Opinion
F079640
02-24-2020
In re C.L., a Person Coming Under the Juvenile Court Law. JESSICA O., Petitioner and Respondent, v. STEVEN L., Objector and Appellant.
Elaine Forrester, under appointment by the Court of Appeal, for Objector and Appellant. Jessica O., in pro. per., for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAT-19-003020)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge. Elaine Forrester, under appointment by the Court of Appeal, for Objector and Appellant. Jessica O., in pro. per., for Petitioner and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Smith, J.
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INTRODUCTION
Jessica O., mother of the 11-year-old minor, filed a verified petition pursuant to Family Code section 7822 to declare the minor free from the custody and control of his father, Steven L., on February 28, 2019. Steven was personally served with a citation to appear specifying the hearing date and time but did not appear. Subsequently, the family court declared the minor free from father's parental control.
References to code sections are to the Family Code unless otherwise specified.
Father contends he did not receive adequate notice of the hearing and thus, his procedural due process rights were violated. He also contends there is not substantial evidence that terminating his parental rights was in the minor's best interest. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Mother filed a verified petition pursuant to section 7822 to declare the minor, born in 2008, free from the custody and control of his father on February 28, 2019. The petition stated that the minor had not had contact with father since July 2014; the minor had been left in mother's care with no provision for support from father; and that father intended to abandon the minor within the meaning of section 7822. The petition also stated father's last known address in Santa Maria. On that same date, mother filed a declaration setting forth the addresses at which the minor had lived over the past five years and identifying a Kern County court case that addressed custody and/or visitation of the minor in 2009.
Father personally was served with a citation to appear specifying the department, hearing date, and time. The hearing date and time was April 12, 2019, at 8:30 a.m. and father was served with the citation on March 22, 2019, in Santa Maria. The proof of service set forth the specific address where father was personally served.
The family court found that father had been personally served with the citation and did not appear at the April 12, 2019 hearing. Family Court Services was requesting a 30-day continuance to complete its report. Counsel was appointed for the minor. A bench warrant was issued for father's appearance. The matter was continued to May 17, 2019.
During the April 12, 2019 hearing, the family court requested that mother "fill out the form" for minor's counsel the family court had just appointed before she left court that day. Mother was asked to "fill it out here in the hall" and then come back into the courtroom for copies to be made. The form mother was asked to fill out was to provide minor's counsel with her address and phone number, notify her that she was to make an appointment with minor's counsel to discuss the proceeding, and to sign verifying that she understood she potentially was responsible for paying minor's counsel's attorney's fees. Someone did list father's name on the form and then wrote "unknown" in the blocks for the address.
Family Court Services submitted a written report on May 10, 2019. The investigator met with the minor and mother. When asked about his visitations with father, the minor "shrugged his shoulders." Mother reported that the minor spent most of his scheduled visitation with father visiting with his paternal grandparents and very little time in the company of father. Mother told the investigator that although father was entitled to visitation with the minor, he last exercised his visitation rights in July 2014.
Mother reported that visits with father became "traumatic" for the minor and that in 2015 father was granted supervised visitation but never completed any supervised visits with the minor. Mother stated that when father was exercising his visitation rights, she and father met halfway between Bakersfield and Santa Maria to exchange custody of the minor. Mother also reported that father was "in significant arrears as to his child support payments."
A criminal background check of father disclosed that he had multiple misdemeanor convictions, including convictions for driving under the influence, possession of a controlled substance, and driving when license suspended for driving under the influence.
Based upon the information provided by mother, the investigator concluded that father had left the minor in the care and custody of mother, without any contact or support, for a period meeting the statutory requirement for abandonment as set forth in section 7822.
At the May 17, 2019 hearing, mother testified that there was one conviction missing from the list of father's convictions in the Family Court Services report. Mother identified a 2015 conviction of father for felony false imprisonment with violence and apparently provided the paperwork documenting the conviction to the court. With that additional information and correction to the report, mother submitted on the report.
Counsel for the minor stated she had met with the minor and found "he actually does engage quite well." Counsel stated the minor does well in school and agreed he was "insightful." Counsel described the minor as a "delightful, young man" and opined it would be in the minor's best interests to grant the petition.
The family court found there was "clear and convincing evidence" father had not visited the minor since 2014, had not been paying child support, and the requirements of section 7822 to terminate parental rights had been met. The family court found it was in the best interests of the minor to grant the petition and terminate father's parental rights. The family court also quashed the bench warrant issued for father's appearance.
The judgment was filed on May 24, 2019. Father filed his notice of appeal on July 18, 2019.
On December 24, 2019, father filed a motion to strike the exhibit attached to mother's brief. By order dated December 27, 2019, this court deferred ruling on the motion pending a determination of the appeal on the merits. Father's motion to strike the exhibit attached to mother's brief is hereby granted.
DISCUSSION
Father raises two issues in this appeal. First, he contends his procedural due process rights were violated. Second, he contends there is no evidence that terminating his parental rights was in the best interests of the minor.
Section 7822A proceeding to have a child declared free from the custody and control of a parent may be brought under section 7822 if the parent has abandoned the child. As applicable here, abandonment occurs when "[t]he child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child." (§ 7822, subd. (a)(2).) Thus, three elements must be met: (1) the child must be left with another; (2) without provision for support or communication from a parent for a period of six months; and (3) all such acts were done " ' "with the intent on the part of such parent ... to abandon [the child]." ' " (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.) [addressing similar requirements of § 7822, subd. (a)(3)].)
" ' " 'In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.' " [Citations.]' [Citation.] Accordingly, the statute contemplates that abandonment is established only when there is a physical act—leaving the child for the prescribed period of time—combined with an intent to abandon, which may be presumed from a lack of communication or support." (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754; § 7822, subd. (b) ["failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon"].) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. (§ 7822, subd. (b) ["If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent ...."]; In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212 (B.J.B.).) Intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire. (B.J.B., at p. 1212.) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A. (2005) 132 Cal.App.4th 63, 68.)
Section 7850 dictates the requirements of the investigations relating to the proceedings to declare a child free from parental custody and control under section 7822. Specifically, section 7850 states,
"Upon the filing of a petition under Section 7841, the clerk of the court shall, in accordance with the direction of the court, immediately notify the juvenile probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, or the county department designated by the board of supervisors to administer the public social services program, who shall immediately investigate the circumstances of the child and the circumstances which are alleged to bring the child within any provision of Chapter 2 (commencing with Section 7820)."
The guidelines to which a court investigator must adhere when preparing his or her report are outlined in section 7851 and state the report shall include a recommendation of the proper disposition to be made in the proceedings in the best interest of the child and "shall include" a statement that the person making the report explained to the child the nature of the proceedings to end parental custody and control; a statement of the child's feelings and thoughts concerning the pending proceeding; a statement of the child's attitude towards the parent; and that the child was informed of their right to attend the hearing. (§ 7851, subds. (a), (b)(1)-(4).) If the child is too young to make a meaningful response, "a description of the condition shall satisfy the requirement" of subdivision (b). (§ 7851, subd. (c).)
Standard of Review
We apply a substantial evidence standard of review to a trial court's finding under section 7822. (In re Amy A., supra, 132 Cal.App.4th at p. 67.) "Although a trial court must make such findings based on clear and convincing evidence (§ 7821), this standard of proof ' "is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard." ' [Citation.] Under the substantial evidence standard of review, ' "[a]ll conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment." ' " (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011, fn. omitted.) All evidence most favorable to the respondent must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. (In re Gano (1958) 160 Cal.App.2d 700, 705.)
"Abandonment and intent ' "are questions of fact for the trial [court] .... [Its] decision, when supported by substantial evidence, is binding upon the reviewing court. An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence is legally sufficient to support the finding of fact as to the abandonment [citations]." ' [Citation.] 'The appellant has the burden of showing the finding or order is not supported by substantial evidence.' [Citation.]" (Allison, C., supra, at p. 1011.)
Adequate Notice of Proceedings
We first address father's claim that he did not receive adequate notice of the proceedings. "Because parents enjoy a fundamental liberty interest in the care, custody and control of their children, a parent must be afforded adequate notice and a meaningful opportunity to be heard before being deprived of his parental interest." (In re Axsana S. (2000) 78 Cal.App.4th 262, 269.) A parent does not have a due process right to be present personally at a proceeding in which parental rights are adjudicated. (Id. at pp. 268-271.) Due process "is flexible and calls for such procedural protections as the particular situation demands." (Mathews v. Eldridge (1976) 424 U.S. 319, 334-445.)
Section 7881 prescribes the manner in which a parent must be notified of proceedings to terminate parental rights under the Family Code. Notice of the proceedings shall be given by service of a citation on the parent, in this case, father. The citation shall advise the parent that he or she may appear at the time and place stated in the citation; and shall advise the parent of his or her rights commencing with section 7860, namely the right to counsel for the parent and child. (§ 7881, subds. (a) & (b).) The citation is to be served in the manner prescribed by law for service of a civil summons, other than by publication, and must be served a minimum of 10 days prior to the hearing. (§ 7881, subds. (c) & (d).)
The record reflects that father was personally served with the citation on March 22, 2019; the citation notified father he "may appear" in division C of the Kern County Superior Court, Metropolitan Division—Justice Building, on April 12, 2019, at 8:30 a.m. The citation informed father that the purpose of the hearing was to determine if the minor should be "declared free from your custody and control." It also notified father that he had a right to counsel and if he could not afford counsel, one would be appointed for him.
Hence, the record contains evidence that father personally was served with the citation more than 10 days before the hearing and the citation contained all the information of which father was required to be noticed pursuant to section 7881. The service of the citation containing all the information required by section 7881 meets the requirements of notice and an opportunity to be heard and satisfies due process. (In re Angela R. (1989) 212 Cal.App.3d 257, 273-274 [discussing the predecessor Civil Code statute].)
Father makes much of the fact that on the form for minor's counsel, someone did list father's name on the form and then wrote "unknown" in the blocks for the address. There is no indication in the appellate record as to who wrote "unknown" on the form; all that is known is that mother provided her own information.
Furthermore, we note that mother set forth the last known address of father in her section 7822 petition. That same address is the one listed by father on his notice of appeal. That same address is the one to which the Family Court Services investigator sent a certified letter addressed to father, which went unclaimed. Father could have appeared at the hearing and requested counsel after being personally served with the citation but did not. Father could have claimed and responded to the certified letter but did not.
The citation points out that action could be taken at the April 12, 2019 hearing adverse to father's rights, unless he appeared. What is clear from the record is that father had actual notice of the section 7822 petition and the April 12, 2019 hearing and failed to appear or respond; and father failed to claim or respond to a subsequent attempt to contact him at a valid address before the family court made its decision.
Father was afforded an opportunity to be heard " ' "at a meaningful time and in a meaningful manner." ' " (People v. Litmon (2008) 162 Cal.App.4th 383, 395.) He failed to avail himself of the opportunity to be heard. Having failed to appear after being duly noticed, and failing to claim or respond to subsequent contact, he cannot now complain that the family court proceeded to hold a hearing and make a determination in his absence.
Section 7822 Analysis
The first element of section 7822 required evidence that father left the minor in another person's care and custody for a period of six months. (§ 7822, subd. (a)(2).) Here, there is no question that minor had been residing with mother for a period in excess of six months.
There is also no question that there is substantial evidence to support the finding of the second element, that father failed to communicate with the minor or failed to provide for his support for a period of at least six months. The statute does not require that the parent fail to do both, which occurred here.
In considering whether a parent has failed to communicate with a child, the trial court may consider the frequency with which the parent tried to communicate with the child, the genuineness of the effort under all the circumstances, and the quality of the communication that occurred. (B.J.B., supra, 185 Cal.App.3d at p. 1212.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) Here, mother's statements contained in the Family Court Services report disclose that father failed to communicate with the minor after July 2014. That report was in evidence. Testimony from a single witness is sufficient to support a true finding. (People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Dominguez (2010) 180 Cal.App.4th 1351, 1356.)
As for failure to provide support, mother stated father was "in significant arrears" on child support payments. This statement, combined with mother's statement in her verified petition that father had failed to provide support for at least one year, provides substantial evidence that father failed to provide support within the meaning of section 7822, subdivision (a)(2).
We next consider whether the evidence supports the family court's finding that father had an intent to abandon the minor. While a parent's failure to contribute to a child's support absent demand does not necessarily show abandonment, "such failure coupled with failure to communicate, may do so." (In re Randi D. (1989) 209 Cal.App.3d 624, 630.)
Even if father anticipated resuming contact with the minor at some future point,
"[A] child's need for a permanent and stable home cannot be postponed for an indefinite period merely because the absent parent may envision renewing contact with the child sometime in the distant future. (Cf. In re Christina A. (1989) 213 Cal.App.3d 1073, 1080; In re Debra M. (1987) 189 Cal.App.3d 1032, 1038 ['The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.']; see also In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632[, disapproved on other grounds in In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12] ['Children should not be required to wait until their parents grow up.'].)" (In re Daniel M. (1993) 16 Cal.App.4th 878, 884 (Daniel M.); see also Allison C., supra, 164 Cal.App.4th at p. 1016.)
"Simply stated, a child cannot be abandoned and then put 'on hold' for a parent's whim to reunite. Children continue to develop, and the Legislature has appropriately determined a child needs a secure and stable home for that development." (Daniel M., supra, 16 Cal.App.4th at p. 885.) "[W]e conclude that [the statute's] phrase 'intent ... to abandon the child' does not require an intent to abandon permanently. Rather, an intent to abandon for the statutory period is sufficient." (Ibid.) "[T]he Legislature has determined that the state's interest in the welfare of children justifies the termination of parental rights when a parent fails to communicate with his or her child for at least [six-months] with the intent to abandon the child during that period, even though the parent desires to eventually reestablish the parent-child relationship." (Id. at p. 884.)
Viewing the evidence in the light most favorable to the family court's judgment, as we must, we conclude substantial evidence supports the finding that the requirements of section 7822, subdivisions (a) and (b) were met.
Best Interests
Finally, we address whether the best interests of the minor were served by granting the section 7822 petition. (§ 7890.) Father's argument centers around the fact the record does not contain a companion petition for stepparent adoption. We do note, however, that mother is married, and a stepparent adoption is therefore something that potentially could occur in the future.
Nothing stated in the Family Code provisions require there be a pending adoption for a parent's rights to be terminated. However, section 7800 states that "[t]he purpose of this part is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life." Father relies on the reference to "adoptive home" in section 7800 for his contention the family court abused its discretion since there was no evidence of any pending adoption here.
In In re Marcel N. (1991) 235 Cal.App.3d 1007 (Marcel N.), a mother sought to terminate the parental rights of her ex-husband over their two minor children pursuant to former Civil Code section 232, the predecessor statute to section 7822 (In re J.W. (2002) 29 Cal.4th 200, 204), claiming he had abandoned the children for more than one year. Former Civil Code section 232 stated the same standards for termination as those at issue here and stated the same "adoptive home" purpose as in the present Family Code section 7800. (Marcel N., at p. 1011.) In Marcel N., the former husband argued the juvenile court had no jurisdiction to proceed because there were no adoptions pending.
The court in Marcel N., quoting the Supreme Court's construction of former Civil Code section 232 in a parental termination case regarding foster children, determined that one parent's rights could be terminated upon proper petition by the other parent in the absence of an " 'adopting parent waiting in the wings.' " (Marcel N., supra, 235 Cal.App.3d at pp. 1011-1012, quoting In re Laura F. (1983) 33 Cal.3d 826, 838.) The Marcel N. court noted that while the stated purpose of the subject provisions was to permit terminations where adoption was the goal, it did not prohibit such proceedings for other purposes. (In re Marcel N., at pp. 1011-1013.) The court also pointed out that "if read literally, ... proceedings could never be used to terminate the parental rights of one parent if the second parent was providing a stable and secure home for a child" and could raise obvious equal protection problems regarding the comparative ability of remarried and single mothers to pursue the termination of a father's parental rights. (Id. at p. 1013; see also In re Randi D. (1989) 209 Cal.App.3d 624, 628 [majority holding former Civil Code provision "contemplates severance of the parental right ... without reference to whether or not adoption proceedings are pending"].)
The Supreme Court found that, despite former Civil Code section 232's same reference to "adoptive home" in its statement of purpose, there was no authority "for the proposition that termination is improper unless there is an adopting parent waiting in the wings. The statute itself imposes no duty on the superior court to make an express finding as to the prospects for adoption of a particular child." (In re Laura F., supra, 33 Cal.3d at p. 838.) --------
In this case, the juvenile court carefully considered the evidence. The evidence established that father had no contact with the minor since July 2014; father was in significant arrears on child support; visits between father and the minor had become traumatic for the minor and father's visitation was restricted to supervised visits; father failed to engage in supervised visits; and father had a criminal record. Father then failed to appear when personally served with the citation and failed to respond when sent a certified letter by the investigator.
The minor told the investigator he would not visit his father. Minor's counsel reported the minor was thriving in mother's custody and termination of father's parental rights was in the minor's best interests. We are not persuaded the minor's stability and security were put at risk by the judgment. All the evidence combined supports the family court's determination that termination of father's parental rights was in the minor's best interests.
DISPOSITION
The May 24, 2019 judgment terminating father's parental rights to the minor is affirmed.