Trial Court: Contra Costa County Superior Court Trial Judge: Hon. Charles B. Burch Super. Ct. No. A09-00237)
The opinion of the court was delivered by: Lambden, J.
CERTIFIED FOR PUBLICATION
Misty F. (mother) and Jesse M. (father), the biological parents of Myah M., agreed when Myah was two years old that Janice M. (paternal grandmother) and Anthony M. (paternal grandfather) should be the guardians of Myah.*fn1 The court issued an order in 2006 pursuant to the parties' stipulation, which granted letters of guardianship to the paternal grandmother and paternal grandfather (collectively, paternal grandparents). Four years later, in 2010, the grandparents requested to adopt Myah and to terminate parental rights of mother and father pursuant to Probate Code section 1516.5. The court found that adoption was in Myah's best interest and ordered the termination of parental rights of mother and father.
On appeal, mother and father separately challenge the order terminating their parental rights by attacking the 2006 order of guardianship. They maintain that the court knew of the allegations of the parents' unfitness and the court violated their due process rights under Probate Code section 1513, subdivision (c) and our holding in Guardianship of Christian G. (2011) 195 Cal.App.4th 581 (Christian) when it did not refer the case to the county child welfare agency prior to issuing the guardianship order. Mother and father also directly challenge the order terminating their parental rights. They maintain that their due process rights were violated because the court did not make a finding of parental unfitness and, even if such a determination did not have to be made, substantial evidence did not support the lower court's finding that it was in Myah's best interest to terminate the parental rights of mother and father.
We are not persuaded by the arguments of mother or father. We hold that the court was not obligated to refer the matter to the county child welfare agency prior to issuing the guardianship order because unlike the situation in Christian, supra, 195 Cal.App.4th 581, where the appellant father contested the guardianship, mother and father in the present case stipulated to the guardianship after participating in mediation. We also conclude that the facts of this case did not require the court to make a finding of parental unfitness and substantial evidence supported the lower court's finding that terminating parental rights was in Myah's best interests.
Mother and father are the biological parents of Myah, who was born in 2004. Mother has another child who was living with mother and father when Myah was born.*fn2 She has two other children who were given up for adoption shortly after they were born.
Mother and father had drug issues and an unstable relationship. When Myah was five or six months old, they began to leave Myah with paternal grandparents. In the beginning, they left her with them for a day or weekends but by the time Myah was 10 months old they were leaving her with paternal grandparents for about five days a week. By February 2006, paternal grandparents were caring for Myah full time. Paternal grandparents reported that, in 2006, Myah had behavioral issues such as hitting her head when she heard loud noises and screaming.
Father and mother were living together in a trailer. Mother testified that both she and father engaged in domestic violence. They were both using methamphetamine. In addition, the parents had a history of alcohol and cocaine abuse. In March 2006, the parents were arrested on drug possession charges.
The maternal grandmother and paternal grandparents consulted with Child and Family Services (CFS). Following the instructions of the CFS worker, in April 2006, the maternal grandmother petitioned the court to be reinstated as the legal guardian of Myah's half brother, and paternal grandparents filed a petition for temporary and permanent guardianship of Myah. On April 12, 2006, the court issued the temporary guardianship.
A court investigator provided a report and recommendation pursuant to Probate Code section 1513. The investigator noted that the CFS worker had contacted the parents in May 2006, but closed the case once paternal grandparents filed for guardianship. The investigator checked a box in the report indicating that there had been no referral to CFS. The investigator visited Myah in the grandparents' home and noted that she seemed clean, appropriately dressed, alert, playful, and affectionate. The investigator recommended that the parents have supervised visitation, submit to random drug screens, and complete treatment and/or counseling. Mother and father never responded to the investigator's letters asking them to contact her.
At the hearing on the paternal grandparents' petition for appointment of permanent guardianship for Myah, both mother and father appeared. The court ordered the parties to participate in mediation and continued the matter. It ordered supervised visits between Myah and her parents.
Paternal grandparents, father, and mother participated in mediation and then entered into a stipulation that was filed on July 14, 2006.*fn3 Mother agreed that she would not contest the granting of guardianship of Myah to paternal grandparents. She also agreed to drug testing. Father agreed that it was in Myah's best interest for his parents to be granted guardianship. He also agreed to drug testing. The parties concurred that mother and father could visit with Myah when paternal grandparents were present.
On July 14, 2006, the court accepted the stipulation and appointed paternal grandparents to be Myah's guardians. The court order provided that "unsupervised visitation [between Myah and mother and father] shall be allowed only after [the parent has] two clean [drug] tests and while the parent is participating in random drug testing."
In 2006 or 2007, father participated in Proposition 36 diversion and services. Mother was incarcerated from the end of 2006 through 2007.
In January 2009, after paternal grandmother was diagnosed with cancer, paternal grandparents asked father to move into the home and help care for Myah. He moved into the home of paternal grandparents.
On May 19, 2009, according to paternal grandfather, he was on the phone with mother and talking to her about her request to visit Myah at a place outside the home. Paternal grandfather did not think it was a good idea, and father became angry. Paternal grandfather explained that the following occurred: "[Father] grabbed me by the neck, threw me up against the wall, hit me in the ear, really, it was the side of the head, threw me down. And it was all in front of [Myah]. And, also [Myah] went screaming and crying." Paternal grandfather called the police. Paternal grandmother testified similarly. Father said that he picked paternal grandfather up, but did not slam him against the wall. He said that he became frustrated.
Father moved from the home of paternal grandparents in July 2009, when he was arrested for drug possession. When asked during the trial on adoption and termination of parental rights whether he resumed using methamphetamine during the years 2007, 2008, or 2009, father responded, "I don't recall." Father said that he last used drugs in late February 2010, when he was arrested for drug possession. Mother stated that she also participated in formal drug treatment services during this period, but continued to use drugs.
On September 8, 2009, paternal grandparents filed a petition requesting to adopt Myah and to terminate parental rights. They asserted that father and mother "have a long criminal history, drug abuse and domestic violence issues." They stated that both parents were arrested on March 11, 2006, for possession of drugs, and that neither parent had made any provisions for support of Myah since February 2006. They further stated that mother had given up her eldest son for guardianship and two other children for adoption.
In January 2010, the parents appeared and objected to termination of their parental rights. The matter was continued several times for counsel to be appointed for them. Once counsel was appointed, father filed objections and requested dismissal of the petition to terminate parental rights. Paternal grandparents filed a notice that they were proceeding under Family Code section 7800 and Probate Code section 1516.5, as alternate theories.
The court held a hearing on March 30, 2010. The court, among other things, consolidated the guardianship proceeding into the adoption proceeding pursuant to section 8802 of the Family Code.
On April 9, 2010, paternal grandparents filed a new petition pursuant to Probate Code section 1516.5. In May, the court considered mother's request for visitation orders, since paternal grandparents were not allowing her to have contact with Myah because of mother's drug use. The court told them to get together and work out a plan for supervised visits. The parties filed a stipulation that mother was to have supervised visits for two hours every Sunday afternoon at paternal grandparents' home and to have phone calls three days a week. Father was to have supervised visits every Saturday and phone contact twice a week.
The court investigator, Anne Silber, completed a report and recommendation on June 21, 2010. Silber stated that the parents oppose the proposed termination of their parental rights but supported the continuation of the guardianship, as they recognized that they were not in a position to provide a stable home for Myah. Paternal grandparents told her that the parents were long-term drug users and that they lacked stable housing and employment. They said that they would permit the parents to have contact with Myah after any adoption. The parents, however, expressed concern that paternal grandparents would move out of state, where they have extended family, and cut off the parents' contact with Myah. Paternal grandmother stated that she did not know if they would remain in California after her husband retired, because both of them have family in Pennsylvania and Wisconsin. She said that the parents have both threatened her life and that neither has done the drug testing or counseling ordered by the court.
Silber stated that father asserted that paternal grandparents reported at the time he first agreed to the guardianship that they would never take Myah away from him. He declared that he now believed they wanted to take her from him.
Silber also listed mother's extensive criminal history dating from 1998 until 2010. She also set forth father's criminal history, which included possession of controlled substances in 2002 and 2006.
Silber recommended that the court grant the petition of paternal grandparents. She explained: "This is a complex case because, while the parents are not in a position to regain custody of Myah and guardianship is still clearly appropriate, Myah has a relationship with both of her birth parents. The parents have not used the services available to stabilize their lives, such as drug treatment and anger management, although they have had ample time to do so. They have continued to call and visit Myah and give her gifts. They claim that [the guardians have refused] their offers of financial support . . . . Myah expressed positive feelings about seeing her parents (although her responses were limited). The parents state that they do not want to disrupt Myah's life but only want to maintain a relationship with her. The petitioners state that they will allow the birth parents to continue to have contact with Myah, but the parents do not trust that petitioners will keep that commitment. [¶] Probate Code [s]section 1516.5 requires a determination that the child would benefit from being adopted by the petitioners, based on consideration of all factors related to the best interest of the child, including the child's relationships with the parents, guardian and guardian's family, and siblings or half siblings. Myah would benefit from the proposed adoption in that she would have a secure, loving home that could not be disrupted. She could receive Social Security benefits in the event of the death of one or both petitioners while she is a minor. She would also be able to inherit from the petitioners (although an adoption is not necessary for that purpose). On the other hand, Myah appears to enjoy and benefit from her relationship with her birth parents and half sibling. The ideal outcome for Myah would probably be an adoption by petitioners in which she was guaranteed the right to continue her relationships with her birth parents and half brother, if that is possible."
On June 22, 2010, the court appointed counsel for the minor.
Trial on the petition of paternal grandparents began on October 19, 2010. Mother, father, and maternal grandmother testified that they were concerned that paternal grandparents would prevent the parents from having contact with Myah if the court terminated their parental rights.
Paternal grandmother testified that father had visited Myah and Myah looked forward to her visits with him. She agreed that it was in Myah's best interest to have ongoing contact with mother and father. When asked for her reasons for wanting to terminate parental rights, she responded: "Because we would like to provide [Myah] a stable, secure home, one without the conflict and emotional turmoil that has been going on. She deserves to have a life like a normal child does . . . ." She continued: "We also have committed ourselves to providing her the emotional stability that she needs. We love this child to death. We want to take care of her. [¶] But we also need to have a stable home life, something without interference, without the threat that we continually receive from the parents about showing up at her activities. . . . And the threats of physical abuse. The continued verbal abuse we take from the parents. That's not creating an environment that is good for raising this child. [¶] When we're away from the Bay Area, or there's no other contact, it's a whole different world. We all feel that [Myah] feels it. She loves it. She loves to go to Wisconsin and stay there forever. There's no interference in her life. [¶] Right now there's always a constant interference, unlike other children. And that's what we want to give to her. She has that right to have a stable home, one that is secure, and one that is going to be there forever without this constant threat [that] someone is going to take her from us or take her back. We don't know what type of a situation they're in. [¶] They asked us to watch her until 18 years old. I think we have a right to adopt her."
Paternal grandmother explained that when she said that she wanted to be free of interference, she was not referring to the need to provide visitation to the parents. Rather, she was referring to the parents yelling in front of Myah. She elaborated, that the parents yell at her and threaten her about the way they are raising Myah. Paternal grandfather testified that he intended to allow Myah to have continued contact with her parents.
Silber, the court investigator, testified. She stated that paternal grandparents were clear with her that they were going to continue to allow contact between Myah and the parents. The court expressed concern that paternal grandparents could stop contact between Myah and mother and father if they became the legal parents of Myah. Silber stated that it was her "hope" that the "parties could come to an agreement in mediation[.]" Silber commented that this was an unusual case because generally parents have been absent for a long time when the court was considering whether to terminate the parental rights. When asked if it were not possible for the outcome to be adoption with the guaranteed right for Myah to continue her relationship with mother and father, what would her next recommendation be, Silber replied: "For continuation of the guardianship, perhaps with some mediation around visitation. I don't know how the visitation is going now. This is a few months ago, but I know there were some issues then."
The court asked Silber whether Myah would be better off having contact with mother and father even if there was conflict. She answered that as a result of her background in social work, she believed it would be more devastating to Myah to lose contact with her biological parents and that it was not Myah's fault that the adults could not get along. She acknowledged that ongoing tension in the household "probably diminished" the benefit of seeing the biological parents. She also agreed that the guardianship had been in place for a little more than four years, giving the biological parents ample time "to get their act together," but they had failed to do that. She opined that it would be very difficult for the biological parents to terminate the guardianship at this point because Myah was doing so well in the home of paternal grandparents.
Counsel for Myah testified that Myah told him that she enjoyed her visits with mother and father and would like them to continue. When he asked her how she would feel if her paternal grandparents were going to be her parents instead, counsel stated that Myah's "affect changed notably." He said that "[h]er eyes brightened a little bit. She said that she would." When asked how she would feel if she could not see her mother and father, she said that she could not "imagine not seeing her father any more, but she did ...