Substantial Evidence Supported Trial Court’s Termination of Adoptive Father’s Parental Rights

In Re Marriage of E. & Stephen P. (2013) 213 CA4th 983 (2nd Dist):

Adoptive mother E. petitioned trial court to terminate adoptive father Stephen’s parental rights under Family Code § 7827. Requiring evidence from two experts, FC § 7827 provides for the termination of parental rights of a mentally disabled parent when the parent is likely to remain mentally disabled for the foreseeable future and accordingly unable to care for and control the child adequately. Prior to the adoption, Stephen treated his mental illness with medication but then stopped after the adoption, causing a deterioration of his mental condition and leading to marital discord and harmful parenting. Most notably, Stephen once tried to force E. and minor into his car causing minor to fall from mother’s arms fracturing his skull. Separately and according to E., Stephen then also suffered a conviction for the attempted murder of his own mother. E. pursued divorce, moved out of state with minor, filed to terminate parental rights once but did not pursue to a court determination, and then filed to terminate again with the trial court siding with her.

The Court of Appeal ruled that the father’s contentions under Family Code §§ 7850 and 7851 that a licensed clinical social worker should have made a report at trial could not be raised on appeal as Stephen had not raised that issue during trial. The Court of Appeal found that the clinical social worker’s report was not jurisdictionally required but could have been considered as procedural and evidentiary. Stephen was already with appointed counsel, an appointed guardian ad litem, there were two psychiatrists and one psychologist, and then there was appointed minor’s counsel. Without other less drastic alternatives because of father’s continued failure to comply with required medical treatment, any remedy short of termination would be inimical to minor’s welfare.

Though “the right of parents to raise their own children is so fundamental that termination of that right by the courts must be viewed as a drastic remedy to be applied only in extreme cases” [In re Victoria M. (1989) 207 CA3rd 1317, 1326], the Court of Appeal found forfeiture of the FC §§ 7850 and 7851 claims applied in part to promote efficiency and to deter gamesmanship – but regardless, three experts provided evidence at trial so clinical social worker likely would have been cumulative.