Adoption of Sophia D.

Filed 6/30/08 Adoption of Sophia D. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from an order of the Superior Court of Los Angeles County, John L. Henning, Judge. Reversed.

Linda T. Barney for Plaintiff and Appellant.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Respondent.

_________________

Adoptive father Randy C. challenges a trial court order approving a postadoption contact agreement entered over his objection after the trial court excused the biological fathers failure to comply with an earlier oral agreement. He contends the order failed to comply with the requirements of Family Code section 8616.5.[1] We agree, and reverse on that basis. We need not and do not reach Randys other arguments that the order violated his substantive due process rights as a parent, that the court lacked jurisdiction to enter the order, and that the evidence was insufficient to support the order.

FACTUAL AND PROCEDURAL SUMMARY

Amanda D. gave birth to Sophia D. in February 1999. Amanda was not married to Sophias biological father, Jonathan A. His name was not put on Sophias birth certificate, and he never signed a declaration of paternity. The parties dispute whether Jonathan offered financial support. After Sophia was born, Amanda suggested several times that Jonathan file a paternity action to establish his legal status as the father of Sophia. In 2001, Amanda again asked Jonathan to file a paternity action but he refused, saying that he wanted to keep things verbal and just between us. Jonathan visited Sophia an average of 10 to 12 times a year. Jonathan claims that he had overnight visits on weekends with Sophia at his home, but Amanda disputes this.

Amanda began dating Randy when Sophia was seven months old. He played a parental role in Sophias life from that time. In March 2004, Amanda and Randy met with Jonathan to tell him that Randy planned to adopt Sophia. Jonathan objected and said he would file a paternity action, but did not. Amanda and Randy married in April 2004.

Randy filed his stepparent adoption petition in April 2004. Jonathan was personally served with a notice of alleged paternity, which warned that he had 30 days to file an action to establish paternity or his child might be legally adopted without further notice. After the adoption proceedings were initiated, Jonathan took a vacation to Europe. He declared that he had mailed by certified mail a petition to establish parental relationship to the superior court. On June 3, Jonathan left a voice mail message with Bryan Miller, the childrens social worker (CSW), saying that he opposed Randys adoption of Sophia. He wrote later in the month to reiterate his opposition.

Randy applied for an order dispensing with a petition to determine necessity of consent under section 7665, on the ground that Jonathan had failed to file a complaint to establish paternity. The order was granted and Jonathans parental rights were terminated on June 15, 2004. After the Department of Children and Family Services recommended that Randy be permitted to adopt Sophia, the court granted his adoption petition in August 2004.

In October 2004, Jonathan wrote to the superior court complaining that he had been refused visitation with Sophia, and saying that his application to establish paternity had been returned with a request for further information. He asked the courts assistance because he had been told that there would be a delay of several months before Sophias adoption records would be available to him. In January 2005, the court appointed counsel for Jonathan and Sophia. Randys motion for reconsideration of that order was denied.

The court appointed Dr. Nancy Kaser-Boyd to conduct an evaluation pursuant to Evidence Code section 730 in July 2005. She was directed to evaluate the relationships between Sophia and Randy; between Sophia and Jonathan; and render an opinion as to whether it would be in Sophias best interests to have postadoption contact with Jonathan. In August 2005, Jonathan moved to set aside the adoption on the grounds of fraud, mistake or accident. He claimed he had made his opposition known, and was denied due process when his rights were terminated and Randys adoption granted. He contended that an attorney should have been appointed for him when he first voiced his opposition.

Dr. Kaser-Boyd conducted her evaluation in late 2005, and submitted her report in January 2006. She interviewed Amanda, Randy, Jonathan, and Sophia individually, and also had joint sessions with Sophia and Jonathan and with Sophia and Randy. Psychological testing of the adults led her to conclude Overall, Jonathans test results are those of a person with more problems than the mother or stepfather. Although various arguments could be made to explain away the elevations on the personality tests, they generally coincide with his performance over the course of this childs life, for example, his value and somewhat paranoid reason for not wanting to be placed on the birth certificate.

Sophia told Dr. Kaser-Boyd that she considered her mother and Randy to be her real family. She described Jonathan as a friend, but hes not my dad, cause I already have a great dad and the only dad I want. I like him but I already have a special dad.

When Dr. Kaser-Boyd conducted the joint interview of Jonathan and Sophia, Sophia was in the office first. When Jonathan entered, Sophia turned toward him and fled into his arms. She gave him a very big hug. Jonathan gave Sopia a story book which had her name in it, and which was signed Aba. Jonathan asked who Aba was, and Sophia said, YOU! Sophia climbed into Jonathans lap and they read the book together. Dr. Kaser-Boyd described this as a very close, affectionate time. During the visit, Sophia spoke with Jonathans mother by telephone. Sophia drew pictures for Jonathan. When told the visit was over, Sophia gave Jonathan another big hug and skipped down the hallway to her mother. Dr. Kaser-Boyd observed: It seemed clear from this visit that Sophia knows Jonathan and has clearly affectionate feelings about him. The quality of their interaction did support his contention that he had developed a relationship with her of some substance.

Dr. Kaser-Boyd concluded: Observing the minor and [Jonathan] together told a story much different than that provided by her mother and stepfather. Their contention that [Jonathan] is essentially like any other of their friends is not believable, even without observing Sophia with these other friends. The image of Sophia running toward him and throwing herself in his arms was unexpected and remarkable. She was clearly delighted to be visiting with Jonathan. She was affectionate with him in a way that most children this age reserve for special people, and she spontaneously told him about some of her special things.

Sudden cessation of visits with Jonathan would likely be confusing and hurtful to Sophia, according to Dr. Kaser-Boyd, and would give Sophia the feeling that adults are rather unpredictable. Since Sophia already had been told that Jonathan is her father, his disappearance would likely have a long-term impact on her self-esteem and her ability to trust, an impact that is well documented in the clinical samples of father-abandoned people. Dr. Kaser-Boyd said: In sum, it is my opinion that it would be a detriment to Sophia to terminate her contact with Jonathan.

But Dr. Kaser-Boyd also concluded that it would be harmful to vacate Randys adoption because [i]t is likely to be confusing and destabilizing to Sophia to be told that she is no longer adopted. She wrote: While I do think that [Jonathan] was present enough to create a relationship with Sophia, in most respects, his behavior fell far short of what a child needs from a father. Dr. Kaser-Boyd cited Jonathans lack of financial security and failure to support Sophia; his failure to provide the basic physical care she needs; and the instability of his life in moving from place to place. She concluded: Because of this, it is my opinion, based on psychological data, that Sophias interests are well served by adoption by [Randy], provided that she has contact with [Jonathan]. Dr. Kaser-Boyd explained that visits by Jonathan need not be monitored, could be overnight, and could include Jonathans mother.

Before the motion to set aside the adoption was heard, the parties entered into an oral stipulation for settlement. Its terms were stated on the record on February 10, 2006. It was agreed that Jonathan would have visitation with Sophia on the first Saturday of every month in the calendar. The details of the visitation were set out in the stipulation, including time, transfer of Sophia, and contingencies for delays, including default of the visit if Jonathan was more than half an hour late for the appointment. Jonathan was to provide an itinerary for each visit with location information. The stipulation provided: Should [Jonathan] fail to attend any two visits, or default in attending any two visits, he will lose his right to all further visitation under the terms of this agreement.

Under the stipulation, Jonathans visits were to be monitored: [A]ll visitations called for hereunder shall be monitored from the commencement of same to conclusion of same. Jonathan . . . shall pay the cost of all monitors. The monitor shall be selected either by agreement of the parties or from a list of professional parent monitors to be provided to him by his counsel . . . . Jonathan also was given the right to a single monitored telephone conversation with Sophia each month.

The stipulation provided that Sophia was to refer to Jonathan by his first name, and that Jonathan and his mother would not make negative comments about Sophia being raised in the Catholic faith. The possibility of additional visitation by Jonathan with the consent of Randy and Amanda was included. Jonathan was to consult with Dr. Kaser-Boyd regarding how to explain his status and the visitation situation to Sophia.

Jonathan expressly waived his right to appeal or to seek reconsideration of the ruling. He withdrew his motion to vacate the adoption by Randy. The stipulation provided that the parties would return to court in one year for review of the appropriateness of the visits.

After the terms of the stipulation were put on the record, the court swore Jonathan, Randy and Amanda. Jonathan testified that he had heard the terms of the postadoption contact agreement and that he understood what he was agreeing to, including withdrawing his motion to set aside the adoption and right to appeal. He expressed some discomfort with the requirement that he be referred to by his first name. After further inquiry by his attorney, Jonathan testified that he understood that he was not to encourage Sophia to call him father, aba (Hebrew for father), or any other name for father.

Later, counsel for Jonathan asked him (still under oath): Mr. [A.], having heard the recitation of terms and conditions of the post-adoption contact agreement, are you willing to enter into this agreement at this time? Jonathan responded, Yes, I am. He asked whether it would be appropriate for all the adults to have counseling with Dr. Kaser-Boyd; the court rejected that suggestion. Jonathan then testified that he had no further questions or concerns. Randy and Amanda agreed to be bound by the agreement. The trial court then directed counsel to reduce the agreement to writing and circulate it for signatures.

Counsel for Randy did so and circulated it to counsel on February 13, 2006. Counsel for Sophia, Randy, and Amanda signed the agreement in mid-March 2006. Jonathan refused to sign it. In May 2006, Jonathan faxed a signed but revised version of the agreement to counsel for Randy. His draft changed the provisions requiring proof of a drivers license and automobile insurance; monitoring of visitations and telephone calls; and conferring with Dr. Kaser-Boyd. ( 8, 13, 14, 15.) In August, Jonathan sent an ex parte letter to the court without service, declaring his objections to the agreement. The court set a hearing for September 20, 2006, a date later continued to December because Jonathan represented that he was temporarily in New York. Counsel for Randy submitted evidence that Jonathan was enrolled at Columbia University in New York at that time.

In further objection to Jonathans motion, Randys counsel set out a chronology of events since the agreement was put on the record in February, and disputed Jonathans version of events. According to counsel for Randy, the Evidence Code section 730 evaluation was delayed by 84 days because Jonathan had concealed the fact that he was a student at Columbia University in New York.

The hearing convened on December 18, 2006. Counsel for Jonathan asserted that his client had been under duress, did not understand the implications of the agreement and did not have sufficient time to review it in court in February 2006. The trial court read from the transcript of that hearing in which Jonathan agreed to be bound by the agreement.

Counsel for Randy responded that all of the items revised or omitted by Jonathan were of the sort that would be easily understood. One of the omitted provisions required Jonathan to consult with Dr. Kaser-Boyd regarding how to explain his status to Sophia. Counsel for Randy asked, rhetorically, if Jonathan felt it was unnecessary for him to consult Dr. Kaser-Boyd, why ask the court about having all the adults counseled by her.

Counsel for Sophia took the position that Jonathan already had lost the right to visitation before the stipulation was reached in court. He listed Jonathans previous failures to assume a parental role or to assert his parental rights. According to Sophias attorney, after the stipulation was put on the record, Jonathan never visited the child. He noted that Sophia was now 8 years old. He said: On behalf of my client, Mr. [A.], you have had your chance. I think this case is long over. If we go back, this is a finalized adoption. [Jonathan] never had any visitation rights, but when he came in very late, he was given this opportunity to get himself back into the picture, so-to-speak. Here we are a year later, which was the review time. . . . Counsel for Sophia argued that Jonathan had not committed to his child, and that she is entitled to have a family that can live in peace and not be worried about these attacks. Counsel for Jonathan argued that his client felt he had been prejudiced because he was not given a written version of the stipulation before swearing to abide by its terms.

The court suggested that Jonathan testify in light of the accusations made by counsel for Randy. Counsel for Randy asked why, if Jonathan was under such duress in February, it took him until the end of May to submit his revisions. Counsel for Jonathan objected that his client had not had an opportunity to prepare to testify. The court continued the matter to the following day.

The next day, counsel for Jonathan announced that his client had changed his mind again, and now was willing to sign the original version of the stipulation prepared by counsel for Randy, as it does substantially and accurately reflect the agreement that was made in court. Counsel continued to say that Jonathans primary concern was to be able to be a part of Sophias life. His client wanted to make a conciliatory statement to the court. He also indicated that Jonathan understood that he was responsible for his failure to comply with the terms of the agreement. Counsel for Jonathan asserted that the issue was whether Sophia would benefit from contact with his client.

The court asked Jonathans attorney whether he was asking that the clock be turned back and that Jonathan be given a new opportunity to comply with the stipulation. He acknowledged that this was so, and that the agreement had been in effect since it was put on the record on February 10. He cited the Evidence Code section 730 evaluation prepared by Dr. Kaser-Boyd which concluded that contact with Jonathan would be beneficial to Sophia. Counsel said that difficulties in his relationship with Jonathan had been a contributing factor.

Counsel for Randy concurred that the agreement was valid and binding when put on the record on February 10, as did counsel for Sophia. Counsel for Sophia objected to giving Jonathan another opportunity to comply with the agreement because he did not have clean hands. Counsel for Jonathan reiterated that his client was not making a motion to vacate or set aside the adoption.

Jonathan was then sworn and testified that he was no longer seeking to set aside the adoption. He explained that he believed it was in Sophias best interests not to set it aside and that she be allowed visits with him. The trial court ruled that the agreement was valid. Jonathan was then called to the witness stand to be examined by counsel regarding the accusations made by counsel for Randy.

At the conclusion of the lengthy proceeding, the trial court found that Jonathan was confused as to his duties and obligations under the agreement. The court said it was confused about the terms of the agreement because the written draft prepared by counsel for Randy was not identical with the oral agreement put on the record February 10, 2006. It noted that Jonathan now said he understood the terms of the agreement and that he could abide by it, and concluded: I have some doubts about that [Jonathan], based upon your past performance, but I am very respectful of the report written by Dr. Kaser Boyd that it is in the best interest of this child to have some contact with you. Im concerned that if this agreement is not abided by, that you may never have any contact with respect to the child. I think it is in the best interest of this child that the agreement be abided by and followed and I will not set it aside.

The court made an interim order allowing Jonathan a limited monitored visit with Sophia, who had been diagnosed with a medical condition causing seizures. On May 17, 2007, over objection by Randy, the trial court entered an order granting Jonathan postadoption visits with Sophia. The order is on the form for a contact after adoption agreement, with signatures by counsel for Sophia and Jonathan and the court. Amanda, Randy, and Jonathan did not sign the form. Attached to the form is a postadoption contact agreement signed only by counsel for Sophia. It states that the terms of the agreement were put on the record in court on February 10, 2006, and attaches the reporters transcript of that proceeding. It provides that the agreement was modified because the court found that Jonathans default under the original February 10 agreement was excused. This timely appeal followed.

DISCUSSION

I

Jonathan first argues that the appeal is untimely because Randy did not appeal in February 2006 or in December 2006. We disagree. As we next discuss, although an oral stipulation was put on the record on February 10, 2006, it was never reduced to a writing signed by all the parties. Under section 8616.5, there was no postadoption contact agreement at that time, so there was no basis for an appeal. The order of the court made on the record in December 2006 was not reduced to a written order until May 2007. Randy filed a timely appeal from that order.

II

Randy argues the trial court erred in excusing Jonathan from his default under the original February 10, 2006 agreement, in violation of the constitutional presumption in favor of parental decisions concerning the care and custody of a child. An established prudential rule of judicial restraint counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357.) In compliance with this rule, we begin our analysis with Randys alternative argument that the trial court failed to comply with the requirements of section 8616.5.

Randy acknowledges that all parties treated the February 10, 2006 oral stipulation as a binding postadoption contact agreement. He points out that the hearing in December 2006 began as a status conference, at which Jonathan sought to reinstate his motion to vacate the adoption. He did not formally request modification of the February 10 agreement. The next day, Jonathan again changed his mind and asked for another chance to comply with the original agreement.

Section 8616.5 repeatedly states that parents are required to consent to postadoption contact by a biological parent. ( 8616.5, subd. (a) and (b).) Randy argues that the May17, 2007 order modifying the contact agreement violated section 8616.5 because: (1) it was not voluntarily agreed to in writing as required by subdivision (b); (2) it did not conform to the provisions to which Randy and Amanda agreed in 2006; (3) it was not entered into at the time Randys adoption decree was entered as required by subdivision (c); and (4) it does not contain the requisite findings for modification under subdivision (h). As we explain, the May 2007 order does not comply with the requirements of section 8616.5 and, for that reason, is not enforceable. We need not address the other arguments made by Randy.

A. Voluntary written agreement

Section 8616.5, subdivision (b)(1) provides that adoptive and biological parents may voluntarily enter into a written agreement to permit continuing contact between the birth relatives . . . and the child if the agreement is found by the court to have been entered into voluntarily and to be in the best interests of the child . . . .

The record establishes that there was no voluntary written agreement in conformity with section 8616.5, subdivision (b). Although Randy and Amanda signed it, Jonathan refused to sign the written version of the February 2006 oral stipulation which was circulated by counsel in March 2006. The courts modified order of May 2007 was not signed by Randy, Amanda, or Jonathan. Instead, it was signed by counsel for Sophia, counsel for Jonathan, and the court, over vehement objection by Randy. The May 2007 order is on a form provided by the Judicial Council (ADPOT-310) which states in section 6: Everyone involved in this agreement must sign below (including the child, if 12 or older, and the childs attorney). There was no enforceable postadoption contact agreement in February 2006 or thereafter because none was signed by the biological and adoptive parents as required.

B. Modification

Section 8616.5, subdivision (h) controls modifications of postadoption contact agreements. A postadoption contact agreement may be modified or terminated only if either of the following occurs: [] (1) All parties, including the child if the child is 12 years of age or older at the time of the requested termination or modification, have signed a modified postadoption contact agreement and the agreement is filed with the court that granted the petition of adoption. [] (2) The court finds all of the following: [] (A)  The termination or modification is necessary to serve the best interests of the child. [] (B) There has been a substantial change of circumstances since the original agreement was executed and approved by the court. [] (C) The party seeking termination or modification has participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings prior to seeking court approval of the proposed termination or modification.

Here, most significantly, the first condition was not satisfied because none of the parties signed the modification. The second condition requires further inquiry. As we have noted, on May 17, 2007, over Randys opposition, the court reviewed a proposed modified version of the contact agreement. The court found that contact continues to be in Sophias best interests. It then excused Jonathans default under the terms of the oral stipulation in February 2006. The court then signed the order. It did not make the additional findings required by subdivision (h). There is nothing on the record to indicate that Jonathan sought mediation or alternative dispute resolution when he attempted to reinstitute his petition to vacate the adoption in the fall of 2006.

On appeal, Jonathan argues that the May 2007 order is governed not by subdivision (h) of section 8616.5, but by subdivision (f) of that statute. Subdivision (f) provides: Upon the granting of the adoption petition and the issuing of the order of adoption of a child who is a dependent of the juvenile court, juvenile court dependency jurisdiction shall be terminated. Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption. The court may not order compliance with the agreement absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings regarding the conflict, prior to the filing of the enforcement action, and that the enforcement is in the best interests of the child. Documentary evidence or offers of proof may serve as the basis for the courts decision regarding enforcement. No testimony or evidentiary hearing shall be required. The court shall not order further investigation or evaluation by any public or private agency or individual absent a finding by clear and convincing evidence that the best interests of the child may be protected or advanced only by that inquiry and that the inquiry will not disturb the stability of the childs home to the detriment of the child.

Jonathan characterizes the May 2007 changes to the original February 2006 agreement as updates due to passage of time. That is not a proper characterization. As Randy has argued, a key provision of the 2006 stipulation was that the agreement would be terminated if Jonathan failed to appear for two visitations. That provision was omitted from the revision by changing the date for the start of visitation from 2006 to 2007. This modification brought the courts action under section 8616.5, subdivision (h), which, as we have discussed, was not satisfied.

In short, there was no voluntary written agreement to which all of the parties subscribed. Randy and Amanda agreed to one version (the February 2006 stipulation) and Jonathan, through his attorney, agreed to the modified version in May 2007, although he did not sign it as required by the statute. Randy opposed that version, and it was not signed by him or by Amanda. The trial court erred in signing the May 2007 agreement, and it is not binding on the parties.

Our conclusion is consistent with cases addressing the rights of third parties to visitation against the wishes of the parents. Since Randys adoption was not vacated, he, rather than Jonathan, is Sophias legal father. Section 8617 provides: The birth parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child. Jonathan never asserted his rights as biological father until after the adoption had become final. Undoubtedly, courts have exercised extreme caution in interfering with the decisions of parents regarding their children. The court in In re Marriage of W. (2003) 114 Cal.App.4th 68 held section 3101 on stepparent visitation unconstitutional as applied because it ignored the presumption in favor of a parental decision. The court reasoned: Requiring a presumption in favor of parental decisions also furthers the long-standing inclination of California courts to defer to the jointly expressed wishes of the parents except in the most unusual and extreme cases. (In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1520; see also Lopez v. Martinez (2000) 85 Cal.App.4th 279, 286.) (Id. at p. 74.)

Section 8616.5 sets up a careful procedure by which an adopted child may have contact with biological relatives if strict conditions are met. Foremost is the condition that the adoptive parents voluntarily agree in writing to the contact agreement. In this case there was no meeting of the minds and no voluntary agreement or modification as required by the governing statute. The trial court erred in ordering the enforcement of an arrangement to which all of the parties had never agreed.

DISPOSITION

The order of May 2007 approving a contact after adoption agreement is reversed. Randy is to have his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] All statutory references are to the Family Code unless otherwise indicated.