Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BT37622, John L. Henning, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Plaintiffs and Respondents.
JACKSON, J.
INTRODUCTION
Jesus T. appeals from an order terminating his parental rights and finding his consent was not required for the adoption of his biological daughter, N.R. He contends the juvenile court lacked authority to terminate his parental rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jesus T. dated Alejandra R. when she was 16 years old and living with her mother. Alejandra became pregnant. She and Jesus separated. N.R. was born in late 2001.
Jesus recalled being in jail when Alejandra found out that she was pregnant. He thought he attended some prenatal medical appointments with Alejandra, but he did not pay any of her prenatal medical or hospital expenses.
Alejandra obtained a child support order in December 2002, ordering Jesus to pay $236 per month. Jesus gave Alejandra some money shortly after N.R. was born; he did not make any support payments until 2007, when he made two payments. Jesus, who lived with his mother, had been employed, but he could not live on the amount of money that would be left for him if he paid child support, so he “stopped working.” He had difficulty finding work because he was a convicted felon. He also had two other children with two different mothers.
Jesus did not appear at the hearing at which his parental rights were terminated, but he testified earlier at a deposition.
Jesus also explained that he stopped giving money to Alejandra because she would reject the money, call the police and obtain restraining orders against him. He fought with Alejandra, and she obtained restraining orders.
Jesus was not involved in N.R.’s life. He would show up once a year for N.R.’s birthday and stay 5 to 15 minutes. Between birthdays, he did not visit, write or telephone N.R.
Jesus claimed he saw N.R. whenever Alejandra would let him see her. He acknowledged that Alejandra would not let him see N.R. when he was high, and he smoked marijuana every day. Additionally, once Alejandra became involved with Melvin, he stopped going to her home so as not to interfere with their relationship. According to Alejandra, Jesus never requested any visits with N.R.; he knew her address and telephone number, so he could have contacted her to request visitation.
Alejandra began living with Melvin M. when N.R. was about a year and a half old. Alejandra married Melvin in 2004. They had two children. Melvin treated N.R. the same as his other children, and N.R. called him “daddy.” N.R. did not know that Jesus was her biological father.
Jesus saw N.R. once or twice in 2004. He saw her in 2005 for her fourth birthday.
On April 10, 2006, Melvin filed a request as a stepparent to adopt N.R. The request stated that he would ask the court to terminate Jesus’ parental rights.
The Department of Children and Family Services filed a report recommending conditional approval of the adoption. It explained that consent to the adoption had not been obtained from Jesus, in that his whereabouts were unknown. It was recommending approval of the adoption once Jesus was notified of the proceedings.
Jesus appeared at the hearing on the request on April 23, 2007. At that time, Jesus stated that he opposed the adoption. The court appointed attorney Andre Toscano to represent him. The court asked Alejandra if she was seeking to terminate Jesus’ parental rights. When she said she was, the court appointed counsel to represent N.R. as well.
Jesus appeared at the next hearing, a status conference, on July 9, 2007. At that time, Melvin’s counsel indicated she would be deposing Jesus. Trial was scheduled for March 3, 2008. The court set the next hearing for November 30.
Jesus’ deposition was taken on October 9, 2007. Jesus failed to appear at the November 30 hearing. The settlement conference was set for February 6, 2008. The court told Attorney Toscano to make every effort to notify Jesus of that date. He said he had written to Jesus regarding trial dates. The court stated that they would proceed to trial on the dates scheduled, even in Jesus’ absence, and Attorney Toscano should advise him of that. He said he would try.
Jesus again failed to appear on February 6, 2008. Attorney Toscano stated that he had been unable to contact Jesus since the deposition. He also said that Jesus had his address and telephone number and acknowledged that Jesus was in court when the trial dates were selected. The court found no cause to continue the case and stated that the case would proceed to trial on the scheduled date.
On March 3, 2008, Jesus again failed to appear. Attorney Toscano reviewed his attempts to contact Jesus, noting that he had had no contact with Jesus since the October 9, 2007 deposition. Attorney Toscano requested a continuance to make further attempts to contact Jesus. The court had N.R.’s counsel check to see if Jesus was in custody in Los Angeles County. When the check revealed that Jesus was not in custody, the court found there was nothing further they could do to contact Jesus, and trial would proceed in his absence.
Alejandra testified at the hearing, and Jesus’ deposition was admitted as evidence. The court found that Melvin was N.R.’s father and should be allowed to adopt her as soon as possible. Jesus had not communicated with N.R. for more than one year and had not supported her for a year, willfully and without lawful excuse. The court found an award of custody to Jesus would be detrimental to N.R., and therefore terminated his parental rights.
DISCUSSION
Jesus contends the court exceeded its authority in terminating his parental rights pursuant to Family Code section 8604 with no petition for termination filed under section 7822.
All further section references are to the Family Code.
Under section 8604, subdivision (b), “[i]f one birth parent . . . has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption [of the child], but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law . . . .”
Section 7800 et seq. contains provisions for a child’s freedom from parental custody and control. Proceedings under these sections are initiated by a petition under section 7840 or 7841. Section 7822 provides that a proceeding may be brought on behalf of an abandoned child. This includes a situation in which “[o]ne 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.” (Id., subd. (a)(3).) The failure to provide for support or to communicate “is presumptive evidence of the intent to abandon.” (Id., subd. (b).)
Jesus cites In re Marriage of Dunmore (2000) 83 Cal.App.4th 1 for the proposition that section 8604 only permits an adoption to proceed without a parent’s consent, and a proceeding under section 7822 is necessary for termination of parental rights. Dunmore does note that “the narrowly drawn provisions of section 8604 . . . operate only to facilitate adoptions, [while] the provisions of section 7822 . . . make abandonment an independent ground for termination of parental rights.” (Dunmore, supra, at p. 4.)
Dunmore also points out that, under section 8617, “‘[t]he birth parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.’” Thus, Dunmore observes, while a finding under section 8604 permitting an adoption to proceed does not terminate parental support obligations, as does a finding under section 7822, the subsequent adoption of the child does terminate parental support obligations. (In re Marriage of Dunmore, supra, 83 Cal.App.4th at p. 4, italics omitted.)
Dunmore supports the conclusion that, even if the trial court erred in terminating Jesus’ parental rights under section 8604, the error inured to Jesus’ benefit rather than prejudicing him. Once adoption was approved under section 8604, termination of his parental rights was inevitable under section 8617 once the adoption was finalized. The benefit to Jesus was that he was relieved of his obligation to pay child support for N.R. earlier than he otherwise would have been. (In re Marriage of Dunmore, supra, 83 Cal.App.4th at p. 4.)
Jesus relies on Adoption of Allison C. (2008) 164 Cal.App.4th 1004 for the proposition that the court exceeded its authority in terminating his parental rights in the absence of a finding under section 7822. In Allison C., the stepfather filed a petition declaring that father had abandoned the child within the meaning of section 7822 prior to seeking to adopt the child without father’s consent. (Allison C., supra, at p. 1007.) The questions before the court were whether substantial evidence supported the trial court’s finding of abandonment and whether the trial court misapplied the law in finding abandonment. (Ibid.) The court did not address the question whether parental rights could be terminated under section 8604. It thus does not support the proposition that the trial court lacked authority to terminate Jesus’ parental rights in the absence of a finding under section 7822.
Jesus also complains that the failure to provide him with notice of the termination proceeding violated his right to due process of law. It is well established that “[p]arents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children, and the absence of due process notice to a parent is a ‘fatal defect’ in the juvenile court’s jurisdiction. [Citation.] Due process requires ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ [Citation.]” (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
As Melvin points out, Jesus was given notice of the proceedings, and he had notice that Alejandra was seeking to terminate his parental rights. He was notified of the proceedings, he appeared before the court on April 23, 2007, and in his presence, Alejandra confirmed that she was seeking to terminate Jesus’ parental rights. Jesus appeared at the status conference on July 9, at which time the next hearing was set for November 30, and trial was scheduled for March 3, 2008. Jesus failed to appear at the November 30 hearing and all subsequent proceedings.
Jesus had notice of the proceedings and the trial date, he was informed that his parental rights might be terminated, and he failed to appear to contest termination of his parental rights. We cannot say that he was deprived of due process of law.
Moreover, even if the trial court erred in terminating Jesus’ parental rights without making a finding of abandonment pursuant to section 7822, the error was harmless beyond a reasonable doubt and it is not necessary to reverse the trial court’s order. (Cf. Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387.) First, as discussed above, termination of Jesus’ parental rights was inevitable once Melvin’s adoption request under section 8604 was approved.
Second, the trial court made the findings necessary to support a finding of abandonment under section 7822. It found Jesus had not communicated with N.R. for more than one year and had not supported her for a year, willfully and without lawful excuse. Under subdivisions (a)(3) and (b) of section 7822, this was sufficient to find abandonment. Thus, Jesus would fare no better were the trial court required to terminate his parental rights under section 7822.
Jesus suggests he has rights as a presumed father, noting that the report filed with the court by the Department of Children and Family Services identified him as a presumed father. The court never found him to be a presumed father, however, and he does not meet the requirements of section 7611, subdivision (d), for presumed father status, that is, while he held out N.R. as his child, he did not receive her into his home. He thus is not entitled to any of the protections afforded presumed fathers. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449.)
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J. ZELON, J.