Adoption of Malia D.









Filed 11/15/10 Adoption of Malia D. CA2/6




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Adoption of MALIA D., a Minor.	2d Civ. No. B220451 (Super. Ct. No. AD 080084) (San Luis Obispo County)
RICHARD D., et al., Plaintiffs and Respondents, v. K.D., Defendant and Appellant.

K.D. is the mother of Malia D. Malia's father, Jarrod D., was murdered by K.'s parents. K. was convicted of being an accessory after the fact (Pen. Code, § 32) and of committing perjury during the grand jury proceedings. Though her conviction was as a post-murder accessory, the trial court in the instant matter found her "denial that she knew of her parents' murderous plans before they were carried out is not credible. The inducements that led K.'s parents to plan and carry out Jarrod's murder could only have come from her." The trial court concluded that K.'s complicity was not simply after the fact but of the murder itself. Malia is now thriving in the care and custody of Richard and Susan D., her paternal grandparents, who seek to adopt her. Like the trial court, we decline to return Malia to the custody of a mother complicit in her father's murder. We affirm.
FACTS AND PROCEDURAL HISTORY
Malia D. was born in July 2000 to K.D. and Jarrod D. Jarrod was shot to death on July 9, 2004, during the course of a custody dispute. K.'s father confessed to first degree murder by lying in wait, and use of a firearm in the commission of that offense. A jury convicted K.'s mother of first degree murder. We affirmed the conviction.[1] K. was arrested on April 14, 2005, and charged with murder and conspiracy in Jarrod's death. In return for her father's plea to first degree murder, K.'s charges were reduced and she pled guilty to the felony of accessory after the fact (Pen. Code, § 32) and two counts of perjury (Pen. Code, § 118) on December 14, 2005. She was sentenced to four years in prison. With custody credits, K. was released on parole in July 2007.
Richard and Susan are Malia's paternal grandparents. After Jarrod's death and prior to K.'s arrest, Richard and Susan petitioned the San Luis Obispo County Superior Court for, and received, visitation with Malia, including overnight visits. On April 15, 2005, after K.'s arrest, the trial court placed Malia with Richard and Susan, and made temporary custody orders awarding them full custody of Malia. Malia has lived in the state of Nevada with Richard and Susan since that time.
In May 2006, Richard and Susan filed a petition in the Clark County, Nevada Superior Court to be appointed Malia's temporary guardians. On June 15, 2006, it appointed Richard and Susan as general guardians of Malia's person and estate.
On January 10, 2008, following her release from prison, K. filed a petition in Clark County, requesting that Malia be returned to her custody. On May 22, 2008, a conference between the California and Nevada courts pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, §§ 3400, 3410) resulted in a decision that jurisdiction for proceedings regarding Malia was properly in California. Subsequently, the Nevada court issued an order stating that its prior order appointing Richard and Susan as Malia's guardians was void and transferred the custody proceedings to the San Luis Obispo County Superior Court.
On August 29, 2008, Richard and Susan filed an adoption request with the San Luis Obispo County Superior Court. On September 2, 2008, they filed a petition for freedom from parental control and custody of Malia pursuant to Probate Code section 1516.5 and Family Code sections 7822 and 7825, and to be appointed Malia's temporary guardians. On December 3, 2008, the court appointed Richard and Susan temporary guardians of Malia nunc pro tunc effective as of April 11, 2006, the date the previous guardianship order was issued by the Nevada court.
A two-day trial commenced on August 26, 2009. The trial court issued its tentative statement of decision on September 9, 2009. K. did not object. On October 6, 2009, the court issued its statement of decision and judgment terminating K.'s parental rights. The trial court found by clear and convincing evidence that K. intentionally abandoned Malia (Fam. Code, § 7822) by (1) committing criminal acts that resulted in her imprisonment for more than two years, (2) failing to communicate with Malia for more than two years, (3) disregarding clearly-stated instructions from a Nevada family court judge to begin reunification services, and (4) failing to provide for Malia's support.
The trial court also found that termination of parental rights was proper because K.'s role in Jarrod's murder showed she was an unfit parent (Fam. Code, § 7825), and because Richard and Susan had sole legal and physical custody of Malia for more than two years and her adoption by them was in her best interests. (Prob. Code,
§ 1516.5.)
On appeal, K. contends the court did not comply with the requirements of Probate Code section 1516.5 and substantial evidence does not support terminating her parental rights under section 1516.5 or Family Code section 7822 or 7825.
DISCUSSION
1. Probate Code Section 1516.5
K. contends the judgment terminating her parental rights must be reversed because the trial court failed to comply with various provisions of Probate Code section 1516.5.[2] The statute applies to parents whose custody rights have been suspended during a probate guardianship.[3] (In re Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1118.) "Section 1516.5 authorizes the termination of parental rights when the guardianship has continued for at least two years, and the court finds that adoption by the guardian would be in the child's best interest." (Ibid.) A termination of parental rights proceeding under this statute occurs when the parent has failed to exercise any custodial responsibility over a child for a two-year period. Thus, the statute does not require a showing that the parent is currently unfit. As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child. Section 1516.5 requires the court to balance all the familial interests in deciding what is best for the child. (Ibid.)
A. The Temporary Guardianship Order Was Valid
K. asserts the court was without jurisdiction to enter its December 3, 2008, order granting temporary guardianship of Malia to Richard and Susan because it made the order effective nunc pro tunc as of April 11, 2006, the date the guardianship order was issued by the Nevada court. K. argues that the 2008 order was invalid because the Nevada court declared its 2006 order to be void. As a consequence, the court violated some unspecified portion of section 1516.5.[4]
We will assume, as do respondents, that K. is arguing that subdivision (a)(2) of section 1516.5, requiring that Richard and Susan have physical custody of Malia for two years, has not been fulfilled because the 2006 guardianship order was declared void by the Nevada court. As a consequence, there was no legal custody in effect between 2006 and 2008. The argument is without merit.
The San Luis Obispo County Superior Court obtained jurisdiction of the matter pursuant to the UCCJEA in 2005 when it issued its guardianship orders. (Fam. Code, § 3421.) That jurisdiction is exclusive and continuing. (Fam. Code, § 3422; see, e.g., Taylor M. v. Superior Court (2003) 106 Cal.App.4th 97, 109-110 [California court had jurisdiction over infant, where it made a custody determination prior to any action by a Texas court].) There is nothing in the record showing that the guardianship order issued by the California court was terminated any time thereafter. Having properly acquired jurisdiction, the California court did not lose that jurisdiction when the Nevada court issued its invalid order. By making its 2008 guardianship order effective as of the date the Nevada court issued its order, the California court did nothing more than employ its previously-acquired jurisdiction and exercise its power under Family Code section 3443, subdivision (b), to "utilize any remedy available under other laws of this state to enforce a child custody determination made by a court of another state." (See Phillips v. Phillips (1953) 41 Cal.2d 869, 875 [the general rule in California is that "[c]ourts have inherent power to enter judgments nunc pro tunc so as to relate back to the time when they should have been entered"].)
B. The Investigative Report Complied with Statutory Requirements
K. argues the investigative report prepared for the court was incomplete because the court-appointed investigator did not personally interview Malia and explain to her the nature of the proceedings, but instead relied on interviews and a letter from Malia's therapist for this information.
Probate Code section 1516.5, subdivision (b) states: "The court shall appoint a court investigator or other qualified professional to investigate all factors enumerated in subdivision (a). The findings of the investigator or professional regarding those issues shall be included in the written report required pursuant to Section 7851 of the Family Code."
Family Code section 7851 states: "(a) The juvenile probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, or the county department shall render to the court a written report of the investigation with a recommendation of the proper disposition to be made in the proceeding in the best interest of the child.
"(b) The report shall include all of the following:
"(1) A statement that the person making the report explained to the child the nature of the proceeding to end parental custody and control.
"(2) A statement of the child's feelings and thoughts concerning the pending proceeding.
"(3) A statement of the child's attitude towards the child's parent or parents and particularly whether or not the child would prefer living with his or her parent or parents.
"(4) A statement that the child was informed of the child's right to attend the hearing on the petition and the child's feelings concerning attending the hearing.
"(c) If the age, or the physical, emotional, or other condition of the child precludes the child's meaningful response to the explanations, inquiries, and information required by subdivision (b), a description of the condition shall satisfy the requirement of that subdivision.
"(d) The court shall receive the report in evidence and shall read and consider its contents in rendering the court's judgment."
At trial, the investigator explained that he referred questions concerning Malia to Deborah Roberts, Malia's therapist since 2005. In addition to the investigator's report, the court received as evidence a letter written by Roberts to the investigator in which she states that she interviewed Malia regarding the termination proceedings. Roberts stated in the letter that: "Malia understands that it would mean that she would always be able to live with her grandparents and not have to go live with her mother" and "Malia clearly states that she wants to live with her paternal grandparents and stay here with her friends and her life in Nevada."
During trial, K. did not challenge the sufficiency of the report. Issues not raised at trial usually will not be considered on appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [father's failure to raise inadequacy of social worker's report in proceeding terminating his parental rights].)
Moreover, there is nothing in the statute precluding the investigator from relying on Malia's therapist for an assessment of the child's feelings. Section 7851 itself permits the court to rely on the report of a therapist. It was not error for the investigator to delegate this portion of the investigation to the person most knowledgeable about Malia's feelings.
Finally, any error in this regard was harmless beyond a reasonable doubt. "The purpose of the investigation and report required by the statute is to provide the court with a full understanding of the factual setting of the petition for termination of parental rights." (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1381.) As stated above, the court received information about Malia's feelings from the person best equipped to provide that information. As no prejudice occurred, any noncompliance with section 1516.5, subdivision (b), was harmless error.
C. No Violation of the Indian Child Welfare Act
Appellant asserts the court failed to make the inquiries required by the Indian Child Welfare Act (ICWA).[5] Probate Code section 1516.5, subdivision (d) states: "This section does not apply. . . to any Indian child." California Rules of Court, rule 5.480 states in part: "This chapter addressing the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) . . . applies to all proceedings involving Indian children that may result in [a] . . . declaration freeing a child from the custody and control of one or both parents
. . . ."
California Rules of Court, rule 5.481(a)(1) states in part: "The party seeking a . . . declaration freeing a child from the custody or control of one or both parents . . . must ask the child, if the child is old enough, and the parents . . . whether the child is or may be an Indian child and must complete the Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition . . . ." The form adoption request (ADOPT-200) filed by Richard and Susan had a box checked that Malia did not have Indian ancestry. Attached to the guardianship petition filed by Richard and Susan was a form "Child Information Attachment." That form contains the question: "Do you know or have reason to know . . . that this child may be an Indian childâ€