Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Commissioner. Super. Ct. No. S-1501-AT-2146
Nicholas E., in pro. per., for Objector and Appellant.
Ira L. Stoker for Petitioner and Respondent.
CORNELL, J.
Appellant Nicholas E. contends the trial court erred when it terminated his parental rights pursuant to Family Code section 7825. We will affirm the order.
All further statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
In 1995, Nicholas initially was charged with 29 criminal offenses, all arising from molestation of his six-year-old stepdaughter. He was held to answer on 14 counts. Nicholas pled to one count of violating Penal Code section 288, subdivision (a), a felony, as part of a plea agreement in exchange for dismissal of the remaining counts. Nicholas was sentenced to six years in prison. Benjamin was born while Nicholas was imprisoned.
When initially released on parole, Nicholas was required to register as a sex offender, refrain from having unsupervised contact with his children, and was not to leave Los Angeles County. He violated his parole by leaving Los Angeles County and visiting his minor children in Kern County. He was arrested and returned to prison to serve the balance of his term.
Benjamin’s mother voluntarily relinquished custody of Benjamin to April A. April petitioned for an order appointing her as Benjamin’s legal guardian. Letters of guardianship were issued on April 24, 2002.
In April 2003, Nicholas sought visitation rights, which April opposed. The trial court directed that all parties cooperate in the preparation of an evaluation by Bonita N. Ekhardt, who was to make recommendations to the trial court regarding visitation between Nicholas and Benjamin. Family Court Services Investigator Sharon Sutherland also prepared an evaluation with recommendations regarding visitation between Nicholas and Benjamin.
In May 2004, April brought a petition to free Benjamin from parental custody or control and terminate Nicholas’s parental rights. Apparently, both Sutherland and Ekhardt expanded their investigation and evaluation to include matters that would pertain to whether parental rights should be terminated and not merely visitation.
Sutherland’s report noted that Benjamin had bonded with April and the two had a loving mother-child relationship.
Benjamin and Nicholas never established a father-son relationship. Benjamin was confused as to who his father was because, although Nicholas had visited with Benjamin in the past, he did not tell Benjamin he was his father. Benjamin was born while Nicholas was in prison serving a six-year term. Nicholas remained in prison during the first three years of Benjamin’s life. After Nicholas was paroled, he violated parole by traveling to Kern County to visit his children. Nicholas was returned to prison for this violation. As a result of Nicholas’s criminal conduct, he did not have a consistent relationship with Benjamin during the first six years of Benjamin’s life.
Because Nicholas was required to register as a sex offender and his offense involved lewd and lascivious conduct with a young child, Nicholas was not able to have custody of Benjamin or unsupervised visitation. Nicholas had supervised visitation with his 11-year-old son, but not Benjamin.
Sutherland’s report also noted that Nicholas molested his stepdaughter over a period of several months and initially denied any wrongdoing when confronted.
Sutherland opined that Nicholas was unfit to have custody of Benjamin based upon the nature of his crime and the restrictions on his association with minor children. She recommended that Benjamin be freed from parental custody and control pursuant to section 7825.
Ekhardt was brought into the case by Nicholas and testified as his witness. Ekhardt conducted several interviews of Nicholas in order to form a recommendation on visitation and custody. During the course of those interviews, Nicholas “began to deny more and more, and, at this point, is denying even that anything happened related to that,” in reference to the 1995 molestation. According to Ekhardt, Nicholas was not accepting responsibility for his actions, and he had stated “in so many words” that he did not believe he had a problem.
Ekhardt gave Nicholas a personality test, which revealed that he had an elevated score on the psychopathic deviant scale. Nicholas had a problem respecting boundaries, including those of his wife’s, as well as Ekhardt’s, and expected that “everything revolve[] around him.” Failure to respect boundaries was an indicator that a molester would be a repeat offender.
Ekhardt testified that Nicholas was in denial that he molested a child, in denial that he had a problem, and that Nicholas “would be a repeater of this kind of activity.”
Nicholas testified he was intoxicated when his stepdaughter claimed he molested her; he did not remember engaging in any inappropriate acts; and that there was a “misunderstanding” regarding his accepting responsibility. He claimed that although he continued to drink, he no longer drank to excess. Nicholas maintained that all the other charged offenses from 1995 were “unproven” and he did not acknowledge more than the one incident with his stepdaughter.
Nicholas admitted that as a condition of parole, he was not to be around any minor children and that he violated that parole condition. Although he knew he was not to have contact with any minor children and he was not to leave Los Angeles County while on parole, Nicholas knowingly violated these conditions when his parole officer denied his request to leave the county to visit his children. Nicholas maintained, however, that he was not precluded from having contact with minors now that he was no longer on parole. He testified that his status as a registered sex offender did not preclude contact with minors.
Benjamin’s counsel asked the trial court to free Benjamin from parental custody and control.
Referring to the testimony in the case, the trial court noted that Nicholas’s “personality and emotional function is consistent with that of an individual who molests.” The trial court also noted the testimony that Nicholas had failed to respect boundaries, had knowingly violated parole, and had tested “high” for a psychopathic disorder. Additionally, the trial court noted that in his testimony before the court, Nicholas failed to accept responsibility for his actions and was in denial regarding the true nature of his conduct.
The trial court concluded that it would be detrimental for Benjamin to have contact with Nicholas and granted the petition to terminate parental custody and control.
DISCUSSION
Section 7825 permits termination of parental rights upon a finding that a parent is unfit because of the nature of the felony of which he or she stands convicted. Subdivision (a) of section 7825 provides:
“(a) A proceeding under this part may be brought where both of the following requirements are satisfied:
“(1) The child is one whose parent or parents are convicted of a felony.
“(2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child.…”
Proof of the elements of section 7825 must be by clear and convincing evidence. (§ 7821; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 252-253; In re Terry E. (1986) 180 Cal.App.3d 932, 949 [both cases address language found in former Civ. Code, § 232, subd. (a)(4), which is identical to Fam. Code, § 7825, subd. (a)].) This standard has been defined as meaning a high probability. The evidence must be so clear as to leave no substantial doubt and it must be sufficiently strong to “‘“command the unhesitating assent of every reasonable mind.”’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 919; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)
The provisions of former Civil Code section 232, subdivision (a)(4) were shifted to Family Code section 7825, effective January 1, 1994. (Stats. 1992, ch. 162, § 10.) Cases issued before that date refer to the Civil Code section; after that date, the reference is to the Family Law section.
It is the trial court’s duty to determine whether plaintiff has satisfied his or her burden of proof under section 7825. It is the appellate court’s duty to determine whether substantial evidence supports the trial court’s findings. (In re Robert J. (1982) 129 Cal.App.3d 894, 901.) If there is, we must affirm the judgment. (In re Terry E., supra, 180 Cal.App.3d at p. 949.) Substantial evidence is evidence which is “reasonable, credible and of solid value -- such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. [Citation.]” (Ibid.) On appeal, it is judicial action, and not judicial reasoning, that is the focus of review by this court. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4.)
“Unfitness” under section 7825 means the “probability that the parent will fail in a substantial degree to discharge parental duties toward the child. [Citations.]” (In re Christina P. (1985) 175 Cal.App.3d 115, 133.) Thus, to justify a decision that a parent is unfit as the result of a felony conviction not involving the minor, the conviction “must be one which unambiguously shows depravity of the parent sufficient to support the conclusion he or she will probably fail to discharge parental duties toward the child. [Citation.]” (Id. at p. 134.)
The statute does not define what specific acts or omissions of a parent render that parent unfit. The cases, however, have postulated that a determination of unfitness necessarily entails an examination of the current parent-child relationship, as well as of the facts surrounding the felony conviction. (In re Terry E., supra, 180 Cal.App.3d at p. 950; In re Christina P., supra, 175 Cal.App.3d at p. 134; In re James M. (1976)65 Cal.App.3d 254, 266.) The assessment of unfitness must be made as of the date of the trial on the petition, not as of some earlier date. (James M., at p. 265.)
We will evaluate the evidence in this case against the two pertinent factors -- the facts pertaining to Nicholas’s felony conviction and the status of his current relationship with Benjamin. (In re Terry E., supra, 180 Cal.App.3d at p. 950.) We view the evidence as we must, in the light most favorable to the judgment. (People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Johnson (1980) 26 Cal.3d 557, 578.)
There was ample substantial evidence supporting the trial court’s decision to grant the petition to free Benjamin from parental custody and control. (In re Terry E., supra, 180 Cal.App.3d at p. 950.)
First, Nicholas did not have a parent-child relationship with Benjamin. Benjamin was born while Nicholas was in prison. Upon his release on parole, Nicholas did have some contact with Benjamin, in violation of his parole conditions. During the times he did visit with Benjamin, Nicholas did not tell Benjamin he was his father and did not assume a parental role.
Second, Nicholas failed in the discharge of his parental duties toward his stepdaughter by molesting her. He had assumed a parental role in the life of his stepdaughter and he took advantage of that role and his position of trust to molest the child.
Third, the facts surrounding his felony conviction, coupled with his refusal to fully accept responsibility for his actions, his continued failure to respect boundaries, and his denial of the true nature of his conduct by claiming it occurred only because he was drunk, establish that the nature of the felony conviction is “one which unambiguously shows depravity of the parent sufficient to support the conclusion he or she will probably fail to discharge parental duties toward the child. [Citation.]” (In re Christina P., supra, 175 Cal.App.3d at p. 134.)
Finally, testimony established that Nicholas was likely to repeat his offense and molest again. He continued to have trouble respecting boundaries, both those established by law and those fixed by the people with whom he must interact.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., HILL, J.