Adoption of
Samatha P.

















Filed 2/27/13
Adoption of Samatha P. CA2/3













NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
THREE




>

ADOPTION OF SAMANTHA P., a Minor.	B232600 (Los Angeles County
IRENE M., Plaintiff and Appellant, v. SCOTT P. et al., Defendants and Respondents. ___________________________________ NICHOLAS C., Real Party in Interest.	Super. Ct. No. GT000441)

APPEAL from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Joseph F. De Vanon, Judge. Order affirmed.

The Nair Law Group and Gouri G. Nair
for Plaintiff and Appellant.

Christopher Blake for Real Parties
in Interest, Samantha P., et al.

Darlene Azevedo Kelly, under
appointment by the Court of Appeal, for Minor.

>___________________________________________

Irene
M. appeals from the trial court’s order denying her motion to enforce a href="http://www.mcmillanlaw.com/">“visitation” clause in a contact after
adoption agreement entered into pursuant to Family Code section 8616.5. We affirm the trial court’s order.

>FACTUAL
AND PROCEDURAL HISTORY

1. Background
Facts

In
2003, petitioner, Irene M., became the foster parent, with the possibility of
adoption, of two-and-one-half year old Nicholas C. and his two-and-one-half
month old sister, Samantha. Irene M. was
assisted in the care of these children by her daughter, 19‑year-old
Crystal C., and adopted them on August
23, 2003. However in 2005,
Irene M. began to have persistent health problems. She was diagnosed with Guillen‑Barre
Syndrome and spent much of 2005 in the hospital. Family friends, Scott and Glori P., took
over the care of Samantha and, in 2006, they adopted her. At the same time, Scott and Glori P. and
Irene M. executed a post-adoption contact agreement (ADOPT-310) pursuant to
Family Code section 8616.5 in which the three agreed that Nicholas and Samantha
would maintain contact by telephone, mail, the opportunity to share
information, e-mail, visits and “other” means.
The agreement was signed by Glori P., Scott P., Irene M., their
lawyer, Michael L. Oddenino and, on March 17, 2006, Judge Joseph F.
De Vanon of the Pasadena Superior Court.href="#_ftn1" name="_ftnref1" title="">>[1]

After
Samantha’s adoption, she and her brother, Nicholas, kept in contact by means of
the telephone, internet, Skype and visits.
They communicated with each other between two and five times each
week. Until July of 2009, Scott and
Glori P. lived in Whittier
while Irene M. lived in San Gabriel. Under those circumstances, physical
visitation was relatively easy to arrange and “Samantha and Nicholas grew up
knowing each other as brother and sister.”
Then, in March of 2009, the P.s were forced to close their business
and, after months of looking for employment, Scott P. was offered
a position in Missouri. In July of 2009 Scott accepted the job and
the family moved to a suburb of St. Louis.

According
to Scott P., “[s]ince moving to Missouri, both [he and Glori P.] have
encouraged Samantha to stay in contact with Nicholas. However, the truth of the matter is that it
does not take a tremendous amount of encouragement on [the P.’s]
part . . . . On their own[,] the
children . . . typically communicate with each other
electronically at least 2 times per week” by means of Skype, telephone or e-mail.
Irene M. and Crystal C. do not dispute this, but assert that Scott
and Glori have begun to improperly monitor the phone calls and electronic
communications and note that Samantha and Nicholas have not had any physical
contact since 2009.

2. >The Mediations

The monitoring of the electronic
communications and the lack of physical contact “led to tension” between Irene
M. and Crystal C. and Scott and Glori P.href="#_ftn2" name="_ftnref2" title="">>[2] This led Irene M. and Crystal C. to seek
mediation pursuant to Family Code section 8616.5, subdivision (e)(3).)href="#_ftn3" name="_ftnref3" title="">[3]
Irene M. and Crystal C. hoped that, through mediation, arrangements could be
made for visits between the children.href="#_ftn4" name="_ftnref4" title="">>[4] The two mediations, however, proved
unsuccessful. On February 22, 2011, the
mediator reported that “[d]espite good
faith attempts on both sides, the parties were unable to solve their
disagreements. Both sides understand that
this leaves the resolution of their [visitation] problem to the court.”href="#_ftn5" name="_ftnref5" title="">[5]

3. The
Hearing Before the Trial Court

A
hearing was held before Judge Joseph F. De Vanon on February 24, 2011. There, counsel for Irene M. indicated that
his client had attempted to resolve the problem of visitation through
mediation. In addition, she had
submitted to the court “a plan that was proposed to the other party, which
would involve . . . Samantha coming [to San Gabriel] at
[Irene M.’s] expense . . . and in fact [Irene M.] would be
willing to fly to Missouri to pick [Samantha] up so that she would be
accompanied” while traveling. Counsel
stated that he believed “[t]he only contact [the children] ha[d] [had was]
by phone, and [that it had] been minimal because the other party ha[d] been
monitoring it and ha[d] been cutting it off at certain
points. . . . So, . . . it’s
essentially almost no contact. And this
is having a very deleterious effect on Nicholas[,] that he is not able to
communicate freely with his sister.”

Counsel
for Scott and Gloria P. disagreed with Irene M.’s counsel’s perception of the
situation. Counsel referred to Scott
P.’s declaration and indicated that there had been “extensive contact
continuing between the children.”
Counsel indicted that he was satisfied with the level of contact that
was “actually going on[.]”

The
trial court indicated that “[t]he biggest issue [it had was] whether or not the
brother and sister [were] able to talk.”
Counsel for Scott and Glori P. responded: “[During] [e]very
discussion . . . I have had with my client[s], they have
[indicated] every desire to continue the ongoing contact between Samantha and
Nicholas. [¶] What they don’t want to do is acquiesce [to]
the unreasonable demands of [Irene M.], that they put their minor child on
a plane unaccompanied, and send her out [to California] for a month,
unsupervised with two women [that] they . . . disagree with
[regarding] the way they raise[d] the[ir] child, the environment they are going
to put [their] child in, and [believing that Irene and Crystal were] going to
bad mouth and insult [them]. That’s
[their] primary objection. They have no
objection to continuing the contact after adoption agreement. [¶]
They have no objection to continuing phone contact [and] e-mail contact
[and that] [t]he children play internet games together.” In addition, Scott and Glori P. are
“absolutely agreeable” to having Nicholas visit Samantha at their home in
Missouri. Counsel continued, “[Irene and
Crystal] are demanding that Samantha come out to them for a month, but they are
unwilling to send Nicholas out [to Missouri] for a month. If it’s unreasonable to send Nick, it is
clearly unreasonable to send Samantha, who is three years younger. . . . This
court cannot act to enforce the agreement unless there is evidence before [it]
that this is in the best interests of Samantha.
[¶] [Irene M. and Crystal C.]
haven’t even averred that. [They]
haven’t even alleged it. They have said
[it is] [a]ffecting Nicholas.” Counsel
then noted, “My clients’ opinions of [Irene M. and Crystal C.] is very
low. I doubt that Nicholas is suffering
as badly as they say [and] he is having contact routinely.”href="#_ftn6" name="_ftnref6" title="">>[6]

Irene
M.’s counsel argued that the facts were being “misstated.” He indicated that Irene M. was “willing to
fly out to pick up [Samantha] and bring [her] back for the visit.” Counsel continued, “We are willing to have
exchanges at Christmas for both children[,] to alternate between the
residences. [¶] These children did grow up
together. . . . They attended each other’s birthday
parties [and] other functions. There was
a long standing relationship [between] Samantha . . . and
[both Irene M. and Crystal C.]
[¶]
. . . There is a strong bond
there . . . . [A]nd [it is obvious it] is in the
best interests of Samantha to be able to come out [and] spend time with people
she grew up with [as well as] her brother.”

When
the trial court indicated that counsel for Scott and Glori P. had “indicate[d]
that [they were] agreeable to hav[ing] Nicholas come back [to Missouri to]
visit his sister[,]” counsel responded, “At this point Nicholas has expressed
his uncomfortable position with that, until he has some time.”

After
further discussion, the trial court stated, “Here is the practical matter. I think I told everybody this from day
one. I am not going to require any
parent to put their minor child on an airplane, and have them fly cross country
to visit with anybody else, no matter how nice that might be for any number of
reasons. [¶] So, am I going to order that [Scott and Glori
P.] have to put Samantha on the plane and fly her out here, or have someone fly
her out? I am not going to. They are the parents. They get to determine what is the best home
for their child . . . . [¶] They believe it is not in
the . . . home and care [of Irene M]. I am not saying that’s necessarily
right. The [M.’s] appear to be fine
people, but the [P.’s] have a right to determine where their child is going to
reside and stay . . . . [¶]
. . . And I think, to be honest with you, I think this is
more about [Irene M.’s and Crystal C.’s] and [Scott and Glori P.’s] not liking
each other, disapproving of each other . . . rather than
putting the children’s concerns and interests first, everybody is worried about
winning . . . . [¶] I want these children to be able to have
contact, non-monitored contact, so they can talk about whatever they want to
talk about, even if it’s their parents are driving them nuts, because that’s
the right of a young kid to share . . . with his brother
or sister. . . . [¶]
I think it would be a huge tragedy if these children are not able to get
together and visit . . . . But I am not going to
mandate that either set of parents has to put the child on a plane and fly them
out. [¶]
I will tell you this. If you
don’t find a way to work that out[,] [i]f somebody doesn’t find a way to give
up some ground on this, . . . the one thing [these
children] are going to have in common is the anger they have at their
parents . . . . ”

The court
concluded that, “[t]he only thing [it would] do with the petition [was] to
reiterate the previous finding that the children should have access via mail,
internet and telephone as often, and whenever they want to have it, [and] that
access [was to] be done in an unmonitored manner. [¶]
[In addition] the parents on both sides . . . [were
to] continue to try to work on a situation wherein an agreeable visitation
process [could] be arranged between Nicholas and Samantha. And if folks can’t come to an agreement, then
it will wait until [Nicholas and Samantha] are 18.” The court continued, “At any rate, that’s the
order.
If . . . [Scott and Glori P.] return to California,
which does not appear to be the case, since the employment situation changed,
if [they do] return, then the court would reserve the right to revisit the
issue of the visitation. [¶] But as long as [Scott P.] is out of state, I
am not going to make any minor child fly anywhere. [¶] . . . [T]he petition
[is] denied.”href="#_ftn7" name="_ftnref7"
title="">[7]

On
April 18, 2011, Irene M. filed a notice of appeal from the trial court’s order
denying her motion to enforce the “visitation” provision of the after adoption
contact agreement.

>DISCUSSIONhref="#_ftn8" name="_ftnref8" title="">[8]

1. Irene
M’s Standing

There
was, apparently, some question as to whether
Irene M. had standing to bring the underlying action. Here, Irene M., as Nicholas M.’s adoptive
mother, is a party to a post adoptive contact agreement made with Samantha
P.’s adoptive parents, Scott and Glori P.
“Agreements that provide for . . . [relatives, such
as siblings] to continue visitation with [their brothers and sisters] following
termination of parental rights or adoption
are . . . recognized by statute and
enforceable . . . . ”
(In re Noreen G. (2010)
181 Cal.App.4th 1359, 1394; see Adoption
of Hannah S. (2006) 142 Cal.App.4th 988, 1000, fn. 1.) Accordingly, under both family law and
general contract law, because of her status as Nicholas’ adoptive mother and
her role as a party to the agreement for post adoption contact between her
adopted son and his half-sister, Irene M. has standing to enforce the
agreement. (See Civ. Code, § 1550; Fam.
Code, § 8616.5.)href="#_ftn9"
name="_ftnref9" title="">[9]

2. The
“Visitation” Portion of the Agreement

Here, Irene M.
seeks enforcement of the “visitation” clause of the Family Code
section 8616.5 agreement. She submitted to the court a plan, under the
terms of which Samantha would initially spend “3 weeks each summer in
California . . . . ” After two years, Samantha would
spend four weeks each summer in California.
In addition, “[i]n even years, Samantha would spend the first half of
winter break (which includes Christmas) in California.” Scott and Glori P. however, rejected the
plan, determining that it was not in the best interests of their daughter.

At the same time,
Nicholas M., who is now a party to the agreement as he is over the age of 12
(see Fam. Code, § 6816.5, subd. (d)), refuses to go to Missouri to visit his
sister. According to Irene M., “[h]e
doesn’t feel comfortable with [the P.’s].”

It has been
determined that “[t]he basic purpose of . . . adoption is
to promote the welfare, protection and betterment of the child by providing the
security of a stable adoptive home . . . and to confer upon
the [adoptive] parents discretion to provide for the best interests of the
adopted child . . . . ” (In re
Noreen G., supra,
181 Cal.App.4th at p. 1391.)
So too, “[a]greements that provide for birth parents [or siblings] to
continue visitation . . . following . . . adoption . . . must
be found by the court to be in the best interests of the children.” (Id.
at p. 1394, citing Fam. Code, § 8616.5, Adoption
of Hannah S., supra, 142 Cal.App.4th at p. 1000, fn. 1.)

In view of the
facts presented, the trial court properly exercised its discretion when it
denied Irene M.’s motion for enforcement of the visitation section of the
Family Code section 8616.5 post-adoption contact agreement. “While [a] child’s ‘best interest’ is ‘an
elusive guideline that belies rigid definition,’ obviously overall ‘[i]ts
purpose is to maximize a child’s opportunity to develop into a stable,
well-adjusted adult.’ (>Adoption of Michelle T. (1975) 44
Cal.App.3d 699, 704.)” (>Sharon S. v. Superior Court (2003)
31 Cal.4th 417, 437, superseded on other grounds in Adoption of Joshua S. (2008) 42 Cal.4th 945, 954.)

Given the
animosity between each child’s respective parents and each parents’
“fundamental liberty interest in the care, custody, and control of their
[child] . . . . ”
(In re Zachary D. (1999)
70 Cal.App.4th 1392, 1399), the trial court properly refused to “order either
family to require their child to fly cross country in order to visit.” Its
direction that, “in light of the fact that the families are some
2000 miles apart, both siblings are to have non monitored contact via
telephone, e‑mail, letters, and Skype” and that both families are to “use
[their] best efforts to arrange personal visits between the
siblings . . . ” was sufficient to enforce the underlying
purpose of the contract: that Nicholas
and Samantha remain in contact.href="#_ftn10"
name="_ftnref10" title="">[10]









DISPOSITION

The trial court’s
order denying Irene M.’s motion to enforce the “visitation” portion of the
Family Code section 8616.5 postadoption contact agreement is affirmed. Each party shall bear its own costs.



NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS





CROSKEY,
Acting P. J.

We Concur:





KITCHING, J.





ALDRICH, J.