Opinion
A130411
11-18-2011
In re A.W., a Person Coming Under the Juvenile Court Law. W.B., Plaintiff and Respondent, v. C.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. D08-00798)
After a hearing on mother's petition to terminate parental rights of the biological father, the trial court concluded that father had abandoned his daughter, could not support her, was unfit to parent her and, therefore, granted the petition to terminate parental rights. Father appeals, arguing that mother lacked standing to bring the petition and that the trial court erred in failing to timely consider appointing separate counsel for the minor. These contentions have no merit and therefore we shall affirm.
B ACKGROUND
There is no dispute as to the relevant facts. Father is the biological father of A.W. When A.W. was born in 1996, father was incarcerated for assault with a deadly weapon with force likely to produce great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)) and participation in gang activity (Pen. Code, § 186.22). Four years later, father was found guilty of first degree murder, first degree robbery, and first degree burglary in a case involving the deaths of two elderly women. On September 14, 2000, father was sentenced to death and has remained incarcerated since.
On November 7, 2007, mother filed a petition to change A.W.'s surname from father's surname, to mother's surname. Father opposed the motion. Mother submitted a declaration that A.W. had always used mother's surname as her last name, but that her school was requiring her to use her legal surname. A.W. was happy using mother's surname, was starting sixth grade, and the school's requirement that she use father's surname "was very upsetting for" A.W.
On November 19, 2007, father filed a petition to establish a parental relationship with A.W. On February 13, 2008, mother filed a petition to terminate father's parental rights, and the court subsequently consolidated the three petitions. Only the order on the petition to terminate father's parental rights is at issue in this appeal.
The petition was not included in the record on appeal. Father filed a request for judicial notice of the petition. We deferred consideration to a decision on the merits and now grant the request.
2 Further unspecified statutory references are to the Family Code.
In the petition for termination of father's rights, mother stated that since his conviction father had not seen or spoken to A.W. and that in the preceding 12 years he had sent "5 to 8 letters," and one "small gift." He had provided no financial support for A.W.
The trial court found that father did not have presumed father status, that he had intentionally abandoned A.W. for at least five years by leaving her in the custody of mother without support or communications, that for 10 years father had not initiated any court action to establish parental rights, that A.W. desired to terminate her relationship with father, that due to the crimes he had committed father was unfit to retain his parental rights, and that termination of father's parental rights was in the best interests of A.W. The court also found that A.W. did not require separate representation during the proceedings "because the child's interests were fully and completely aligned with that of her mother, who had experienced and competent counsel."
On November 22, 2010, father filed a notice of appeal from that order, which had been entered on December 1, 2009. Father attached a letter explaining that he had not received notice of the decision from his attorney and had not discovered that the order had been made until shortly before the notice of appeal was filed. On March 29, 2011, this court entered an order excusing the delay in filing the notice of appeal.
DISCUSSION
Standing
Father argues that mother did not have standing to petition for termination of his parental rights. Family Code section 7841, subdivision (a) provides that "An interested person may file a petition under this part for an order or judgment declaring a child free from the custody and control of either or both parents." Subdivision (b) defines an "interested person" as "one who has a direct interest in the action, and includes, but is not limited to, a person who has filed, or who intends to file within a period of 6 months, an adoption petition . . . ."
Mother is correct that father forfeited this contention by failing to raise it below. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) An appellate court may waive the forfeiture, "[b]ut the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (Ibid.) This is particularly true in cases involving minors. "Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance." (Ibid.)
In all events, father's contention must be denied on the merits. In T.P. v. T. W. (2011) 191 Cal.App.4th 1428 (T.P.), as here, the mother filed a petition to terminate the father's parental rights. The father objected to mother's standing and the trial court agreed. On appeal, the appellate court rejected the father's argument that those with "a direct interest in the action" were limited to those with an interest in freeing the child for adoption. (Id. at p. 1434.) With respect to the provision defining an interested person as "one who has a direct interest in the action" (id. at p. 1433), the court held that "Looking solely at this portion of the definition, both language and logic would seem to compel the conclusion that Mother—a biological parent holding sole legal and physical custody of her child—is a person with a direct interest in an action to free her child from the custody and control of the child's other parent. Indeed, we find it difficult to imagine any person, other than perhaps the minor child or the other parent, who would have a more direct interest in the proceeding." (Id. at p. 1434.) The opinion in T.P. includes a thorough review of other cases addressing petitions to terminate a parent's rights under the Family Code which support the conclusion reached in T.P.
Father argues that T.P. was wrongly decided and that standing should be "limited to those persons who seek to free the minor child from parental custody for the purposes of adoption or for some other substantial purpose similar to a need for an adoption." Father points out that the part of the Family Code in which the termination provisions are found begins with the statement that "The 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." (§ 7800.) While the chapter begins with this statement, the next section provides that "This part shall be liberally construed to serve and protect the interests and welfare of the child." (§ 7801.) The significance that father attaches to the preceding statement was expressly rejected in In re Marcel N. (1991) 235 Cal.App.3d 1007, reviewing Civil Code section 232, the predecessor statute to section 7841. The court there held: "We first note that [Civil Code] section 232.6 states the purpose of division 1, part 3, title 2, chapter 4 of the Civil Code is to provide 'the stability and security of an adoptive home when those conditions are otherwise missing.' Although that may be the stated purpose of the chapter, the statute does not prohibit section 232 proceedings for other purposes. Second, if read literally, section 232 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. Third, to hold that a remarried mother, whose new husband wishes to adopt her child, has the ability to terminate the parental rights of the child's natural father, while a single mother does not, raises obvious equal protection problems. Accordingly, we hold that section 232 proceedings are not limited to cases where adoption is anticipated." (Marcel N., supra, at p. 1013.)
We agree with the T.P. court that it would be difficult to imagine a person with a greater direct interest in the matter than a minor's mother. We too reject the contention that the mother must prove "a substantial purpose similar to the need for an adoption" in order to establish standing. Here, mother has always had sole custody of A.W. and has been the only parent providing her financial support. There was ample reason for the trial court to find that permitting mother to petition to terminate the rights of father, who is incarcerated under a sentence of death and who has tried only minimally to have a relationship with A.W., is in A.W.'s best interests. Counsel for A. W.
Father also argues that the trial court erred in failing to determine at the commencement of the proceedings whether A.W. should be separately represented by counsel. Section 7861 requires the trial court to "consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child . . . ." "[W]hile the ultimate decision whether to appoint counsel is certainly in the lower court's discretion, section 7861 makes clear that the court has a nondiscretionary duty to at least consider the appointment." (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 171.) And we do not disagree with father's contention that this determination should be made early in the proceedings. (See Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 625; In re Richard E. (1978) 21 Cal.3d 349, 354.)
The trial court unquestionably did determine that separate counsel for the minor was not required in this case. In its statement of decision, the trial court stated that "Prior to the trial in this matter the court was requested by counsel for [father] to appoint counsel for the minor child, [A.W.] The question of whether or not to appoint counsel for a minor is subject to the trial court's discretion. Family Code § 7635(d). In making this determination the court is to 'consider whether the interests of the child require representation of counsel.' Family Code § 7861. This court has done so. [¶] Following the interview with [A.W.] the court determined that her interests were fully and completely aligned with that of her mother. Being that her mother had experienced and competent counsel, the court concluded that the employment of another attorney to urge the same positions would not be in [A.W.'s] best interest. A review of all of the evidence propounded in the matter shows that no benefit could have flowed to [A.W.] from such an appointment."
Father argues, "While seeking to exercise its discretion, the court, in effect, failed to perform the required consideration because it had failed to do so in a meaningful way by waiting until after the presentation of all of the evidence and argument, that is, waiting until it was too late." However, while no statement was made on the record and no order was entered prior to the statement of decision reflecting the court's determination, father's contention that the court did not consider the matter at the outset is purely speculative. The statement of decision states that the court was requested prior to trial to appoint separate counsel for the minor and there is no reason to presume that it did not consider and reject the request at that time. Mother points out that on April 13, 2009, the court held an in camera hearing to determine whether it should appoint a guardian ad litem for A.W., at which it would have been entirely reasonable, and perhaps unavoidable, to consider whether counsel should be appointed for her. The statement of decision indicates that the court's determination that separate counsel was not necessary was based largely on the information the court received in the interview with the minor
At whatever point the court considered the issue, there is no basis to question its determination that there was no need for separate counsel. Father argues that A.W.'s interests were not completely aligned with mother's, relying on an August 18, 2008 declaration submitted in support of mother's petition to terminate parental rights. In that declaration mother stated that A.W. "has never been told who her father is, or the horrendous facts underlying his conviction and death sentence." However, as reflected in the statement of decision, at an in camera hearing (presumably the April 13, 2009 in camera hearing that occurred nine months after the August 2009 declaration was filed), A.W. indicated that "she is aware that her biological father is [C.W.] only because she has been told that fact, that she has no recall of him whatsoever, that she desires to terminate any relationship with him, and that because he is in prison for having murdered two people she is very fearful of him. She would not voluntarily go to visit him and she does not wish to receive written or telephone communications from him. Essentially, she strongly supports the termination of his parental rights." The record thus supports the trial court's conclusion that A.W.'s interests were aligned with those of mother. Moreover, father does not suggest how separate counsel might have changed the outcome of the hearing.
In short, we find no error in having failed to appoint separate counsel for the minor. Any possible error in failing to make and record its determination of that issue earlier in the proceedings caused no prejudice and was entirely harmless.
DISPOSITION
The judgment is affirmed.
Pollak, Acting P.J. We concur: Siggins, J. Jenkins, J.