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In Re Marriage of E. and Stephen P. v. Stephen P

February 13, 2013

IN RE MARRIAGE OF E. AND STEPHEN P. E. P., RESPONDENT,
v.
STEPHEN P., APPELLANT.



APPEAL from an order of the Superior Court of the County of Los Angeles, John L. Henning, Judge. (Los Angeles County Super. Ct. No. BD415568)

The opinion of the court was delivered by: Mosk, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed.

INTRODUCTION

Stephen P. (father), the adoptive father of S.P. (the minor), appeals from the trial court's order granting the petition of the adoptive mother of the minor, E.P. (mother), to terminate father's parental rights to the minor under Family Code section 7827*fn2 (mental disability). According to father, the trial court committed per se reversible error when it failed to order and consider an investigation by a licensed clinical social worker under section 7850 and a report by that social worker under section 7851. Father also contends that because it is only in rare and exceptional cases that a trial court should terminate parental rights when no adoption is pending, the trial court erred by terminating parental rights here as no adoption was pending. Father further argues that the trial court erred by failing to consider less drastic alternatives to terminating his parental rights.

We hold that father forfeited on appeal his contentions concerning the application of sections 7850 and 7851 by failing to raise the issue in the trial court; there is an insufficient showing of ineffective assistance of counsel in connection with such forfeiture; in any event, father failed to demonstrate that sections 7850 and 7851 applied to mother's petition; and if they did apply, father failed to show that he suffered prejudice from the trial court's failure to order and consider the investigation and report required under those sections. We further hold that substantial evidence supports the trial court's finding that terminating father's parental rights was in the best interests of the minor, as well as the trial court's implicit conclusion that no less drastic alternatives to termination were reasonably available. We therefore affirm the order terminating father's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

A. Summary

Mother and father married and adopted the minor. Prior to the marriage, father suffered from mental illness, but had taken medication that allowed him to function normally. Shortly after they adopted the minor, father stopped taking his medication. As he failed to take medication, his mental condition deteriorated to the point where it seriously impacted his relationship with mother and the minor and resulted in restraining orders being issued. On one occasion, father appeared unannounced at mother's home and tried to force her and the minor into his vehicle; in the resulting struggle, the minor fell from mother's arms and fractured his skull. Mother ultimately filed a petition for dissolution of the marriage and was awarded sole custody of the minor.

Mother also filed an initial petition to terminate father's parental rights pursuant to section 7827.*fn3 In response to the petition, the trial court appointed a psychologist and a psychiatrist to examine father and prepare reports with their diagnoses and prognoses. According to mother, after she and the minor moved out of state, father suffered a criminal conviction for the attempted murder of his mother. Nevertheless, mother later stipulated with father to dismiss her petition to terminate father's parental rights in exchange for father's agreement to undergo treatment and take medication for his mental illness. Mother then allowed father to re-establish a relationship with the minor, who was in therapy.

Shortly after entering into the stipulation, father again refused to take his medication and his mental condition began to deteriorate, leading mother to reinstate her petition to terminate father's parental rights. After the filing of the reinstated petition to terminate parental rights, the trial court appointed a psychologist and two psychiatrists to evaluate father's mental condition. All of the experts reported that father was mentally disabled within the meaning of section 7827, and that if he continued to refuse to comply with medical treatment recommendations, he would remain disabled for the foreseeable future. At trial on the reinstated petition, the testimony of the experts was consistent with their reports. The trial court concluded that "section 7827 applies to [father]. All experts agree that the best interest of the [minor] is that the parental rights of [father] be terminated. . . . Therefore, the court finds that section 7827 of the Family Code applies to [father] and [father's] parental rights are terminated."

B. Mother's Testimony

Mother married father in 1999. Prior to their marriage, father informed mother that he suffered from mental illness, but prior to the adoption of the minor, father took medication regularly and behaved normally. During the proceedings relating to the minor's adoption, the trial court questioned father about his mental illness and willingness to take his medication. Father confirmed that he would always take his medication and stay mentally healthy. Father and mother adopted the minor in or about 2002.

Shortly after the adoption, father began to deteriorate mentally because he refused to take his medication. Father continued to refuse to take his medication for about two years. During that time, mother observed father's mental condition become progressively worse. According to mother, father "was erratic with money, erratic with driving." He began to "smoke pot, start[ed] drinking, [conduct that was] out of character . . . ." Around October 2004, mother finally decided to separate from father when the minor was two and one quarter years old. Following the separation, mother obtained restraining orders against father, but he repeatedly violated those orders.

On one occasion, father came to mother's house and asked to play with the minor, who was sick. While mother was occupied in the kitchen, father took the minor outside to play in the rain. When mother asked father to come inside, he refused. When she asked father again to bring the sick minor inside, father locked himself and the minor in the minor's room and "held him captive . . . ." Father's behavior prompted the police and fire departments to intervene.

On a subsequent occasion in 2005, mother had just come out of the shower into the living room to check on the minor. But "[s]omething didn't feel right." There was a man standing in the living room that mother did not recognize and the front and back patio doors were wide open. Because mother had not seen father for several months, it took her "a minute to figure out" that the man in the living room was father. The minor had climbed on the back of the couch and appeared scared "like a cat with the cat's back up." When mother asked father why he was there, he told her he had come to protect her, that she could not stay there, and that she had to come with him. Father took the minor from mother and "dragged" mother, who was only wearing her bath towel, and the minor out of the house through the front door. Mother screamed for help as father "literally threw [the minor] in the back of the SUV." Mother tried to prevent father from taking the minor by "grabb[ing] the steering column," which broke. While father was distracted, mother "grabbed [the minor] and started to run up the hill." Father pursued and pushed mother causing the minor to fall from her arms and hit his head on the concrete. The minor fractured his skull and "[t]here was just a lot of bleeding and bruising." Father was arrested and charged with causing great bodily injury to a child.

In April 2006, mother filed an amended petition for dissolution of marriage. In December 2006, the trial court entered a judgment on the amended petition that, inter alia, awarded sole custody of the minor to mother. In December 2006, mother filed an initial petition to terminate father's parental rights pursuant to section 7827.

In 2007, mother and the minor moved to North Carolina. At the time of mother's relocation, father was in jail. After mother's relocation, father was arrested for the attempted murder of his mother. Mother said father was subsequently convicted of attempted murder.

In June 2010, mother entered into a stipulation with father in which she agreed to dismiss her petition to terminate father's parental rights in exchange for father's agreement to undergo treatment and take medication for his mental illness. Mother entered into the stipulation because father had been taking his medication and she had therefore allowed him to have contact with the minor. Mother allowed the minor to re-establish a relationship with father when the minor was seven and a half years old, in or about early 2010.*fn4 The relationship lasted for about eighteen months. During that time, the minor was in therapy.

After mother entered into the stipulation with father in June 2010 to dismiss her petition to terminate parental rights, she attempted to exercise her right under the parties' stipulation to request that father undergo testing to ensure that he was taking his medication. In response, father told mother that there was nothing wrong with him and that he did not need any medication. During the last six months of the minor's reestablished relationship with father, the minor witnessed behavior by father that was indicative of mental illness. Father's conversations with the minor "were erratic. He would tell [the minor] that he was the big bad boss daddy [and] that he worked for the CIA. [Father told the minor that] if he couldn't be with [the minor], he was probably on a CIA mission. But according to mother, father "didn't work for the CIA ever." Father would also leave voice messages for the minor "about his working for the CIA. He would leave messages for [the minor] that were inappropriate about [the minor's] body and aging and what would happen . . . [¶] . . . Some of father's messages made absolutely no sense. . . . Some of them were that [father and the minor] could live in a tent. They could be happy."

C. Reinstatement of Petition to Terminate Father's Parental Rights

In May 2011, based on mother's concerns about father's refusal to comply with the parties' stipulation and take his medications, the trial court appointed a psychologist, Dr. Kaser-Boyd, to evaluate father. Based on Dr. Kaser-Boyd's September 2011 evaluation discussed below, the trial court reinstated mother's petition to terminate father's parental rights in October 2011. Mother wanted to terminate father's parental rights to the minor "[b]ecause [father was] not a stable person mentally and emotionally. He [had] been in and out of jail and mental hospitals." Mother further explained that the persons she had selected to act as guardians for the minor in the event she passed away before the minor turned 18 would not agree to act in that capacity if father continued to have parental rights. The guardians were concerned that any money mother would leave for the minor's care after her death would be depleted by litigation over father's parental rights to the minor.

Mother believed that father could hurt the minor. She was concerned about the minor's safety because of father's mental illness and his unpredictable behavior toward the minor. The minor had no contact with father from and after April 2011. According to mother, ...


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