Adoption of I.A. CA4/3 ( 2014 )

Filed 4/29/14 Adoption of I.A. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Adoption of I.A., a Minor.
F.P. et al.,
Plaintiffs and Respondents, G048933
v. (Super. Ct. No. AD78979)
I.A. III, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Ronald
P. Kreber, Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jarvis, Krieger & Sullivan, Carolyn Martin and Siobhan M. Bishop for
Plaintiffs and Respondents.
* * *
Appellant, the biological father, challenges the judgment terminating his
parental rights to free I.A. for adoption by his stepfather, F.P. The superior court
terminated parental rights. Finding no error, we affirm.
I
FACTS
The Petitions
N.P. (the mother) of I.A., who was born in 2007, and her spouse brought a
petition to declare minor free from parental custody and control. The petition was filed
on September 4, 2012, and states the mother had full custody and control of I.A. since
April 2008.
Probate court services prepared an adoption report which was filed on
November 1, 2012. The report states the biological father (appellant) “does not consent
to his son being adopted by the [stepfather].” The evaluator states in the report: “In
conclusion, . . . this investigator is of the opinion it would not be in the minor’s best
interest to approve a stepparent adoption at this time. As presented above, this five and
half year old boy did not appear of sufficient age and capacity to reason to understand
and express an intelligent preference regarding this adoption, and currently seems
confused by the parental conflict associated with the past Family Law and the current
Probate cases. Furthermore, it does not appear the father’s recent lapse of contact
constitutes parental abandonment. The father denied any intention to abandon his son,
and expressed his plans to re-establish visitation with him. The father also expressed a
willingness to continue to financially support his son in the future, once he re-establishes
employment.”
A petition to determine parental rights was filed on July 18, 2012. That
petition states in part: “The court had previously ordered no visitation to [appellant] as of
10/26/11. [Appellant] has a long history of domestic violence and drug abuse. I do not
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receive child support, nor do I want it if it means that I can be assured my son will always
be safe.”
The Hearing
On June 28, 2013, the trial court conducted a hearing. Appellant, who was
incarcerated at the time for receiving stolen property, testified that over 13 years earlier,
he was convicted of a felony, robbery. He admitted he did not provide any form of
support to I.A. since January 2012, and that the last time he saw the child was in October
2011.
In July 2011, appellant sent I.A. some shoes and a letter. He said he made
one attempt to contact the boy during 2012, but a few questions later he said he
telephoned about once a month and usually got voicemail. He admitted he did not finish
his anger management classes. He explained: “I lost my job and was not able to pay the
$35 weekly fee . . . required.” He said he did not want his son adopted because he loves
him and wants to be part of his life.
The mother testified appellant paid child support until January 2012. She
was asked when was the last communication between appellant and I.A., and she said
that sometime during 2012, “he sent him a pair of shoes, I think.” But she added
appellant sent I.A. a birthday card this year “I think.” Appellant also telephoned I.A.
once, in August or September, after the mother contacted appellant’s mother regarding
her pursuit of the termination of appellant’s parental rights. The mother explained why
she did not permit him to speak with I.A.: “I asked him to call in one week to show me
consistency.” There were no further attempts by appellant to contact I.A. after that. I.A.
did go to his paternal grandmother’s home twice in the previous six months.
Stepfather testified he provides financial, emotional and psychological
support for I.A. He plays outside with I.A. and attends his sporting events on the
weekends.
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During argument, appellant’s counsel argued appellant was incarcerated in
November. Counsel stated: “He cannot visit. He cannot provide support. It doesn’t
mean that he intended not to provide.”
The trial court noted that appellant testified that he had no stable residence.
The court seemed concerned that appellant did not keep in contact with the child, stating:
“Even in-custody, he could do it by letter on a daily basis if he really thought it was
important. [¶] . . . [¶] . . . I don’t think the child can wait for the father to meet his
burden. . . . [¶] I think the ability to seeing the child has only been token attempts . . . .”
The court further commented that appellant “had many chances to complete his programs
and has failed to do so,” and that he “could have gone back to court to get visits and that
has not been done.” The court also stated: “. . . I think that the son has to be in a stable
environment and the situation that the son is in at this time is very important due to the
child’s age.”
The Ruling
On June 28, 2013, the trial court determined I.A. was “left by his father,
[appellant], without communication in excess of one year. He has not communicated
with the child except for token attempts to communicate. [¶] No support was paid by
father for the child in excess of one year. [¶] There was an intent to abandon. [¶] The
child is hereby described by Family Code § 7822. [¶] The best interest of [I.A.] requires
that parental rights of [appellant] be terminated with respect to [I.A.]. [¶] By clear and
convincing evidence the petition is granted.”
II
DISCUSSION
Appellant argues on appeal: “The juvenile court erred when it held father
abandoned [I.A.] because father visited [I.A.] and paid child support less than a year
before the petition was filed, and he made more than token attempts to remain in contact
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with [I.A.] during the year prior to the filing of the petition by sending a birthday card,
and gift, and making numerous telephone calls.” Appellant requests this court to reverse
the order terminating his parental rights and freeing I.A. for adoption by his stepfather.
He further states in his briefing: “Despite being homeless and later in prison, Father at a
minimum sent a card to [I.A.], wrote him a letter, sent him a pair of shoes, and called and
asked to speak to him between January 2012 and the filing of the petition in September
2012.”
Family Code section 7800 et seq. governs proceedings to have a child
declared free from a parent’s custody and control. The purpose of such proceedings is to
promote the child’s best interest “by providing the stability and security of an adoptive
home.” (§ 7800.) The statute is to “be liberally construed to serve and protect the
interests and welfare of the child.” (§ 7801.) (All statutory references are to the Family
Code.)
Section 7822 provides that a proceeding may be brought “if any of the
following occur: [¶] (3) One parent has left the child in the care and custody of the other
parent for a period of one year without any provision for the child’s support, or without
communication from the parent, with the intent on the part of the parent to abandon the
child.” (§ 7822, subd. (a)(3).)
An appellate court applies a substantial evidence standard of review to a
trial court’s findings under section 7822. (In re Amy A. (2005) 132 Cal.App.4th 63, 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.]” (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1211.)
“Statutes authorizing an action to free a child from parental custody and
control are intended foremost to protect the child. [Citation.] Typically, such statutes are
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invoked for the purpose of terminating the rights of one or more biological parent, so the
child may be adopted into a stable home environment. (See § 7800 [‘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.’]; [citation].) In any event, the best interests of the child are paramount in
interpreting and implementing the statutory scheme. [Citation.] Indeed, our Legislature
has declared that the statutory scheme ‘shall be liberally construed to serve and protect
the interests and welfare of the child.’ (§ 7801.) It further directs that the trial court
‘shall consider the wishes of the child, bearing in mind the age of the child, and shall act
in the best interest of the child.’ (§ 7890, italics added.)” (Neumann v. Melgar (2004)
121 Cal.App.4th 152, 162-163.)
Here the trial court carefully considered the substantial evidence submitted
and thoroughly analyzed what was in the best interests of I.A. Under the circumstances
we find in this record, we conclude substantial evidence supports the court’s findings and
that there is no indication the court erred.
III
DISPOSITION
The judgment is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
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