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Adoption of R.V.

California Court of Appeals, Second District, Second Division
Apr 20, 2009
No. B209956 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Nos. BN05031, BP105111, BT041431, John L. Henning, Judge.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Law Office of Gradstein & Gorman, Seth F. Gorman, Jane A. Gorman for Plaintiffs and Respondents.


BOREN, P.J.

Alex M. appeals from an order of the family court terminating his parental rights to his son R.V. The order arises from a petition brought by respondents, who want to adopt R.V. (Fam. Code, § 7800 et seq.) The court found that the Indian Child Welfare Act (ICWA) does not apply, and that appellant (1) abandoned R.V. and (2) has a felony record that demonstrates unfitness to parent his child. The judgment is supported by substantial evidence. Accordingly, we affirm.

All further statutory references in this opinion are to the Family Code, unless otherwise indicated.

FACTS

Circumstances Leading To The Petition

Kelly G. and appellant Alex M. are the natural parents of R.V., born in March 2007. Kelly has a history of drug abuse, and R.V. was born with methamphetamines in his system. After giving birth, Kelly decided to place R.V for adoption by respondents Anthony and Shari V. Appellant, who is Kelly’s estranged husband, was incarcerated at the time of R.V.’s birth. Upon his release from prison in April 2007, appellant stated that he wanted to raise R.V., and he refused to sign the adoption papers. Paternity tests show that appellant is R.V.’s biological parent.

A worker from child protective services came to the hospital when R.V. was born. R.V. was not taken into protective custody because Kelly agreed to an adoption.

Initially, Kelly cooperated in the adoption process. Once appellant voiced opposition to the adoption, Kelly refused to sign the paperwork because she has three other children with appellant and felt that appellant “would make it very hard on her if she testified against him” in the adoption proceeding. According to Kelly, appellant wanted to “redeem” himself by parenting R.V., because he did not parent his older children, who are all under the age of 10.

Respondents’ Petition

Respondents filed a petition on June 14, 2007, seeking to terminate appellant’s parental rights. Respondents alleged that appellant has been convicted of multiple felonies that prove his unfitness as a parent. They asked the court to free R.V. from parental custody and control. On June 20, 2007, the court appointed respondents to be R.V.’s temporary guardians, and appointed counsel for R.V., appellant, and Kelly. On July 17, 2007, the court authorized Kelly and appellant to visit R.V. every other week for 90 minutes. On July 19, 2007, Kelly consented to the adoption.

Respondents filed an amended petition on September 25, 2007, alleging that appellant abandoned R.V. by failing to provide support for the child. Further, appellant did not visit R.V. or communicate with the child in any way. Appellant called respondents in October 2007, saying that he was on the run from law enforcement officials. Appellant would not provide respondents with a telephone number. In March 2008, respondents amended their petition to allege that appellant was recently convicted of a felony (mayhem) and sentenced to prison.

Kelly’s American Indian Ancestry

In the adoption forms, Kelly wrote that her ancestry is Mexican-American. In an interview, Kelly indicated that there was a small amount of American Indian ancestry on her father’s side. Her father and most of his relatives are deceased, and Kelly did not know which tribe he was connected to, except that it is in the San Diego area. At a court hearing on July 17, 2007, Kelly informed the court that her father was Luiseno, from San Diego County. The court appointed an expert to assist in investigating tribal ancestry. At one point, Kelly said that she was “pretty sure” that the tribe was either Digueno or Luiseno.

On April 2, 2007, notice was sent to 19 tribes connected to the Digueno and Luiseno nations. In August 2007, notice was sent to the Department of the Interior Bureau of Indian Affairs (BIA), and to 26 tribal organizations, after Kelly indicated that “she may have connection with the Cahuilla Band of Mission Indians.” The tribes that responded to the notice denied tribal membership. The Bureau of Indian Affairs wrote on August 9, 2007, that respondents “have provided notice to all federally recognized tribes in Southern California and have not received any positive responses. Since we found no record to confirm [R.V.]’s claimed Indian ancestry, we are unable to certify that the provisions of the Indian Child Welfare Act apply to him.”

The court-appointed expert informed the court that R.V. has no American Indian heritage with a federally recognized tribe; therefore, the Indian Child Welfare Act did not apply. At a hearing on October 18, 2007, the court found that there is no verifiable American Indian heritage for R.V.

Appellant’s Criminal Record

Appellant has a lengthy criminal record. He conceded at the outset that his felony convictions include (a) assault likely to produce great bodily injury (2001); (b) possession of drugs (marijuana and amphetamines in 2000 and methamphetamines in 2005); and (c) possession of a deadly weapon, i.e., nunchakus (2004). He received prison terms. Appellant violated his parole in August 2006, when he was found to be riding in a car that contained a gun, and he was sent to prison to finish his term.

According to his parole officer, appellant produced a drug test that was positive for methamphetamines, following his release from prison in 2007. Appellant did not comply with instructions to enroll in a drug counseling program. The probation department opined in a report in August 2007 that appellant “has demonstrated by his recent and more distant conduct that he is not a proper repository of [R.V.’s] custody and care. [Appellant] has an extensive criminal record which betrays in him a lack both of regard for other individuals and of a sense of responsibility for his behavior and its consequences,” adding that appellant gives no financial support to the older children he fathered with Kelly.

In September 2007, while respondents’ petition was pending, appellant attacked a man in what was, according to the preliminary hearing transcript, a gang-related incident. Appellant wrapped something hard around his fist and hit the man in the eye, knocking him down. While the victim lay on the ground, appellant and his companion continued the assault, kicking and punching the victim in the face and body. As a result of the attack, the victim lost an eye. Appellant fled and was on the lam for two months before being arrested. On February 26, 2008, appellant pleaded guilty to a charge of mayhem and admitted a prior conviction. He received a three-year prison sentence. Kelly refused appellant’s request to provide an alibi that he was with her on the day of the crime.

In a supplemental report in July 2008, the probation department stated that appellant “has a considerable criminal record. This record demonstrates that he has adopted a criminal life style, and it constitutes considerable evidence that he will maintain this life style in the future. This conclusion is support by the fact of his long term use of controlled substances. His drug abuse and his general criminal conduct are habitual and mutually reinforcing. [Appellant’s] criminal activity has produced the additional relevant condition that it has left him unavailable to even attempt to undertake minor’s custody and care given that [appellant] is currently imprisoned. This imprisonment is a form of abandonment for which he alone is responsible.”

R.V.’s Placement With Respondents

In February 2008, the Department of Children and Family Services assessed the prospects for R.V.’s adoption. It observed that appellant “never cared for his other children,” and assaulted Kelly following his release from prison. Kelly has four other children, and cannot provide for R.V. mentally, emotionally or financially. R.V. is happy, calm, and well developed. He is fascinated by respondents’ five-year-old son. Respondents are meeting all of R.V.’s needs and it appeared to be in his best interest to proceed with the adoption. An independent adoption home study performed in 2006 concluded that respondents will make excellent adoptive parents.

The Trial Proceedings

The trial on respondents’ petition was conducted in July 2008. R.V. was, at that point, one year and four months old. Appellant, in prison custody, attended the trial. He was 26 years old. Appellant testified that he has never seen R.V. Appellant did not visit R.V. between his release from prison in April 2007 and his arrest in November 2007, though the court authorized parental visitation. Appellant owed his failure to visit R.V. to his lack of income or a means of transportation. Also, he was “on the run from the law,” so he did not think it was a good time to visit R.V. While out of prison, appellant worked part time doing masonry work, earning about $100 per month. Appellant has not given respondents any money for R.V.’s support, because he was barely able to support himself and was living with his mother and other people. He has not sent R.V. any gifts. His first communication to R.V. was a birthday card in 2008, which was sent by appellant’s girlfriend during a lock-down at appellant’s prison.

Appellant fathered a child with his girlfriend. The child was born on July 4, 2008, shortly before trial.

Appellant is currently incarcerated on a conviction for mayhem. He could not explain why he disfigured the victim, except to say that “I got into a fight with him.” He concedes that he pleaded guilty; however, he claims that he did not commit the crime, was not at the crime scene, and that the only reason he was “on the run” from police between September and November 2007 is because he violated his parole.

Appellant testified that he began developing his criminal record in 2000, when he was 18 years old. He has used methamphetamines for many years, which he blames for his criminal activity. Appellant estimates that over the last eight years, between ages 18 and 26, he has spent five years in custody. He has been apart from Kelly for all but one year of their six-year marriage, due to his incarcerations. He denies gang membership. Appellant has gotten into fights with his wife that included pushing and hitting. Since R.V.’s birth, appellant has not attended a drug rehabilitation program, or a domestic violence or anger management course.

Appellant opposes the termination of his parental rights. He wants his sister to take custody of R.V. for two or three years, until appellant is released from prison and undergoes a drug rehabilitation program. Appellant’s sister testified that she is willing to raise R.V. while appellant is incarcerated or undergoing treatment for his drug addiction. Alternatively, appellant wants R.V. to stay with respondents until appellant is out of prison and has completed the necessary programs so that he can eventually take custody R.V. “over a period of time” while building a relationship with the child. Admittedly, appellant did not try to turn his life around in 2007, after R.V. was born, because “I wasn’t ready to... I wasn’t prepared to have to go into any sober living or nothing [sic] like that.” He now plans to change his attitude toward life. He feels it is in R.V.’s best interest to be raised by his biological father.

Appellant wrote a letter to R.V. in June 2008, one month before trial, and asked respondents to give it to R.V. when the child is old enough to read. Appellant believes respondents are treating R.V. well. Nevertheless, his goal is to obtain custody of R.V., though he admits that because of his drug addiction, he has not been a parent to his older children.

Testimony was given by R.V.’s natural mother, Kelly G. Kelly is presently working and supporting four children: three children by appellant and one from a prior relationship. Appellant has never contributed any money toward the support of their children, though she has asked him for help. In 2006, when she discovered that she was pregnant, Kelly took steps to find an adoption service, and met respondents on the day that R.V. was born. She believes it is in R.V.’s best interest to have the attention he deserves, and with four children at home and a full-time job, Kelly feels “stretched beyond my limit.” Initially, appellant denied that R.V. was his child.

Kelly made an effort to help appellant in this proceeding. She wanted to regain custody of R.V. after the baby was born with methamphetamines in his system. On the day of a preliminary court hearing, on July 17, 2007, Kelly drove appellant to his mother’s house and appellant punched Kelly in the mouth when she tried to answer his mother’s questions about the court hearing. This was not the first time that appellant engaged in domestic violence. In a prior incident, appellant threw a can of soda at her when they were in the car with their children, then punched Kelly in the face, giving her a black eye and a bloody nose. Appellant battered Kelly a second time in front of the children in 2005. Kelly believes there have been “more than five major physical” attacks and minor pushing and shoving and intimidation, including cracking a car windshield with a can while the children were in the car and Kelly was trying to drive away. He is also verbally abusive toward her and the children. After appellant battered her on July 17, Kelly immediately contacted respondents and signed the adoption papers. Kelly wants R.V. to be adopted by respondents. She is “a hundred percent certain” that adoption is in R.V.’s best interest.

According to Kelly, she and appellant have used methamphetamines. She has now been clean for eight months. Appellant asked her for rides while he was out of custody between April and November 2007, but he never asked her to drive him to see R.V. Appellant only sees his older children when Kelly brings them to him, and he is unwilling to look after them while Kelly is at her job. Appellant is a virtual stranger to his two middle children, and a complete stranger to R.V., whom appellant has never seen.

On September 1, 2007, appellant showed up for his five-year-old son’s birthday at 11:00 p.m., when the child was asleep. After Kelly sent him away that night because of the late hour, appellant went and committed the crime for which he is now incarcerated. Appellant has been incarcerated during most of their marriage, mostly due to his drug problems. She described appellant as a “decent” person, when he is not using methamphetamines. Kelly stated that appellant associates with the South Side Rialto street gang, whose name is tattooed across his lower back in four or five inch high letters.

Respondent Anthony V. testified that appellant called him on multiple occasions. In his calls, appellant did not ask how R.V. was doing, nor did he ask to see R.V. Instead, appellant only said that he was opposed to the adoption. When respondents met appellant at a guardianship hearing, they offered to have appellant visit R.V. Appellant never came for a visit. The letter that appellant sent in June was his single communication with R.V. Appellant has never sent financial support or a gift for R.V.

The Court’s Ruling

In its July 25, 2008 judgment, the court made its findings based on the oral and documentary evidence, taking into account the credibility of the parties and witnesses who testified. The court made its findings by clear and convincing evidence. It found that appellant is R.V.’s presumed and biological father: he was married to R.V.’s biological mother at the time of R.V.’s birth and was determined to be the biological father through genetic testing. The court found that appellant abandoned R.V. in the care and custody of respondents. Appellant left R.V. without any provision for his support and had only token communication, with the intent to abandon the child. In addition, the court found that appellant was convicted of mayhem, the facts of which prove his unfitness to have future custody and control of R.V. The court determined that termination of parental rights best serves the interest and welfare of R.V., by freeing him from parental custody so that he may be adopted by respondents. The court granted respondents’ petition and terminated appellant’s parental rights. It appointed respondents to be R.V.’s guardians. Appellant filed a notice of appeal on August 1, 2008.

DISCUSSION

1. The Indian Child Welfare Act

The court is required to consider the interests of Indian tribes in protecting children who are tribal members; those interests are protected by applying the provisions of ICWA. (§§ 170, 175, 177.) The law requires that notice be given “to all tribes of which the child may be a member or eligible for membership....” (§ 180, subd. (a)(3).) In this case, notice was given to many different tribes, and the BIA determined that notice was given to all federally recognized tribes in Southern California. Subsequently, the trial court found that ICWA does not apply. None of the tribes that received notices participated in the proceeding.

Appellant did not identify the trial court’s order relating to ICWA as a matter being appealed. The notice of appeal identifies only the judgment terminating appellant’s parental rights. A notice of appeal in a proceeding to free a child from parental custody “is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.400(c)(2).) Appellate courts do not address the merits of an ICWA order that is not mentioned in the notice of appeal. (In re Miracle M. (2008) 160 Cal.App.4th 834, 846.)

Even if appellant has not waived his ICWA claim by omitting it from his notice of appeal, there is no basis for reversal. Appellant himself does not claim any Indian ancestry. In a case where a mother claims Indian ancestry, but the father does not, the father may not challenge the termination of his parental rights unless he claims Indian ancestry. (In re N.E. (2008) 160 Cal.App.4th 766, 769.) The court wrote, “[W]e cannot disturb the juvenile court’s order without a showing [father] was prejudiced by the claimed error. (Cal. Const., art. VI, § 13.) And in this case, where there is absolutely no suggestion by [father] that he in fact has any Indian heritage, he has failed to demonstrate the requisite prejudice.” (Ibid.)

In any event, Kelly was unclear on her ancestry. She originally identified her ancestry as Mexican-American. Later, she indicated that the Luiseno or Digueno ancestry was likely, and at another point stated that the Cahuilla Band of Mission Indians was a possibility. When a parent claims possible Indian heritage, but is unable to specify a particular tribe, serving the BIA eliminates the need to serve all tribes, because the BIA has the “‘resources and skill with which to ferret out the necessary information.’” (In re Joseph P. (2006) 140 Cal.App.4th 1524, 1530.) Here, the BIA was notified and after conducting an investigation, found no record establishing R.V.’s claimed tribal ancestry. The trial court may rely on the BIA findings, which are conclusive as to whether a child is or is not an Indian child. (Ibid.)

Appellant challenges the adequacy of the familial information provided in notices given to different bands of the Cahuilla Indians, a tribe identified by Mother as a possible source of Indian ancestry. We granted respondents’ request to augment the record with post-judgment tribal responses to new and more detailed ICWA notices. Each tribe still denies R.V.’s membership. It is appropriate to augment the record: denying augmentation would be counterproductive to the strong public policy of expeditiously resolving a minor’s issues on appeal. Also, the tribal responses support the trial court’s ruling and render any error harmless. (In re Louis S. (2004) 117 Cal.App.4th 622, 630, fn. 4; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866; In re E.W. (2009) 170 Cal.App.4th 396, 403, fn. 2. Compare In re Zeth S. (2003) 31 Cal.4th 396, 412-413 [the record may not be augmented with postjudgment evidence that results in reversal of an order terminating parental rights, because it undermines the state’s interest in the finality of dependency proceedings.]

Responses were received from the Cahuilla Band of Indians; the Santa Rosa Band of Mountain Cahuilla Indians; the Torres Martinez Desert Cahuilla Indians; the Morongo Band of Mission Indians; the Cabazon Band of Mission Indians; the Los Coyotes Band of Indians; the Ramona Band of Cahuilla; the Augustine Band of Cahuilla Indians; and the Agua Caliente Band of Cahuilla Indians. In addition, the BIA reaffirms that Kelly did not identify a specific tribe; that respondents “provided notice to all federally recognized tribes in Southern California,” and that the BIA “found no record to confirm [R.V.]’s claimed Indian ancestry.”

In his written response to the ICWA augmentation, appellant does not challenge the adequacy of the new notices to the tribes or the tribes’ responses, saying that such a challenge would be a “pointless exercise.” However, an Indian tribe’s denial of membership is “conclusive.” (Welf. & Inst. Code, § 224.3, subd. (e)(1).) Therefore, a challenge to the notices and the tribes’ resultant determinations is not “pointless.” Our concern is for the tribes’ interest in Indian children; we are not equally solicitous of appellant’s desire to delay the finality of R.V.’s adoption. Appellant has not offered us a single disputed factual issue that begs for trial court resolution. Inasmuch as the tribes have received their notices (multiple times) and responded, we credit the conclusiveness of the tribal determinations. We cannot deprive R.V. of the permanence of an adoptive home “for an empty exercise with a preordained outcome, especially where that exercise does nothing concrete to further the purposes of ICWA—‘to give tribes the opportunity to investigate and determine whether a child is an Indian child and to advise the tribe of the pending proceeding and its right to intervene.’” (In re E.W., supra, 170 Cal.App.4th at p. 402.)

Appellant concedes that R.V. may be prejudiced by a delay if there is a remand to require respondents to re-serve the same notices, and receive the same negative responses from the tribes, followed by a second appeal to address the merits of the trial court’s ruling on appellant’s parental fitness and abandonment of R.V. Given the concession that R.V. is likely to be prejudiced by further delay, and appellant’s unwillingness or inability to challenge the tribes’ blanket denial of tribal membership, we see no purpose of remanding this case for further ICWA activity. As this court once wrote, with respect to taking judicial notice of matters that did not form the basis of the trial court’s ruling, “The ultimate concern of this court is the correctness of the trial court’s ruling, regardless of the considerations which may have moved the trial court to its conclusion.” (Tushinsky v. Arnold (1987) 195 Cal.App.3d 666, 673, fn. 6.)

2. Overview Of The Family Code Provisions

The law authorizes a proceeding “for the purpose of having a child under the age of 18 years declared free from the custody and control of either or both parents....” (§ 7820.) Unlike juvenile dependency proceedings, the purpose is not to make a child a ward of the court; rather, the goal is “‘to pave the way for adoption or other normal custody arrangements by eliminating the rights of the erring parents.’” (In re Shannon W. (1977) 69 Cal.App.3d 956, 962.) The law is liberally construed (§ 7801) “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.” (§ 7800.)

A proceeding to free a child from parental custody may be instituted by a person who wants to adopt the child. (§ 7841.) Grounds for the petition arise if the child has been abandoned. (§ 7822.) Alternatively, the child may be freed for adoption if a parent has been convicted of a felony that demonstrates parental unfitness. (§ 7825.) In the trial court, a finding of abandonment or parental unfitness must be supported by clear and convincing evidence. (§ 7821.) On appeal, we determine whether the trial court’s findings are supported by substantial evidence. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.) We resolve all conflicts in the evidence and indulge all reasonable inferences in favor of the judgment. (Id., at pp. 1010-1011.)

3. Grounds For Terminating Appellant’s Parental Rights

a. Abandonment

Abandonment occurs when (1) the child is left with another person for six months; (2) there is no provision for support or communication from the parent; and (3) the parent intends to abandon the child. (§ 7822, subd. (a)(2).) Parental failure to provide support or communicate with the child “is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents.” (§ 7822, subd. (b), italics added.) The issue of abandonment presents a question of fact for the trial court, and its decision will not be disturbed on appeal if supported by substantial evidence. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1011.)

Appellant was incarcerated at the time of R.V.’s birth in March 2007. Though promptly given notice that Kelly intended to have R.V. adopted, appellant made no arrangements to have a family member provide care for R.V. during the remainder of his incarceration. Upon his release, appellant did not seek custody of R.V., nor did he oppose respondents’ request to become R.V.’s guardians. In fact, at no time after R.V.’s birth, during the seven months that appellant was free from custody before his November 2007 arrest, did appellant visit R.V., inquire about R.V.’s well-being, or act in a way that established any degree of parental concern for his newborn child’s welfare. Appellant’s main concern was that if he visited R.V., he might be picked up by the police on an outstanding warrant for his arrest. Thus, appellant had his own interest in avoiding arrest in mind, not R.V.’s best interests. The court authorized appellant to visit R.V. and respondents invited appellant to visit the child, but appellant never exercised his right to visit, showing his intent to abandon R.V. in the care of another.

As the trier of witness credibility, the court could believe respondents’ testimony that appellant never asked about R.V., and disbelieve appellant’s testimony to the contrary. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1015, fn. 9.)

Appellant has never provided any financial support for R.V., or even a gift for the child. By the same token, appellant has never provided financial support for his three older children by Kelly, despite her requests for help. This evidence suggests that appellant has never felt the need to provide for his offspring. Appellant has never communicated with R.V., except for a birthday card sent by appellant’s girlfriend, and a letter appellant sent a week before the trial in this case. The letter is plainly an eleventh-hour afterthought, to avoid a court finding that appellant failed to communicate with R.V. from March 2007 (when R.V. was born) until July 2008 (when the trial in this matter took place). The single letter from appellant is a “token effort” to communicate that is presumptive evidence of appellant’s intent to abandon R.V. “‘Although a parent’s failure to contribute to his child’s support absent demand does not necessarily show abandonment, such failure coupled with failure to communicate, may do so.’” (In re Randi D. (1989) 209 Cal.App.3d 624, 630.) Appellant is a complete stranger to R.V.

In September 2007, appellant committed a grievous, unprovoked assault, then evaded arrest for the attack for the next two months. Appellant has been incarcerated since his arrest and conviction for mayhem. Being incarcerated is not a legal defense to abandoning a child. (In re Rose G. (1976) 57 Cal.App.3d 406, 424.) A parent’s incarceration results from his or her own voluntary actions of committing a crime. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1012.) “[I]f incarceration were an acceptable excuse for nonsupport, ‘a child could [conceivably] never be adopted.’” (Ibid.)

The trial court could reasonably conclude that appellant voluntarily left R.V. with another person for over six months, without provision for support and without communication, with the intent to abandon the child. Appellant was R.V.’s sole parent because Kelly relinquished her parental rights and consented to an adoption. Appellant’s history shows that he fathered three other children with Kelly, then failed to provide for them or display parental concern for their well-being. The record shows that appellant has a propensity for engaging in domestic violence in the presence of his children, and no inclination to support his children emotionally or financially.

Even if appellant claims that the abandonment is not permanent, because he hopes to eventually take custody of R.V. after completing his term of imprisonment and a drug rehabilitation program, he has nevertheless abandoned R.V. for the statutory period of time, which is all that is required by law. (Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1014-1016.) An absent parent cannot “‘totally forsake and desert his [or her] child for years at a time without fear of [losing] parental rights simply because he [or she] had the intent to reestablish the parent-child relationship at some indefinite time in the future.’” (In re Daniel M. (1993) 16 Cal.App.4th 878, 884.)

Finally, we are not persuaded by appellant’s contention that respondents’ petition was premature. R.V. was born in March 2007. Respondents filed an initial petition in June 2007, then amended the petition in September 2007 and March 2008. By the time of trial in July 2008, R.V. was one year and four months old. During that entire period, appellant abandoned R.V. by failing to support the child or communicate with him. While respondents’ abandonment claim was initially made a bare six months after R.V.’s birth, the trial court could deem the March 2008 amendment to be a renewal of the abandonment claim, one full year after R.V.’s birth.

b. Parental Unfitness

Parental rights may be terminated if (1) the parent is convicted of a felony, and (2) the facts of the crime are of such a nature as to prove unfitness to have future custody and control of the child. (§ 7825, subd. (a).) The felony conviction must involve “egregious underlying facts that have a direct bearing on parental fitness....” (In Re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1539.) In making a determination of parental unfitness, “the court may consider the parent’s criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent’s ability to exercise custody and control regarding his or child.” (§ 7825, subd. (a)(2).) For example, a parent who commits a series of burglaries while on parole for armed robbery may have his parental rights terminated, where the parent has just been released from prison and was incarcerated on one charge or another for most of his adult life, interspersed with brief periods of release. (Adoption of D.S.C. (1979) 93 Cal.App.3d 14, 19-20, 25-26.)

Appellant pleaded guilty to the crime of mayhem, which occurs when one “unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip....” (Pen. Code, § 203.) The attack in this case showed unusual viciousness. Appellant assaulted the victim from behind, hitting him in the eye with his fist wrapped in a hard substance. Knocked to the ground, the victim lay helplessly while appellant and his companion continued the assault, kicking and punching the defenseless man. As a result of this unprovoked attack, the victim lost an eye. In his testimony during this adoption proceeding, appellant could not explain why he disfigured the victim, except to say that “I got into a fight with him.” A few minutes later, appellant denied participating in the crime or even being at the crime scene, demonstrating a serious lack of insight or remorse.

Apart from the incident of mayhem, there is an ample record that appellant has repeatedly committed crimes and been incarcerated or on parole for the majority of his adult life. Appellant blames his criminality on his use of methamphetamines; however, he has not sought treatment or rehabilitation, even during the periods when he was free from incarceration. Kelly testified that appellant has a gang name tattooed in large letters on his back, and the record suggests that appellant’s most recent conviction arose from a gang-related fight. Kelly also testified that appellant has engaged in domestic violence, punching her in the mouth and throwing heavy objects at her in the presence of their children.

Appellant’s extensive criminal record, his multiple incarcerations, his history of methamphetamine use, his unwillingness to obtain treatment for his addiction, and his domestic violence in the presence of his children show a pattern of behavior related to the welfare of his child and his ability to exercise custody and control over his child. (§ 7825, subd. (a)(2).) It is unlikely that appellant could surmount the inevitable dependency proceeding that would result if he attempted to take custody of R.V. As stated in the probation department report, appellant “has adopted a criminal life style” and it is likely from his record that appellant “will maintain this life style in the future,” due to long-term drug abuse that reinforces his general criminal disposition.

DISPOSITION

The judgment is affirmed.

We concur: DOI TODD, J., CHAVEZ, J.


Summaries of

Adoption of R.V.

California Court of Appeals, Second District, Second Division
Apr 20, 2009
No. B209956 (Cal. Ct. App. Apr. 20, 2009)
Case details for

Adoption of R.V.

Case Details

Full title:Adoption of R.V., a Minor. SHARI V. et al., Plaintiffs and Respondents, v…

Court:California Court of Appeals, Second District, Second Division

Date published: Apr 20, 2009

Citations

No. B209956 (Cal. Ct. App. Apr. 20, 2009)