Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 08CEFL02245, Kimberly J. Nystrom-Geist, Judge.
Carol A. Koenig, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Petitioner and Respondent.
No appearance for Minor.
OPINION
CORNELL, J.
This is the second appeal from an order terminating the parental rights of F.G. (father) to his biological daughter, E.G. A petition was filed by R.M. (stepfather) seeking to terminate father’s parental rights so that stepfather could adopt E.G. In the first appeal we reversed the family court’s order because the family court erroneously relied on a presumption of abandonment in reaching its conclusions.
Father argues the family court erred after remand because (1) it relied on the testimony of E.G., who was not sworn when she testified; (2) it failed to state on the record whether it considered appointing counsel for E.G. (and did not appoint counsel for E.G.); (3) it failed to reweigh the evidence after remand; and (4) it did not obtain current information about the status of stepfather’s desire to adopt E.G. Although the family court erred, we conclude the errors were not prejudicial and will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
This case arises out of stepfather’s attempt to terminate the parental rights of father so that stepfather could adopt the minor. Stepfather filed a petition pursuant to Family Code section 8604. Stepfather appeared in the family court in pro per. Father appeared by appointed counsel, both in the family court and in this court.
All further statutory references are to the Family Code unless otherwise noted.
I. Testimony at the Hearing on the Petition
The summary of the testimony from the first hearing is taken from the summary of facts in the first appeal (In re E.G. (May 20, 2009, F056472) [nonpub. opn.]). Father’s request that we take judicial notice of the file in that appeal, as well as our opinion, is granted.
S.M. (mother) lived with father for a period of approximately one and one-half years and gave birth to E.G. during the relationship. Mother admitted that father visited with E.G. during the periods when he was not incarcerated, but stated his periods of freedom were rather brief-11 months immediately after E.G.’s birth and seven months when E.G. was approximately six years old. Father attended E.G.’s promotion from kindergarten and saw her approximately 10 times during the seven months between his two incarcerations. Mother and father agreed on various times for the visitation. Mother also received help from father’s mother and sister while father was incarcerated.
Mother testified that father provided limited financial support after he was released from his first incarceration. He provided money for clothing, eyeglasses, and gifts when mother asked him to do so. It appears father provided financial support only when mother asked him to do so.
After father was incarcerated for the second time (early 2005), mother moved. She did not provide father with her new address, nor did she provide the address to father’s family. Father was provided with mother’s address when she served him with legal papers and wrote to him in 2007 about stepfather adopting E.G. Father’s family had mother’s phone number. Mother did not communicate with father while he was incarcerated. Mother also obtained a court order that prohibited visitation with father. She believed father should not have any contact with E.G. unless father obtained a court order permitting him to do so.
Mother could not recall if she permitted E.G. to visit father while he was incarcerated in the Fresno County jail.
S.G., father’s mother (grandmother) testified that she attempted to keep in contact with E.G. while father was incarcerated, but she had only mother’s phone number, and mother prohibited such contact after a while. Grandmother also attempted to locate mother, but her efforts were unsuccessful.
Father testified and admitted he was E.G.’s father. He claimed to be active in E.G.’s life when he was not incarcerated. When he was released in April 2004, he met with mother and established a visitation schedule. Father saw E.G. throughout the remaining months of that summer. The visits would last for four to five hours, and the time would be spent watching television, playing, going out to eat, and shopping. He bought presents for E.G. and would provide mother with funds whenever she asked. E.G. was happy to see her father when he picked her up.
Mother did not provide father with her address at any time after he was released from his first incarceration. Father believed mother’s refusal was because she was married to another man who would not approve.
Father received a letter and legal papers from mother while he was incarcerated, and these items had a return address. Father did not know, however, if E.G. lived at that address. Nor did father believe that mother would pass messages to E.G. since the legal papers sought father’s approval for stepfather to adopt E.G. Father immediately wrote to the family court contesting any attempt to change his daughter’s name or to terminate his parental rights.
Father could not call mother’s phone number while he was incarcerated because all calls were collect calls and mother’s phone would not accept collect calls. Father would call his family, and they would call E.G. on another phone so messages could be relayed instantly between father and daughter. Father would have written to E.G. if he had had an address, as he did to his other children. Father denied that he abandoned E.G.
Finally, the family court spoke with E.G. in chambers with stepfather, father’s attorney, and a court reporter present. Only the family court asked questions of E.G.
E.G. remembered father from when she was about five years old. She did not think of him as her dad, but he did help her with her homework. Father often left her with other people. She was left with some of her cousins, but they would not play with her. Father also used drugs in front of her and had lots of tattoos. E.G. thinks of stepfather as her dad. Stepfather has been great. She would like to be adopted by stepfather.
II. The First Appeal
The first appeal in this case occurred after the family court terminated father’s parental rights. We reversed the judgment after concluding the family court had relied improperly on the presumption that father intended to abandon the minor because he did not have contact with the minor for a period in excess of one year and had failed to contribute to her support for a period in excess of one year. This presumption is found in section 8604. We explained, however, that the presumption was one affecting the burden of proof and, once father presented evidence that he did not intend to abandon the child, the family court was required to decide the issue from all of the evidence without resort to the presumption. We remanded the matter to the family court to determine whether there was clear and convincing evidence the father intended to abandon the child.
III. Postremand Proceedings
After remand, the family court set the matter for hearing. Father and counsel appeared at the hearing. Stepfather, mother, and the minor did not appear. The family court refused to hear argument on the matter and announced its decision, again finding that father intended to abandon the child. Accordingly, the family court terminated father’s parental rights.
DISCUSSION
I. Failure to Administer Oath to E.G.
Section 7891 requires the family court to interview the child who is the subject of a petition to terminate parental rights if he or she is over the age of 10 years. The testimony is to be taken in chambers, and the family court is required to discuss specific topics. (Ibid.) The family court recognized its statutory obligation and interviewed E.G. in chambers, adequately covering the statutorily required topics. The court reporter was present and recorded the proceedings. The family court did not obtain from E.G. an oath to tell the truth, although it did inquire of her if she felt “like you told me the truth today?” E.G. answered affirmatively.
Evidence Code section 710 requires that every competent witness over the age of 10 “shall take an oath or make an affirmation or declaration in the form provided by law.” The Evidence Code, including section 710, is applicable in every evidentiary hearing in the California state courts. (Evid. Code, § 300; Jauregi v. Superior Court (1999) 72 Cal.App.4th 931, 939; see also Bonnie P. v. Superior Court (2005) 134 Cal.App.4th 1249, 1255 (Bonnie P.) [Evidence Code applies in emancipation proceedings].) No constitutional provision is violated, however, if the family court accepts unsworn testimony. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299 (Katrina L.).)
Father argues that the failure to place E.G. under oath before eliciting her testimony was error that requires reversal of the family court’s order terminating his parental rights. We disagree for two reasons.
First, as father candidly admits, trial counsel did not object when the family court failed to administer the statutory oath. As such, the issue is forfeited. Although father’s counsel objected to some aspects of the proceedings, he did not object before or after E.G. testified that the testimony did not comply with Evidence Code section 710. Therefore, father has forfeited the issue. (People v. Dykes (2009) 46 Cal.4th 731, 756; (Katrina L., supra, 200 Cal.App.3d at p. 1299.) Nor will we exercise our discretion to excuse the failure to object. While there are circumstances that would justify doing so (e.g., Neumann v. Melgar (2004) 121 Cal.App.4th 152 (Newmann)), nothing in the record convinces us this is one of those cases.
Second, while the family court erred, father cannot demonstrate that he was prejudiced as a result of this error. Father has cited three cases that he asserts support his position that the judgment must be reversed because of the error. In Bonnie P., supra, 134 Cal.App.4th 1249, the court reversed the family court’s order because there was not substantial evidence to support it, even if the unsworn testimony were considered. (Id. at pp. 1256-1257.) In In re Heather H. (1988) 200 Cal.App.3d 91, the court refused to consider the unsworn testimony and reversed the judgment because without such testimony there was not substantial evidence to support the judgment. (Id. at pp. 96-97.) In People v. Portlock (1931) 118 Cal.App. 566, the court reached a similar result, finding that the improper administration of the oath rendered the testimony inadmissible and, as a result, there was insufficient evidence to support the judgment. (Id. at pp. 567-568.)
Unlike the cases cited by father, here there is ample evidence to support the family court’s order if we disregard E.G.’s testimony. While E.G.’s testimony about the proceedings was not duplicated by any witness, any factual testimony she provided was duplicative of the testimony provided by the other witnesses. The family court’s order was required to determine if father intended to abandon E.G. While it also was required to consider the best interests of E.G., that determination also could be made on the basis of the testimony of the remaining witnesses. It was undisputed that father spent the majority of E.G.’s life incarcerated. And when not incarcerated, he spent little time with E.G. His efforts at supporting E.G. were described by the family court as token attempts, a conclusion amply supported by the record. Stepfather presented himself as a willing father who was present and loved E.G. It is difficult to conceive how a different result would have been reached had the family court disregarded E.G.’s testimony.
Father’s strongest argument is that if we disregard E.G.’s testimony, reversal is required because the family court failed to comply with the statutory requirement to obtain E.G.’s testimony on specifically identified topics. (§ 7891.) A similar issue was addressed by the appellate court in Neumann. A petition to terminate the father’s rights was filed in Neumann. The family court erred by (1) failing to read and consider the evaluator’s report (§ 7851, subd. (d)); (2) failing to interview the child who was over 10 years of age (§ 7891); and (3) failing to consider whether counsel should be appointed for the children (§ 7861). The appellate court concluded that the first two errors were prejudicial and reversed the order terminating father’s parental rights.
This case is readily distinguishable from Neumann. First, the only error we are concerned with currently is the failure to administer the statutorily required oath when interviewing E.G. In Neumann, the interview was never conducted. The appellate court in Neumann found the failure to interview the minor prejudicial error because there was nothing in the record to suggest how the child would have responded to the family court’s inquiry. (Neumann, supra, 121 Cal.App.4th at p. 170.) Here, the record contains E.G.’s testimony, which the family court found to be believable and not influenced by any other person. The failure to administer the oath did not render the testimony unreliable, and the family court specifically found it was honest and reliable. (Katrina L., supra, 200 Cal.App.3d at p. 1299.) Second, in this case the family court read the investigative report. E.G. told the investigator that she knew of father but was happy with her present living arrangements, further confirming E.G.’s testimony. E.G. also stated in this report that she did not want to attend the hearing or have an attorney appointed to represent her.
We are convinced the error in this case was not prejudicial because the record reflects E.G.’s feelings about her father, the confirmation of her testimony in some respects by other witnesses and the investigator’s report, and the family court’s consideration of all relevant information.
II. Failure to Appoint Counsel for E.G.
Section 7861 requires the court to “consider whether the interests of the child require the appointment of counsel.” While the family court has discretion in deciding whether to appoint counsel for the minor, the court “‘must exercise its discretion.’” (Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 625, italics added.) If the record does not demonstrate that the family court exercised its discretion, error has occurred. (In re Richard E. (1978) 21 Cal.3d 349, 354-355 (Richard E.).) Reversal is required, however, only if the error has resulted in a miscarriage of justice. (Id. at p. 355.) A miscarriage of justice occurs only if we conclude, after examining the entire cause, that it is reasonably probable the appellant would have obtained a more favorable result if the error had not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The record here does not indicate that the family court ever considered the question of whether counsel should be appointed for E.G. Although it seems likely that the family court considered whether to appoint counsel for E.G., and concluded it was not necessary, the failure to make a record of its decision was error.
Nonetheless, no miscarriage of justice occurred. Father was represented by counsel, and all relevant facts were brought to the family court’s attention. The family court spoke with E.G. about the proceedings and found E.G. to be truthful. While E.G. was not under oath when she spoke with the family court, we do not believe that doing so would have changed her testimony. Apparently, father’s attorney did not think so because he never requested that E.G. be sworn in before the interview.
Father contends E.G. needed counsel because the circumstances suggested mother may have influenced her statements to the family court unduly. This is the same argument father made to the family court before it interviewed E.G. The family court specifically found that E.G. had not been influenced unduly after considering father’s argument. Moreover, E.G.’s testimony was consistent with what one would expect, considering father was incarcerated during the vast majority of her life. She had not seen or heard from father since before his latest incarceration in June 2005. She saw him for only brief periods of time between his periods of incarceration. The man who was in her life every day was stepfather. Therefore, it is logical that she preferred to have stepfather adopt her rather than leave things as they were.
Father, again relying on Neumann, asserts the cumulative effect of the two errors-failing to swear E.G. before her interview and failing to consider whether E.G. needed appointed counsel-require reversal. We disagree for the reasons set forth above. There is no evidence to suggest that E.G. was untruthful in her interview, and the family court concluded she was truthful. Nor is there any evidence that mother influenced E.G.’s testimony, only speculation. And, there is nothing in the record that suggests E.G. required counsel in this matter. While the family court erred in both instances, there is nothing to suggest that the errors, either individually or combined, resulted in a miscarriage of justice.
III. Proceedings on Remand
Father contends the family court failed to “consider all of the evidence presented, and refused to allow argument as to how the ruling should be [sic] without taking the presumption of Family Code section 7822 into consideration. Had the court reweighed the evidence, taking into consideration all of the evidence, it would have found that there was no intent to abandon.” The record conclusively demonstrates otherwise.
In our initial opinion we reversed the family court’s order and instructed the court “to weigh the conflicting evidence regarding father’s intent to abandon E.G. and render a decision without regard to the presumption found in section 7822, subdivision (b).” (In re E.G., supra, F056472.) On remand, the family court stated it had reviewed the transcript from the prior proceedings, as well as its reflections on the testimony that were included in its original oral pronouncement of decision. The family court then reviewed its analysis from the prior decision, including the credibility of the witnesses and the basis for various conclusions it reached.
The family court then stated, “I will follow the Appellate Court’s instructions and reweigh the evidence, omitting the reference to the presumption.” It then recited the evidence it found relevant, focusing on the difference in relationship between father and his son (who testified) and father and E.G. The family court found these differences “remarkable.” It described father as a “stranger” to E.G. The family court concluded that the choices father made demonstrated his intent to abandon E.G.
Clearly, the family court reviewed the evidence, considered the directions on remand, and concluded that father intended to abandon E.G. Thus, this contention fails.
IV. Proceeding in the Absence of Petitioner
Neither mother nor stepfather appeared for the proceedings on remand. Nor did the family court obtain an updated report from the court investigator that originally interviewed the parties about the petition. Therefore, the family court had no information about whether mother and stepfather still were married or living together or whether stepfather still intended to adopt E.G.
While we agree the better practice would have been to ensure that stepfather still intended to adopt E.G., nothing in our remand order required the family court to do so. The family court was instructed to reconsider the evidence and reweigh it without resorting to the presumption referred to in its original analysis. The relevant evidence was presented at the prior hearing, and it is that time period that was relevant. No new evidence was required for the family court to accomplish this task. Nor was stepfather’s appearance necessary. Father has provided no authority requiring the presence of stepfather or the updating of the court investigator’s report. We will not hold either was necessary.
DISPOSITION
The order appealed from is affirmed.
WE CONCUR: WISEMAN, Acting P.J., DAWSON, J.