Adoption of M.L. CA2/5

Filed 8/28/23 Adoption of M.L. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
Adoption of M.L., a Minor. B326768
EDWIN B., (Los Angeles County
Super. Ct. No.
Plaintiff and Respondent, 21CCAD00220)
v.
TIMOTHY L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rudolph A. Diaz, Judge. Reversed and
remanded with directions.
Child Welfare Law Specialist and Leslie A. Barry, under
appointment by the Court of Appeal, for Defendant and Appellant
T.L.
Suzanne Davidson, under appointment by the Court of
Appeal, for Plaintiff and Respondent E.B.
Timothy L. (biological father) appeals the February 1, 2023
order terminating his parental rights as to his daughter, M.L.1
Respondent Edwin B. (stepfather) concedes the court’s order was
in error and requests a remand with directions to the juvenile
court to correct the order.
FACTUAL AND PROCEDURAL BACKGROUND2
M.L. (born in 2006) and her younger brother H.L. (born in
2008) are the biological children of mother and biological father,
who divorced in 2012. Biological father had not been in contact
with either child since 2011 or 2012. Mother had sole legal and
physical custody of both children, and she married stepfather
shortly after her divorce from father was final.
In February 2021, stepfather filed a petition to adopt M.L.
When biological father refused to give consent, the Los Angeles
County Department of Children and Family Services (DCFS)
advised stepfather to proceed under California Family Code,
section 8604.3 Mother filed a document consenting to the
adoption, but biological father objected, and the court appointed
different attorneys to represent the children and father, and
1 Biological father has also appealed a similar order as to
his son, H.L. (See B328161, LASC # 21CCAD00219.) Because
the records in the two appeals differ slightly, and because a
motion to consolidate the two appeals was denied on May 9, 2023,
we issue two separate opinions.
2 Because stepfather concedes the legal error, we limit our
recitation of facts except as is necessary for context.
3 All further statutory references are to the Family Code.
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ordered reports by DCFS and the Los Angeles County Probation
Department (Probation). The initial and supplemental reports
filed by DCFS and Probation all recommended granting
stepfather’s petition. Probation’s reports included mixed
language describing stepfather’s petition as a petition “for
freedom from parental custody and control, filed under Family
Code section 8604, from the birth father, [T.L.] via adoption . . . .”
Over three days between November 2022 and January
2023, the trial court heard testimony and argument on
stepfather’s petition. Referring to the requirement under section
8604, subdivision (c), that biological father failed to communicate
and provide support to the children for more than a year, but also
referencing a “petition to terminate parental rights of father”, the
trial court granted stepfather’s petition on January 23, 2023.
The court put the matter over for counsel to provide a judgment.
Stepfather submitted a proposed judgment, which the trial court
signed and filed on February 1, 2023. After some preliminary
language, the judgment included three findings, referring to M.L.
as the minor: “1. Said minor is under the age of eighteen years,
to wit of the age of 17 years; [¶] 2. Said minor is a person defined
in Subdivision (b) of Family Code Section 8604 in that the parent
has left the child in the care and custody of the other parent for a
period of over one year and has willfully failed to communicate
with and failed to pay for, the care, support, and education of the
child when able to do so; [¶] 3. That an award of custody to the
parent would be detrimental to the child and freeing the child
from the custody of his parent is in the best interest of the
minor.”
The judgment also included the following orders: “1) [M.L.]
is hereby declared and adjudged to be free from the custody and
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control of [T.L.], said parent; [¶] 2) The petition is granted
pursuant to California Family Code Section 8604; [¶]
3) Awarding custody of the minor child to the parent [T.L.] would
not be in the best interest of the child. [¶] 4) The minor child is a
proper subject for adoption, and [¶] 5) Continued custody by the
mother, [T.B.] and adoption by [E.B.] will serve the best interest
of the minor child.”
Biological father timely appealed the judgment.
DISCUSSION
Biological father contends that reversal is required because
section 8604 does not give the court authority to terminate his
parental rights and declare M.L. free from his custody and
control. Stepfather concedes the challenged orders should be
reversed, and requests that we remand the matter with
directions to correct the judgment nunc pro tunc. We agree that
the challenged orders exceeded the court’s statutory authority,
but it is not apparent that the error was merely clerical. We
therefore reverse and remand with directions to enter a new
judgment consistent with the court’s authority under section
8604.
The parties agree and the record supports the conclusion
that this matter was litigated under section 8604, which
establishes one of “two distinct ways to proceed to adoption.”
(Adoption of I.M. (2014) 232 Cal.App.4th 40, 48.) The alternative
is to seek an order terminating parental rights under section
7822, which requires a showing of intent to abandon. (See In re
H.D. (2019) 35 Cal.App.5th 42, 50; Adoption of I.M., at pp. 47–
48.) “Whatever similarities may exist in the language in the two
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provisions, the consequences of a finding under section 7822 are
vastly different from a finding under section 8604.” (In re
Marriage of Dunmore (2000) 83 Cal.App.4th 1, 5 (Dunmore).)
“Although the loss of the right to veto the adoption [under section
8604] is significant, it is not the equivalent of a termination of
parental rights or a declaration of freedom from parental custody
and control.” (Id. at p. 5.)
“Section 8604 deals with whether the consent of birth
parents is needed for adoption. Section 8604, subdivision (b)
simply permits an adoption to proceed with the consent of the
parent who has sole custody, and without the consent of the
noncustodial parent, if the noncustodial parent has willfully
failed to communicate with and support the child for over one
year. [Citation.] The narrowly drawn provisions of section 8604
operate to facilitate adoptions, especially stepparent adoptions,
but the proceeding and order under this section do not terminate
the noncustodial parent’s rights. (Ibid.)” (Adoption of I.M.,
supra, 232 Cal.App.4th 40, 46.) Only later is the non-consenting
birth parent relieved of his or her parental rights and obligations.
(Dunmore, supra, 83 Cal.App.4th at p. 4; see § 8617.)
In contrast, section 7822 “makes abandonment an
independent ground for termination of one or both parents’ rights
when the evidence shows the parent abandoned the child.
[Citations.] Unlike section 8604, section 7822 requires a finding
of intent to abandon.” (Adoption of I.M., supra, 232 Cal.App.4th
at p. 47; see also In re H.D., supra, 35 Cal.App.5th at p. 50
[elements of section 7822]; and Dunmore, supra, 83 Cal.App.4th
at p. 5.) “Once the requisite finding under section 7822 has been
made, the court may enter an order declaring the child free from
the parent’s custody and control, which terminates all parental
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rights and responsibilities.” (Adoption of I.M., at p. 47.)
While an order terminating parental rights and freeing a
child from one parent’s custody and control may be available
under section 7822, it is not available under section 8604.
Because stepfather sought a finding under section 8604, the trial
court acted in excess of its authority when it ordered the
biological father’s parental rights terminated and declared M.L.
free from parental custody and control.
Stepfather asks this court to remand with directions to
correct the February 1, 2023 judgment nunc pro tunc, but does
not provide any authority to support his request for a nunc pro
tunc order. “[I]t is not proper to amend an order nunc pro tunc to
correct judicial inadvertence, omission, oversight or error, or to
show what the court might or should have done as distinguished
from what it actually did. An order made nunc pro tunc should
correct clerical error by placing on the record what was actually
decided by the court but was incorrectly recorded. It may not be
used as a vehicle to review an order for legal or judicial error by
‘correcting’ the order in order to enter a new one.” (Hamilton v.
Laine (1997) 57 Cal.App.4th 885, 891; see also In re Marriage of
Padgett (2009) 172 Cal.App.4th 830, 851–855 [discussing use of
nunc pro tunc orders in marriage dissolution context.) The record
before us does not clarify whether the error on appeal was clerical
or not, so we decline to direct the trial court to correct its
judgment nunc pro tunc.
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DISPOSITION
The judgment is reversed, and the matter is remanded with
directions for the lower court to enter a new judgment consistent
with this opinion. Specifically, the new judgment may not
include the following language from the appealed judgment:
paragraph 3 of the findings, paragraphs 1 and 3 of the orders,
and the following language from paragraph 5: “Continued
custody by the mother [T.B.]”
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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