Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. No. 149887. Ronald W. Hansen, Judge.
Mary R. Williams, under appointment by the Court of Appeal, for Objector and Appellant.
Patricia A. Kinter, in pro. per., for Petitioner and Respondent.
Wiseman, Acting P.J.
Procedural and Factual Summaries
This is an appeal from an order freeing nine-year-old Danielle K. and eight-year-old Robert K. from the custody and control of their biological mother, appellant Kelly L., so they can be adopted by their stepmother, respondent Patricia K.
Patricia K. is married to the children’s biological father Alan K. The children have lived with this couple since September 2004, when Alan was awarded full physical and legal custody of the children. Alan and Kelly separated in 2002 while living in Hawaii, although the children were living with another family here in California at the time. Initially, both parents returned to California and visited the children. In 2003, Kelly took the children for a visit and disappeared. Subsequently, the couple divorced and Alan married Patricia. The children ultimately were located and the couple obtained custody. Kelly was awarded supervised visitation. In March 2005, the custody order was modified requiring that Kelly submit to hair follicle drug testing prior to visiting the children. She never exercised her visitation rights.
In November 2006, Patricia filed a petition for stepparent adoption, seeking to have the children freed from Kelly’s custody and control. At the time the petition was filed, Kelly had not attempted to contact the children for a period of three years, September 2004 to July 2007, when she sought to modify the custody order. The children had received no letters, cards, or gifts from Kelly during this period. Although Kelly was ordered to support the children in September 2004, she made her first child support payment in May 2007, after her driver’s license had been suspended. During the period in question, the children lived in the same home and had the same telephone number. Kelly admitted she had this information.
Kelly claimed she did send cards and gifts, although she also told the children’s attorney she had someone else mail them for her. The trial court found this testimony not credible, concluding that Kelly had not sent any gifts or cards. The court warned Kelly not to “hedge” several times during her testimony.
The trial court appointed counsel for Kelly and separate counsel for the children. The court also ordered that the children’s attorney prepare and submit a report to the court and that the probation department also prepare a report addressing the petition to declare the children free from Kelly’s custody and control and the request for stepparent adoption. Both reports were due on December 10, 2007.
The children’s attorney filed his report on December 7, 2007. The report addressed the children’s wishes, the lack of contact with Kelly, and the children’s current relationship with Patricia. Counsel recommended to the court that Kelly’s rights be terminated and the adoption be approved. The probation reports (essentially identical reports prepared for each child) were not filed until January 23, 2008, after the hearing. They address the histories of each of the children, the biological parents, and Patricia. These reports also recommend that Kelly’s rights be terminated and the adoption approved.
The hearing was held on December 17, 2007. At the start of the hearing, counsel announced that Kelly had agreed to withdraw her objection if Alan waived all back child support. When the court inquired about the true nature of the agreement, Kelly hesitated about giving up her parental rights. Based on this hesitation, the matter went to hearing. There was essentially no dispute that Kelly did not have contact with the children, other than her claim that she had sent cards and gifts which the court found untrue, and had not paid any child support for three years. Kelly claimed that she did not intend to abandon her children, but that she wanted to “fix [her] life” before resuming contact.
After hearing the evidence presented, the trial court granted the petition on clear and convincing evidence of abandonment. The court found that it would be in the best interests of the children to be freed from Kelly’s custody and control and to be adopted by Patricia.
Discussion
I. Probation report
Any interested person may bring a proceeding to declare a minor free from his or her parental custody and control where “[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.” (Family Code § 7822, subd. (a)(3); §§ 7820 & 7841.) A parent’s “failure to provide support, or failure to communicate” with the child for a period of one year or more “is presumptive evidence of the intent to abandon,” and “[i]f 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).) The parent need not intend to abandon the child permanently. It is sufficient that the parent have the intent to abandon the child during the statutory period. (In re Daniel M. (1993) 16 Cal.App.4th 878, 885 [construing predecessor statute, former Civ. Code, § 232].) In addition, the court must find that the parent has “left” the child within the meaning of section 7822. (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754; In re Amy A. (2005) 132 Cal.App.4th 63, 68.) The purpose of the statutory scheme 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,” and the statute is to be liberally construed to further this purpose. (§§ 7800, 7801.) All findings made pursuant to the statutory scheme must be supported by clear and convincing evidence. (§ 7821.)
All further references are to the Family Code unless otherwise noted.
When a child is declared free from parental custody and control, the parent’s rights and responsibilities are terminated with respect to the child. (§ 7803.) In recognition of the strong parental interests at risk, the statute requires that counsel be appointed for the parent and provides for appointment of counsel for the child when the interests of the child require protection. (§§ 7860, 7861.) In addition, the statutory scheme provides that, upon the filing of a section 7841 petition, the court shall immediately notify “the juvenile probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, or the county department designated by the board of supervisors to administer the public social services program, who shall immediately investigate the circumstances of the child and the circumstances which are alleged to bring the child within any of the provisions of [the statute].” (§ 7850.) The statute requires that “[t]he court shall … read and consider [the report’s] contents in rendering the court’s judgment.” (§ 7851, subd. (d).) The duty is sua sponte. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 169.) Although the trial court here properly ordered that a report be prepared by the probation department, for reasons not revealed by the record, the report was not filed until after the hearing; it was not read or considered by the court in rendering its decision. This was error.
Kelly contends that, because consideration of the report was mandatory, the error is reversible per se on due process grounds. She cites no authority, and we have found none, in support of her contention that this is the correct standard of review. The authority she has cited, In re Linda W. (1989) 209 Cal.App.3d 222, does not stand for the proposition that, whenever a required report is not filed in a juvenile case, reversal is automatic. The case states only that the failure to file a required report is “a proper ground for vacating an order terminating parental rights.” (Id. at p. 227.) We agree, but there is no discussion in In re Linda W. about the proper standard of review. Per se reversal is required only in rare cases where the structural integrity of a trial is affected. (See People v. Bell (1996) 45 Cal.App.4th 1030, 1066.) Errors that quantitatively can be assessed in the context of other evidence to determine whether the errors were harmless beyond a reasonable doubt are generally not structural defects. (See In re James F. (2008) 42 Cal.4th 901, 917.) In contrast, the general rule in California is that judgments cannot be set aside “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Trial court error is reversible only where it affects the substantial rights of the parties, the appellant has sustained a substantial injury, and a different result would have been reasonably probable if the error had not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Even where the error impacts rights of constitutional magnitude, the appellate standard of review applied is not per se reversal. (In re Angela C. (2002) 99 Cal.App.4th 389, 394 [constitutional error as general rule does not automatically require reversal; review of procedural defect (failure of notice) in proceeding to terminate parental rights reviewed by harmless-beyond-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18].) Our state Supreme Court recently has reaffirmed that, even where structural error in dependency cases occurs, the appropriate standard of review is the harmless-beyond-a-reasonable-doubt standard. (In re James F., supra, 42 Cal.4th at p. 915 [juvenile dependency proceedings differ from criminal proceedings in ways that affect determination of whether error requires automatic reversal of resulting judgment; error in procedure used in dependency proceeding is trial error amenable to harmless-error analysis].)
We conclude the error here is not structural and will apply a harmless-error analysis as we have an adequate record upon which to test the impact of the trial court’s actions. (In re James F., supra, 42 Cal.4th at p. 915.) In addition, we have the benefit of knowing what the court considered and what information it would have considered had the report been filed timely. We need not decide whether the more stringent harmless-beyond-a-reasonable-doubt standard applies or the more general harmless-error standard applies, because we conclude that the court’s failure to consider the probation department’s report did not result in any prejudice to Kelly.
The one published decision in California addressing a trial court’s failure to consider the report mandated by section 7850 applied the routine harmless-error analysis, not the more stringent Chapman standard. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 168.)
As in all prejudice analyses, prejudice is not presumed; it must be demonstrated affirmatively. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Kelly is unable to do so because the result would have been the same had the report required by section 7850 been filed timely and considered. Kelly, who was represented by counsel, testified at the hearing and confirmed by her own testimony all that was pertinent in the report of the children’s counsel and the later-filed reports by the probation department. The reports are nearly identical in content and conclusion. Kelly had the report of children’s counsel prior to the hearing, so she knew the recommendation and the focus of the evidence against her. Despite this, her testimony at the hearing confirmed the primary assertions of the report prepared by the children’s counsel and offered nothing to undermine the recommendation.
In addition, Kelly raised no objection to the court receiving the report of the children’s counsel. She did not challenge any fact it contained, and she never challenged the court’s authority to order or consider it. To the contrary, the report was received at the hearing without objection. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140 [where no objection made and evidence admitted as part of trial court record, appellate court must consider it]; see also Evid. Code, § 353, subd. (a) [to preserve right to challenge erroneously received evidence, litigant must make timely objection].) Kelly’s claim that she should be excused from having failed to object to the report because its evidentiary value was uncertain is unpersuasive. She knew the court had ordered the report and would not have done so but to consider it.
The purpose of the report submitted by counsel was to make a recommendation concerning the best interests of the children. Kelly argues that, for this reason, because the report is intended to advocate for the children’s best interests and not to protect the interests of the parent or to evaluate whether there are statutory grounds for terminating parental rights, the report of children’s counsel is not a sufficient substitute for the statutorily mandated report of section 7850. While we agree that a report prepared by children’s counsel is insufficient to meet the statutory requirement, we do not agree that the report of children’s counsel, received without objection, should completely be disregarded in a prejudice analysis.
In this case, counsel did evaluate whether there had been abandonment, and did so using facts confirmed at trial. While it is true that the purpose of the report by the children’s counsel was to address the best interests of the children, so too is the purpose of a section 7850 report. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 164; In re Zamer G. (2007) 153 Cal.App.4th 1253, 1265.) In Neumann, no report was prepared addressing the best interests of the child and the child was unrepresented. The order was reversed because the appellate court concluded that the trial court lacked this necessary information. In contrast, in this case, independent counsel represented the children. Counsel acted as truly independent counsel, not just as a mouthpiece for the children’s wishes. He interviewed all the parties, including each of the children, reviewed all the court’s files, and reviewed the parties’ criminal records. (See In re David C. (1984) 152 Cal.App.3d 1189, 1207-1208.) Although the report referred to the wrong statutory appointment authority, Probate Code section 1470, and cited the wrong statute, Probate Code section 1516.5, in an argument heading, the report was otherwise legally on target. It summarized the governing law and evaluated whether the legal requirement of abandonment had been met. It then summarized the children’s wishes and noted their limited memory of Kelly. (§ 7890 [court shall consider wishes of children].)
Finally, although the probation department’s report was not filed at the time of the hearing, it ultimately was filed with the court, although too late for the trial court’s consideration, and is included in the appellate record. A comparison of the delayed reports prepared by the probation department with the report prepared by the children’s counsel establishes that no significant information was omitted. Both sets of reports considered the issue of abandonment as defined by the statute and addressed the best interests of the children. Both reached the same conclusion. Between the report and the testimony at the hearing, the court had all pertinent information before it. If the probation department’s reports had been filed timely and considered, they would have made little difference in the court’s analysis of the issues.
All of this leads to our conclusion that the failure of the court to consider the probation department’s reports, although error, has not prejudiced Kelly. We are confident that the error did not affect the result or lead to a miscarriage of justice.
II. Sufficiency of the evidence
Kelly’s final contention is that there is insufficient evidence to support the trial court’s finding that she left the children with Alan with the intent to abandon them. We apply a substantial-evidence standard of review to the trial court’s findings, keeping in mind that all of the trial court’s findings must be made by clear and convincing evidence. (In re Amy A., supra, 132 Cal.App.4th at p. 67; § 7821.)
A parent’s failure to provide support or failure to communicate with a child for a period of one year or more “is presumptive evidence of the intent to abandon.” (§ 7822, subd. (b).) Token efforts to support or communicate with the child do not preclude a finding of abandonment. (Ibid.) Importantly, there is no need to find that the parent intended to abandon the child permanently. It is enough to find the intent to abandon the child during the statutory one-year period. (In re Daniel M., supra, 16 Cal.App.4th at p. 885 [construing predecessor statute]; In re Amy A., supra, 132 Cal.App.4th at p. 68.)
There is sufficient evidence to conclude that Kelly intended to abandon the children during the one-year statutory period. Although she had visitation rights, she never attempted to exercise them. She provided no support for the children. Although she lived in the same town for part of that period, she made no attempt to remember their birthdays or Christmas. She did not contact them in any way. Although Kelly now claims that she needed to get her own life back on track before contacting the children, this is insufficient to rebut the presumption created by section 7822, subdivision (b). In essence, her justification is the equivalent to admitting an intention to abandon the children while she worked on her own life. This ignores the “reality … that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.” (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Kelly’s efforts to pay her back child support, modify the custody order, and make contact with the children, all made after the petition to free the children from her control, came too late. The efforts were made well after the statutory one-year period had passed.
Kelly argues that, even if there is evidence to support a finding that she intended to abandon the children, there is no evidence she “left” them within the meaning of section 7822. “The fact that a parent has not communicated with a child … or that the parent intended to abandon the child does not become material … unless the parent has ‘left’ the child” within the meaning of section 7822. (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.) In Jacklyn F., the mother left her child with the paternal grandparents. Three days later, the paternal grandparents were made the guardians of the child in a contested proceeding. (Id. at p. 756.) After losing custody, the mother attempted to retain her involvement in the child’s life by sending letters. In light of these circumstances, the court concluded that the mother had not “left” the child within the meaning of the statute because she lost custody of the child by judicial decree and not by any act of her own. (Ibid.) Kelly contends the facts of this case are analogous to Jacklyn F., and its holding controls here. She claims she too lost custody by judicial decree.
We disagree and believe the facts of this case are more akin to those in In re Amy A., supra, 132 Cal.App.4th at pages 69 through 71. In Amy A., the mother left the home shared with the father at his request. She took the child with her. The father made no attempt to stay in contact with the child, did not participate in the subsequent divorce proceedings, and did not exercise the visitation rights he subsequently was afforded. He did not provide for the child’s support or care. He made no effort to participate in parenting decisions affecting the child. Given this evidence, the court concluded that the father voluntarily had surrendered his parental role and this amounted to leaving the child in the care of the other parent with the requisite intent to abandon. (Id. at pp. 70-71; see also In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816 [mother’s failure to engage in psychological services and token efforts to regain visitation supports finding she “left” her child, even when child was initially removed by judicial decree].) The court, in discussing In re Jacklyn F., supra, 114 Cal.App.4th 747, noted that the Jacklyn F. opinion acknowledged that court intervention into a child’s custody status does not in every case preclude a conclusion that a parent has “left” a child within the meaning of section 7822. (In re Amy A., supra, 132 Cal.App.4th at p. 70; see also In re Jacqueline H., supra, 94 Cal.App.3d at p. 816[there are several circumstances where nonaction of parent after judicial decree removing child from home may convert judicial “taking” into parental “leaving”].)
Similarly, in this case, Kelly made no effort to participate in the visitation afforded her, made no effort to modify the custody order if it proved too limiting, made no effort to support the children or modify the support order if it proved too arduous, and made no effort to keep in contact with the children despite the opportunity to do so. This is sufficient evidence to support a finding that, although the initial custody order removed the children from Kelly’s custody and control, she “left” the children in Alan and Patricia’s care with the intent to abandon them and her parental responsibilities during the statutory period.
We do not minimize the efforts Kelly has made to improve her life. She apparently has found permanent housing, worked to obtain employment, and currently provides a stable home for her youngest child that was born after she remarried. Unfortunately, her efforts have come too late for Danielle and Robert. It is now in their best interests to be adopted by the only mother they know, their stepmother Patricia.
We conclude there is sufficient evidence in the record to support the trial court’s findings.
III. Request for judicial notice
Kelly filed a request for judicial notice of various excerpts from the legislative history of section 3151, which provides for the appointment of legal counsel to represent children in custody matters. Since this case does not involve the interpretation of section 3151, and because a report by legal counsel is not a sufficient substitute for the report required by sections 7850 and 7851, the legislative history materials are not relevant to any issue on appeal. Even if a matter is a proper subject of judicial notice, it must still be relevant. (Evid. Code, § 350; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.) The request for judicial notice is denied.
DISPOSITION
The order of the trial court is affirmed. Each party shall pay their own costs on appeal. The request for judicial notice filed on April 29, 2008, is denied.
WE CONCUR: Levy, J. Kane, J.