Opinion
A102951.
11-25-2003
Adoption of K. M., a Minor. BILLIE M. et al., Plaintiff and Respondent. v. FRANCINA W., Defendant and Appellant.
Francina W., the mother of K. M., Jr., appeals from the trial courts order granting his paternal grandparents petition to free K. from parental care and control, pursuant to Family Code sections 7800 et seq. Appellant contends the trial courts findings of unfitness and abandonment are not supported by substantial evidence, and the trial court erred both in failing to appoint independent counsel for the child and in denying appellants motion for a continuance. We affirm.
Subsequent statutory references are to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We include here only the factual background relating to appellants unfitness, because we affirm on that basis without reaching the additional ground of abandonment.
In August 1996, when K. Jr. was only a few weeks old, appellant killed his father with a knife during an argument, in the childs presence. Appellant left the child with her own grandparents, and was subsequently convicted of involuntary manslaughter, with an enhancement for use of a deadly weapon. She was sentenced to five years in prison. While appellant was incarcerated, respondents (the paternal grandparents) sought and obtained guardianship of seven-month-old K. Jr., who continued to live with them at the time of the proceedings below. Respondents, being concerned about appellants impending release from custody, also obtained a restraining order against her in June 1999. Appellant testified she only learned of the order upon her release from prison.
The child was almost seven years old at the time of the orders which are the subject of this appeal. His maternal great-grandparents had visitation with him during the early years of respondents guardianship, and took him to visit appellant in jail on more than one occasion, but the visits ended in 1998.
Appellant was released from custody in August 1999, and enrolled in a program offering transitional housing, counseling, and classes in substance abuse, anger management, and parenting. Appellant also sought to terminate respondents guardianship by a petition filed in Solano County in October 2000. She failed to follow up on the petition, however, after it was transferred to San Mateo County, where respondents and the child reside. In August 2001 appellant was arrested for throwing a brick at a cab during an argument with the driver, and subsequently pled guilty to a violation of Vehicle Code section 23110, subdivision (b). In January 2002, she was sentenced to three years in prison, where she participated in therapy and remained incarcerated until April 2003.
Appellants declaration stated she left the program after three months, but later returned to it, and was two weeks away from graduating when she was arrested in August 2001.
In October 2002, respondents filed a petition to adopt the child. In December 2002, they filed a petition to terminate appellants parental rights pursuant to sections 7822 (abandonment) and 7825 (unfitness). Appellant opposed the petition, seeking regular visitation with K. Jr. After several continuances, the trial was held in May 2003. Appellant was present and was represented by counsel. Appellants requests for an additional continuance, an interview with Family Court Services, and appointment of counsel to represent the child were denied. The trial court heard testimony from several witnesses, including the parties and appellants therapist, and considered the report prepared by San Mateo County Family Court Services, which concluded that approval of respondents petition was in the best interest of the child. The court concluded respondents had shown by clear and convincing evidence that appellant was unfit and had abandoned K. Jr. Appellants parental rights were terminated. Appellant filed a timely notice of appeal.
Respondents had apparently filed a previous adoption petition, but the adoptions worker told them that she could not support adoption because appellant opposed it and planned to re-establish her relationship with Kowan Jr. upon her release in August 1999.
The social worker did not interview the child because of his young age (six years old). The report also indicated the State Department of Adoptions had completed an adoptive home study and recommended approval of the adoption.
DISCUSSION
Section 7825, subdivision (a), provides: "A proceeding under this part [governing freedom from parental custody and control] may be brought where both of the following requirements are satisfied: [¶] (1) The child is one whose parent or parents are convicted of a felony. [¶] (2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child." "To disqualify a parent under [the predecessor of section 7825] a felony not involving the child in issue must be one which unambiguously shows depravity of the parent sufficient to support the conclusion he or she will probably fail to discharge parental duties toward the child. [Citation.]" (In re Christina P. (1985) 175 Cal.App.3d 115, 134.)
Appellant argues that the felonies she committed do not automatically establish parental unfitness under the statute, and evidence of rehabilitation must be taken into account. She contends her plea of guilty to the crime of throwing a substance capable of causing serious bodily injury at a vehicle did not establish that she intended to commit great bodily injury. That intent, however, is specifically included as a statutory element of the crime to which appellant pled guilty after throwing the brick at the cab. (Veh. Code, § 23110, subd. (b).)
Vehicle Code § 23110, subdivision (b), provides: "Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison."
The cases on which appellant relies are also distinguishable. In In re Christina P., supra, 175 Cal.App.3d at pages 134, 137, the court held that "the bare listing of convictions on [a] rap sheet" was not substantial evidence that a parent had committed a crime demonstrating unfitness, when considering whether the parents had been prejudiced by the neglect of their counsel to insure the attendance of a court reporter at the hearing on the petition to terminate their parental rights. Here, appellants own testimony established she had thrown a brick at a cab, while arguing with the driver, and had pled guilty to a violation of Vehicle code section 23110, subdivision (b).
In In re Terry E. (1986) 180 Cal.App.3d 932, 950, the court concluded that conditions had changed substantially since the time of the mothers offenses, and "the only evidence relating to appellants ability to properly care for her children [at the time of the hearing] was that appellant had been rehabilitated during her three years and eight months of incarceration." The court noted the mother in Terry E. "had received extensive parenting and psychological counseling to improve her fitness as a parent, she had continuously expressed her love and concern for her children and desired to be reunited with them upon release from prison which would occur about one year from the date of the hearing. . . . Again, the welfare department presented no credible, solid evidence to rebut appellants proof that she would be able to properly care for her children upon her release from prison." (Id. at p. 951.) The court in Terry E. also found it significant that the mother in that case "had no prior criminal record nor was there any evidence that she had engaged in [additional crimes of the type for which she had been imprisoned.]" (Ibid .) Here, by contrast, the record indicates appellant was returned to prison for another violent attack after having been released from custody for killing the childs father. Unlike the Terry E. case, the trier of fact here "could objectively find a reasonable probability that the conditions, i.e., the criminal disposition of the parent which gave rise to the felony convictions would continue in the future to render the parent unfit to care for the child. [Citation.]" (Id . at p. 952.)
Appellant also argues that the brick-throwing incident occurred five years after the killing of K., Sr., "while she was engaging in rehabilitation programs and using legal efforts to set aside the orders preventing her from being able to see her son." Despite her participation in rehabilitation programs, however, the record supports the trial courts findings that appellant had been unable to control her anger, and continued to pose a threat of great bodily injury to others. While appellant argues that the trial court should not have used her plea to discredit her testimony that she had not intended to injure the cab driver when she threw the brick, she cites no legal authority to support this position. This court does not reweigh the evidence on appeal. (In re Sarah H. (1980) 106 Cal.App.3d 326, 329.) Nor is it determinative that the two violent crimes of which appellant has been convicted, and for which she has served two terms in state prison, involved assaults on adults rather than children. Substantial evidence supports the trial courts findings of unfitness here. We therefore need not address the issue of whether the petition was also properly granted on the separate ground of abandonment.
Nor need we address appellants argument that the trial court erred in denying her request for a continuance to gather records relevant to the issue of abandonment. To the extent that appellant suggests in her opening brief that a continuance might have enabled her to present additional evidence regarding her fitness as a parent, we conclude the trial court did not abuse its discretion in denying the motion, as appellant failed to demonstrate the materiality of the evidence she sought to obtain.
Appellant also contends the trial court should have appointed counsel to represent the child pursuant to section 7861, because of respondents hostility to appellant. Appellant concedes that appointment of counsel is not mandatory, but contends good reason not to appoint counsel for the child must be shown, relying on In re Richard E. (1978) 21 Cal.3d 349, 354-355. In that case, our Supreme Court held the trial court is required to appoint counsel for the child "at the commencement of proceedings absent an immediate showing upon which the court can exercise its discretion against making an appointment." (Id. at p. 355.) If circumstances are such that reasonable minds may differ on the need for counsel, however, then the trial courts determination is binding on review. (In re Dunlap (1976) 62 Cal.App.3d 428, 438.)
Section 7861 provides, in pertinent part: "The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child . . . ."
As the Supreme Court noted in In re Richard E., supra, 21 Cal.3d at page 354, "the issue at a hearing [such as this] is whether a parent is fit to raise the child. To that end are directed all the arguments of opposing parties, parents claiming they are fit and petitioners claiming otherwise, and with each side generally contending it is protecting the best interests of the child. It is thus likely that in a particular case the court will be fully advised of matters affecting the minors best interests, and little assistance may be expected from independent counsel for the minor in furtherance of his clients or the courts interests. However, when the court finds a child has separate interests not protected in the contest between parents and a petitioner, the court must exercise its discretion by appointing separate counsel."
In In re Richard E., supra, no showing was made on the issue of the minors need for independent counsel, and thus no basis existed for the court to exercise its discretion. (21 Cal.3d at pp. 354-355.) However the Supreme Court further concluded the error in failing to appoint counsel for the child in that case was not prejudicial, because the parent had an opportunity to demonstrate that his continuing custody would be in the childs best interests, and there was nothing further that independent counsel could have done to protect the childs interests. (Id. at p. 355.) A similar conclusion is warranted here. (See also In re Sarah H., supra, 106 Cal.App.3d. at p. 330.)
We also note that while the trial court made no specific finding on Kowan Jr.s need for counsel, the record indicated that he had lived with respondents since he was seven months old, and the report of Family Court Services had recommended approval of respondents petition because it was in the best interests of the child.
Appellant also argues failure to appoint independent counsel for the child was an abuse of discretion, "given the highly charged emotions and fiercely contested nature of this case." The case on which she relies is distinguishable, however, because the termination proceedings there were uncontested, because the mother remained fugitive with her daughter and had been barred from participating in the proceedings. (Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 625-626.) Here, by contrast, appellant was present, represented by counsel, and had an opportunity to advocate her position to the court.
The trial court in Adoption of Jacob C., supra, had also erred in failing to interview the 12-year-old child whose custody was in issue, in violation of the applicable statutory provisions. (25 Cal.App.4th at p. 626.)
DISPOSITION
The orders of the trial court are affirmed.
We concur: McGuiness, P.J., Parrilli, J.