still open on January 12, 2013, the night Sophia was killed. That night, appellant went out around 8:00 p.m. to socialize with friends from high school. According to appellant, she left Sophia in the care of her roommate, Tonya W., though she admitted all other adult residents were home at the time, including Jared. Appellant knew Tonya's routine was to retire to her bedroom around 10:00 p.m., and that Sophia slept in a playpen in the living room, where Jared also slept. According to appellant's testimony, she did not drink at the social gathering because she was the designated driver but she did smoke "a little" marijuana. Appellant returned home around 1:00 a.m. When appellant returned, Sophia was unresponsive and later pronounced dead as a result of injuries inflicted by Jared. As to the cause of Sophia's death, appellant testified she "was only ever told it was blunt force trauma to the head."
The trial court sustained appellant's counsel's hearsay objection to this answer but noted in its written ruling: "While Sophia may or may not have died of blunt force, [appellant] apparently believed she did. It is clear from the Family Court Services report that Sophia died as a result of injuries inflicted by [appellant's] then boyfriend, [Jared]."
Jared and appellant were both arrested that night and charged with crimes in connection with Sophia's death. According to appellant, the initial charges against her were dropped, but the district attorney refiled them in August 2013. No one besides she and Jared was prosecuted. Appellant pled not guilty. In August 2015, Jared pled nolo contendere to second degree murder of Sophia and was sentenced to a prison term of 15 years to life.
While awaiting her criminal trial, in December 2014, appellant met respondent on an online dating site. Appellant and respondent met in person in February 2015, and appellant became pregnant with B.P. a couple of months later. Appellant and respondent ended their relationship in July 2015 but remained cordial. Appellant underwent her jury trial in October 2015 and was convicted of felony willful cruelty to a child and was sentenced to a four-year prison term.
B.P. was born in February 2016, while appellant was incarcerated. B.P. was released to her maternal grandparents. In a probate guardianship case, respondent was awarded sole physical custody of B.P. in August 2016.
Appellant was released from custody in March 2017, and in July 2017, appellant was granted supervised visits with B.P., which consisted of weekends three times per month. Appellant filed for unsupervised, extended visits in the probate case, but did not appear on the day of the probate court trial in November 2017 because she had a physical therapy appointment that conflicted. Following appellant's failure to appear, the probate court discontinued her visits. Appellant thereafter attempted to file a family law case but was unable to do so because respondent's attorney had not filed an exit order in the probate case. Appellant was eventually able to file in May 2018 and requested sole custody of B.P. with respondent having weekend visitation. The case was stayed due to respondent's section 7825 petition.
At trial, appellant denied ever seeing Jared do anything to harm Sophia and denied being informed by anyone that Jared had ever physically harmed Sophia. Appellant denied Sophia receiving any injury prior to the night she was killed "[o]ther than normal bumps and bruises of kids falling" and one "scrape on her chin that was from the fireplace in the home." When asked what the concerns were that led to the CPS investigation, appellant responded that they "didn't give me a specific reason…. I was just told that they were called to check the welfare of my daughter, and that was it."
Appellant denied that Jared was mentioned in relation to the investigation. After reviewing the family court services investigator's report, appellant admitted the CPS investigation was related to a bruise Sophia's doctor noticed on her eye. According to the family court services investigator's report, appellant had admitted at a hearing related to the criminal case that she knew Jared had abused Sophia previously when she left her in his care the night Sophia was killed.
Appellant testified she had been in counseling with a therapist since 2014, and the therapist had "helped me with the grief, coping mechanisms, and my understanding of my responsibility and my-of my daughter's death." Appellant had also worked on "learn[ing] to be a better citizen" and "dealing with stress from either work or home or whatever" through therapy. Appellant testified she was "still very naive" though since going to prison, she had "learned to better think about [her] actions, [and] better think of the consequences that come along with every action." She testified she believed she had "changed a little bit with prison and therapy," explaining she did not trust as easily as she did in the past and understood why she went to prison and "the reasoning of the charge."
Appellant had also completed a 10-week parenting class in August 2017. Regarding the class, appellant testified, "I believe it was on neglect and something else." She took the class at the suggestion of respondent's previous attorney in the probate case; she did not recall whether the class was court-ordered but stated it might have been.
When asked at trial to describe the reasoning behind her conviction, appellant responded, "It was that I failed to protect my daughter and that I did-I failed to protect my daughter." Appellant explained at trial that her being a poor judge of character led to Sophia's death. She testified that going to prison helped her to "understand clearly that I had trusted the wrong people with my child. And that resulted in me losing her. I failed, and I am sorry for what I did. I didn't protect her right with-I trusted the wrong people. I really did. And I truly believe that if I wouldn't have trusted them, my daughter would still be here." Appellant explained that she realized she "failed" within a month of Sophia's death, "[a]fter the initial shock of losing [Sophia] wore off." She took the criminal case to trial because at the time she "didn't feel that [she] deserved the felony." She testified that in hindsight, however, after serving her prison sentence, she did believe she deserved a felony. When asked when she publicly accepted she had a role in Sophia's death, appellant responded, "I didn't have an actual role. I just felt I was responsible because I trusted the wrong people."
The trial court issued a written ruling indicating it found by clear and convincing evidence that appellant had been convicted of a felony, the facts of which were of such a nature so as to prove the parental unfitness of appellant to have future custody and control of B.P. and, accordingly, granted respondent's petition to free B.P. from appellant's custody and control, and terminated her parental rights.
DISCUSSION
I. Jurisdiction
A. Relevant Background
The family court took the matter under submission at the conclusion of trial on August 14, 2020, and informed the parties it would be issuing a written ruling. On November 12, 2020, the family court filed and served on the parties a signed written ruling granting respondent's petition and directing respondent to prepare "the Judgment." Accordingly, respondent prepared a document entitled," 'RULING' RE: JUDGMENT TERMINATING PARENTAL RIGHTS," which included the contents of the trial court's written ruling. A copy of the document signed by the parties and the court was filed on May 11, 2021. Appellant filed a notice of appeal on June 3, 2021.
A timely notice of appeal vests jurisdiction in this court (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864) and when a notice of appeal is untimely, we must dismiss the appeal (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666‒667). In juvenile appeals, including actions under section 7800 et seq., the time to appeal is governed by California Rules of Court, rule 8.406, which provides, "a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rules 8.406(a)(1), 8.400.) In Adoption of Reed H. (2016) 3 Cal.App.5th 76 (Reed H.), the appellate court held that under rule 8.406, where the trial court took the matter under submission and informed the parties it would be issuing a written ruling, the time to appeal began running on the date the court filed and served on the parties its written ruling, even though, in its ruling, the trial court had directed one of the parties to prepare an order and judgment within 30 days. (Reed H., at pp. 79, 82.) The appellate court explained it was "immaterial" that the order directed a party to prepare an order and judgment as no such document was required by the applicable Family Code statute in order to be effective. (Id. at p. 82.)
All further rule references are to the California Rules of Court.
Except in cases where a referee or temporary judge made the order; however, there is no indication the court here was a referee or temporary judge.
On December 10, 2021, this court requested supplemental briefing on whether the notice of appeal was timely filed, specifically whether the time to file a notice of appeal had commenced on November 12, 2020, when the family court filed and served its written ruling, or May 11, 2021, when the judgment prepared by respondent was filed. The parties were directed to address the applicable rules of court and Reed H., supra, 3 Cal.App.5th 76, as well as any other authorities they deemed appropriate.
In response to this court's order, appellant filed a "MOTION FOR RELIEF FROM DEFAULT PURSUANT TO IN RE A.R. (2021) 11 Cal.5th 234 [(A.R.)]," conceding the notice of appeal was untimely filed but requesting that we review the merits of the appeal based on her contention that, but for appellant's trial counsel's ineffective assistance, appellant would have filed a timely notice of appeal. Respondent filed no response to our briefing order or opposition to appellant's motion. We accept appellant's concession that the notice of appeal was untimely filed, and for the reasons set forth, we hereby grant appellant's motion and will consider the merits of her appeal.
B. Discussion
In A.R., the California Supreme Court disapproved of several appellate court cases dismissing untimely appeals following orders terminating parental rights. (A.R., supra, 11 Cal.5th at p. 251.) The Supreme Court determined that in certain circumstances, parents shall be allowed to appeal the decision terminating their parental rights even though the jurisdictional deadline for filing a notice of appeal from the termination order had lapsed due to ineffective assistance of counsel. (Ibid.)
To obtain relief under A.R., the parent must first show a prima facie case for relief, that is, "that counsel was directed to file an appeal on behalf of a parent but failed to do so in a timely manner." (A.R., supra, 11 Cal.5th at p. 252.) The parent must next show whether the ineffective assistance of counsel was prejudicial; if the parent can show "there are 'substantial reasons to believe [a losing party] would have appealed' were it not for attorney incompetence, a party seeking to revive the appeal can demonstrate prejudice." (Id. at pp. 252‒253.) Finally, the parent must show "promptness and diligence in pursuing an appeal," including in seeking relief from default. (Id. at p. 253.)
Here, appellant attached a declaration by her trial counsel to her motion. Appellant's trial counsel declared she "was under the mistaken belief that the time for the filing of the notice of appeal would not begin to run until the filing of the judgment prepared by petitioner/respondent, which in this case, would have been May 11, 2021." Appellant's trial counsel further affied she had had "multiple conversations" with appellant regarding appellant's "desire to file a notice of appeal from the order terminating her parental rights." These conversations began "immediately after" the November 12, 2020 ruling, and appellant contacted her trial counsel "regularly to find out if the judgment had been filed because she wanted [her trial counsel] to file a timely notice of appeal."
We conclude these facts satisfy appellant's burden under A.R. They establish appellant wanted to appeal, expressed this desire consistently and repeatedly with her trial counsel, and the reason the notice of appeal was untimely filed was appellant's trial counsel's ineffective assistance.
While we find appellant has met her burden, we note this was a close case because of the amount of time that had passed between the trial court's ruling and the filing of the notice of appeal: a period of almost seven months. Timeliness is paramount in cases involving termination of parental rights because they implicate a child's interests in stability, permanence, and the benefits of a relationship with his or her parent. As our high court in A.R. pointed out," 'a delay of months may seem like 'forever' to a young child.'" (A.R., supra, 11 Cal.5th at p. 253.) Here, months and months had passed because of multiple failings on the part of appellant's trial counsel: (1) trial counsel mistakenly thought the time to file started when the judgment prepared by respondent was filed; (2) even in light of that mistaken belief, trial counsel failed to take initiative to prepare a judgment herself in absence of any action by respondent, knowing that appellant was planning to appeal and that her client's and young B.P.'s interests were at stake; and (3) trial counsel waited approximately an additional three weeks after respondent's judgment was filed to file the notice of appeal.
We note that where a court does not prepare an order after hearing and directs a party to prepare a proposed order, per the rules of court, the party must do so within 10 days of the hearing. (Rule 5.125(b).) If the party fails to do so, the other party is authorized to prepare a proposed order. (Rule 5.125(d)(1).)
It is only because of the specific facts of this case-that B.P. is with her father, not a non-parent and not awaiting an adoptive home, and, to our knowledge, no stepparent adoption is pending-that we are inclined to grant appellant's motion. Further, the issue was able to be raised and briefed before the present appeal was dismissed for untimeliness, appellant filed her motion within a timely manner after our request for briefing, and respondent filed no response to our briefing order or opposition to appellant's motion. Though the time that has passed is concerning, under the circumstances of this case, it does not appear our consideration of the present appeal on its merits would create any undue delay to the stability and permanence of B.P.
For the foregoing reasons, appellant's motion for relief from default for failing to file a timely notice of appeal is granted. We will not dismiss the appeal for lack of jurisdiction due to an untimely notice of appeal and instead will consider its merits.
II. Sufficiency of the Evidence
Appellant argues the evidence was insufficient to support a finding the facts of her felony proved unfitness to have future custody and control of B.P. We disagree.
Section 7800 et seq. governs proceedings to have a minor child declared free from a parent's custody and control. (§ 7802.) "A declaration of freedom from parental custody and control … terminates all parental rights and responsibilities with regard to the child." (§ 7803.) A court may declare a child free from parental custody and control if the parent has been convicted of a felony, the facts of which "are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child." (§ 7825, subd. (a).) "Unfitness" within the meaning of the statute means "a probability that the parent will fail in a substantial degree to discharge parental duties toward the child." (In re Christina P. (1985) 175 Cal.App.3d 115, 133.) The conviction therefore "must be one which unambiguously shows depravity of the parent sufficient to support the conclusion he or she will probably fail to discharge parental duties toward the child." (Id. at p. 134.)
A determination whether to terminate parental rights under section 7825 requires the court to consider "the underlying facts of a parent's felony conviction." (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1542 (Baby Girl M.).) The court may consider "the parent's criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent's ability to exercise custody and control regarding the child." (§ 7825, subd. (a)(2).) The court may also consider "other factors, such as an extensive criminal record, history of substance abuse, domestic violence, etc., which, in appropriate circumstances, can inform the court's evaluation of the facts underlying a felony conviction or convictions," though "they cannot themselves form the basis for termination." (Baby Girl M., at p. 1542.) In addition to the facts of the underlying conviction, the court must also consider the "current parent-child relationship." (In re Terry E. (1986) 180 Cal.App.3d 932, 950 (Terry E.).)
The required showing must be proven by clear and convincing evidence. This court has stated clear and convincing proof of unfitness "requires evidence such as expert opinion based on a personal examination of the parent, an evaluation of the parent's criminal history or conduct while in prison or other facts from which a rational inference may be drawn that the parent will be unable to properly care for the child in the future." (Terry E., supra, 180 Cal.App.3d at p. 953.) This court has further explained that a parent's "incarceration does not ipso facto show a parent's unfitness under the statute." (Ibid.) Rather, where a parent is incarcerated, the petitioner "must prove by clear and convincing evidence that the parent has not or cannot be rehabilitated during incarceration so that when he or she is released from prison the parent would be unable to properly care for the child." (Ibid.) This "requires solid, credible evidence and not mere speculation." (Ibid.)
We review a court's factual findings under section 7825 for substantial evidence; that is we" 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].'" (In re Angelia P. (1981) 28 Cal.3d 908, 924.) The ultimate "decision to terminate parental rights lies in the first instance within the discretion of the juvenile court, and will not be disturbed on appeal absent an abuse of that discretion." (Baby Girl M., supra, 135 Cal.App.4th at p. 1536.)
Here, appellant does not contend the facts of her crime in and of themselves did not prove her inability to safely parent a child. Rather, she contends the evidence compelled the trial court to find she had rehabilitated since committing the crime, precluding a finding that, at the time of trial, appellant was unfit. Appellant argues that the court's ruling "does not give a complete picture of the evidence and does not recognize that [appellant] did in fact accept responsibility for [Sophia's] death in writing and during testimony." We view appellant's claim as merely a plea for us to reweigh the evidence. We include a significant portion of the trial court's discussion, as it is relevant to appellant's claims and puts them into context:
"The Court has considered carefully and at great length the fact that [appellant] did not have a criminal record as an adult. The Court is cognizant that [appellant] has had another child since giving birth to [B.P.] and after Sophia's death. It may be that [appellant] is raising that newest child, without intervention or oversight by CPS. But this Court does not know whether that is so, because there was not sufficient evidence introduced about those circumstances.
Appellant testified that she was pregnant as of the time of the first day of the hearing and was due in March. No evidence about this child was introduced at the second day of the hearing, which presumably occurred approximately five months after the child's birth.
"The Court has also reflected carefully on the efforts [appellant] has made since Sophia's death to address the failures that led to this tragedy, at least to the extent those efforts are reflected in the evidence. [Appellant] testified that she began counseling the year after Sophia died and attended counseling until she was incarcerated. She returned to counseling at some point after she was released and continues in counseling to this day. When asked to describe the areas of her several years of counseling had addressed, [appellant] responded, 'Grief, coping mechanisms, and my understanding of my responsibility and my-of my daughter's death.' The Court notes that [appellant] did not say, 'for [emphasis added] my daughter's death.'
"[Appellant] also testified that she had attended and completed a 10-week on-line parenting class after her release from prison. When asked at trial to describe the course, [appellant] testified that she 'believed it was on neglect and something else.' With her memory refreshed at trial, [appellant] was able to testify that the title to the course was 'Nurturing Parenting/Neglect.'
"At this trial, conducted seven and one-half years after Sophia died, [appellant] remains unable to accept meaningful responsibility for her part in Sophia's death. [Appellant] testified that she was responsible because she was a poor judge of character and trusted the wrong people. That's why she 'lost her child'; she 'failed … and she didn't protect her right.' In addition, [appellant] clung to the assertion that she never left anyone other than Tonya in charge of Sophia when [appellant] … left the home without her daughter, an assertion contradicted by other parts of her testimony (e.g., how and when Sophia sustained the facial injuries). The Court does not find [appellant]'s testimony that she left only Tonya in charge of Sophia on the evening of January 12, 2013, at all credible. The Court is persuaded, clearly and convincingly, that [appellant] knew, or reasonably should have known, that Sophia would be [Jared]'s responsibility for at least part of that evening. [Appellant] also knew that there was an ongoing CPS investigation into the injuries Sophia suffered two weeks earlier, and that [Jared] was suspected of inflicting those injuries. [Appellant] knew, or should have known, that the investigation had not yet been concluded, a risk/responsibility decision had not been reached, and the CPS case was ongoing. She knew the agency's concerns were about head injuries to a toddler, not about a charge that the child was eating too much Ramen noodles. [Appellant] testified that her own, after-the-CPS-contact-fact investigation into the mechanism of that injury was not sufficient to establish what had happened to her daughter. Perhaps not with certainty, but surely the suspicion, or even the mere possibility that her boyfriend could have done this would have caused [appellant] to act with increased vigilance. The injuries involved were to the toddler's head. The child was at a fragile and vulnerable stage of development, particularly reliant on adequate care and supervision of those responsible for raising her, in this case, her mother. The evidence supported the conclusion that [appellant] at this time did not entirely trust [Jared] when it came to taking care of Sophia. Under these circumstances, if [appellant] knew, as she testified she did not, that Tonya went to bed at 10:00 p.m., that [Jared] did not, and that her baby went to sleep between 9:00 and 10:00 p.m. at night, [appellant] should have been home before 10:00 [p].m. to make sure her toddler was safe. Instead, [appellant] came home three hours later, having partied with friends. [Appellant] did not recognize that this was a critical failure on her part.
"At this trial, [appellant] could or would not recognize that she had an actual role in Sophia's death. She apparently did not adequately absorb any information about the signs of abuse and the developmental vulnerabilities of infants, toddlers, and children in her parenting/neglect class. Not only did [appellant] appear unclear about the exact crime for which she had been convicted, she seemed to equate her failure as something in the nature of a less malign form of neglect, not recognizing that her choices, and the actions they drove, constituted willful cruelty to a vulnerable 15-month-old baby, her baby, the baby whose world was her mother. [¶] … [¶]
"It has been nearly nine years since Sophia died. It has been over five years since [appellant] was convicted of willful cruelty and almost four years since her release from prison where she has said she gained in maturity. Double jeopardy protects her from further criminal repercussions arising out of Sophia's death. Still, [appellant] cannot articulate clearly, accurately, and with a level of remorse that reflects ownership of her culpability, what her role was in Sophia's death. She still hesitates and dissembles, despite her counseling and education efforts. [Appellant]'s demonstration through her testimony of significantly impaired insight does not bode well for her ability to exercise sound judgment about protective issues involving risks of harm to her children."
Appellant asserts that, contrary to the trial court's finding, "the evidence overwhelmingly shows that [appellant] demonstrated that she accepted responsibility for [Sophia]'s death." She points to her written objection to the petition where she wrote she "accept[ed] responsibility for failing to protect [her] child," explaining she was young, made poor choices, was a bad judge of character, and trusted the wrong people. Appellant goes on to point out instances during trial where she contends she took responsibility for the crime, again explaining she had poor judgment and trusted the "wrong people."
As is evident from the trial court's ruling, the trial court expressly acknowledged these statements. Contrary to appellant's assertions, the trial court was not required to accept them as evidence appellant had meaningfully accepted responsibility for Sophia's death so as to protect the future safety of B.P. Rather, the trial court could reasonably interpret appellant's explanation that she "trusted the wrong people" as reductive and shallow. Appellant does not cite, nor can we find, any instance in the record where appellant identifies who she believed were the "wrong people" she trusted, expands on what specifically she means by the "wrong people," or explains how she has learned to avoid and/or protect her child from the "wrong people" in the future despite serving her prison sentence, participating in counseling, and completing her parenting course. The court could reasonably rely on these gaps in appellant's testimony to conclude appellant "did not adequately absorb any information about the signs of abuse and the developmental vulnerabilities of infants, toddlers, and children in her parenting/neglect class."
In addition, appellant's bare assertions she "trusted the wrong people" and was a poor judge of character are not even supported by her own reflections on her crime. Appellant never expressly identified Jared as one of the "wrong people" she should not have trusted nor described why Jared should not have been trusted to care for Sophia. Instead, she expressly denied having any reason to know Jared had ever harmed Sophia prior to the night she was killed. Further, though appellant never admitted she had any reason not to have left Sophia in Jared's care, she was consistently evasive about whether she ever did so, making a point to specify another person, like his stepmother or Tonya, was left in charge and that Jared just happened to be present. The trial court's finding appellant knew or should have known Jared posed a danger is supported by the circumstances of the criminal case, but appellant was never able to admit this herself at trial. This conflicts with prior statements described in the family court services investigator's report that she was aware Jared was unsafe. Appellant's inability to articulate the risk Jared posed paired with her denial she left Sophia in his care contradicts the apparent theory behind her conviction and therefore belies appellant's assertion she understood the reasoning behind her charge and supports the trial court's conclusion she "cannot articulate clearly, accurately, and with a level of remorse that reflects ownership of her culpability, what her role was in Sophia's death." The evidence supported the trial court's finding that appellant's limited understanding of the circumstances that caused Sophia's death was adequate to prove her inability to safely parent B.P.
"[Counsel]. Okay. Who was present with her [the morning Sophia was discovered dead]? "[Appellant]. My roommates. "[Counsel]. Your roommates? "[Appellant]. Yes, sir. "[Counsel]. And did you-who did you leave in charge of Sophia? "[Appellant]. Tonya W[.], my roommate. [¶] … [¶] "[Counsel]. Who else was there? "[Appellant]. Her husband. "[Counsel]. What's his name? "[Appellant]. James C[.] "[Counsel]. C[.]? "[Appellant.] Yes. "[Counsel]. And was there anyone else there? "[Appellant]. There was two other male individuals. "[Counsel]. Who were they? "[Appellant]. Alex-forgive me. I can't remember his last name. And Jared R[.]" Later, respondent's counsel's asked appellant, "And then so after the black eye, when [Jared] and his mother was present, you got no answer; CPS comes to the house; then you left the child in the care of [Jared] and others on the 13th of January?" Appellant answered, "She was-I left her with my roommate. And [Jared] lived at the residence as well. So I did not necessarily leave her with him, but he was also present at the time when I left." Appellant was similarly evasive about leaving Sophia in Jared's care prior to the night Sophia died: "[Counsel]. Who was in the bedroom watching her when she got the black eye? "[Appellant]. [Jared]'s stepmother. "[Counsel]. Was [Jared] present, to your knowledge? "[Appellant]. As far as I knew, yes." For example, when respondent's counsel was questioning appellant about the circumstances of the night of Sophia's murder, the following colloquy took place:
In sum, we conclude the trial court's findings were supported by substantial evidence, bearing in mind the clear and convincing standard. Therefore, even if we could reasonably find some evidence supporting appellant's position, it would not affect our ultimate conclusion. (See In re Travis C. (2017) 13 Cal.App.5th 1219, 1225 [" 'The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed [the] other evidence.' "].)
Appellant's comparison of her case to Terry E. is unpersuasive. In Terry E., the trial court terminated the appellant's parental rights based on her convictions for false imprisonment, oral copulation, and penetration by a foreign instrument, which the appellant perpetrated with her boyfriend against her boyfriend's ex-wife. (Terry E., supra, 180 Cal.App.3d at pp. 937‒939.) In prison, the appellant participated in an" 'effective parenting and child care'" course, which was a 12-week course for three hours per day, five days a week. (Id. at p. 945.) The course "went into great depth about raising children from birth to adulthood" and "involved lectures, films and group discussions." (Ibid.) She had counseling with the prison psychiatrist in stress management therapy group sessions that she completed to better qualify for her ultimate reunification with her children. (Id. at p. 946.)
This court in Terry E. explained that the appellant's depraved crimes did not "foreclose inquiry three and a half years later at the [termination] hearing as to whether [the] appellant had rehabilitated herself so that she would no longer be unfit to have the custody and control of her children." (Terry E., supra, 180 Cal.App.3d at p. 951.) This court noted, under the facts of that case, the appellant had proven she would be able to properly care for her children upon her release based on her efforts and the respondent had not rebutted the proof. (Ibid.) This court therefore found there was no evidence on which a "trier of fact could objectively find a reasonable probability that the conditions, i.e., the criminal disposition of the parent which gave rise to the felony convictions would continue in the future to render the parent unfit to care for the child" and accordingly concluded insufficient evidence supported the trial court's findings. (Id. at p. 952.)
Here, the trial court expressly and thoroughly considered the possibility that appellant had rehabilitated, in congruence with Terry E. Factually, while Terry E. presents some similarities in that appellant here has participated in a parenting class and counseling, it is distinguishable in that the trial court here could, for the reasons we have explained, reasonably find the conditions that gave rise to appellant's conviction would continue. The court could reasonably determine appellant's own testimony demonstrated her inability to meaningfully accept her role in Sophia's death and thus proved she posed a current risk to B.P.
Appellant also argues the court erred by inappropriately relying on the absence of a bond between appellant and B.P. rather than considering only the facts of appellant's felony conviction. Appellant's argument stems from two instances in the record. First, during trial, the court allowed testimony on appellant and B.P.'s relationship over objection, stating "[t]he degree to which there is a bond between a parent and a child has a lot to do with future risk to that child." Second, the trial court, in its written ruling, addressed the facts that appellant had not seen B.P. in two years and stated that "it would be unusual if there were any child/parent bond or attachment between [B.P.] and [appellant], and the strength and quality of that relationship is a factor that the Court considers relevant to the issue of fitness for future custody and control." In arguing that the trial court erred by discussing appellant and B.P.'s relationship, appellant ignores the court's responsibility to determine whether termination is in the child's best interests.
While section 7825 does not reference the best interests of the child, the purpose of the statutory scheme as a whole is to "serve the welfare and best interest of a child" (§ 7800), and it is to be "liberally construed to serve and protect the interests and welfare of the child" (§ 7801). In conducting hearings pursuant to section 7825, the court "shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child." (§ 7890.) The best interests of a child are "paramount in interpreting and implementing the statutory scheme" governing when and how to free a child from parental custody and control. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) Thus, the best interests of the child is always an overarching concern once a petitioner has presented clear and convincing evidence satisfying one of the statutes. (See In re Baby Boy S. (1987) 194 Cal.App.3d 925, 933 ["Absent intent on the part of the parents to abandon the child, as the court found here, the best interests and welfare criteria are simply not applicable."].)
We conclude based on the court's responsibility to consider whether termination was in B.P.'s best interest, the relationship between appellant and B.P. was not irrelevant. We acknowledge a trial court is not to consider a child's best interests until it has found the requirements of a termination statute has been proven. We also appreciate appellant's concern that the court twice framed its consideration of the relationship between appellant and B.P. as relevant specifically to the issue of fitness for future custody and control. In the context of the court's thorough analysis, however, we do not find any misuse of the evidence. Here, the court prepared a thorough 20-page long written ruling, which included summaries of the procedural facts, evidence, and relevant law, as well as a separate numbered list of the factual findings the court made "[a]fter weighing the evidence, resolving any conflicts therein, and evaluating the credibility of witnesses," which represented to the court clear and convincing evidence that section 7825 had been met. Finally, the court included a detailed discussion explaining its decision and addressing appellant's argument as to why the petition should not be granted, which we have detailed verbatim in this opinion.
Viewing the court's ruling in its totality, we conclude the court clearly found the facts of appellant's underlying felony satisfied the requirements of section 7825 without regard to the relationship between appellant and B.P. It was only in the penultimate paragraph of the court's thorough analysis that the court noted appellant and B.P. had no demonstrable bond. The court went on to explain in the same paragraph: "[Appellant] wants primary custody of [B.P.] at some point. But such an arrangement may not be in [B.P.'s] best interests. It would take considerable work, determination, maturity, and a willingness to come to terms with some painful truths before such consideration could appropriately [be] given to such a request. [Appellant] has demonstrated she is not yet capable of pursuing this effort." (Italics added.) The trial court's consideration in context of its entire ruling was not inappropriate. Indeed, had the trial court not considered the effect termination would have had on B.P., including her relationship with appellant, it would have erred. Here, the fact that appellant had had little contact with B.P. and that B.P. was very young supported the trial court's determination that its termination order would be in B.P.'s best interest. Even if we were to find the trial court erred by inappropriately relying on the relationship between appellant and B.P., we conclude any error is harmless given the court's other findings.
Finally, appellant suggests that the court erred by granting respondent's petition in violation of public policy favoring a child having two parents. Appellant points out "there is not any pending petition to adopt [B.P.] in place of [appellant]; [B.P.'s] father is simply seeking to cut [appellant] out of the picture, and leave [B.P.] with only one parent." We are not convinced. Termination under section 7825 is not conditioned upon the child having a stepparent.
We find no error.
DISPOSITION
The trial court's November 12, 2020 order granting respondent's petition to free B.P. from parental custody and control of appellant is affirmed.
WE CONCUR: DETJEN, ACTING P. J. SNAUFFER, J.