(Contra Costa County Super. Ct Nos. A08-00006, A08-00007). Hon. Barry Baskin.
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
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.*fn2 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.
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.
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 intermittent.*fn3 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.*fn4
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.*fn5 Raymond has neither had any contact with the minors nor sought visitation with them since April of 2005.
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 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."*fn6 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."
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 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 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.*fn7 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.
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 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 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.
THE APPEALS OF THE PARENTS
I. The Due Process Challenge to Section 1516.5
Raymond has presented a due process challenge to section 1516.5, which in pertinent part provides in subdivision (a) that in a guardianship proceeding a petition to have a child declared free from the custody and control of one or both parents may be brought "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."*fn8 Raymond argues that "under long- established principles applicable to the involuntary termination of parental rights, the procedure authorized by section 1516.5 violates a parent's rights to due process under our federal and state Constitutions by permitting such termination on the basis of requirements which are insufficient to provide a level of due process commensurate with the rights and interests at stake."
"Parents have a constitutional right to due process of law before the state may interfere with their parental rights. [Citation.] ` "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." ' [Citation.] [¶] To determine whether a procedure satisfies due process, the courts balance three factors: (1) the interest affected by the proceeding; (2) the risk of an erroneous deprivation of the interest created by the state's chosen procedure; and (3) the countervailing interest supporting use of the challenged procedure." (In re E.S. (2009) 173 Cal.App.4th 1131, 1138-1139 [93 Cal.Rptr.3d 470].)
In two very recent cases the California Supreme Court declared definitively that "section 1516.5 does not violate due process on its face by adopting the best interest of the child as the standard for terminating parental rights." (In re Charlotte D. (2009) 45 Cal.4th 1140, 1142-1143 [90 Cal.Rptr.3d 724, 202 P.3d 1109], citing Guardianship of Ann S. (2009) 45 Cal.4th 1110 [90 Cal.Rptr.3d 701, 202 P.3d 1089] (Ann S.).) In Ann S., as in the present case, a parent - there, the mother - raised a facial challenge to the constitutionality of section 1516.5 in all cases, and did not "contend the statute is invalid based on any aspect of her particular circumstances...." (Ann S., supra, at p. 1126.) The mother argued "that section 1516.5 is unconstitutional because it permits the termination of parental rights based only on the child's best interest. She contend[ed] due process requires a showing by clear and convincing evidence that the parent is presently unfit, or that terminating parental rights is the least detrimental alternative for the child." (Id. at p. 1127.) The court observed: "The gravamen of mother's claims is that section 1516.5 violates due process by failing to require a finding of parental unfitness before the court frees a child for adoption. It is settled, however, that such a finding is not an invariable constitutional requirement when parental rights are terminated." (Id. at p. 1128.) The court found that the mother fell "well short of establishing that `in the generality or great majority of cases' section 1516.5 violates the due process rights of parents who have demonstrated a full commitment to their responsibilities. [Citation.] Termination of parental rights and adoption by a guardian can occur only when the parent has surrendered custody to the guardian and exercised no parental care or control for at least two years. (§ 1516.5, subd. (a).) A prolonged guardianship, during which all parental rights and custodial responsibilities are suspended, with the possible exception of visitation rights, is generally inconsistent with `a full commitment to... parental responsibilities - emotional, financial, and otherwise.' [Citation.]" (Id. at pp. 1131-1132, fn. omitted.) Upon consideration of the elements of section 1516.5, the court concluded: "After years of guardianship, the child has a fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver. [Citations.] The guardian, after fulfilling a parental role for an extended period, has also developed substantial interests that the law recognizes. [Citations.] The parental unfitness criterion urged by mother fails to account for these competing interests, whereas the best interest of the child standard allows the court to appropriately balance all the relevant factors arising from the child's family relationships. [Citations.] [¶] Accordingly, we hold that section 1516.5 is not unconstitutional on its face for failing to require a finding of present parental unfitness." (Id. at p. 1136, fn. omitted.)
In the companion case of In re Charlotte D., supra, 45 Cal.4th 1140, 1147, the court reiterated: "As we explained in Ann S., supra, 45 Cal.4th at pp. 1131-1136, section 1516.5 is facially constitutional. The statute applies only when a child has spent at least two years in a probate guardian's custody. During that time all parental rights and custodial responsibilities are suspended, with the possible exception of visitation. Thus, the due process requirement of a showing of parental unfitness, which protects a parent's interest in child custody, is not necessarily applicable at the time of a section 1516.5 hearing. As a general proposition, parental rights may be terminated based on the child's best ...