Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Ventura County No. A014983. Frederick H. Bysshe, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Appellant.
Marsha K. Niedens for Respondent.
COFFEE, J.
Appellant K. H. (father) and Julie C. (mother) have a minor daughter born in 1996. Mother and father are unmarried and have never lived together. Since the birth of the minor, mother married respondent Joseph N. (stepfather).
Stepfather filed a petition seeking to adopt the minor. Following a contested hearing, the trial court found that it would be in the minor's best interest to allow the adoption to proceed and terminated father's parental rights. Father appeals the trial court's order. We affirm.
FACTS
Petition for Adoption
On December 21, 2004, the minor's stepfather filed a petition for her adoption. He indicated that he had married the minor's mother on May 4, 2002, and had her consent in making his request. Stepfather asked that the parental rights of father be terminated because he had not contacted the minor within one year pursuant to Family Code section 8604, subdivision (b).
All statutory references are to the Family Code.
On June 14, 2005, the Ventura County Human Services Agency (HSA) recommended that the petition for adoption be denied. It noted that the minor is an eight-year-old child of African-American and Caucasian ethnicity. Father is African-American, but mother has not told the minor about his existence. The minor has begun to notice that her skin color is darker than the rest of the family. Mother indicates that she will answer the minor's questions openly when she begins to ask questions but hopes they will arise when the minor is older. Mother stated that she has African-American friends, so the minor is exposed to cultural and racial differences. Father last visited when the minor was a year old.
Father opposes the adoption of the minor by stepfather. He would like a weekly visit of three hours with the minor. Father stated that he last saw the minor when she was two years old, and the maternal grandmother and mother's family have prevented his contact with the minor. He has repeatedly sought help in visiting his daughter and discovered that mother had married, moved away, and had children. He contacted the Child Abduction Unit of the District Attorney's office for assistance in locating the minor. After she was found, a mediation hearing for mother and father was set for December 2004 to discuss visitation. The mediation was unsuccessful. Father began parenting classes and completed a program in child development and an internship as a teacher's aide at a local preschool. A psychological test performed on father through Tri-Counties Regional Center "revealed that [father] was functioning within the Mild Range of Mental Retardation."
On September 29, 2005, the trial court issued to father an order to show cause why stepfather's request for adoption should not be granted. Father filed an objection to the petition, and attached the report of the HSA. He alleged that he has not abandoned or failed to support his daughter, but has attempted to see her despite the efforts of her mother's family to conceal the minor. He also asserted that he has been regularly paying child support.
Contested Hearing
At the contested hearing, evidence was offered that mother was 16 years old when the minor was born and father was 21. Father did not provide financial, physical or emotional assistance before or after the pregnancy. During the minor's first year, mother took her to visit the paternal mother and grandmother in their homes. Father was present for some, but not all, of these visits. Father once saw the minor in a shopping mall and was present for her first birthday. Father has had no further contact with the minor since that time.
In 1997, mother obtained welfare benefits. The following year the County of Ventura filed suit against father for the payment of child support. Father did not voluntarily pay support and only did so when the funds were garnished from his wages. The district attorney provided a payment history which showed several periods exceeding one year during which father failed to pay support. At trial, evidence was presented that father has had difficulty finding employment due to his disability. He often held jobs at shelters, but his wages were limited to $60 per week. He has been unemployed for a year due to a permanent back injury. His applications for workers' compensation and disability benefits are pending.
Mother's family members testified at trial that they had attempted to comply with court ordered supervised visitation by making three family members available at different times to monitor visitations. They testified that father never requested a single visitation and characterized him as violent and threatening. Mother obtained a restraining order against him.
Staff members at the Tri-Counties Regional Center testified and presented evidence on father's behalf. They portrayed him as timid, non-confrontational and often confused. His first visitation was at a park but he missed it because he went to the wrong park. He was uncertain what to do and tried calling the maternal grandmother. She recognized his voice and hung up on him. Mother's family members continually thwarted his attempts at visitation. Although mother was present at various child support hearings, it never occurred to father to ask where she lived. At one hearing, mother's counsel gave father a business card and asked him to call him. Father did not remember that this had occurred.
Father finally enlisted the staff at Tri-Counties Regional Center to help him find the minor. A report issued by the agency reflects that father consistently expressed his desire to find his daughter in 1999, 2001, and 2003-2004. It appears that the failed attempts to find the mother were due to a misspelling of her married name. Once father contacted the District Attorney's Child Abduction Unit, they located mother by simply looking up her name in a telephone directory. Father testified that he did not pay child support directly to mother because he "didn't feel comfortable doing it that way."
Trial Court's Ruling
After the contested hearing, the trial court made the following factual findings: the minor is the child of mother and father; father is the minor's natural father and not a presumed father under section 7611; and the minor has no relationship with father.
Section 7611 describes the conditions under which a man is presumed to be a natural father.
The trial court stated that, even if father were to be the presumed father pursuant to section 7611, it had been proved by clear and convincing evidence that he has willfully failed to communicate with and to pay for the minor's care, support and education for a period of one year, even when able to do so. The court ruled that, pursuant to section 8604, the adoption proceedings could go forward without father's consent.
Section 8604 describes circumstances under which a birth parent's consent to adoption is required.
The trial court found that the minor has been in the custody of mother since her birth and has been in the custody of both mother and stepfather since she was three years old. The minor has a significant parent-child bond with mother and stepfather and she believes him to be her father. The court found that it is in the minor's best interest to terminate father's parental rights and allow the adoption to proceed.
The trial court noted that it had considered father's developmental disability and its effect on his ability to establish a relationship with the minor. The court concluded that father's disability "is a non-factor in the case. This kind of handicap does not prevent a person from developing and exhibiting a deep and abiding paternal love for an offspring. In this case, the evidence presented at trial shows [father] to be devoid of even a spark of nurturing love towards [the minor] from the time of her birth to the present."
DISCUSSION
We review the factual findings of the trial court for substantial evidence. We examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. We accept all evidence favorable to the prevailing party as true and discard contrary evidence. We do not reweigh the evidence or reconsider credibility determinations. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.)
Father argues that the court erred in finding him to be a "natural" father. Instead he claims the evidence shows he is a "presumed" father, thus the adoption cannot proceed without his consent.
The statutory language defining the rights of natural and presumed fathers is somewhat confusing. "A man's parentage of a child may be undisputed and legally proven, but he may nevertheless fail to be a 'presumed father' . . . . Conversely, even if paternity is denied and legally disproved, a man may be deemed, under some circumstances, to be a 'presumed father.'" (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 824, fn. 3.)
A presumed father's rights are greater than those of a natural father. (Adoption of Kelsey, supra, 1 Cal.4th at p. 824.) "[A] child having a presumed father under Section 7611 may not be adopted without the consent of the child's birth parents, if living." (§ 8604, subd. (a).) However, "[a] natural father's consent to adoption of his child by third parties is not required unless the father makes the required showing that retention of his parental rights is in the child's best interest." (Id. at p. 825.) "If the court finds that . . . it is in the child's best interest that an adoption be allowed to proceed, it shall order that that person's consent is not required for an adoption. This finding terminates all parent rights and responsibilities with respect to the child." (§ 7664, subd. (b).)
However, even a presumed father's consent is unnecessary "[i]f one birth parent has been awarded custody . . ., 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 . . . ." (§ 8604, subd. (b).)
Here, the trial court made a finding that father was a natural father and it was in the minor's best interest to let the adoption proceed. There is conflicting evidence that father was a natural father. However, the trial court found that, even if father was a presumed father, there was clear and convincing evidence that he had willfully failed to communicate with and to pay for the care, support, and education of the minor child when able to do so, for a period of one year. Therefore, his consent to adoption was not required. We agree.
In determining that termination of father's parental rights was in the minor's best interest, the court considered that the minor had no knowledge of her father. She has three sisters with whom she shares a close relationship, parents who are actively involved in her school and extracurricular activities. To require the minor to have visitation with a man who is unknown to her would be detrimental to her well-being and disruptive to the family as a whole.
Father had the ability and opportunity to demonstrate a paternal relationship. However, he did not attempt to visit the minor, communicate with her in any way or voluntarily pay child support. Although individuals were available to help him arrange visitation, he did not seek their help. The trial court's ruling was supported by substantial evidence.
Father argues that the trial court failed to comply with the relevant statutory provisions when it terminated his parental rights. He claims that the matter should have proceeded under section 7800 et seq., governing proceedings to free a minor from parental custody and control. That statute is inapplicable because it is unrelated to the issue of consent to adoption. Father also contends that the court erred by not ordering an evaluator's report pursuant to section 9001. However, section 9001 addresses the requirement of a home study in stepparent adoption, not whether the adoption can proceed without a father's consent. We reject father's argument that the minor was entitled to independent counsel because he has cited no authority to support this contention.
Father argued in his opening brief that he was not given notice of the filing of the petition to terminate parental rights. Mother rebutted this contention, arguing that the appellate record included the petition, and its filing had been discussed in open court and stipulated to by the parties. Father conceded in his reply brief that the petition was properly filed and withdrew his argument. In light of our conclusion, we need not address father's remaining arguments.
The judgment (order terminating parent rights and permitting adoption to proceed) is affirmed. Costs on appeal are awarded to mother.
We concur: GILBERT, P.J., YEGAN, J.