Guardianship of Scott L.
Filed
12/26/12 Guardianship of Scott L.
CA4/3
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION THREE
Guardianship of SCOTT L., a Minor.
WILLIAM S. et al.,
Petitioners and
Respondents,
v.
SCOTT L., SR.,
Objector and Appellant.
G046887
(Super. Ct. No. AD77469)
O P I N I O N
Appeal from a judgment
of the Superior Court of
County, Deborah J. Chuang, Judge. Affirmed.
Rich Pfeiffer, under
appointment by the Court of Appeal, for Objector and Appellant.
Leslie A. Barry; Sharon
Grier, for Petitioners and Respondents.
Appellant Scott L., Sr. (Scott)
appeals from a judgment terminating his parental rights over his 12-year-old
son Scott L. (Scottie). The judgment
frees Scottie to be adopted by respondents William S. and Lynn B., but Scott
contends there is insufficient evidence
to support the trial court’s finding that such adoption would be in Scottie’s
best interest. We disagree and affirm
the judgment.
FACTS
Most
of the underlying facts are set forth in our prior opinion in this matter. (See Guardianship
of Scott L. (July 14, 2011, G044513) [nonpub. opn.].) To avoid repetition of that opinion, we will simply
note that respondents have been Scottie’s primary caretakers since the time he
was born in 2000. They became his legal
guardians in 2006, and in 2010 they commenced proceedings to adopt him. Scott opposed their petition, and following a
trial on the matter, the probate court determined it would not be in Scottie’s
best interest to terminate Scott’s parental rights and free Scottie for
adoption. On appeal, we ruled the trial
court erred in failing to obtain a pretrial report on that issue, as required
by Probate Code section 1516.5. Finding
the error prejudicial, we reversed the judgment and remanded the matter for the
court to comply with that section.
On
remand, the court did so by ordering court investigator Nancy Ward to report on
whether it would be in Scottie’s best interest to be adopted by
respondents. When interviewed by Ward,
respondents said Scott originally agreed to their adoption request, but he
subsequently changed his mind on the issue.
They also alleged that Scott has a criminal history and has been
incarcerated since September 2011. Even
so, they said that, consistent with their past practice, they would continue to
allow Scott to visit Scottie when he is released.
Scottie’s
mother Melinda did not respond to Ward’s request for an interview. However, Scott wrote Ward a letter from jail
saying he has never wanted to give Scottie up for adoption. He claimed respondents were open to shared
custody and liberal visitation when Scottie was younger. However, they have been pushing him out of
Scottie’s life and are now trying to “adopt [Scottie] out from under
[him].†And while he appreciates that
respondents have taken good care of Scottie over the years, he doesn’t want to
cede custody to them. He said he tries
to visit and talk to Scottie as much as he can and, despite his personal
failings, has always tried to act in his best interest.
. For
his part, Scottie, then age 11, told Ward he wanted to be adopted by
respondents, whom he calls “Momma Lynne†and “Daddy Bill.†However, he also said he wanted to continue
to see Melinda and Scott, whom he refers to as “mom†and “dad,†and to have a
relationship with them.
Evaluating
the situation, Ward opined it would be in Scottie’s best interest to be freed
from parental control so that he could be adopted by respondents. Therefore, she recommended that respondents’
petition for adoption be granted.
In
addition to considering Ward’s report, the trial court also held an evidentiary
hearing on the matter during which Scott and William testified in open court
and Scottie was questioned in chambers.
Melinda did not appear for the hearing, nor has she ever opposed
respondents’ adoption request. She continues
to see Scottie at respondents’ house on weekends and appears to be content with
that.
Scott
testified he does not want to lose his parental rights over Scottie. He said he loves Scottie and would never do
anything to harm him. They have a tight
bond and enjoy fishing and playing the guitar together. He also has taken Scottie on various outings,
such as to Disneyland and Angels games. Over the years, he’s tried to keep up his
relationship with Scottie, but as Scottie has gotten older, respondents have
increasingly pressured him to give up the boy.
In fact, on more than one occasion William has told Scott he would never
allow him to see Scottie again if he did not agree to respondents’ adoption
request. Scott also claimed that
respondents have made it harder for him to see Scottie. Often when he calls respondents to arrange a
visit, they claim Scottie is too busy to see him. And when visitation does occur, respondents
want Scott to come over to their house; they do not like him taking Scottie
other places.
Testifying
further, Scott said he was incarcerated in September 2011.
was released briefly around Christmastime, but at the time of the hearing in
March 2012, he was back in custody and did not expect to be released for a few
more months. He said he did have a visit
with Scottie on Christmas morning, but it was very brief because William’s
father died the day before and respondents were planning on leaving town with
Scottie to attend his funeral.
Scott
admitted that since the original trial in this matter back in 2010, he has not
visited Scottie regularly or supported him financially. Nor has he taken any steps to regain custody
of the boy. And although he doesn’t have
a car, a driver’s license, or a phone, he said he has an offer to do air
conditioning work when he is released from custody. He concedes there’s been some distance
between him and Scottie lately, due to his present situation, but he wants to
reconnect with Scottie and spend more time with him once he is free. He doesn’t think Scottie wants to be adopted,
or even fully understands what that entails.
However, he would accept it if that is what Scottie truly wanted.
William testified that he
has never threatened Scott in any fashion, and if he and Lynn were allowed to
adopt Scottie, they would continue to allow Scott to visit him. Although they do not initiate visitation with
Scott, they do not hinder it either; if Scott calls for a visit, they do their
best to facilitate his request if Scottie is available. Also, Scottie has a cell phone and is free to
call his parents if he likes.
Respondents generally leave it up to Scottie if he wants to see his
folks. They think it would be good for
Scottie if he maintained a relationship with his parents and their
relatives. But they also believe
adoption would bring a measure of security and sense of belonging to Scottie
that would be beneficial to him.
Scottie
testified that Scott and Melinda are good parents and he likes visiting
them. He sees them from time to time and
also talks with them on the phone.
However, respondents are the ones who have always cared and provided for
him. He understands respondents want to
adopt him and become his “full parents.â€
He said he wants that to happen because he’s always lived with
respondents. He understands Scott would
not have any control over him if he were adopted, and respondents could cease
visitation altogether if they wanted to.
He said that would be okay if that happened, but he didn’t think that it
would. Given that respondents have never
said no when he wanted to see Scott in the past, he was not worried they would
prevent him from doing so in the future.
If he were to be adopted, he would still like to see his parents “a
lot.†Asked what he meant by “a lot,â€
Scottie said he would like to see them about as much as he sees them now. He also said he wants to keep Scott’s last
name because it reminds him of his dad.
At
the conclusion of the testimony, respondents’ and Scottie’s attorneys argued
that adoption would benefit Scottie by bringing stability and security to his
life, and Scott’s attorney claimed the present guardianship arrangement was
working well enough; he did not see any reason to terminate Scott’s parental
rights and give respondents complete control over Scottie’s upbringing.
The court found by clear
and convincing evidence that it would be in Scottie’s best interest to be
adopted by respondents. Therefore, the
court terminated Scott and Melinda’s parental rights over him. The court reasoned it would be better for
Scottie if respondents assumed complete responsibility for him via adoption
than for him to remain in a prolonged guardianship. The court also believed that Scottie
understood the ramifications of adoption and wanted to be adopted. And although he also wanted to continue to
have visits with Scott, he was okay with the prospect of not being able to see
his dad.
DISCUSSION
Scott
argues there is insufficient evidence to support the trial court’s ruling, but
we do not find that to be the case.
Probate Code
section 1516.5 authorizes the termination of parental rights when, as here, a
guardianship has continued for at least two years, and the court determines
that adoption by the guardians would be in the best interest of the child. (Prob. Code, § 1516.5, subd. (a); In re Guardianship of Ann S. (2009) 45 Cal.4th 1110.) In making this determination, the court shall
consider all of the relevant circumstances, including the nature and extent of
the child’s relationship with his parents and the guardians and the efforts
which the parents have made to maintain contact with the child. (Ibid.)
Although
the trial court’s ruling regarding the best interest of the child must be based on
Code, § 7821), our
role is limited to determining whether substantial evidence
supports the conclusions reached by the trial court in utilizing that
standard. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.) On appeal, we indulge in all reasonable
inferences to uphold the judgment. (
“[W]e do not resolve conflicts in the evidence,
pass on the credibility of witnesses, or determine where
the preponderance of the evidence lies.
[Citation.] We merely determine
if there is any substantial evidence, contradicted or not, which will support
the conclusion of the trier of fact.
[Citation.]†(
Cal.App.4th 1518, 1539.)
In attacking the trial court’s ruling, Scott
does not dispute that Scottie has benefited greatly from respondents’ loving
care and support and that he has developed a positive emotional bond with
them. However, Scott asserts the court
improperly relied on respondents’ promise to allow continued visitation
following adoption as a basis for its decision.
(See In re Noreen G., supra, 181
Cal.App.4th at p. 1382 [“a posttermination visitation order is unenforceable,
and the court must presume that termination of parental rights will result in
cessation of all contact between parent and child.â€].) The record does not support this assertion.
To be sure, there was evidence that Scottie
wanted to keep up his relationship with Scott and that respondents intended to
facilitate that by allowing Scott to have continued visitation in the event of
adoption. But the court did not base its
decision on that happening. In fact, it
contemplated just the opposite by noting that although Scottie expected
continued visitation with his father, he understood that was not guaranteed if
respondents adopted him. It was
Scottie’s testimony that he would be “okay†with the prospect of not seeing
Scott, not respondents’ promise to keep up visitation, that formed the basis
for the court’s decision. The court did
not erroneously premise its decision on an unenforceable promise of continued
contact between Scottie and his father.
Alternatively, Scott claims the court failed
to recognize that respondents have undermined his efforts to visit and connect
with Scottie. He sees himself as “a
parent who has demonstrated a full commitment to parental responsibility, but
whose efforts to secure custody have been thwarted†(In re Guardianship of Ann S., supra, 45 Cal.4th at p. 1102), but
that characterization is at odds with the evidence. During his testimony, Scott admitted he has
not done anything to obtain custody of Scottie since the original trial back in
2010. Nor has he supported Scottie or
visited him regularly during that time.
Presumably, Scott’s incarceration has had something to do with that, but
that’s Scott’s problem, not respondents’.
Scott has only himself to blame for the conduct that led to his troubles
with the law.
Scott
would have us believe that William has pressured him to give up Scottie for
adoption and made it difficult for him to visit his son. At least that’s what he alleged on the witness
stand. However, William testified to the
contrary; he specifically denied using threats or intimidation as a means to
distance Scott from his son. The trial
court obviously found William to be more credible on this issue, and we are not
at liberty to second-guess that determination on appeal.
claim respondents have impaired his efforts to bond with Scottie.
To the contrary,
the record shows respondents have facilitated visitation because they believe
it is in Scottie’s best interest to have a positive relationship with his
parents. Whereas Scott has failed to
make a full commitment to his parental responsibilities, respondents have
consistently provided Scottie with the safety and security he deserves. Under these circumstances, it is hardly
surprising Scottie testified that he wants to be adopted. “For young children and those children for
whom adoptive parents are available, adoption is usually the preferred
placement because it offers the prospect of a secure permanent home.†(Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 258.) There is ample evidence to support the trial
court’s finding that adoption would be in Scottie’s best interest. Therefore, the court did not err in terminating
Scott’s parental rights and
freeing Scottie to be adopted by respondents.
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title=""> [1] The court did not allow any
evidence as to the basis for Scott’s incarceration.
