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Adoption of A.M.

Court of Appeal of California
Jun 29, 2009
No. E043937 (Cal. Ct. App. Jun. 29, 2009)

Opinion

E043937

6-29-2009

Adoption of A.M., a Minor. L.M., Petitioner and Appellant, v. M.M., Objector and Respondent.

L.M., in pro. per., for Petitioner and Appellant. Konrad S. Lee, under appointment by the Court of Appeal, for Objector and Respondent. Amanda F. Benedict, under appointment by the Court of Appeal, for Minor.

Not to be Published in Official Reports


L.M. (Mother) and her husband, B.B., petitioned the trial court to terminate M.M.s (Father) parental rights to his son, A.M. (Fam. Code, § 7822.) Mother appeals the trial courts granting of Fathers motion for judgment, which Father made following Mothers and B.B.s presentation of evidence. (Code Civ. Proc., § 631.8.) Mother contends the trial court erred by (1) applying the incorrect legal standard when determining whether the evidence supported a finding that Father intended to abandon A.M., and (2) violating Mothers due process rights by denying her the opportunity to present her case. Father contends Mother does not have standing to bring this appeal. A.M.s counsel filed a letter brief with this court which takes the position that A.M.s "interests and wishes were not served by the trial courts ruling." Nevertheless, A.M.s counsel concludes the courts ruling was made in accordance with the statutory scheme. We affirm the granting of Fathers motion for judgment.

All further statutory references are to the Family Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

In order to avoid repetition, additional facts will be presented in the "Discussion" section, post.

Mother and Father married in 1995 and A.M. was born in July 1995. Father is named on A.M.s birth certificate. During the marriage, Father abused alcohol. Mother obtained a one-year restraining order against Father in 1996, which granted her custody of A.M. Mother and Father divorced in 1998. In December 1998, Father entered the Delancey Street two-year, residential substance abuse program. Father graduated from Delancey Street in December 2000. Father regularly paid child support for A.M. beginning in 2001. Mother married B.B. in 2001.

Father filed a request for visitation with A.M. in February 2006. Father had last seen A.M. in July 1997—A.M. believed B.B. was his biological father until January 2007. In October 2006, Father and Mother attended mediation to discuss visitation. Mother agreed that Father should be allowed to establish gradual visitation with A.M. On November 6, 2006, B.B. filed a stepparent adoption request. In the request, B.B. indicated that he would ask the court to terminate Fathers parental rights to A.M. On November 22, 2006, B.B. filed the petition to terminate Fathers parental rights. On January 5, 2007, Mother moved to be joined as a party so that she could assist in the termination of Fathers parental rights. The court granted Mothers motion for joinder. On July 17, 2007, the trial court held a hearing on the petition to terminate Fathers parental rights. After B.B. rested his case, Father made a motion for judgment on the basis that B.B. and Mother failed to prove Father abandoned A.M. The court granted Fathers motion.

As we will discuss post, it is unclear whether B.B.s attorney was also representing Mother. Accordingly, it is unclear if Mother had also rested.

DISCUSSION

A. Standing

Father contends Mother does not have standing to bring this appeal. Father argues that Mothers interests were not impacted by the trial courts ruling; Father asserts that only B.B.s interests were impacted by the ruling, because the trial court denied B.B.s petition to adopt A.M. We disagree.

Any aggrieved party may file an appeal. (Code Civ. Proc., § 902.) An aggrieved party is one "whose rights or interests are injuriously affected by the judgment [and whose] interest[s are] `"immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment."" (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.)

Contrary to Fathers position, Mother is not appealing a denial of B.B.s adoption petition. Rather, Mother is appealing the trial courts grant of Fathers motion for judgment (Code Civ. Proc., § 631.8) on the petition to terminate Fathers parental rights (Fam. Code, § 7822). A mother has standing to bring a petition to terminate a fathers parental rights, regardless of whether adoption is the ultimate goal of the parties involved. (In re Marcel N. (1991) 235 Cal.App.3d 1007, 1011-1013.) Mothers interests were impacted by the granting of Fathers motion, because Mothers position is that A.M. would be provided a more stable and secure home if Fathers parental rights were terminated, due to A.M. not knowing about Father until recently. (See Ibid.) The granting of Fathers motion effectively dismissed the petition to terminate Fathers parental rights. Mothers interest in A.M. gave her standing to be a party to the petition and to bring this appeal. In sum, Mothers interests were impacted when the trial court granted Fathers motion for judgment. Therefore, we find Fathers argument unpersuasive, and conclude Mother has standing to bring this appeal.

In a motion to dismiss Mothers appeal, Father argues Mother does not have standing. We deny Fathers motion to dismiss.

B. Legal Standard

Mother contends the trial court applied the incorrect legal standard when considering whether to grant Fathers motion for judgment. We disagree.

We review the trial courts ruling to determine if it abused its discretion by applying the incorrect legal standard. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1507-1508; see also People v. Knoller (2007) 41 Cal.4th 139, 156.)

"Under section 7822, a court may declare a child free from a parents custody and control if 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 childs support, or without communication from the parent, with the intent on the part of the parent to abandon the child. [Citation.] Thus, a section 7822 proceeding is appropriate where `three main elements are met: `(1) the child must have been left with another; (2) without provision for support or without communication from . . . his parent [] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done "with the intent on the part of such parent . . . to abandon [the child]." [Citation.]" (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010, fn. omitted.) Findings under section 7822 must be supported by clear and convincing evidence. (§ 7821.)

The trial court found that Fathers regular payment of child support showed he did not intend to abandon A.M. The trial court emphasized that it found Father did not intend to abandon A.M. "beyond a reasonable doubt." Based on its finding that Father did not intend to abandon A.M., the court granted Fathers motion for judgment. (Code Civ. Proc., § 631.8.)

The intent to abandon is a necessary element of section 7822. The trial court based its decision on the finding that Father did not intend to abandon A.M. Accordingly, the trial court applied the correct legal standards. Therefore, we conclude the trial court did not err.

Mother contends the trial court applied the wrong legal standard because it did not consider the best interests of A.M. when ruling on Fathers motion. Section 7890 provides that when a court hears a petition to free a child from the custody and control of his parent, "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." (See also § 7801 [mandating liberal construction of the law in freedom from parental custody and control proceedings "to serve and protect the interests and welfare of the child"].) Nevertheless, in a section 7822 proceeding, the wishes of the child become relevant only if the court finds the child has been abandoned by his parent. (In re Welch (1951) 108 Cal.App.2d 466, 474.) In other words, if there is no evidence of an intent to abandon the child, then "the best interests and welfare criteria are simply not applicable." (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 933.)

The trial court found that Father did not intend to abandon A.M. Accordingly, the court was not obligated to consider the best interests and welfare of A.M. when ruling on Fathers motion, because the finding of abandonment was not made. In sum, the court applied the proper legal standard and did not abuse its discretion.

C. Due Process

1. Facts

On January 5, 2007, B.B. filed a motion for joinder. B.B. requested that Mother be joined as a party so that she could assist with the termination of Fathers parental rights. In a written response, Father raised no objection to Mothers motion for joinder. On March 1, 2007, Judge Cahraman granted Mothers motion to be joined as a party.

At the hearing on Mothers joinder motion, B.B. referred to his attorney, Ms. Renteria, as "our attorney." The court asked Mother if Ms. Renteria was going to become Mothers attorney of record. Mother responded, "Yes." On April 19, 2007, the trial court again referred to Ms. Renteria as representing both Mother and B.B., and Mother did not correct the court. On July 17, 2007, at the termination hearing, Ms. Renteria entered her appearance on behalf of B.B., but not on behalf of Mother. Mother entered her appearance as "in pro[.] per[.]" Nevertheless, later in the hearing Ms. Renteria referred to Mother as "my client."

At the termination hearing, the following exchange took place between Mother and Judge Webster:

"The Court: [Mother], Im not going to be allowing you to ask any questions because you can be a witness to testify, but youre not the petitioner in this matter.

"[Mother]: But I am a joinder [sic] in the case, your Honor.

"The Court: No, [B.B. is] the petitioner and his attorney will be asking the questions.

"[Mother]: All right."

Later during the hearing, Ms. Renteria informed the court that Mothers motion for joinder had been granted by Judge Cahraman. The court explained that it did not have the "caseprint," and the court concluded that Mother could not be a petitioner in an adoption case because she was already the childs mother. The court ruled that Mother could testify, but she would not be allowed to question witnesses.

2. Discussion

Mother essentially contends the trial court violated her rights to due process by denying her the opportunity to present her case. We agree, assuming that Mother was not represented by Ms. Renteria, but find the error to be harmless.

"[D]ue process requires both notice and an opportunity to be heard." (In re Kelvin M. (1978) 77 Cal.App.3d 396, 402.) A party is denied due process if she is prevented from offering any evidence to establish her case. (Spector v. Superior Court (1961) 55 Cal.2d 839, 844.) It is unclear from the record whether Ms. Renteria was representing Mother at the termination hearing. It appears that Mother was Ms. Renterias client; however, Mother claimed that she was appearing in propria persona. Accordingly, assuming Mother was not being represented by Ms. Renteria, then she was denied an opportunity to be heard. Consequently, Mothers due process rights were violated.

We review the courts error to determine if it is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [error of constitutional dimension is reviewed under a stricter standard]; see also In re Monique T. (1992) 2 Cal.App.4th 1372, 1377 [applying same standard to due process violation in a dependency proceeding].)

Mother asserts that she was "unable to present several issues" to the trial court; however, Mother does not explain what the issues are or how they would have impacted the trial courts ruling on Fathers motion. Accordingly, Mother has not shown how the courts ruling might have been different if her due process rights were not violated.

Moreover, the evidence that Father did not intend to abandon A.M. is strong. Mother left with A.M. in July 1997. In 1998 or 1999, Father went to Mothers and B.B.s home to visit A.M., but did not see A.M. at that time. In 1999 or 2000, while Father was in the Delancey Street program, Father gave his mother Christmas gifts to give to A.M. Father wrote four letters to Mother regarding A.M., dated September 2001, October 2001, December 2001 and August 2001. Father spoke to Mother on the telephone "a lot" regarding A.M.; however, we note Mother denied speaking to Father on the telephone. Father paid child support for A.M. from 2001 through December 2006. In January 2007, Mother terminated the child support enforcement action against Father, but Father opposed the termination, so that he could continue to pay child support. Father filed for visitation with A.M. in February 2006. Father explained that he did not request visitation with A.M. until 2006 because Mother told Father that he "would never see [his] son," which made Father very emotional. In October 2006, Father and Mother attended mediation to discuss visitation. On October 16, 2006, Mother agreed that Father should be allowed to establish gradual visitation with A.M.

The foregoing evidence supports the trial courts finding that Father did not intend to abandon A.M. Father regularly paid child support, opposed Mothers attempt to terminate his child support payments, and stayed in contact with Mother regarding A.M. Father did not communicate directly with A.M.; however, Fathers regular support of A.M. is strong evidence that he did not intend to abandon the child.

Accordingly, due to the strength of the evidence, and Mothers failure to explain the issues that she would have presented differently than Ms. Renteria, we conclude the trial courts error was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

We concur:

HOLLENHORST, Acting P. J.

KING, J.


Summaries of

Adoption of A.M.

Court of Appeal of California
Jun 29, 2009
No. E043937 (Cal. Ct. App. Jun. 29, 2009)
Case details for

Adoption of A.M.

Case Details

Full title:Adoption of A.M., a Minor. L.M., Petitioner and Appellant, v. M.M.…

Court:Court of Appeal of California

Date published: Jun 29, 2009

Citations

No. E043937 (Cal. Ct. App. Jun. 29, 2009)