Adoption of Samatha P. CA2/3 filed 2/27/13 A

SUPREME COURT CASES

Laws-info.com » Cases » California » 2nd Appellate District » 2013 » Adoption of Samatha P. CA2/3 filed 2/27/13 A

State: California

Court: California Eastern District Court

Docket No: B232600

Case Date: 02/27/2013

Preview:Filed 2/27/13 Adoption of Samatha P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

ADOPTION OF SAMANTHA P., a Minor. IRENE M., Plaintiff and Appellant, v. SCOTT P. et al., Defendants and Respondents. ___________________________________ NICHOLAS C., Real Party in Interest.

B232600 (Los Angeles County Super. Ct. No. GT000441)

APPEAL from an order of the Superior Court of Los Angeles County, Joseph F. De Vanon, Judge. Order affirmed. The Nair Law Group and Gouri G. Nair for Plaintiff and Appellant. Christopher Blake for Real Parties in Interest, Samantha P., et al. Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Minor. ___________________________________________

Irene M. appeals from the trial court's order denying her motion to enforce a "visitation" clause in a contact after adoption agreement entered into pursuant to Family Code section 8616.5. We affirm the trial court's order. FACTUAL AND PROCEDURAL HISTORY 1. Background Facts

In 2003, petitioner, Irene M., became the foster parent, with the possibility of adoption, of two-and-one-half year old Nicholas C. and his two-and-one-half month old sister, Samantha. Irene M. was assisted in the care of these children by her daughter, 19-year-old Crystal C., and adopted them on August 23, 2003. However in 2005, Irene M. began to have persistent health problems. She was diagnosed with Guillen-Barre Syndrome and spent much of 2005 in the hospital. Family friends, Scott and Glori P., took over the care of Samantha and, in 2006, they adopted her. At the same time, Scott and Glori P. and Irene M. executed a post-adoption contact agreement (ADOPT-310) pursuant to Family Code section 8616.5 in which the three agreed that Nicholas and Samantha would maintain contact by telephone, mail, the opportunity to share information, e-mail, visits and "other" means. The agreement was signed by Glori P., Scott P., Irene M., their lawyer, Michael L. Oddenino and, on March 17, 2006, Judge Joseph F. De Vanon of the Pasadena Superior Court.1

The agreement reads in part: "Irene [M.], Nicholas C. [M.'s] adoptive mother, agrees to facilitate contact through the means of telephone, letter, share information, e-mail, and visits, between Nicholas [M.] and Samantha [P.], natural brother and sister, on a regular basis to maintain and develop their all ready [sic] established relationship. Scott and Glori [P.] agree to reciprocate the efforts of contact between Nicholas and 2

1

After Samantha's adoption, she and her brother, Nicholas, kept in contact by means of the telephone, internet, Skype and visits. They communicated with each other between two and five times each week. Until July of 2009, Scott and Glori P. lived in Whittier while Irene M. lived in San Gabriel. Under those circumstances, physical visitation was relatively easy to arrange and "Samantha and Nicholas grew up knowing each other as brother and sister." Then, in March of 2009, the P.s were forced to close their business and, after months of looking for employment, Scott P. was offered a position in Missouri. In July of 2009 Scott accepted the job and the family moved to a suburb of St. Louis. According to Scott P., "[s]ince moving to Missouri, both [he and Glori P.] have encouraged Samantha to stay in contact with Nicholas. However, the truth of the matter is that it does not take a tremendous amount of encouragement on [the P.'s] part . . . . On their own[,] the children . . . typically communicate with each other electronically at least 2 times per week" by means of Skype, telephone or e-mail. Irene M. and Crystal C. do not dispute this, but assert that Scott and Glori have begun to improperly monitor the phone calls and electronic communications and note that Samantha and Nicholas have not had any physical contact since 2009.

Samantha, also through the means of telephone, letter, share information, e-mail and visits." The agreement does not specify how often, where or how "visits" are to occur. 3

2.

The Mediations

The monitoring of the electronic communications and the lack of physical contact "led to tension" between Irene M. and Crystal C. and Scott and Glori P.2 This led Irene M. and Crystal C. to seek mediation pursuant to Family Code section 8616.5, subdivision (e)(3).)3 Irene M. and Crystal C. hoped that, through mediation, arrangements could be made for visits between the children.4 The two mediations, however, proved unsuccessful. On February 22, 2011, the mediator reported that "[d]espite good faith attempts on both sides, the parties were unable to solve their

In addition, after the adoption of Samantha, Irene M. and Crystal C. had a falling out with Scott and Glori P. Each accused the other of having adulterous relationships and Scott P. indicated he believed Irene M. had become "controlling," "belligerent" and "insulting" and led a lifestyle that he and Glori P. found "offensive." In his declaration, Scott P. stated that it had been his experience that Ms. M. felt " `no reluctance to voice her anger about [the P.'s], in the form of name calling and derogatory insults, in the presence of Samantha . . . . [Scott P. believed] [t]his behavior [was] unacceptable and [was] not something that [he and Mrs. P.] wish[ed] to have inflicted upon [their] daughter. . . . ' " Finally, Scott P. did not wish to have Samantha exposed to what he believed was Ms. M.'s immoral lifestyle. He indicated that he believed she was the mistress of a married man and "use[d] threats of informing this man's wife . . . in order to get ongoing support from [him]." That subdivision of section 8616.5 provides: "A court will not act on a petition to change or enforce this agreement unless the petitioner has participated, or attempted to participate, in good faith in mediation, or other appropriate dispute resolution proceedings to resolve the dispute." In her Request to: Enforce, Change, End Contact After Adoption Agreement, Irene M. indicated that she "would like specific orders for visitation that [would] prevent further discord and assure the children of frequent and consistent contact." She then attached a proposed visitation schedule under which Samantha would spend three to four weeks each summer and every other Christmas in California. 4
4 3

2

disagreements. Both sides understand that this leaves the resolution of their [visitation] problem to the court."5 3. The Hearing Before the Trial Court

A hearing was held before Judge Joseph F. De Vanon on February 24, 2011. There, counsel for Irene M. indicated that his client had attempted to resolve the problem of visitation through mediation. In addition, she had submitted to the court "a plan that was proposed to the other party, which would involve . . . Samantha coming [to San Gabriel] at [Irene M.'s] expense . . . and in fact [Irene M.] would be willing to fly to Missouri to pick [Samantha] up so that she would be accompanied" while traveling. Counsel stated that he believed "[t]he only contact [the children] ha[d] [had was] by phone, and [that it had] been minimal because the other party ha[d] been monitoring it and ha[d] been cutting it off at certain points. . . . So, . . . it's essentially almost no contact. And this is having a very deleterious effect on Nicholas[,] that he is not able to communicate freely with his sister." Counsel for Scott and Gloria P. disagreed with Irene M.'s counsel's perception of the situation. Counsel referred to Scott P.'s declaration and indicated that there had been "extensive contact continuing between the children." Counsel indicted that he was satisfied with the level of contact that was "actually going on[.]" The trial court indicated that "[t]he biggest issue [it had was] whether or not the brother and sister [were] able to talk." Counsel for Scott and Glori P. responded:
5

Subdivision (f) of Family Code section 8616.5 indicates that "[e]nforcement of [a] postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption." 5

"[During] [e]very discussion . . . I have had with my client[s], they have [indicated] every desire to continue the ongoing contact between Samantha and Nicholas. [

Download B232600.PDF