Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. AD76871, Renee E. Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant and for Petitioner.
Diana W. Prince, under appointment by the Court of Appeal, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
This consolidated appeal and petition for writ of habeas corpus challenge an order terminating the parental rights of P.C. (Father) to T.C. and declaring T.C. free from the custody and control of Father pursuant to Family Code section 7800 et seq. The trial court granted the petitions of T.C.’s mother (Mother) and her husband P.D. and declared T.C. free from Father’s custody and control on the grounds (1) Father had abandoned T.C. (Fam. Code, § 7822) and (2) Father had been convicted of crimes the facts of which are of such a nature as to prove Father’s unfitness to have custody and control of T.C. (id., §7825).
In the appeal, Father asserts (1) no evidence was presented at trial of the facts underlying any of his criminal convictions other than the fact of the convictions themselves; (2) the trial court erred and violated Penal Code section 2625, subdivision (d) (section 2625(d)) by proceeding with trial in Father’s absence; and (3) Father’s trial counsel was ineffective by failing to object to the trial court’s violation of section 2625(d) and by failing to present evidence in opposition to the petitions. In the petition for writ of habeas corpus, Father asserts his trial counsel was ineffective for the same reasons and submits his own declaration and other declarations in support of that assertion.
We uphold the trial court’s decision on the ground Father had abandoned T.C. In the appeal, we conclude any error in proceeding to trial in Father’s absence in violation of section 2625(d) was harmless and, based on the appellate record, any deficiencies in the performance of Father’s trial counsel did not subject Father to prejudice. In the petition for writ of habeas corpus, we conclude the allegations of the petition and evidence presented by Father fail to establish he suffered prejudice from any deficiencies in the performance of Father’s trial counsel. Accordingly, we affirm the trial court’s order terminating Father’s parental rights, discharge as improvidently granted the order to show cause (OSC) issued on Father’s petition for writ of habeas corpus, and deny the petition for writ of habeas corpus.
Facts
T.C. was born in November 2002. Father and Mother were not married, and Father signed a declaration of paternity when T.C. was born.
Mother and Father lived together with T.C. for a few months after he was born. Mother and T.C. then lived with her mother (maternal grandmother) until Mother married P.D. in November 2005.
While Mother lived with maternal grandmother, Father had several monitored visits with T.C. The last visit was in November 2003.
Father has been incarcerated since sometime in 2004. Father allegedly was a member of the white supremacist gang PEN1 (Public Enemy Number One). In February 2007, Father pleaded guilty to one count each of voluntary manslaughter, dissuading a witness by force, street terrorism, and assault with a deadly weapon other than a firearm, and admitted the alleged gang enhancements. He was sentenced to a prison term of 13 years, with 1, 157 days of credit.
After Father was incarcerated, he and Mother agreed that prison was not a healthy place for a child and not visiting Father in prison would be in T.C.’s best interest. Since Father was incarcerated, Mother has received no financial support, child support, or gifts from him.
In 2004, Father sent some letters and cards to Mother at maternal grandmother’s address. In 2005, Mother received a few letters from Father, in which he claimed he was innocent. Father telephoned Mother twice that year and in those calls did not ask to speak with T.C. In 2006, Father did not call but sent T.C. a birthday card and a Halloween card. There was no evidence whether Father sent T.C. cards or letters in 2007. In 2008, Father did not correspond with T.C., and, in 2009, sent him an Easter card. Mother did not show the cards to T.C. because “[h]e does not know who [Father] is.” She has kept the cards and testified she intends to show them to T.C. when he is older.
From prison, Father periodically telephoned Mother until she told him to stop calling. Mother described Father’s communication with T.C. as “infrequent and unstable, ” and she did not believe this communication was healthy for T.C. Once or twice a year, Father would call to talk with T.C., but Mother would not allow Father to speak to T.C. because “[h]e didn’t know his father. It was confusing. He had someone else that he liked as a dad, and that stability I felt was much more healthy for him.”
P.D. filed a request to adopt T.C. in January 2008. In April 2009, when the probate investigator asked P.D. why he wanted to adopt T.C., P.D. replied, “I’ve always been T[.C.]’s dad, I’m totally responsible for him and want it to become legal so that I can take him on missions with our church and do all the other things a parent would do with their [sic] child.” P.D. told the investigator he had been involved in all aspects of T.C.’s parenting for the previous four years.
The probate investigator also interviewed T.C. in April 2009, when he was six years old. T.C. was active, intelligent, and responsive to questions. When asked why he was being interviewed, T.C. replied, “I’m going to be adopted because my mom made me with someone else and when that person can’t take care of you, someone else can adopt you.” T.C. said he had a good relationship with P.D. and had no recollection of Father.
Adoption consent forms were sent to Father. In April 2009, the probate investigator received a telephone message from V.P. (Father’s mother) that Father opposed adoption and would not sign the consent forms. In August 2009, the probate investigator received a letter from Father, stating he was contesting the termination of his parental rights, wanted to be present in court, and requested appointed counsel. The investigator also received a call from Father’s fiancée asking for an update on the adoption proceedings. When the investigator told the fiancée to have Father call collect for that information, she said Father was “in the hole” and was not allowed to make telephone calls.
Procedural History
In July 2009, P.D. and Mother filed two petitions for freedom from parental custody and control and requesting termination of Father’s parental rights based on Family Code sections 7822 and 7825. On September 4, 2009, the trial court reviewed the petitions and appointed Attorney J. Michael Hughes to represent Father. The court signed an order for Father’s appearance at the next hearing, on November 6.
It is not clear which parent filed which petition. Neither petition identifies the petitioner by name, and Mother and Father verified both petitions. Both petitions allege, “Petitioners are the Adoptive Father and minor’s mother” and “[t]he minor currently resides with Petitioner and birth mother.” At the outset of trial, Attorney Loni Klein stated her appearance as counsel “for the petitioners, P[.D.] and [Mother], ” but pleadings identify Klein as attorney for “Petitioner.” Only P.D. has filed a respondent’s brief.
At the hearing on November 6, Attorney George Vargas appeared and asked to be substituted as Father’s attorney. Father was in the courthouse but not the courtroom. The court set a trial for March 23 and 24, 2010. Vargas stated he would call as witnesses V.P., Father’s two brothers, and stepfather. Hughes turned his file over to Vargas, and the court stated that Hughes would be relieved upon the filing of the substitution of attorney.
No substitution of counsel was ever filed, and the notice of trial was served on Hughes. The court issued another order to have Father transported to the custody of the Orange County Sheriff so Father could appear at trial on March 23.
On March 2, 2010, Hughes moved to continue the trial. In support of the motion, Hughes submitted his own declaration stating he had been informed by a deputy Blaszak that Father refused to be transported to court, refused to sign a waiver giving up his right to be transported, and requested a trial continuance to June 2010. Mother and P.D. opposed the motion on the ground Vargas had represented he was Father’s counsel and would file a substitution of counsel, and argued Father was manipulating the judicial system and attempting to delay proceedings. The trial court denied the motion for a continuance.
Father was not present at trial on March 23. Hughes reiterated Father’s refusal to be transported and refusal to sign a waiver of his right to appear. The court proceeded with trial in Father’s absence, confirming it had denied Father’s request for a trial continuance because it was not supported by good cause. Hughes did not object. Mother and P.D. testified, and the court took judicial notice of dockets and case summaries in several criminal actions in which Father was a defendant, including those in which he pleaded guilty to voluntary manslaughter, dissuading a witness by force, street terrorism, and assault with a deadly weapon. These dockets and case summaries reflected Father also had been convicted of hit and run in 1998 and of driving while under the influence in 2000 and 2001.
The trial court found that Father had left T.C. “without communication in excess of one year” commencing in November 2003, that Father had not paid any support for T.C. for a period in excess of one year, that “[t]here was intent to abandon, ” and that T.C. came within Family Code section 7822. The court also found, “the evidence provides that... [¶]... [Father] has already been incarcerated for the majority of [T.C.]’s life and will remain incarcerated until the year 2016; the sentence given to [Father] does not provide for his release until 2016.” The trial court concluded T.C.’s best interests required termination of Father’s parental rights, granted the petitions “[b]y clear and convincing evidence, ” and ordered that T.C. be freed from Father’s parental custody and control.
In April 2010, the trial court signed a formal order granting P.D.’s petition, declaring T.C. free from Father’s custody and control, and finding an award of custody to P.D. would be in T.C.’s best interests. The order stated Father “elected not to be present.” The court found by clear and convincing evidence Father left T.C. in Mother’s care for a period in excess of one year commencing in November 2003, Father failed to support T.C. for a period in excess of one year commencing in November 2003, Father failed to communicate with T.C. for a period in excess of one year commencing in November 2003 and any communications after that time were token, and Father’s failure to support T.C. and communicate with him for a period in excess of one year “is clear intent to abandon [T.C.].” The order also stated the court found by clear and convincing evidence Father committed seven felonies, the facts of the crimes of which Father was convicted “are of such a nature so as to prove the unfitness of the parent to have future custody and control of the child, ” and Father committed the crimes voluntarily.
The order refers only to P.D. as the petitioner and does not address Mother’s petition.
Father timely appealed from the order terminating his parental rights and declaring T.C. free from Father’s custody and control. When Father filed his opening brief in the appeal, he also filed a petition for writ of habeas corpus asserting ineffective assistance of his trial counsel. Submitted with the habeas corpus petition were declarations from Father’s appellate counsel, Father, V.P., Father’s two brothers, and Vargas. After we issued an OSC, P.D. filed a return to the petition, and Father filed a traverse. We consolidated Father’s appeal with the petition for writ of habeas corpus.
Discussion
I.
Father’s Appeal
The trial court declared T.C. free from the custody and control of Father based on findings that Father had abandoned T.C. (Fam. Code, § 7822) and that Father had committed seven felonies, the underlying facts of which were of such a nature so as to prove Father’s unfitness as a parent (id., § 7825). The finding on abandonment is sufficient to support the trial court’s order, and, we conclude, any error in proceeding to trial without Father was harmless.
A. Proceeding with Trial in Father’s Absence
Father argues the trial court erred by proceeding with trial in his absence in violation of section 2625(d) and the error was prejudicial. Section 2625(d) provides: “Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoner’s desire to be present during the court’s proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner’s production before the court. No proceeding may be held under Part 4 (commencing with Section 7800) of Division 12 of the Family Code or Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court... may be adjudicated without the physical presence of the prisoner or the prisoner’s attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.” The purpose of section 2625(d) is to ensure prisoners have the opportunity to be present at proceedings at which taking away custody and control of their children is being considered. (In re Jesusa V. (2004) 32 Cal.4th 588, 623.)
Father was not present at trial even though his trial counsel prepared a transportation order. Earlier, when moving for a trial continuance, Father’s trial counsel had stated in a declaration he had been informed by a sheriff’s deputy that Father refused to be transported to court and refused to sign a waiver giving up his right to be transported. At trial, Father’s counsel stated Father still refused to be transported or sign a waiver of the right to appear. No affidavit was presented from the warden, superintendent, or other person in charge of the institution in which Father was being held. (In a declaration attached to the petition for writ of habeas corpus, Father states he did not refuse to be transported to the trial and there are two correctional officers at the prison who would so testify.) Father’s trial counsel did not object to proceeding with trial in Father’s absence and did not call witnesses on Father’s behalf.
B. Harmless Error
For purposes of argument, we assume the trial court erred by proceeding to trial in Father’s absence without a signed waiver of presence from Father or an affidavit from the warden, superintendent, or other person in charge of the institution in which Father was being held. Any error in proceeding with trial in Father’s absence is subject to a harmless error analysis. (In re Jesusa V., supra, 32 Cal.4th at pp. 624 625.) Under that analysis, error requires reversal if it is “‘reasonably probable that a result more favorable to [Father] would have been reached in the absence of the error.’” (People v. Watson (1956) 46 Cal.2d 818, 837.)
Family Code section 7822 permits a court to declare a minor to be free from the custody and control of a parent when the parent has abandoned the child. Abandonment occurs when a “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.” (Fam. Code, § 7822, subd. (a)(3).) The three main elements of abandonment under section 7822 are (1) one parent left the child in the care and custody of the other parent for a period of one year, (2) without provision for support or without communication from the parent, and (3) with the intent to abandon the child for the statutory one year period. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.)
The purpose of proceedings to declare a minor free from a parent’s custody and control 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.” (Fam. Code, § 7800.) The code sections governing proceedings to declare a minor free from a parent’s custody and control must be construed liberally “to serve and protect the interests and welfare of the child.” (Id., § 7801.)
Abandonment under Family Code section 7822 requires only that one parent leave the child in the care and custody of the other parent for one year without provision for support or communication. The evidence at trial established that Father last visited T.C. in November 2003 and then voluntarily left him in the care and custody of Mother. Since then, Father has communicated only sporadically with T.C. and has never provided him support. In 2006, Father did not call but sent T.C. a birthday card and a Halloween card; there was no evidence whether Father sent T.C cards or letters in 2007; in 2008, Father did not correspond with T.C. at all; and, in 2009, Father sent T.C. only an Easter card. Those objective facts are uncontroverted. Although Father has been incarcerated since 2004, incarceration in and of itself does not provide a defense to abandonment of a child. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1012.) The uncontroverted evidence here established Father left T.C. in the care and custody of Mother with no provision for support for several one-year periods beginning in November 2003.
Those same facts—failure to provide support and failure to communicate—also are presumptive evidence of the intent to abandon. (Fam. Code, § 7822, subd. (b); see Adoption of Allison C., supra, 164 Cal.App.4th at p. 1013 [trial court’s finding that the father failed to communicate with child, coupled with finding of nonsupport, is sufficient to show intent to abandon].) “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 or parents.” (Fam. Code, § 7822, subd. (b).) The evidence showed, at best, Father made but token efforts to communicate with T.C.
In the appeal, Father argues, “[h]ad he been present and testified, he would have been the source of... some evidence that he lacked the intent to abandon T[.C.] as required to overcome the burden of producing evidence” and his testimony “would have been a ‘fact and circumstance to be taken into consideration’ in determining whether he intended to abandon T[.C.] for the statutory period.” Father provides no more specific information in his appellate briefs about the content of his testimony.
While the controlling issue for a finding of abandonment is the parent’s subjective intent, the factual determination of intent to abandon is made by objectively measuring the parent’s conduct. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316; In re Brittany H. (1988) 198 Cal.App.3d 533, 550; In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212.) The trial court considers the frequency of the parent’s efforts to communicate with the child, the genuineness of those efforts under all the circumstances, and the quality of the communications. (People v. Ryan, supra, at p. 1316; In re B. J. B., supra, at p. 1212.)
Under Evidence Code section 604, a presumption affecting the burden of producing evidence requires the trier of fact to assume the existence of the presumed fact until evidence is produced which would support a finding of the nonexistence of the presumed fact. Father’s testimony of his own subjective intent would not support a finding he did not intend to abandon T.C. (the nonexistence of the presumed fact of intent to abandon) because intent to abandon is established by objective facts. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212.) Thus, Father’s testimony of his subjective intent would not have been enough to rebut the presumption of intent to abandon.
Testimony by Father of an intent to reunite with T.C. when Father is released from prison also would have been insufficient to rebut the presumption of intent to abandon. “‘[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.’” (Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1015 1016.)
Nothing in the appellate record or briefs shows that Father’s testimony would have been sufficient to overcome the presumption of intent to abandon. For that reason, it was not reasonably probable that a result more favorable to Father would have been reached if he had been present to testify at trial.
C. No Ineffective Assistance of Counsel
Father also argues in the appeal his trial counsel was ineffective by failing to object to the trial court’s violation of section 2625(d) and by failing to present evidence in opposition to the petitions.
Ineffective assistance of counsel is a cognizable claim of error in a proceeding to declare a minor child free from a parent’s custody and control under Family Code section 7800 et seq. (In re James S. (1991) 227 Cal.App.3d 930, 935.) The ineffective assistance of counsel standard applicable in criminal cases applies to proceedings to declare a minor child free from a parent’s custody and control. (Id. at p. 936.)
To prevail on a claim of ineffective assistance of counsel, Father must prove (1) his attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his attorney’s deficient representation caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) However, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington, supra, at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
Prejudice means a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a “probability sufficient to undermine confidence in the outcome.” (Ibid.)
Based on the appellate record and arguments made in Father’s appellate briefs, we must conclude any error in proceeding to trial in Father’s absence was harmless. For the same reason, any deficiency in representation by Father’s trial counsel was not prejudicial. Had counsel objected to proceeding with trial in Father’s absence and obtained a trial continuance to permit Father to testify, it was not reasonably probable the result at trial would have been different. As we have concluded, nothing in the appellate record or briefs shows that Father’s testimony would have been sufficient to rebut the presumption of intent to abandon.
In addition, Father argues his trial counsel failed to produce other witnesses to testify at trial even though Vargas had previously advised the trial court that such witnesses were available. In the appeal, however, Father does not identify who those witnesses were or what the substance of their testimony would have been. Father also argues his trial counsel’s representation was deficient because counsel did not argue insufficiency of the evidence to support termination of parental rights. Trial counsel’s failure to argue insufficiency of the evidence did not result in prejudice because the evidence at trial clearly and convincingly established abandonment under Family Code section 7822.
II.
Father’s Petition for Writ of Habeas Corpus
In the petition for writ of habeas corpus, Father alleges his trial counsel was ineffective by (1) failing to object when the trial court proceeded with trial in his absence, (2) seeking a trial continuance without making a showing of good cause, (3) failing to call Father’s witnesses to testify, and (4) failing to argue insufficiency of the evidence of parental unfitness based on felony convictions. With the petition for habeas corpus, Father submitted his own declaration and declarations from V.P, his two brothers, and Vargas.
At least one Court of Appeal has concluded a petition for writ of habeas corpus may be used to collaterally attack an order terminating parental rights on the ground the parent was not afforded effective assistance of counsel. (In re Darlice C. (2003) 105 Cal.App.4th 459, 462 463.) For purposes of our decision, we will assume likewise.
We issued an OSC. “Issuance of an OSC signifies the court’s preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief.” (People v. Duvall (1995) 9 Cal.4th 464, 475.) P.D. filed a return and supplemental return essentially denying the petition’s allegations, and Father filed a traverse.
As we did for the appeal, we will proceed directly to the issue of prejudice from the claimed deficiencies in trial counsel’s representation of Father, with one exception. We find nothing deficient in trial counsel’s motion for a trial continuance. Father argues his trial counsel failed to present evidence of good cause for a continuance, but does not identify the good cause that would have supported the motion. Trial counsel sought a continuance based on what appears to be the best and possibly only ground available—that Father had indicated a refusal to be transported to the courthouse.
As to prejudice, Father alleges in the petition for writ of habeas corpus, “[t]rial counsel’s lack of effective assistance prejudiced the father because, had his counsel rendered effective assistance, there is a reasonable probability that the superior court would have rendered a judgment more favorable to the father.”
In response to Father’s allegation of prejudice, P.D. alleges, “Mother acted reasonably in withholding her telephone number and address from father after discovering the heinous nature of father’s crimes and discovering that he acted in furtherance of his street gang. Respondent alleges Father and his relatives at all times were aware of the maternal grandmother’s address and father did in fact send sporadic cards to the maternal grandmother’s address, which Mother received and is holding for T.[C.]. Respondent alleges Father demonstrated he had the capability of communicating with T[.C.] but chose not to do so on a regular, consistent or meaningful basis.”
P.D. also alleges, “Father willfully committed the crimes that led to his lengthy incarceration, willfully chose to fail to exercise the means of communication open to him, willfully chose to decline to cooperate with the probate investigator, willfully chose to decline to execute a substitution of attorney form, and willfully chose to decline to be transported to the courtroom for the trial at which his parental rights to T[.C.] were terminated.” Those willful acts, P.D. alleges, not any ineffective assistance of counsel, led to termination of Father’s parental rights. P.D.’s allegations must be deemed controverted because, in the traverse, Father denies them and realleges the allegations of his petition. (See People v. Duvall, supra, 9 Cal.4th at p. 477.)
With the petition for writ of habeas corpus, Father submitted declarations to show he suffered prejudice from his trial counsel’s asserted deficiencies. In his own declaration, Father stated he would have testified at trial as follows: “I shared T[.C.]’s care with [Mother] from T[.C.]’s birth until [Mother] and I separated. After that, although T[.C.] lived with [Mother] and her mother, I continued daily personal care of T[.C.] during the day; my sister in law... babysat him for me while I was at work in my brother’s plumbing business. During this time I and my family fed and clothed T[.C.], and T[.C.] and I developed a mutually close attachment.” Father declared that after his arrest and incarceration, he “kept in contact with T[.C.] to the extent my circumstances permitted” and, having no income, he “called [Mother] collect from the jail and spoke to T[.C.] until [Mother] refused to accept the calls.” Father also declared he sent letters, cards, and gifts to T.C., encouraged his family members to maintain contact with T.C., and believed they did so “until [Mother] and her family prevented that contact.”
The testimony described in Father’s declaration confirms Father failed to provide support for T.C. for several one year periods commencing in November 2003. Father’s care for T.C. before Father and Mother separated and while T.C. lived with maternal grandmother does not explain Father’s neglect for the following several years or suggest he did not intend to abandon T.C. Although Father declares that after being incarcerated, he communicated with T.C. to the extent circumstances permitted, Father does not describe how those circumstances prevented him from communicating with T.C. or what efforts Father made to overcome those circumstances. Father does not identify the letters, cards, and gifts he declared he sent to T.C. or when he sent them. Father’s testimony at trial, as represented in Father’s declaration, therefore would not show Father made any more than token efforts to support or communicate with T.C.
Father concluded his declaration by stating, “I did not abandon T[.C.] and did not intend to.” But as we have explained, such general denial of lack of a subjective intent to abandon is insufficient to rebut the presumption of intent to abandon created by Father’s failure to support T.C. and communicate with him for the statutory one year period. (See In re B. J. B., supra, 185 Cal.App.3d at p. 1212.)
In support of his petition for writ of habeas corpus, Father submitted declarations from V.P. and his two brothers (C.C. and E.A). Much of V.P.’s declaration is a personal attack on Mother and her family that has no bearing on Father’s intent to abandon. V.P. declared, “[e]ven when [Father] was incarcerated he called T[.C.] and [Mother] every night, ” but that assertion lacks foundation and is inconsistent with Father’s declaration that Father kept in contact with T.C. to the extent circumstances permitted. V.P. did state that after Father was incarcerated, she sent a little money to Mother for T.C.’s care, E.A. bought clothing for T.C., and C.C. called Mother “and tried to mediate something.” V.P. did not identify when those efforts were made or whether they were made at Father’s behest.
Father’s brother C.C. declared he gave money to Mother to help her financially and saw T.C. weekly for about seven months after Father was incarcerated, at which point Mother “disappeared” with T.C. Father’s brother E.A. declared that before Father was incarcerated, his wife babysat T.C., whom E.A. saw only with Father. E.A. declared: “After that, I could talk to [Mother] until she found out that [Father] was going to take a deal in his criminal case. Then, [Mother] denied us being able to see T[.C.].” Both C.C. and E.A. declared that Father’s trial counsel never contacted them and they would have testified at trial if asked to do so.
In the supplemental return, P.D. denies the material allegations of the petition, but does not present evidence to controvert the declarations presented by Father. Those declarations do not, however, show that Father suffered prejudice from the claimed ineffective assistance of trial counsel. If Father and the other declarants had been able to testify at trial consistently with their declarations, the presumption of intent to abandon would not have been rebutted. Therefore, it is not reasonably probable the outcome at trial would have been different if trial counsel had objected to proceeding with trial in Father’s absence, obtained a continuance, and called Father and the other declarants to testify.
Father also alleges in the habeas corpus petition his counsel was ineffective by failing to argue insufficiency of the evidence to support termination of parental rights under Family Code section 7825 based on Father’s felony convictions. We do not address that argument because Father failed to show prejudice on the issue of abandonment.
It appears to us the OSC was improvidently granted because Father’s evidence presented with the petition for writ of habeas corpus failed to support the allegation of prejudice in the first instance. The OSC therefore will be ordered discharged.
Disposition and Order
The order declaring T.C. free from Father’s custody and control and terminating Father’s parental rights is affirmed. The OSC issued on Father’s petition for writ of habeas corpus is discharged as improvidently granted, and Father’s petition for writ of habeas corpus is denied.
WE CONCUR: BEDSWORTH, ACTING P.J., ARONSON, J.