Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. AD75897, Julian Cimbaluk, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
John L. Dodd & Associates, John L. Dodd; Barry Greene for Plaintiff and Respondent.
OPINION
MOORE, J.
Courtney K. (father) challenges a Family Code section 7822 judgment terminating his parental rights to his son, Hayden P. (the minor). Although father concedes that the requirements of section 7822 were met, he argues that the court nonetheless abused its discretion in entering the judgment because it was not in the best interests of the minor to do so. Father says his parental rights were terminated in order to permit Jeffrey A. (stepfather), the minor’s stepfather, to adopt him. However, father insists that stepfather would be an inappropriate parent, given his history of criminal activity and alcohol abuse, and that it would not be in the best interests of the minor to be adopted by stepfather. We affirm.
All subsequent statutory references are to the Family Code except where otherwise specifically stated.
I
FACTS
The minor was born in June 1999 to father and Rebecca A. (mother), who were dating at the time. Father’s parental relationship was established in prior proceedings, and, in 2002, he was ordered to pay $400 per month in child support. In 2005, mother was awarded sole legal and physical custody of the minor, with father to have monitored visitation. Father paid no child support after November 2004 and did not visit the minor after January or February 2005.
Mother married stepfather in September 2004. Mother and stepfather had a daughter together in February 2006. In June 2006, stepfather filed an adoption request with respect to the minor. In August 2007, mother filed, in the same proceedings, a petition for freedom from parental custody and control, in which she requested the court to terminate father’s parental rights to the minor.
The court found the allegations in the petition were true, and ordered the termination of father’s parental rights. Father appeals.
II
DISCUSSION
A proceeding to free a child from parental custody and control may be brought under section 7822 under several circumstances, including when: “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).) “The failure to . . . provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent . . . [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . .” (§ 7822, subd. (b).)
In the case before us, the court found by clear and convincing evidence that the “minor is a person defined in Subdivision (a) of Section 7822 of the Family Code, in that said person has been left in the care and custody of [mother] by his father . . . without any provision for his support and without communication from said father[,] with the intent on the part of said parent to abandon said person continuously since February 6, 2005 to the present . . . .” Father does not challenge these findings. Rather, he concedes that the requirements of section 7822 have been met and abandonment has been established, inasmuch as he has not made child support payments since November 2004 and has not visited the minor since January 2005.
However, father contends that reversal is nonetheless required because the judgment is not in the minor’s best interests. As he points out, even when the appellate court determines that substantial evidence supports the trial court’s finding that the parent has abandoned the child, within the meaning of section 7822, the judgment terminating parental rights may be vacated if the trial court failed to consider the best interests of the child. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 156, 171.)
“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 invoked for the purpose of terminating the rights of one or more biological parent[s], 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, supra, 121 Cal.App.4th at pp. 162-163.)
Here, in addition to finding that the minor was a person described in section 7822, subdivision (a), the court also found “that it is in the best interest of the minor child to terminate the parental rights of his presumed father . . . so that the minor child may be placed for adoption.” The court’s determination that it is in the best interests of the child to terminate parental rights is reviewed for abuse of discretion. (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536; In re Solomon L. (1987) 190 Cal.App.3d 1106, 1114.) Father insists that the court in the matter before us abused its discretion in making its determination.
Father emphasizes that the suitability of a prospective adoptive parent is an important consideration in the approval of an adoption. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 429.) He maintains that stepfather is not a suitable adoptive parent. He expresses concern that if this court affirms the judgment terminating his parental rights, and it is later determined that stepfather is not suitable as an adoptive parent, the minor will be left a legal orphan. This concern is unfounded. The minor still has a legal parent—mother. Moreover, this appeal does not address a judgment or order with respect to the adoption of the minor by stepfather. Rather, it has to do with the termination of father’s parental rights, pursuant to section 7822. Given this, we could end our analysis here. However, since the court, in its judgment, did state that it would be in the best interests of the minor to free him for adoption, and stepfather is the party who has petitioned to adopt him, we address father’s concerns.
Father points out that stepfather had one felony conviction for assault with a deadly weapon, which was reduced to a misdemeanor, was cited for not wearing a seat belt, was arrested and convicted three times for driving under the influence, and had one probation violation. He cites case law to the effect that it is not always in a child’s best interests to be adopted. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 845.)
As the stepparent adoption court report (the report) reflects, stepfather was born in 1977. The report also shows that the California Department of Justice, Bureau of Criminal Identification and Information, the FBI, the DMV, the Orange County Probation Department, and the Orange County Social Services Agency were all contacted in connection with a background check of stepfather. The report states: “This background check revealed [that] in 1996, [stepfather] received a felony conviction, reduced in 1999 to a misdemeanor/17 PC, for PC 245(A)(1), assault with a deadly weapon, not firearm, great bodily injury likely. [Stepfather] states at age eighteen (18), he and some friends got into a fight, when one friend was wearing steel toed boots and caused injury to another person.” At the hearing on mother’s petition, stepfather acknowledged that he had a felony conviction when he was 18 years old, that was reduced to a misdemeanor.
The report also states: “[Stepfather] had a history of three D.U.I.’s; in 1999, 2001, and 2003, and by 2003, he was placed on five years probation. [Stepfather] states he participated in three court ordered programs for alcohol abuse, following each arrest, and felt it was just a matter of his need to grow up. [Stepfather] denied he has had any further problems with alcohol abuse.” At the hearing, stepfather acknowledged his history of arrests for driving under the influence, and his participation in various alcohol abuse programs.
In addition to the drunk driving convictions, as the report reflects, “[i]n 2004, a Bench Warrant was issued for PC 1203.2, Probation Violation. [Stepfather] states that warrant resulted from his D.U.I. in 2003. He states that warrant was cleared while he was in a sober living rehabilitation facility for eleven months, then [he] spent three months in jail, in lieu of serving a one year jail sentence. On September 7, 2006, [stepfather] received a violation for not wearing a seat belt, but states he now uses his seat belt and always has his children wear a seat belt and a car seat. [Stepfather] had no further criminal arrest record with these agencies.”
At the hearing, stepfather said that, in retrospect, it was apparent he had had a drinking problem around age 22 or 23, but that he did not realize it at the time. He characterized the problem as one with drinking and driving. In 2008, he believed that he no longer had a drinking problem. He said that he no longer drank to the point of intoxication, and he emphasized his responsibility for mother, the minor, the minor’s sister, and his contracting business. However, stepfather admitted that he would on a rare occasion have a drink at home with mother, either a Coors Light or a glass of wine. He maintained that he no longer drove a vehicle after having even one drink. Stepfather also said that he would have a few drinks at a social affair, provided he was not driving. He insisted that he had learned his lesson about drinking and driving.
Father complains that stepfather’s history demonstrates that he is not a suitable parent and furthermore that the court failed to even address the matter. He argues that per sections 7824 and 7825, either a disability due to alcohol abuse or a felony conviction may be a ground for freeing a child from parental custody and control. He further points out that both section 8712, subdivision (a), applicable to agency adoptions, and section 8811, subdivision (a), applicable to independent adoptions, require the criminal record of the prospective adoptive parent to be obtained, and section 9001, subdivision (a), pertaining to stepparent adoptions, requires an investigation into the proposed adoption. In addition, he notes that section 8712, subdivision (b) and section 8811, subdivision (b), each provide: “The criminal record, if any, shall be taken into consideration when evaluating the prospective adoptive parent, and an assessment of the effects of any criminal history on the ability of the prospective adoptive parent to provide adequate and proper care and guidance to the child shall be included in the report to the court.”
Here, the report made clear that a criminal investigation had been made. The results of the investigation were set forth in the report. The court investigator reiterated stepfather’s criminal and alcohol abuse history and then made her recommendation as follows: “[Stepfather] now limits his alcohol consumption to an occasional glass of wine and denied any further issues with alcohol abuse. [Stepfather] has no further criminal record, no prior contacts related to child abuse, and no further traffic convictions. [Stepfather] and . . . mother reported no concerns about substance abuse, child abuse, or domestic violence. [Stepfather] reported he is in good health and believes he is socially, emotionally, and financially prepared to adopt the minor. The two (2) personal reference questionnaires received on behalf of [stepfather] indicated he has an excellent character and a positive relationship with the minor. The financial/home information provided by [stepfather] indicated he is making a good income and providing the minor with suitable living accommodations. The interview with the minor . . . revealed he has established a close and positive relationship with [stepfather], and he wants to be adopted by him. [¶] In conclusion, the information obtained in this investigation left the impression [stepfather] is a fit and proper person to adopt the minor, and he has been a stable and suitable parent for [him]. The stepparent adoption appears to be in the minor’s best interests.”
Contrary to father’s assertion, the court did consider and address stepfather’s criminal and alcohol abuse history in making its best interests determination. At the conclusion of the hearing on mother’s petition, the court stated stepfather had “had problems along the way, and a lot of the statistics show that a lot of persons in life, if they have criminal activity, have their fling earlier in life, and later on they settle down with their responsibilities. [¶] And I think that’s shown here, as well . . . . I see [he was] put on five years’ probation in 2003, so it will end sometime this year, and he’s done well, no violations, maybe a seat belt violation at one time, not having it on, but otherwise, he’s got a clean life. [¶] Our probate court services workers gave him a clean bill of health, and he’s done well with this child.” The court further said stepfather “has been responsible, has another child to take care of, which responsibilities he didn’t have at the time he was getting these DUIs and hitting somebody else that he got a felony, assault with a deadly weapon charge. It was reduced upon completion of the period of time to a misdemeanor, actually, so it couldn’t be that type of a deal that would get him up into state prison here, apparently.”
The court emphasized that the purpose of the proceedings was to serve and protect the best interests of the minor. It said: “And as I see the picture here, what has been presented here, this child’s life has been bettered for the part that [stepfather] has come in with.” It further stated: “The child has a new father . . . in place. He’s bonded . . . with this person. He thinks of him as his father. And in life, many children have more to do with their nonbiological parents than with their biological parents.” The court explained: “I think he’s got a father figure that he looks to now that’s been steady with him, at least for the last five years or so.” In conclusion, the court stated to father that were he to retain his parental rights it would be “a disruption in a child’s life. And I see where this can . . . create havoc in a child’s life, create dissension. And a child becomes confused, and it’s detrimental to the child.” It continued: “It’s in the best interest to have [stepfather] continue on, the child free from your custody and control so he can be adopted.”
The record dispels the notion that the court did not consider stepfather’s criminal and alcohol abuse history in evaluating the best interests of the minor. The court did not abuse its discretion in terminating father’s parental rights.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.