Adoption of Jeremiah W.
Filed 4/17/07 Adoption of Jeremiah W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Adoption of JEREMIAH W., a Minor. | |
D.Z. et al., Petitioners and Appellants, v. VICKI N., Objector and Respondent. | D048565 (Super. Ct. No. JA50098) |
APPEAL from an order of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed.
The adoptive parents of Jeremiah W. his paternal grandmother, D.Z., and her husband, Andres Z. (the Z.'s) appeal from an order granting the request of Jeremiah's birth mother, Vicki N., to enforce a postadoption contact agreement. The Z.'s claim (1) that due to their relocation to Florida, the California courts do not have jurisdiction to enforce the postadoption contact agreement; and (2) that the trial court erroneously enforced the agreement for visitation between Jeremiah and his birth mother without a recommendation for visitation from Jeremiah's psychological counselor.
We conclude that the Z.'s contentions lack merit, and, accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Jeremiah was born in July 2002, to Vicki, who was not married to Jeremiah's biological father. During his infancy, Jeremiah was cared for by the Z.'s.[1] With Vicki's assistance, the Z.'s obtained letters of guardianship for Jeremiah on January 24, 2003. On April 1, 2003, the Z.'s filed an application to adopt Jeremiah, and Vicki signed a consent to the proposed adoption on May 29, 2003. Vicki then revoked her consent to the adoption within the 30 days permitted by statute. (Fam. Code, 8814.5.)[2]
On July 10, 2003, Vicki signed another consent to the adoption, along with a waiver of her right to revoke consent pursuant to section 8814.5, subdivision (b). Again, within 30 days, Vicki filed a letter with the court requesting that her consent for adoption and her waiver of consent be rescinded based on undue influence, fraud and duress, and then filed a motion seeking the same relief.
At some point during the summer of 2003, the Z.'s made it known that they were moving from San Diego to Florida with Jeremiah. They apparently completed the move in the summer of 2004.
A lengthy trial commenced on Vicki's motion to rescind the waiver of her right to revoke consent to the adoption. In May 2004, during the pendency of the trial, Vicki and the Z.'s entered into a stipulation providing that Vicki would withdraw her motion, that the Z.'s would adopt Jeremiah, and that Vicki would have the right to visit with Jeremiah (the Stipulation). The Stipulation provided that "the Z.'s shall engage [Jeremiah] in counseling for the purpose of having said person available to the parties to make recommendation[s] regarding the terms of this stipulation," with an additional counselor to be retained in California if recommended by the first counselor, and that the parties would be able to discuss the matter with the counselor "on a one-time per month basis." The Stipulation stated that "[i]t is agreed the recommendations of the counselor shall be honored by the parties herein in the future."
Specifically, regarding Vicki's visitation with Jeremiah, the Stipulation provided:
"Physical contact between Vick[i] [N.] and the minor shall be as recommended by the minor's counsel. The parties agree that the minor may visit with Vick[i] [N.] for fourteen days in the period of January 1st to July 1st and fourteen days in the period of July 1st to December 31st. Vick[i] [N.] shall pay for and transport the minor to and from California and from visits. Thereafter, any contact shall continue to be as recommended by the counselor or agreed by the parties."
Further, Vicki was permitted to (1) talk with Jeremiah on the telephone once a month; (2) send reasonable birthday and Christmas gifts; (3) send an annual update on Jeremiah's maternal relatives; and (4) receive an annual update regarding Jeremiah.
The Stipulation provided that "[t]he San Diego County Juvenile Court shall maintain jurisdiction over this matter" and that it would be "enforceable pursuant to . . . section 8616.5."[3] The Stipulation also provided that "[i]f there are any issues or disagreement regarding the terms of this stipulation in the future the parties shall use all available measures to mediate the matter rather than return to the court, including acceptance of the minor's counselor's recommendation and the use of professional mediation between the adult parties."
Following the entry of the Stipulation as an order of the court on May 13, 2004, the trial court granted the petition of adoption on May 14, 2004.
On July 19, 2005, Vicki filed a declaration with the trial court stating that she had not seen or spoken to Jeremiah since the day after the adoption was granted in May 2004. She stated that the Z.'s had disconnected their phone after the adoption, that the only contact from them was when they sent photographs to her in August 2004 with the return address of a post office box in Florida, and that the Z.'s had not responded to any of the letters that she sent to that post office box. After Vicki's counsel attempted to contact the Z.'s through their last attorney of record, the Z.'s filed a substitution of counsel, and Vicki filed a motion to enforce the Stipulation.
The parties attended a mediation in December 2005. The mediator concluded that "it is clear that [the Z.'s] NEVER intended to comply with the Court's Order or the terms to which they agreed in the Stipulation."
On December 23, 2005, the trial court ordered enforcement of the Stipulation. The court ordered that Vicki be allowed weekly phone calls with Jeremiah for the next four weeks and that the agreed-upon monthly phone calls resume thereafter. It also ordered a seven-day visit between Vicki and Jeremiah to take place in Florida from February 12 through February 19, 2006.
On February 10, 2006 two days before the visitation was to take place the Z.'s filed a motion requesting that the trial court reconsider its order. The trial court denied the motion and ordered that the visitation go forward.
After the visitation, Vicki filed a declaration requesting that the trial court continue to enforce her right to visitation and that the next visit with Jeremiah be scheduled in Florida during a specific week in June 2006.
On March 2, 2006, the Z.'s filed a request to terminate Vicki's right to visitation with Jeremiah. They argued that Jeremiah showed signs of emotional distress upon his return from the visitation, and they complained about the type of telephone contact they had with Jeremiah during the visitation. Contending that the Stipulation exposes Jeremiah to "harm" and "risk," they stated that "[w]e did not foresee the damage this stipulation would cause Jeremiah and our family at the time of its signing."
Although there is no evidence that the Z.'s followed the provisions of the Stipulation requiring that Jeremiah establish an ongoing relationship with a counselor, the Z.'s did bring Jeremiah to a psychologist after the visitation with Vicki, and they submitted the psychologist's report in support of their motion to terminate Vicki's visitation. According to statements in her report, the psychologist was under the impression (1) that Jeremiah had not seen Vicki since he was two days old and (2) that Jeremiah was not aware he was adopted.[4] The psychologist was also told by the Z.'s that Jeremiah was "scared and tearful during the visitation," and they reported "increased restlessness, difficulty falling and staying asleep, and frequent nightmares." The psychologist concluded, "Should it be determined that he will continue visiting his birthmother, it is in Jeremiah's best interest to continue in play therapy once per week. He needs to be provided the opportunity to play through the confusion, anger and fear that he most likely experienced and will continue to experience with further visitation."
After holding a hearing on the competing motions, the trial court issued a written ruling on April 6, 2006. The trial court denied the Z.'s request to terminate Vicki's visitation, and it granted Vicki's request to enforce the Stipulation. It specifically ordered that visitation occur in Florida during the week in June 2006 that Vicki had requested; that Vicki be allowed the monthly phone calls described in the Stipulation; and that visitation thereafter occur each year as described in the Stipulation, with Vicki allowed 14 days of visitation during the first half of each year and 14 days of visitation during the second half of each year. The trial court also ordered that Jeremiah continue to receive play therapy and that Vicki participate in one of the therapy sessions during the June visitation. At Vicki's request, the court also ordered that the Z.'s pay Vicki's attorney fees and costs.[5]
The Z.'s filed a notice of appeal from the trial court's April 6, 2006 order.
II
DISCUSSION
On appeal, the Z.'s present two arguments. First, they contend that the trial court's order enforcing the Stipulation should be vacated because the California courts lacked jurisdiction over Vicki's motion, due to the fact that the Z.'s and Jeremiah now live in Florida. Second, the Z.'s contend that even if the trial court had jurisdiction to rule on Vicki's motion, it erred in interpreting the Stipulation to give Vicki the right to visitation with Jeremiah because, by the terms of the Stipulation, such visitation could occur only if recommended by Jeremiah's counselor. As we will explain, we reject both arguments.
A. The Trial Court Had Jurisdiction to Rule on Vicki's Motion to Enforce the Stipulation
According to the Z.'s, this case is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) ( 3400 et seq.) because this matter is a " ' "custody proceeding." ' " Based on this assumption, the Z.'s argue that the trial court lacked jurisdiction to enforce the Stipulation because "Jeremiah and both his parents lived in the State of Florida for approximately one year prior to the filing of the motion to enforce the [Stipulation]."[6] The Z.'s rely on the portion of the UCCJEA which provides that a California court that has made a child custody determination has exclusive, continuing jurisdiction over the determination, until, among other things, "[a] court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state." ( 3422, subd. (a)(2).)
We reject the Z.'s argument because the UCCJEA does not apply here. The UCCJEA specifically states that it does not apply to adoption proceedings. ( 3403 ["This part does not govern an adoption proceeding"].)[7] As identified in the Stipulation, it was entered into under section 8616.5, which governs postadoption contact agreements. A postadoption contact agreement "is a part of an adoption proceeding," and "[t]he agreement is incorporated into the terms of the adoption . . . ." (In re Kimberly S. (1999) 71 Cal.App.4th 405, 412.)[8] Therefore, the jurisdictional provisions concerning adoption proceedings apply to the motion to enforce the Stipulation, not the jurisdictional provisions of the UCCJEA.
The jurisdictional rules concerning adoption proceedings provide for jurisdiction in the California courts over a motion to enforce a postadoption contact agreement that was entered into as part of an adoption petition granted by a California court. Section 8616.5, subdivision (f) provides that "[e]nforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption." Further, when more than one state is involved, the California courts have jurisdiction over an adoption proceeding when the minor lived in California with a parent, guardian or prospective adoptive parent for at least six consecutive months immediately before the commencement of the adoption proceedings. ( 9210, subd. (a).) Here, the motion to enforce the Stipulation is part of the adoption proceeding, and under section 9210, subdivision (a), California has jurisdiction over that adoption proceeding despite the fact that the Z.'s moved to Florida, because Jeremiah, the Z.'s and Vicki all lived in California at the commencement of the adoption proceedings.[9]
Accordingly, we conclude that the trial court properly exercised jurisdiction over Vicki's motion to enforce the Stipulation.
B. The Trial Court Did Not Err in Enforcing the Stipulation by Ordering Visitation Between Vicki and Jeremiah
The Z.'s argue that the trial court erred in interpreting the Stipulation to give Vicki the right to 28 days of annual visitation with Jeremiah. For this argument, the Z.'s focus on the following paragraph:
"Physical contact between Vick[i] [N.] and the minor shall be as recommended by the minor's counselor. The parties agree that the minor may visit with Vick[i] [N.] for fourteen days in the period of January 1st to July 1st and fourteen days in the period of July 1st to December 31st. Vick[i] [N.] shall pay for and transport the minor to and from California and from visits. Thereafter, any contact shall continue to be as recommended by the counselor or agreed by the parties."
The Z.'s argue that this provision is ambiguous, and "the intent of the parties at the time of the agreement's rendition . . . was that Jeremiah's counselor would determine the physical contact visitation with Vicki, and did not mean that Vicki would automatically be entitled to 28 days of visitation each and every year." According to the Z.'s, based on this provision the trial court erred ordering visitation absent a recommendation from Jeremiah's counselor.
In interpreting the terms of the Stipulation, we apply the well-established principles of contract interpretation. (See In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1180 ["A settlement agreement is in the nature of a contract and is therefore governed by the same legal principles applicable to contracts generally"].) " 'The goal of contractual interpretation is to determine and give effect to the mutual intention of the parties.' . . . Thus, a 'court's paramount consideration in construing [a] stipulation is the parties' objective intent when they entered into it.' . . . 'That intent is to be inferred, if possible, solely from the written provisions of the contract.' . . . ' "All the rules of interpretation must be considered and each given its proper weight, where necessary, in order to arrive at the true effect of the instrument." ' " (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 525, citations omitted.) " 'If the contract is capable of more than one reasonable interpretation, it is ambiguous . . . , and it is the court's task to determine the ultimate construction to be placed on the ambiguous language by applying the standard rules of interpretation in order to give effect to the mutual intention of the parties.' " (Id. at pp. 524-525, citations omitted.)
Examining the contract language, we agree that there is some possible inconsistency between the statement that "[p]hysical contact between Vick[i] [N.] and the minor shall be as recommended by the minor's counselor" and the provision stating that "the minor may visit with Vick[i] [N.]" for the specified 28 days each year. However, applying the rule that "[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other" (Civ. Code, 1641, italics added), we conclude that to give effect to the second clause, the whole of the paragraph must be interpreted to mean that Vicki will be permitted the 28 days of visitation, but that the physical nature of that visitation (i.e., overnight stays, the location of visitation) will be informed by the recommendation of Jeremiah's counselor.[10] Any other interpretation fails to give effect to the clear agreement in the second clause that Vicki will have 28 days of visitation each year.
Applying this interpretation, we conclude that the trial court correctly followed the terms of the Stipulation when it ordered that Vicki could have visitation with Jeremiah for the specified week in June 2006. The week of visitation in June 2006 was the second half of the 14 days of visitation from January 1 to July 1, 2006, provided for in the Stipulation. There was no recommendation from Jeremiah's counselor limiting the physical nature of the visitation. Thus, the trial court properly ordered visitation without imposing any physical limitations.[11]
The Z.'s also challenge the trial court's order that Vicki continue to have monthly telephone contact with Jeremiah as provided in the Stipulation. The Z.'s argue that because the Stipulation states that Vicki "may" call Jeremiah each month, the provision for telephone contact is not "mandatory," and the trial court accordingly erred in ordering the phone calls to occur.[12]
We reject this argument as contrary to the plain meaning of the words contained in the Stipulation. Under any commonsense interpretation, the statement that "Vick[i] [N.] may call on the first Sunday of each month between 6:00 p.m. and 7:00 p.m. to speak to the minor" cannot reasonably be interpreted to mean anything other than that Vicki has the right to exercise the privilege to call Jeremiah on those dates if she chooses to do so. It would defy the ordinary meaning of the words to interpret the statement to mean, as the Z.'s argue, that the telephone calls will take place only if the Z.'s or Jeremiah's counselor determine that the calls should go forward.
DISPOSITION
The trial court's order is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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[1] There is a factual dispute about Jeremiah's age when he came to be cared for by the Z.'s, and the extent to which Vicki also cared for Jeremiah during his infancy.
[2] Unless otherwise indicated, all further statutory references are to the Family Code.
[3] Section 8616.5 governs "postadoption contact agreements," like the Stipulation at issue here, in which "the adopting . . . parents [and] birth relatives . . . enter[] into a written agreement to permit continuing contact between the birth relatives . . . and the child if the agreement is found . . . to be in the best interests of the child at the time the adoption petition is granted." ( 8616.5, subd. (b)(1).) Section 8616.5 subdivision (f) provides in relevant part that "[e]nforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition for adoption."
[4] Despite the greatly conflicting evidence about the extent to which Vicki visited with Jeremiah prior to the adoption, the record contains numerous admissions by the Z.'s that Vicki visited with Jeremiah many times after he was two days old, up until the Z.'s moved to Florida.
[5] The Stipulation contained a provision that "[i]f this matter has to come back to court regarding enforcement of the terms of this stipulation the prevailing party shall be entitled to attorney's fees and any costs related to such matter and the court shall order the same be paid in each such matter." Further, section 8616.5, subdivision (i) provides that "a party . . . found by the court as failing to comply without good cause with an existing agreement shall bear all the costs and fees of litigation."
[6] The Z.'s concede that the California courts had jurisdiction over the adoption petition and the approval of the Stipulation. They contend, however, that the California courts lost jurisdiction over the proceedings when they moved with Jeremiah to Florida.
[7] Further, the UCCJEA states that it applies to proceedings "in which . . . visitation with respect to a child is an issue" and provides a list of the types of proceedings in which the visitation issue may arise. ( 3402, subd. (d).) The list does not include adoption proceedings. (Ibid. [identifying "dissolution of marriage, legal separation of the parties, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence," but not including adoption].)
[8]In re Kimberly S., supra, 71 Cal.App.4th 405, 412, uses the term "kinship adoption agreement," rather than "postadoption contact agreement." The terminology was changed to "postadoption contact agreement" and the relevant Family Code section was renumbered after Kimberly S. was written (Stats. 2000, ch. 930, 3; Stats. 2003, ch. 251, 8), but the substance of the statute is the same for the purpose of our analysis.
[9] We note that at the time they entered into the Stipulation, it was known that the Z.'s were moving to Florida, but the parties nevertheless stipulated in accordance with the applicable jurisdictional rules that the San Diego County Superior Court would maintain jurisdiction over the matter.
[10] To the extent that the parties dispute the meaning of the sentence stating that "[t]hereafter, any contact shall continue to be as recommended by the counselor or agreed by the parties," we interpret it to mean that if the parties agree or Jeremiah's counselor recommends, Vicki may have visitation in addition to the specified 28 days.
[11] We stress that the Stipulation's requirement that the parties follow the recommendations of Jeremiah's counselor is premised on the assumption that Jeremiah will have regular and ongoing sessions with a counselor who is familiar with Jeremiah's history, and moreover is given accurate information. The counselor's recommendation will have little value in determining what is in Jeremiah's best interests if regular counseling sessions do not occur and inaccurate information is provided.
[12] The Z.'s make a similar argument concerning the following provisions: (1) that Vicki be permitted to send Christmas and birthday gifts; (2) that Vicki receive a yearly update regarding Jeremiah; and (3) that Vicki be permitted to send Jeremiah a yearly update regarding his maternal relatives. The Z.'s argument is premised on the fact that all of these provisions also contain the word "may." However, the trial court made no specific orders concerning those provisions in its April 6, 2006 order, and thus the Z.'s arguments concerning those provisions are not properly before us in our review of the trial court's order, and we do not address them.
