Herbert H. v. Warren B.

Opinion

Few human experiences evoke the poignancy of a filial relationship and the pathos attendant upon its disruption in society’s effort to afford every child a meaningful chance to live life to its fullest promise. This appeal, posing a sensitive confrontation between the fundamental right of parental custody and the well being of a retarded child, reflects the deeply ingrained concern that the needs of the child remain paramount in the judicial monitoring of custody. In reaching our decision to affirm, we neither suggest nor imply that appellants’ subjectively motivated custodial objectives affront conventional norms of parental fitness; rather, we determine only that on the unusual factual record before us, the challenged order of guardianship must be upheld in order to avert potential harm to the minor ward likely to result from appellants’ continuing custody and to subserve his best interests.

Procedural Background

Preliminarily, we trace the sequence of procedural events leading to our review.

On February 23, 1981, respondents Herbert and Patsy H. filed a petition for appointment as guardians of the person and estate of Phillip B., then 14 years of age. Phillip’s parents, appellants Warren and Patricia B., appeared in opposition to the petition.

On August 7, 1981, following a 12-day trial, the trial court filed a lengthy memorandum of decision ordering—inter alia—1) the issuance of letters of guardianship to respondents with authority to permit a heart catheterization to be performed on Phillip, and 2) the immediate delivery (by appellants) of Phillip to the Sheriff and Juvenile Authority of Santa Clara County. That same day appellants filed a notice of appeal from both orders^[1]

On August 20, 1981, the California Supreme Court granted appellants’ petition for hearing, stayed the trial court’s order authorizing heart catheterization and retransferred the cause to this court with directions to issue an order to show cause why a writ of supersedeas should not issue.

Meanwhile, on September 24, the trial court filed formal findings of fact and conclusions of law and entered a “final order” confirming issuance of letters of guardianship and authorizing a heart catheterization. A second notice of appeal specifying both orders was thereafter filed by appellants.^[2]

On October 19, 1981, we again denied supersedeas in an unpublished opinion.

On November 18, 1981, the California Supreme Court granted a second petition for hearing, issued its writ of supersedeas limited to the trial court’s orders of August 7 and September 24 “insofar as they give authority for a heart catheterization upon Phillip B.,” and retransferred the cause to this court for determination of the merits of the appeal upon the completed record and full briefing. Thereafter, the matter was duly argued and submitted for decision.

Appellants raise several claims of reversible error relating to the sufficiency of evidence to support the findings, the admissibility of certain evidence and procedural due process. For the reasons which we explain, we find no error as claimed and affirm the order or judgment appealed. We consider the claims asserted in a sequence promoting clarity and convenience of discussion.

Sufficiency of the Evidence

Appellants’ dominant claim of insufficiency of substantial evidence to support the critical findings below triggers settled principles of review which may be briefly set forth:

“ ‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ (Primm v.

“In reviewing for substantial evidence, we look at the evidence in support of the successful party, disregarding the contrary showing. Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 , 925 [ 101 Cal.Rptr. 568 , 496 P.2d,480]; 6 Witkin, Cal. Procedure (2d ed. 1971) § 249, p. 4241.) All conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427 , 429 [ 45 P.2d 183 ]; 6 Witkin, supra, § 245, pp. 4236, 4237.) Weight of the evidence must be disregarded. (Estate of Teel (1944) 25 Cal.2d 520 , 527 [ 154 P.2d 384 ].)” (Munoz v. Olin (1979) 24 Cal.3d 629 ; 635-636 [ 156 Cal.Rptr. 727 , 596 P.2d 1143 ].)

We discuss the evidence in the record in some detail in light of such governing principles.

Phillip B. was bom on October 16, 1966, with Down’s Syndrome, a chromosomal anomaly—usually the presence of an extra chromosome attached to the number 21 pair—resulting in varying degrees of mental retardation and a number of abnormal physical characteristics. Down’s Syndrome reportedly occurs in approximately fw of 1 percent of live births.^[3]

Appellants, deeply distraught over Phillip’s disability, decided upon institutionalization, a course of action recommended by a state social worker and approved by appellants’ pediatrician. A few days later, Phillip was transferred from the hospital to a licensed board and care facility for disabled youngsters. Although the facility was clean, it offered no structured educational or developmental programs and required that all the children (up to eight years of age) sleep in cribs. Appellants initially visited Phillip frequently; but soon their visits became less frequent and they became more detached from him.

When Phillip was three years old a pediatrician informed appellants that Phillip had a congenital heart defect, a condition afflicting half of Down’s Syndrome children. (Smith & Wilson, supra, p. 41.) Open heart surgery was suggested when Phillip attained age six. However, appellants took no action to investigate or remedy the suspected medical problem.

After the board and care facility had been sold during the summer of 1971, appellants discovered that the condition of the facility had seriously deteriorated

At that time, the facility—which cared for about 20 children more severely handicapped than Phillip—operated under very limited conditions: it had no programs of education or therapy; the children were not enrolled in outside programs; the facility lacked an outdoor play area; the building was in poor repair; and the kitchen had only a two-burner hot plate used to cook pureed food.

In April 1972, We Care employed Jeanne Haight (later to become program director and assistant administrator of the facility) to organize a volunteer program. Mrs. Haight quickly noticed Phillip’s debilitated condition. She found him unusually small and thin for his age (five); he was not toilet trained and wore diapers, still slept in a crib, walked like a toddler, and crawled down stairs only inches high. His speech was limited and mostly unintelligible; his teeth were in poor condition.

Mrs. Haight, who undertook a recruitment program for volunteers, soon recruited respondent Patsy H., who had helped to found a school for children with learning disabilities where Mrs. Haight had once been vice principal. Mrs. H. began working at We Care on a daily basis. Her husband, respondent Herbert H., and their children, soon joined in the volunteer activities.

Mrs. H., initially assigned to work with Phillip and another child, assisted Phillip in experimenting with basic sensory experiences, improving body coordination, and in overcoming his fear of steps. Mr. H. and one of the H. children helped fence the yard area, put in a lawn, a sandbox, and install some climbing equipment.

Mrs. Haight promptly initiated efforts to enroll Phillip in a preschool program for the fall of 1972, which required parental consent.^[4] She contacted Mr. B. who agreed to permit Phillip to participate provided learning aptitude could be demonstrated. Mrs. H. used vocabulary cards to teach Phillip 25 to 50 new words and to comprehend word association. Although Mr. B. failed to appear at the appointed time in order to observe what Phillip had learned, he eventually

Respondents continued working with Phillip coordinating their efforts with his classroom lessons. Among other things, they concentrated on development of feeding skills and toilet training and Mr. H. and the two eldest children gradually became more involved in the volunteer program.

Phillip subsequently attended a school for the trainable mentally retarded (TMR) where the children are taught basic survival words. They are capable of learning to feed and dress themselves appropriately, doing basic community activities such as shopping, and engaging in recreational activities. There is no attempt to teach them academics, and they are expected to live in sheltered settings as adults. In contrast, children capable of attending classes for the educable mentally retarded (EMR) are taught reading, writing, and simple computation, with the objective of developing independent living skills as adults.

A pattern of physical and emotional detachment from their son was developed by appellants over the next several years. In contrast, during the same period, respondents established a close and caring relationship with Phillip. Beginning in December 1972, Phillip became a frequent visitor at respondents’ home; with appellants’ consent, Phillip was permitted to spend weekends with respondents, a practice which continued regularly and often included weekday evenings. At the same time, respondents maintained frequent contact with Phillip at We Care as regular volunteer visitors. Meanwhile, appellants visited Phillip at the facility only a few times a year; however, no overnight home visits occurred until after the underlying litigation ensued.

Respondents played an active role in Phillip’s behavorial development and educational training. They consistently supplemented basic skills training given Phillip at We Care.^[5]

Phillip was openly accepted as a member of the H. family whom he came to love and trust. He eventually had his own bedroom; he was included in sharing household chores. Mr. H. set up a workbench for Phillip and helped him make simple wooden toys; they attended special Boy Scout meetings together. And Phillip regularly participated in family outings. Phillip referred to the H. residence as “my house.” When Phillip began to refer to the H.’s as “Mom” and “Dad,” they initially discouraged the familar reference, eventually suc

Meanwhile, appellants continued to remain physically and emotionally detached from Phillip. The natural parents intellectualized their decision to treat Phillip differently from their other children. Appellants testified that Phillip, whom they felt would always require institutionalization, should not be permitted to form close emotional attachments which—upon inevitable disruption— would traumatize the youngster.

In matters of Phillip’s health care needs, appellants manifested a reluctant—if not neglectful—concern. When Dr. Gathman, a pediatric cardiologist, diagnosed a ventricular septal defect^[7] in Phillip’s heart in early 1973 and recommended catheterization (a medically accepted presurgery procedure to measure pressure and to examine the interior of the heart), appellants refused their consent.

In the spring of 1977, Dr. Gathman again recommended heart catheterization in connection with the anticipated use of general anesthesia during Phillip’s major dental surgery. Appellants consented to the preoperative procedure which revealed that the heart defect was surgically correctible with a maximum risk factor of 5 percent. At a conference attended by appellants and Mrs. Haight in June 1977, Dr. Gathman recommended corrective surgery in order to avoid a progressively deteriorating condition resulting in a “bed-to-chair existence” and the probability of death before the age of 30.^[8] Although Dr. Gathman—as requested by Mrs. B.—supplied the name of a parent of Down’s Syndrome children with similar heart disease, no contact was ever made. Later that summer, appellants decided—without obtaining an independent medical consultation—against surgery. Appellants’ stated reason was that Dr. Gathman had “painted” an inaccurate picture of the situation. They felt that surgery would be merely life-prolonging rather than life-saving, presenting the possibility that

In September 1978, upon hearing from a staff member of We Care that Phillip had been regularly spending weekends at respondents’ home, Mr. B. promptly forbade Phillip’s removal from the facility (except for medical purposes and school attendance) and requested that respondents be denied personal visits with Phillip at We Care. Although respondents continued to visit Phillip daily at the facility, the abrupt cessation of home visits produced regressive changes in Phillip’s behavior: he began acting out violently when respondents prepared to leave, begging to be taken “home”; he resorted to profanity;, he became sullen and withdrawn when respondents were gone; bed wetting regularly occurred, a recognized symptom of emotional disturbance in children. He began to blame himself for the apparent rejection by respondents; he began playing with matches and on one occasion he set his clothes afire; on another, he rode his tricycle to respondents’ residence a few blocks away proclaiming on arrival that he was “home.” He continuously pleaded to return home with respondents. Many of the behavorial changes continued to the time of trial.^[10]

Appellants unsuccessfully pressed to remove Phillip from We Care notwithstanding the excellent care he was receiving. However, in January 1981, the regional center monitoring public assistance for residential care and training of the handicapped, consented to Phillip’s removal to a suitable alternate facility. Despite an extended search, none could be found which met Phillip’s in

Evidence established that Phillip, with a recently tested I.Q. score of 57,^[11] is a highly functioning Down’s Syndrome child capable of learning sufficient basic and employable skills to live independently or semi-independently in a noninstitutional setting.

Courts generally may appoint a guardian over the person or estate of a minor “if it appears necessary or convenient.” (Prob. Code, § 1514, subd. (a).) But the right of parents to retain custody of a child is fundamental and may be disturbed “ . . only in extreme cases of persons acting in a fashion incompatible with parenthood.’” (In re Angelia P. (1981) 28 Cal.3d 908 , 916 [ 171 Cal.Rptr. 637 , 623 P.2d 198 ], quoting In re Carmaleta B. (1978) 21 Cal.3d 482 ,489 [ 146 Cal.Rptr. 623 , 579 P.2d 514 ].) Accordingly, the Legislature has imposed the stringent requirement that before a court may make an order awarding custody of a child to a nonparent without consent of the parents, “it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child.” (Civ. Code, § 4600, subd. (c); see In re B. G. (1974) 11 Cal.3d 679 , 695-699 [ 114 Cal.Rptr. 444 , 523 P.2d 244 ] .)^[12] That requirement is equally applicable to guardianship proceedings under Probate Code section 1514, subdivision (b). The legislative shift in emphasis from parental unfitness to detriment to the child did not, however, signal a retreat from the judicial practice granting custodial preference to nonparents “only in unusual and extreme cases.” (In re B. G., supra, 11 Cal.3d 679 , 698, see Guardianship of Marino (1973) 30 Cal.App.3d 952 , 958 [ 106 Cal.Rptr. 655 ].)

The trial court expressly found that an award of custody to appellants would be harmful to Phillip in light of the psychological or “de facto” parental relationship established between him and respondents.^[13] Such relationships

Nor are we persuaded by appellants’ suggested policy considerations concerning the arguably subjective inquiry involved in determining psychological parenthood. Trial fact finders commonly grapple with elusive subjective legal concepts without aid of “countervailing” objective criteria. A fortiori, in enacting Civil Code section 4600, the Legislature purposefully refrained from prescribing specific criteria in determining whether parental custody would be “detrimental,” reasoning that “[i]t is a nearly impossible task to devise detailed standards which will leave the courts sufficient flexibility to make the proper judgment in all cases.” (Rep. of Assem. Judiciary Com., 4 Assem. J. (1969 Reg. Sess.) p. 8061.) Moreover, the suggested standard is itself vulnerable to a claim of undue subjectivity in its vague requirement of residency for a “considerable period of time.”^[15]

Appellants also challenge the sufficiency of the evidence to support the finding that their retention of custody would have been detrimental to Phillip. In making the critical finding, the trial court correctly applied the “clear and convincing” standard of proof necessary to protect the fundamental rights of parents in all cases involving a nonparent’s bid for custody. (See In re B. G., supra, 11 Cal.3d 679 , 699 [Civ. Code, § 4600 sanctions a nonparent custodial award “only upon a clear showing that such award is essential to avert harm to the child”; italics ours]; cf. In re Angelia P., supra, 28 Cal.3d at pp. 918-919 [“clear and convincing evidence” standard applicable in proceedings under

The record contains abundant evidence that appellants’ retention of custody would cause Phillip profound emotional harm. Notwithstanding Phillip’s strong emotional ties with respondents, appellants abruptly foreclosed home visits and set out to end all contact between them. When Phillip’s home visits terminated in 1978, he displayed many signs of severe emotional trauma: he appeared depressed and withdrawn and became visibly distressed at being unable to return to “my house,” a request he steadily voiced up until trial. He became enuretic, which a psychologist, Dr. Edward Becking, testified indicates emotional stress in children. (See In re Lynna B., supra, 92 Cal.App.3d 682 , 697 [psychiatric evidence that bed wetting is symptomatic of detriment suffered by children when ties with “psychological” parents are severed].) Dr. Becking testified to other signs of emotional disturbance which were present nearly three years after the termination of home visits.^[16]

Our law recognizes that children generally will sustain serious emotional harm when deprived of the emotional benefits flowing from a true parent-child relationship. (See, e.g., In re Lynna B., supra, 92 Cal.App.3d 682 , 697; In re D. L. C. (1976) 54 Cal.App.3d 840 , 849 [ 126 Cal.Rptr. 863 ]; In re Reyna (1976) 55 Cal.App.3d 288 , 302 [ 126 Cal.Rptr. 138 ]; Adoption of Michelle T. (1975) 44 Cal.App.3d 699 , 706-707 [ 117 Cal.Rptr. 856 , 84 A.L.R.3d 654 ]; Guardianship of Marino, supra, 30 Cal.App.3d 952 , 956, 961; Guardianship of Casad (1951) 106 Cal.App.2d 134 , 152 [ 234 P.2d 647 ].)

There was uncontroverted expert testimony that Phillip would sustain further emotional trauma in the event of total separation from respondents: the testimony indicated that, as with all children, Phillip needs love and affection, and he would be profoundly hurt if he were deprived of the existing psychological parental relationship with respondents in favor of maintaining unity with his biological parents.

Phillip’s conduct unmistakably demonstrated that he derived none of the emotional benefits attending a close parental relationship largely as a result of

Finally, there was also evidence that Phillip would experience educational and developmental injury if parental custody remains unchanged. At Phillip’s functioning level of disability,^[17] he can normally be expected to live at least semi-independently as an adult in a supervised residential setting and be suitably trained to work in a sheltered workshop or even a competitive environment (e.g., performing assembly duties or custodial tasks in a fast-food restaurant). Active involvement of a parent figure during the formative stages of education and habilitation is of immeasurable aid in reaching his full potential. Unfortunately, appellants’ deliberate abdication of that central role would effectively deny Phillip any meaningful opportunity to develop whatever skills he may be capable of achieving. Indeed, Dr. Becking testified that further separation from respondents would not only impair Phillip’s ability to form new relationships but would “for a long while” seriously impair Phillip’s development of necessary prevocational and independent-living skills for his future life.

Nor can we overlook evidence of potential physical harm to Phillip due to appellants’ passive neglect in response to.Phillip’s medical condition. Although it appears probable that the congenital heart defect is no longer correctible by surgery,^[18] the trial court could have reasonably concluded that appellants’ past conduct reflected a dangerously passive approach to Phillip’s future medical needs.^[19]

It is a clearly stated legislative policy that persons with developmental disabilities shall enjoy—inter alia—the right to treatment and rehabilitation ser

Of course, the natural parents are entitled to the same right to adequate notice in child custody proceedings. (See Armstrong v. Manzo (1965) 380 U.S. 545 , 550 [ 14 L.Ed.2d 62 , 65-66, 85 S.Ct. 1187 ].) But due process does not require that a guardianship petition include a detailed statement of the underlying specific facts upon which it is based. The requirement of fact-pleading is a creature of statute (compare Fed. Rules Civ. Proc., rule 8, 28 U.S.C.) and as such, may be limited by statute precisely as section 4600 limits the factual pleading of detriment in custody matters. Due process requires only that the petition give adequate notice to the parties of the specific issues presented in order to permit a reasonable opportunity to prepare for the hearing on the petition.

Appellants received such notice and appeared at the scheduled hearing on the guardianship petition. It was unnecessary for the petition to allege that parental custody would be detrimental to the child since the issue of detriment is itself prescribed by statute. (Civ. Code, § 4600.) The available civil discovery procedures afforded appellants a reasonable opportunity to prepare for the hearing by identifying and narrowing the issues in a manner far more comprehensive than could be expected of the approved form of a guardianship pleading. If, as appellants contend, respondents’ answers to interrogatories were confusing and

Assuming arguendo that a heart catheterization procedure constitutes a form of “surgery”^[21] within the meaning of section 2353, appellants neither cite nor are we aware of any authority which requires a separate petition and independent hearing where, as here, the statutory information (Prob. Code, § 2357, subd. (c)) is presented in the course of the guardianship proceeding and the court makes the required findings. (Prob. Code, § 2357, subd. (h).) In the special circumstances shown, it would have been a wasteful duplication to insist upon a wholly separate proceeding to reach the same issue on substantially the same proofs. In the interest of judicial economy, we construe section 2357 to permit such surgery authorization without a separate petition when the essential information is presented timely and the issues fully litigated and determined during the guardianship proceedings, as clearly manifested herein. Thus, we find the order authorizing heart catheterization to be free of procedural defect.

Appellants’ remaining due process complaint is directed to the trial court’s receipt of a confidential juvenile probation department report bearing upon respondents’ suitability as guardians. (See Civ. Code, § 4602; Prob. Code, § 1513, subd. (b).) The report, a copy of which had been mailed to appellants, was received and reviewed by the court after its August 7 decision without hearing. However, the report was never admitted into evidence.

Due process considerations generally mandate the right to an evidentiary hearing to question the contents of the report or to permit counterevidence. (Wheeler v. Wheeler (1973) 34 Cal.App.3d 239 , 242 [ 109 Cal.Rptr. 782 ].) But the failure to object to the report or request a hearing effectively waives such right. (Long v. Long (1967) 251 Cal.App.2d 732 , 736-737 [ 59 Cal.Rptr. 790 ].) Here, although appellants were well aware of the report and its contents with ample opportunity to register objections or demand a hearing (as late as the Sept. 24 final guardianship order), appellants waived their right by choosing to remain silent. Thus, they cannot now be heard to complain of the lack of a hearing.

Appellants’ showing of diligence was minimal at best. Although aware of the general nature of the new evidence as early as the night of July 17, counsel offered no plausible explanation for the untimely disclosure. Additionally, appellants’ belated claim of deception due to respondents’ reply to an interrogatory whether the latter had ever received treatment for “mental illness” is unpersuasive. The use of such inexact expression could not reasonably be interpreted to include the fact of an earlier counselling incident.^[22] Since the burden rested on appellants to submit clear and specific interrogatories, they cannot now complain of having been misled by the otherwise responsive answer given.

Unlike the unusual circumstances shown in In re T. M. R., supra, 41 Cal.App.3d 694 (in which recently acquired evidence of the mother’s release from prison three weeks earlier would have mooted the basis for terminating custody), the excluded testimony under seal herein cannot be considered as equally significant to the question of the necessity for guardianship. In any case, a custodial award to a nonparent can yet serve a child’s best interests in the sense of being the “least detrimental available alternative” (see In re Angelia P., supra, 28 Cal.3d 908 , 916-917, citing Goldstein, supra, pp. 53-54) notwithstanding other evidence of a nonparent’s past emotional difficulty requiring limited crisis counselling. Accordingly, we cannot conclude as a matter of law that it was error to exclude the proffered testimony in reaching the challenged award of guardianship in Phillip’s best interests. Finally, the juvenile department report considered by the court provided some evidence favoring respondents’ suitability as guardians which, of course, is subject to later termination if the best interests of the child so require. (See Prob. Code, § 1601 .)^[23]

In view of our determination, we need not discuss the remaining arguments raised in the briefs.