Opinion
F074110
05-12-2017
In re ASHLEY J., et al., Persons Coming Under the Juvenile Court Law. GERARDO L. et al., Petitioners and Respondents, v. BRIAN J., Objector and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioners and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VAD007926)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Bret D. Hillman, Judge. Carolyn S. Hurley, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioners and Respondents.
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INTRODUCTION
Appellant Brian J. (father) appeals from the June 21, 2016, order terminating his parental rights to Ashley J. and Jacob J. Father contends the order must be reversed because the evidence is insufficient to support a finding of abandonment, termination of parental rights is not in the best interest of the children, and the petition by the stepfather to adopt the children was withdrawn and the case dismissed. As discussed below, we reverse.
FACTUAL AND PROCEDURAL SUMMARY
The parties were previously before this court in case No. F071693. Some of the facts and procedural summary are taken from the nonpublished opinion in that case.
Appellant's request for judicial notice of the opinion filed in our case No. F071693 is hereby granted.
On January 2, 2015, Gerardo L., the stepfather of Ashley and Jacob (stepfather), filed a petition pursuant to Family Code section 7822. The petition alleged that father had been estranged from the children since 2001. In another section of the petition, however, it stated that father had last had contact with the children in July 2012. Stepfather also filed adoption requests for both Ashley and Jacob.
Unless otherwise specified, further references to code sections are to the Family Code. --------
A letter dated February 4, 2015, was sent by father, apparently to the court. Father alleged the petition contained false statements. Father stated that he had paid support for the children through March 6, 2014, when he was incarcerated; and mother had "kept" the children from him and also moved five hours away with the children, making visitation difficult. Father concluded by stating he loved his children, "most likely" would consent to the adoption, but still was considering "what is best for them at this time."
On April 1, 2015, stepfather filed a declaration with the trial court stating that father had sent a letter to mother and a separate letter to the children; the letters were attached. Stepfather alleged that the letters constituted a violation of a domestic violence restraining order in place against father; the letter to the children was intercepted by stepfather and not shown to the children.
In father's letter to his children, he stated that he loved them both, was sorry he allowed alcohol to control and ruin his life, asked for their forgiveness, and asked them to please write to him. Father admitted that he was in prison for hitting his girlfriend and stated that maybe prison was "a blessing in di[s]guise." He claimed to be ready to turn his life around and live free of alcohol, stated that he will be receiving anger management and alcohol abuse counseling, and indicated he had a release date of November 2016 or earlier.
Father's letter to mother stated that he was sorry for his actions and asked for her forgiveness. Father asked mother to allow the children to see father's family and said he wished mother and stepfather well and hoped the marriage was a good one.
Family Court Services prepared a report pursuant to section 7851, which required that a report be prepared with a recommendation as to the best interests of the children. Mother and stepfather were interviewed and indicated the children wanted to be adopted by stepfather. Mother claimed her first two marriages ended because of domestic violence; she had two children from each marriage. Mother had obtained a restraining order against father, which expired in September 2015.
As to father's children, mother had been granted sole legal and physical custody by stipulation of the parties in June 2012. Father obtained a change in visitation in 2012 and was able to visit the children twice that year after the change in visitation. Mother stated father only provided sporadic support.
Stepfather reported two convictions for driving under the influence (DUI), one in 2008 and one in 2011. His driver's license was suspended because of the DUI and he was attending DUI offender classes. Stepfather failed to report that he actually had three DUI's, an arrest for public intoxication, and was on probation.
Family Court Services prepared a report for the stepparent adoption. The report stated that mother and stepfather had been married less than one year; stepfather had three DUI's, not just the two that he self-reported earlier; stepfather was on probation; fees ordered to be paid in connection with the latest DUI were in collection; stepfather's ex-wife had a no-contact order against him; and stepfather owed child support arrears to the ex-wife. Despite these issues, the report opined that mother and stepfather appeared to have a stable relationship; both children desired to be adopted; and the report recommended the adoption go forward.
At the April 30, 2015 hearing, counsel for father objected to the matter proceeding. Father was incarcerated; father had requested to be present for the hearing; and father was "our only witness on our side of things." Despite objections from father's counsel and the failure to issue a transport order for father's presence at the hearing, the trial court proceeded to terminate parental rights.
Father filed a notice of appeal from the termination of parental rights on June 2, 2015. On January 26, 2016, in our nonpublished opinion in case No. F071693, this court reversed the order terminating father's parental rights because father had a legal right to be present at the hearing and the trial court erred prejudicially when it failed to comply with Penal Code section 2625 and issue a transport order so father could be present. The disposition remanded the matter for further proceedings.
On remand, a new hearing was scheduled for May 13, 2016. The section 7822 petition stated that stepfather was seeking to terminate father's parental rights so stepfather could adopt the children.
The report prepared by Family Services noted that this was mother's third marriage; her first two marriages had involved domestic violence. Mother wanted father's parental rights terminated so stepfather could adopt the children.
Ashley agreed to the termination of parental rights and stepfather's adoption because father "was in and out of her life" and mother and stepfather provide for her needs. Jacob stated he agreed to termination of father's parental rights and to the stepfather's adoption, "so that if anything happens to his mother in the future," stepfather will "take care of him and his sister." Jacob wanted to keep father's last name, however, and did not want to change his name if adopted. At the time the report was prepared, Ashley was 17 years old and Jacob was 15 years old.
Mother initially claimed the last child support payment she had received from father was in 2012. Mother stated father attempted to communicate with the children in 2015, but mother claimed the letters to the children violated a restraining order. Father was in arrears on payment of child support. Commencing in 2007, father's payments increased to $1,065 per month; they increased to $1,992 per month in 2012.
The report noted stepfather's criminal history, including the three DUI's; it also noted stepfather currently was on probation and in arrears on paying assessed fines and fees. Stepfather was on probation for a period of five years beginning in 2013.
Family Services recommended father's parental rights be terminated to allow stepfather to adopt and to "ensure permanency and stability" for the children.
The hearing on the section 7822 petition eventually was held on June 17, 2016. Stepfather testified and acknowledged his ex-wife had a no-contact order against him; he gave up custody of his children; and he stopped paying child support. He also admitted lying to Family Services about his criminal record. Stepfather's ex-wife testified that there had been domestic violence in their marriage and that was the reason for the no-contact order.
Father testified he was incarcerated in March 2014; that was his only criminal conviction. Father testified he made child support payments from earnings, unemployment, and disability income. From 2012 until father's incarceration in March 2014, mother admitted receiving regular support payments.
Father testified he wanted more contact and communication with his children, but he lived in Sonoma County and mother and stepfather lived in Tulare County, making visits difficult. Father also testified that stepfather "threw a lot of roadblocks" in his way when he wanted to communicate with or visit the children. Father would have written more letters to the children, too, if he were not prevented from doing so.
Father's counsel argued that the evidence established father had been providing support during the year prior to the filing of the petition, since father paid support in March 2014 and the petition was filed January 2015. Father's counsel also argued that mother prevented father from maintaining communication with the children. Mother had obtained a restraining order prohibiting contact, which was in effect when the petition was filed, and notified the police when father sent the children letters. Father's counsel argued that there was no intent on father's part to abandon his children and that the statutory requirements of abandonment had not been met.
Father's counsel also argued that it was not in the children's best interest to have father's parental rights terminated. Stepfather had been involved in domestic violence in his first marriage and his ex-wife had a no-contact order against him; stepfather had a criminal record and was on probation; he was in arrears in paying his fines and fees; stepfather signed away custody of his children and was not paying child support; and stepfather filed the section 7822 petition when he and mother had been married only six months.
The trial court found that father had the intent to abandon his children "by failing to see them or failing to support them for a requisite time period." The trial court also commented as to the children, "that their best interest is maintaining stability." The written orders terminating father's parental rights stated that the children were "now in the custody of the above-named adopting parent."
Father filed a timely notice of appeal on June 28, 2016.
On or about August 8, 2016, stepfather filed a declaration with the trial court, stating he "withdr[e]w" his "petition for termination of parental rights in my request for Step-parent adoption of my stepchildren." On August 19, 2016, the trial court held a hearing on the matter.
At the August 19, 2016 hearing, the trial court stated stepfather no longer wished to "move forward with the proceedings" and then stated "the matter is dismissed without prejudice."
On September 6, 2016, father's appellate counsel sought to augment the record on appeal with documents pertaining to the dismissal of the action, filed after the order terminating parental rights, and a transcript of the dismissal hearing. On September 7, 2016, this court issued its order granting the request and directing the record be augmented.
DISCUSSION
Father filed a 47-page opening brief; no respondent's brief was filed. Father contends the order terminating parental rights should be reversed because stepfather withdrew his petition to terminate father's parental rights and adopt the children, and the trial court dismissed the action. Alternatively, he also contends the evidence is insufficient to support the trial court's determination that he intended to abandon his children or to establish that termination of his parental rights was in the best interests of the children.
I. Dismissal of Petition
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." Here, however, after obtaining an order terminating father's parental rights, but before the order was final, stepfather sought and obtained a dismissal of the petition to terminate parental rights and a dismissal of the adoption proceeding. Stepfather's declaration states that he is no longer pursuing adoption of the children.
Public policy favors the creation of a father-child relationship as a source of emotional and financial support for a child. (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 791.) Public policy also favors that a child have two parents rather than one. (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 995.)
No father-child relationship is being created, and the purpose of the code section is not being served when stepfather dismisses his petition to adopt, states he is not pursuing adoption, and obtains a dismissal of the action wherein father's parental rights were terminated. Moreover, if the order terminating parental rights stands, the children are left with one parent instead of two, contrary to public policy.
Ashley is now 18 years old; Jacob is now 16 years old. As Ashley is now legally an adult, the matter is essentially moot as to her. Jacob, however, is still a minor. Jacob's stated reason for consenting to the termination of father's parental rights and the adoption by stepfather was "so that if anything happens to his mother in the future," stepfather will "take care of him and his sister." Jacob wanted to keep father's last name, however, and did not want to change his name if adopted. Section 7890 provides that the "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."
Family Services recommended father's parental rights be terminated to allow stepfather to adopt and to "ensure permanency and stability" for the children. Before terminating parental rights, a court must consider the child's best interests. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 156.) The best interests of the child are paramount in interpreting and implementing the statutory scheme for terminating parental rights. (Id. at p. 162.)
The reason Jacob and Family Services supported the termination of father's rights, the stepparent adoption, no longer exists in light of stepfather's declaration stating he will not proceed with adoption and the trial court's dismissal of the petition to terminate parental rights and adopt.
If the termination of father's parental rights were to stand, father would have no more legal responsibility for Jacob, but no adopting parent would be stepping in to fill the void. Jacob's belief that if something were to happen to mother, stepfather would be obligated to care for him will not be true because stepfather withdrew the adoption petition and will have no legal obligation to Jacob.
When the reason given by Jacob and Family Services for supporting the termination of father's parental rights no longer exists; stepfather is not pursuing adoption; the termination of father's parental rights will deprive Jacob of a father that is legally obligated to help care for him, leaving him with one parent; and public policy favors a child having two parents, not one parent; we conclude it is not in the children's best interests to terminate father's parental rights.
Although the trial court dismissed the petition, the trial court's order terminating father's parental rights is not necessarily affected by the dismissal. Section 7894 states that after issuing an order freeing a child from the custody and control of a parent, "the court has no power to set aside, change, or modify it." (§ 7894, subd. (b).) Subdivision (c) of section 7894 specifies that nothing in the section "limits the right to appeal from the order and judgment."
We reverse the order terminating father's parental rights. Reversal of the order will maintain the status quo; Jacob will continue to reside with mother and stepfather; father will continue to be legally obligated to help support Jacob.
II. Section 7822 Abandonment
In order to terminate parental rights pursuant to section 7822, subdivision (a)(3), the trial court must find that a parent has left their child with the other parent, without provision for support or communication for a period of at least one year, and with the intent to abandon the child. (In re E.M. (2014) 228 Cal.App.4th 828, 838-839.) The party who files a section 7822 petition has the burden of proving by clear and convincing evidence that all elements of section 7822 have been met. (In re E.M., supra, at p. 841.)
The failure to provide support or the failure to communicate is presumptive evidence of the intent to abandon, and token efforts to support or communicate with the child are not sufficient to overcome the presumption. (§ 7822, subd. (b).) The purpose of this and other statutes governing the termination of parental rights is to serve the welfare and best interests 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.) To this end, judicial proceedings to declare a child free from parental custody and control are to be determined as expeditiously as possible. (§ 7870, subd. (a).) Moreover, these statutes are to be liberally construed to serve and protect the interests and welfare of the child. (§ 7801.)
If child support payments were made and if there was interference with father's attempts to communicate with his children, including obtaining court orders precluding communication, then grounds for finding that father abandoned the children may not be present. (In re E.M., supra, 228 Cal.App.4th at pp. 840-841.)
Findings under section 7822 must be supported by clear and convincing evidence. (§ 7821.) "'Clear and convincing'" evidence requires a finding of high probability. (In re David C. (1984) 152 Cal.App.3d 1189, 1208.) Evidence must be so clear as to leave no substantial doubt and must be sufficiently strong to command unhesitating assent of every reasonable mind. (Ibid.) The appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence. Substantial evidence is that which is reasonable, credible, and of solid value such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
Here, both mother and stepfather lied to Family Services. Mother lied about when she last received child support from father; it was not 2012, but March 2014. Mother's testimony at the hearing established that father had paid child support within the year prior to the filing of the petition on January 2, 2015. Stepfather lied about his criminal record.
The evidence also establishes that mother and stepfather interfered in father's attempts to communicate with his children. Mother claimed father had supervised visits with the children at mother's discretion. Father testified he wanted more contact and communication with his children, he and mother lived in different counties, making visits difficult and stepfather "threw a lot of roadblocks" in his way when he wanted to communicate with or visit the children.
After his incarceration in March 2014, father attempted to communicate with his children by letter. Mother admitted father attempted to communicate with the children, but mother claimed the letters to the children violated a restraining order. Stepfather admitted intercepting the letters from father intended for the children.
This court applies a substantial evidence standard of review to the trial court's findings, keeping in mind that in a section 7822 proceeding, all of the trial court's findings must be made by clear and convincing evidence. (§ 7821; In re Amy A. (2005) 132 Cal.App.4th 63, 67.) We cannot consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the trial court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. The direct evidence of one witness is sufficient to prove a fact. (Evid. Code, § 411.)
The evidence before the trial court established payment of child support within one year prior to the filing of the petition; mother obtaining an order restricting father's contact with his children; and attempts by father to communicate with the children, which mother and stepfather admitted preventing.
With mother and stepfather actively preventing communication between father and his children, coupled with payment of child support within one year of the filing of the petition, we are not persuaded that the evidence supports a finding of abandonment under the clear and convincing evidence standard. (§ 7821; In re E.M., supra, 228 Cal.App.4th at pp. 840-841.) "'Clear and convincing'" evidence requires a finding of high probability, leaving no substantial doubt and must be sufficiently strong to command unhesitating assent of every reasonable mind. (In re David C., supra, 152 Cal.App.3d at p. 1208.)
Moreover, the best interests of the children did not necessarily weigh in favor of a termination of parental rights. Mother is in her third marriage; the petition was filed six months after mother's marriage to stepfather; mother's first two marriages were marred by domestic violence and stepfather engaged in domestic violence in his prior marriage. While father is in arrears in payment of child support, stepfather also is in arrears in payment of child support for his children from his prior marriage and has a strained relationship with those children. In addition, stepfather was on probation and possibly in violation of his probation for failing to pay the fines and fees ordered paid as a condition of probation.
In addition to the above, the subsequent events of stepfather withdrawing his petition to adopt and the trial court dismissing the section 7822 action dictate that the status quo be maintained as in the best interests of the children, so as not to deprive the children of a parent in violation of public policy. (Kristine M. v. David P., supra, 135 Cal.App.4th at p. 791; In re Marriage of Jackson, supra, 136 Cal.App.4th at p. 995.)
DISPOSITION
The June 21, 2016, orders terminating father's parental rights are reversed.
/s/_________
KANE, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
FRANSON, J.