Opinion
F050050
12-11-2006
In re C.G. et al., Minors. MICHAEL J. et al., Petitioners and Respondents, v. STEVEN G., Objector and Appellant.
Carol A. Koenig, under appointment by the Court of Appeal, for Objector and Appellant. Crabtree, Schmidt, Zeff & Jacobs and Nan Cohan Jacobs for Petitioners and Respondents.
Appellant Steven G. appeals from the judgment terminating his parental rights to his two daughters, C.G. and M.G., pursuant to Family Code section 7822. C.G. was born in December 1993, and M.G. was born in March 1996. Steven contends the trial court erred in failing to (1) order an investigators report pursuant to section 7851; (2) consider appointing counsel for the minors pursuant to section 7861; and (3) consider the wishes of the children pursuant to section 7890. He also claims the evidence was insufficient to show that he abandoned his children pursuant to the criteria set forth in section 7822.
All further statutory references are to the Family Code unless otherwise noted.
We will reverse the judgment and remand the matter to the trial court.
FACTUAL AND PROCEDURAL SUMMARY
On November 17, 2003, temporary letters of guardianship were issued appointing Shana as legal guardian of C.G. and M.G. Permanent letters of guardianship issued on January 27, 2004.
On October 20, 2005, Shana and her husband, Michael, filed petitions to declare C.G. and M.G. free from parental control and custody pursuant to section 7822. They also sought to adopt both girls.
The petitions alleged that the natural parents, Steven G. and J.R., had left the girls in the care and custody of the petitioners for a period of more than six months without any provision for support. The petition also alleged the natural parents had maintained only token communication with the girls and intended to abandon them.
Jonette was not a party to these proceedings or to this appeal.
On November 21, 2005, Steven appeared in court and objected to the petitions. The trial court appointed counsel to represent him. The trial court continued the matter to December 21. On December 21, the trial court again continued the matter to January 30, 2006. On January 19, the parties stipulated to continue the matter to February.
There is no evidence in the clerks transcript indicating the trial court considered appointing counsel for the children. Nor is there any indication the trial court ordered the preparation of an investigative report.
In February, both Shana and Steven were present for the hearing with their counsel. By this time C.G. was 12 years old and M.G. was one week shy of 10. The girls were not present at the hearing.
Shana testified that C.G. and M.G. had been living with her since September of 1998. Initially, the girls and their mother, J.R., moved in with Shana. After about a year, J.R. left and did not return or communicate with the girls. From 1998 to November 2003, when Shana was named legal guardian, Steven had contact with the girls when they visited their paternal grandparents. Steven never attempted to visit or contact them at Shanas home.
After the guardianship was granted, Steven sent a few cards and letters to the girls, called a few times, and saw the girls once or twice at their paternal grandparents home. In the 18 months prior to the hearing, Steven had no personal contact with the girls, although he spoke once to C.G. on the phone. Shana never received any financial support from Steven for the girls.
Steven testified that he had visited with the girls two weeks before the hearing. He could not recall when prior to that date they had visited or the frequency of the visits. He acknowledged that he had not purchased any gifts for the girls for birthdays, Christmas, or any other occasions. Regarding financial support, Steven testified that he generally was unemployed and did not support the girls. He did state that he recently had obtained a job and had a sum deducted from his February 15, 2006, paycheck for support. The funds apparently went to the County of Merced.
Steven testified that he never intended to abandon his girls. He lived out of town, did not have a drivers license, and felt that he was maintaining contact by visiting when his parents had the girls "every once in a while." He acknowledged that in the guardianship proceedings, the trial court had ordered that he receive supervised visitation, with his parents to supervise the visits. Steven also acknowledged that he did not advise Shana of his address and phone number. The only way to contact him was through his parents.
Prior to issuing his ruling, the trial judge noted that he had considered the testimony of the two witnesses, Shana and Steven, and the argument of counsel. The trial court found that Steven had failed to take steps to enforce his visitation rights under the guardianship, had failed to support the girls, and had "been absent from their lives for a substantial period of time." The trial court also found that the little communication that had taken place between Steven and the children demonstrated a "lack of any genuine real warmth or indication of a close relationship with the children." The trial court concluded by finding "the children have been abandoned by the father and the court will at this time then terminate his parental rights."
On March 7, 2006, a judgment declaring the girls free from the custody and control of their father, Steven, was filed.
DISCUSSION
Steven contends the trial court erred prejudicially when it failed to (1) order the preparation of an investigative report pursuant to section 7851; (2) consider whether counsel should be appointed for the children pursuant to section 7861; and (3) ascertain the childrens preference pursuant to section 7891. Shana and Michael concede these statutory requirements were not followed. They contend, however, that the errors were waived because they were not raised in the trial court and, alternatively, the errors were not prejudicial.
The trial court has a statutory obligation to order the preparation of an investigative report pursuant to sections 7850 and 7851 whenever a petition is filed to declare a child free from parental custody and control. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 168.) The "stated statutory purpose of the report is to inform the court of the best interests of the child, and the interests of the children are fundamental to the proceeding." (Id. at p. 169.) In Neumann, an evaluators report was prepared, but not considered by the trial court. The failure to consider the report was deemed prejudicial error by the appellate court. (Ibid.)
Section 7861 provides that the trial court "shall consider whether the interests of the child require the appointment of counsel." In Stevens case, the trial court did not appoint independent counsel for the children and there is no indication in the record that the trial court even considered the matter. While the ultimate decision of whether to appoint counsel is discretionary with the trial court, the trial court has a nondiscretionary duty to consider appointing counsel for the children. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 171.)
Section 7891 provides in part that if the child who is the subject of the petition is 10 years of age or older, the child shall be heard by the trial court in chambers as to the childs thoughts and preferences regarding the proceedings. C.G. was 12 years old at the time of the hearing. M.G. was one week shy of 10. Again, there is no evidence that the trial court complied with section 7891 by inquiring of the children as to their thoughts and preferences, even though both girls were of an age when they should have been given the opportunity to express their opinions.
Although counsel for the child may waive the hearing in chambers, C.G. and M.G. did not have counsel and the section 7891 requirement was not waived. If there had been an evaluators report that set forth the opinions of the children on the topics mandated by section 7891, it may have been possible to deem the error harmless. The failure to conduct the mandated chambers hearing, particularly when there is no evaluators report, is not harmless error. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 170.)
Shana and Michaels claim of a general waiver because none of the statutory requirements were raised by Steven in the trial court also must fail. In Neumann v. Melgar, supra, 121 Cal.App.4th 152, the appellate court noted that "the procedural protections ignored by the trial court — the evaluators report, an interview of the child, and deciding whether to appoint independent counsel — are all calculated to promote the best interests of the affected children." (Id. at p. 164.) The appellate court declined to apply the principles of waiver or estoppel because a parents "failure to remind the court of its statutory obligations to the children should not be permitted to frustrate the Legislatures aim of protecting the childrens best interests." (Ibid.)
Even in cases where a parent stipulates to a termination of parental rights, the trial court cannot terminate parental rights unless specific statutory procedures are followed. In the case of In re Marriage of Jackson (2006) 136 Cal.App.4th 980, the mother stipulated to a termination of her parental rights. (Id. at p. 991.) Later, she was allowed to attack collaterally the order terminating her rights because the requisite statutory procedures designed to protect the best interests of the children were ignored. The statutory protections set forth in the Family Code requiring an evaluators report, and the requirement that appointing independent counsel for the children be considered, were not followed. (Jackson, at pp. 993-994.)
We also reject the contention that the alleged findings in the earlier guardianship proceedings allowed the trial court to dispense with the requirements of the Family Code for proceedings to terminate parental rights. The trial court did not take judicial notice of matters in the guardianship file. Those records were used merely as a "reference." Furthermore, the testimony at the parental rights proceeding was that Steven had been provided with visitation in the guardianship proceedings, presumably because it was in the best interests of the children at that time to maintain a connection with their father. Finally, and in our view most importantly, the relevant statutes do not except from protection those children who are under a legal guardianship.
The trial court failed to afford C.G. and M.G. the statutory protections set forth in sections 7850, 7851, 7861, and 7891. There was (1) no investigation and no evaluators report; (2) a failure to consider appointing independent counsel for the children; and (3) no chambers hearing to ascertain the thoughts and preferences of the children. Because the paramount concern in a proceeding to terminate parental rights must be the best interests of the children, we conclude the errors were prejudicial. (In re Marriage of Jackson, supra, 136 Cal.App.4th at p. 994; Neumann v. Melgar, supra, 121 Cal.App.4th at p. 171.)
As the trial courts failure to afford the children the statutory protections set forth in the Family Code requires reversal, we need not address Stevens challenge to the sufficiency of the evidence.
On remand, the trial court, in its discretion, may receive additional evidence and/or consider the evidence previously submitted.
DISPOSITION
The judgment declaring C.G. and M.G. free from the parental control and custody of Steven G. is reversed and the matter remanded for further proceedings.
We Concur:
HARRIS, Acting P.J.
DAWSON, J.