Brendan O. v. Merced County Human Services Agency , 130 Cal. Rptr. 3d 46 ( 2011 )

POOCHIGIAN, J., Concurring.

I concur in the majority opinion. I write separately to express my perspective about the circumstances in this case that must be examined in the context of a prescriptive, complex statutory scheme intended to achieve some level of stability for children in distress.

As the nature of family life continues to change in our culture—including parental absence and social pathologies that can do great harm to children— our legal system is constantly faced with the challenge of discerning and applying the law in a manner that is true to legislative intent and in the best interest of the children involved. Unlike so many causes where fashioning rules of conduct, managing behavior, and resolving conflicts are a rather straightforward, logical exercise with a foundation in the experience and wisdom of the ages, the development of dependency laws has undergone great change in the past few decades to meet the needs of children growing up in an environment that bears little resemblance to the television families of the ’50’s and ’60’s.

When dealing with the frailties of the most basic and important societal unit, the law that grapples with its failure is abstruse. Judgments that are made in this field can have the most profound effect on the lives of young people at the most fragile stage of their development. As the juvenile court weighs the factors that it must consider, its determinations necessarily involve critical input from professionals charged with the responsibility of evaluating the strengths and weaknesses of the parties involved and making reasoned recommendations in the best interest of the children.

Our expansive Family Code and Welfare and Institutions Code offer a scheme for application of rules whereby the fitness of custodial and prospective custodial parties is measured, with due deference to generally strict deadlines that are intended, in part, to achieve a permanent and stable living arrangement.

The Third District Court of Appeal once observed in another context: “Our system of appellate review is grounded in common sense and the real world. Trial court proceedings are imperfect, as are appellate proceedings. This is not to say close is good enough. We merely observe we always deal with all the errors and imperfections, conscientiously and cautiously, to determine whether a miscarriage of justice has occurred. [Citation.] If it has, we reverse. If it has not, we affirm.” (People v. Coley (1997) 52 Cal.App.4th 964, 969 [60 Cal.Rptr.2d 870].)

In re Mickel O. presents us with a most difficult example of the challenges that are faced by appellate courts in many dependency matters. We are charged with the responsibility of determining whether the juvenile court abused its discretion when it decided not to change the children’s placement from one set of grandparents to the other set of grandparents and to terminate visitation with the maternal grandparents. The court’s decisions could substantially impact the ultimate placement of the children. One set of grandparents is competing with the other—each hoping to prove that the other is less fit for service. The easy cases are those in which some miscreant behavior, lack of responsibility, or other manifest shortcoming leads to an obvious choice. This is not such a case.

Case law dealing with dependency issues often involves struggle between quarreling parents and stepparents, or parents and grandparents. In the instant case, we are well past time for consideration of the parents’ role. That task is complete. We are faced here with a rather unusual situation in which paternal and maternal grandparents, each of whom have had significant contact at various times with the affected children, are very contentious over visitation rights and generally disagreeable toward one another.¹ Making the decision of the juvenile court—and, in turn, our court on appeal—particularly difficult is the fact that there are significant conflicting observations concerning the relationships between the children and each of their four , grandparents, as well as questions raised about whether one set of grandparents may have been unfairly disfavored by the reviewing agency such that, under the applicable statutory scheme, the ultimate outcome may seem preordained.

The circumstances—including current placement of the children—may be viewed as likely to result in adoption by the paternal grandparents. While the inane level of acrimony between the competing grandparents and the way the parties were evaluated is somewhat discomfiting, the juvenile court made a decision based upon the evidence and professional recommendation before it.

However, in consideration of the love and affection between the children and their maternal grandparents, my concern is that the discretion exercised in the instant case would lead to the virtually inevitable result that the children may never see their maternal grandparents again. It is because of the importance of averting such an eventuality that I favor the course taken in the opinion herein.

Given the acrimony between the grandparents, there is serious doubt that every reasonable effort was made to encourage meaningful participation in counseling and mediation (with the parties bearing the cost if services are not routinely available through the court) and to provide a clear message to the parties that in making the ultimate placement and adoption decisions, the fitness of the parties would be weighed in the context of their appreciation for the value of nurturing in the children a positive relationship with their grandparents.

The paternal grandparents have expressed some willingness to reach an accord with the maternal grandparents to obtain some appropriate level of visitation in the future. One way of ensuring such occurrence would be to inform the parties of the possibility of entering into a “Postadoption Contact Agreement,” pursuant to Family Code section 8616.5, which expresses legislative findings that some adoptive children might benefit from contact with birth relatives and provides a statutory scheme for such agreements. “[Tjhe opportunity remains, at least before entry of a final adoption decree, for the parties to avail themselves of the provisions permitting a [postadoption contact agreement] and to make the agreement a part of the petition for adoption. If the parties were previously unaware of this law, that must no longer be true.” (In re Zachary D. (1999) 70 Cal.App.4th 1392, 1398 [83 Cal.Rptr.2d 407].)²

In light of this court’s opinion, it is my hope that in the exercise of its discretion, the juvenile court on remand will be able to facilitate an outcome—through a process of counseling and agreement between the grandparents for some meaningful level of visitation—that preserves the relationship between the children and their grandparents who express and demonstrate care and concern for them.

1 “Grandparents’ rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.]” (In re Marriage of Harris (2004) 34 Cal.4th 210, 219 [17 Cal.Rptr.3d 842, 96 P.3d 141]; see Welf. & Inst. Code, § 361.2, subd. (h) [where the court has ordered removal of the child from parental custody, the court shall consider whether the family ties and best interest of the child will be served by granting visitation rights to the child’s grandparents]; Welf. & Inst. Code, § 16507, subd. (a) [family reunification services shall include a plan for visitation of the child by his or her grandparents, where the visitation is in the best interests of the child and will serve to maintain and strengthen the family relationships of the child]; see also Fam. Code, §§ 3102, 3103, 3104.)

2 In re Zachary D., supra, 70 Cal.App.4th at pages 1394-1398, cited Family Code former section 8714.7, which dealt with “kinship adoption agreements.” Effective January 2001, the Legislature amended the statute and substituted “postadoption contact agreement” for “kinship adoption agreement” throughout. (Stats. 2000, ch. 930, § 3, p. 6950.) In 2003, the Legislature renumbered the statute as Family Code section 8616.5. (Stats. 2003, ch. 251, § 8, p. 2364; see also In re Noreen G. (2010) 181 Cal.App.4th 1359, 1394 & fn. 18 [105 Cal.Rptr.3d 521].)