Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 09CEFL06966, Glenda Allen-Hill, Judge.
Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Objector and Appellant.
Steven R. Cummings, for Petitioners and Respondents.
OPINION
Before Wiseman, Acting P.J., Gomes, J. and Dawson, J.
INTRODUCTION
E.V. (hereafter mother) appeals the court’s order declaring her minor child, I.V., abandoned and terminating her parental rights pursuant to Family Code section 7800 et seq. The mother contends there was insufficient evidence to support the court’s order. We disagree and will affirm the order.
All further statutory references are to the Family Code, unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
I.V., born in August 2002, has lived with and been cared for by S.D. and her husband F.D. (collectively guardians) since I.V. was approximately two years old, and they were appointed as I.V.’s guardians on January 13, 2006. I.V. had few positive memories of his biological parents. I.V. remembered his mother and her boyfriend would scare him and lock him up in his room. F.D. reported the mother had a criminal history and was in violation of her probation. F.D. and S.D. stated the mother failed to offer consistent support or to communicate with I.V. since he was two years old.
Unless otherwise indicated, the facts are derived from the report of the mediator from Family Court Services filed on January 5, 2010.
The mother was separated from the biological father. The guardians explained the mother failed to participate in any of the supervised visits established in the court’s order establishing a guardianship. The mother was offered a single visit with I.V. in 2007 at a local restaurant, but the meeting was ended due to the mother’s aggressive and inappropriate behaviors. On another occasion in 2007, the mother and an aunt forced a visit with I.V. during a family gathering. The mother also made a few attempts to contact I.V. by telephone, but I.V. was resistant to talking with her. According to F.D., the mother has not financially supported I.V. since 2004. The mediator recommended it would be in I.V.’s best interests to have the mother’s parental rights terminated.
On February 8, 2010, the guardians filed a first amended petition to declare I.V. free of his mother’s custody and control. The petition set forth that I.V. was an unmarried minor, the guardians are related to him, and the guardians sought to adopt I.V. and have the mother’s parental rights terminated. The petition further set forth that the mother had not seen I.V. since January 2008, I.V. was left by the mother with the guardians with the intent to abandon him, and the presumed father now resided in New Mexico. After the mother was arrested in 2004, F.D. and S.D. obtained a guardianship over I.V. The petition stated the guardians knew the mother’s whereabouts and was verified by each guardian under penalty of perjury. A citation setting forth the time and date of the termination hearing and a copy of the first amended petition were personally served on the mother on March 4, 2010.
On March 25, 2010, the court conducted the termination of parental rights hearing. The court stated the last visit between the mother and I.V. was a forced visit in 2007. The guardians stated the last visit between the mother and I.V. was during the first week of January 2008. The court found the mother had been properly served with notice of the proceeding. The court found by clear and convincing evidence that the mother abandoned I.V. without any provisions for support with the intent to abandon him. The court took judicial notice of the mediator’s report and recommendation. The court terminated the mother’s parental rights.
The guardians were not sworn in as witnesses and represented themselves at the hearing in propria persona.
DISCUSSION
The mother contends the evidence failed to establish intent on her part to abandon I.V., and therefore the court’s order must be reversed. The mother’s contention is based on her assertion that the court did not receive sworn testimony from the guardians and relied on the report of the mediator appointed by Family Court Services.
Evidentiary Contention
The mother argues that the failure to place witnesses under oath and acceptance of the unsworn report of the mediator was error that requires reversal of the court’s order terminating her parental rights. We disagree for the following reasons.
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 court accepts unsworn testimony. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299 (Katrina L.).) Where reports are submitted pursuant to statutory requirements, any deficiencies therein go to the weight of the evidence and implicate only a statutory procedural dimension, not the parties’ due process rights. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1381 (Noreen G.).)
The mother relies on Bonnie P. for her contention that the evidence adduced at trial was insufficient because the guardians were unsworn witnesses. In Bonnie P., a minor sought emancipation. During a hearing on the matter, the court failed to swear in witnesses and failed to swear in a court interpreter for one witness. Another witness presented evidence by telephone because he was disabled. (Bonnie P., supra, 134 Cal.App.4th at pp. 1252-1253.) The court in Bonnie P. criticized these procedures, but expressly held it would not decide the case on the procedural issues because “even if we view the unsworn witness statements as properly admitted evidence, there is insufficient evidence to support the court’s sustaining of [the minor’s] petition.” (Id. at p. 1256.)
It is a fundamental rule of stare decisis that a decision is only authority for the points actually involved and decided. (People v. Lopez (1986) 176 Cal.App.3d 545, 551.) Bonnie P. was decided on the issue of sufficiency of the evidence alone, not on alleged procedural defects for failing to swear in witnesses or translators. Furthermore, Bonnie P. is readily distinguishable from the instant action because there were factual disputes in that case between the minor seeking emancipation and the minor’s parents concerning the approval of the minor’s parents to emancipation and the minor’s financial independence. (Bonnie P., supra, 134 Cal.App.4th at pp. 1257-1258.) Here, in contrast to Bonnie P., there were no factual disputes. The hearing terminating the mother’s parental rights was uncontested.
There was no objection when the court failed to administer a statutory oath pursuant to Evidence Code section 710 when it questioned the guardians. There was no objection to the court’s acceptance of the mediator’s report into evidence. Where there has been no objection, relevant and material evidence, even if otherwise inadmissible, is regarded as sufficient to establish a fact and can support the court’s order or judgment. (Evid. Code, § 353; Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1359-1360; Nalley’s Inc. v. Corona Processed Foods, Inc. (1966) 240 Cal.App.2d 948, 951 (Nalley’s).)
The mother argues in her reply brief that the mediator’s report was superficial and cannot constitute evidence. We disagree. The mediator’s report is mandated by section 7851, subdivision (d), which states: “The court shall receive the report in evidence and shall read and consider its contents in rendering the court’s judgment.” Section 7851 does not require that the report be verified. The use of this report is a recognized form of evidence. As long as the opposing party has a meaningful opportunity to cross-examine the investigator and to controvert the contents of the report, the reports of social workers in Welfare and Institution Code section 300 cases have been found to stand as competent evidence even though they contain hearsay. (In re Malinda S. (1990) 51 Cal.3d 368, 379; In re Gary U. (1982) 136 Cal.App.3d 494, 501; In re Heidi T. (1978) 87 Cal.App.3d 864, 875.) The mother offers no reason why this general rule should not apply here.
In failing to lodge an objection to the evidence produced at the hearing, the mother has forfeited her evidentiary challenges. (People v. Dykes (2009) 46 Cal.4th 731, 756; Noreen G., supra, 181 Cal.App.4th at p. 1379; Katrina L., supra, 200 Cal.App.3d at p. 1299.) We will not exercise our discretion to excuse the failure to object. While there can be circumstances that would justify doing so (e.g., Neumann v. Melgar (2004) 121 Cal.App.4th 152), nothing in the record convinces us this is one of those cases.
We note that F.D. and S.D. executed a verified first amended petition under penalty of perjury stating that as of January 29, 2010, the mother had not seen I.V. since January of 2008 with the intent to abandon him. The verification of this fact is equivalent to sworn testimony. (Code Civ. Proc., §§ 446 & 2015.5; Nalley’s, supra, 240 Cal.App.2d at p. 951 [evidence supporting a judgment may derive from declarations and affidavits].) The mother argues this statement is not evidence that she failed to communicate with her child for an entire year. As we discuss below, this statement, along with other evidence submitted in the mediator’s report, demonstrates both the failure to communicate with and to support the minor. We reject the mother’s evidentiary contention.
Standard of Review
A reviewing court must accept as true all evidence tending to establish the correctness of the findings of the trial judge. All conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment or order. Whenever a finding or judgment of the trial court is attacked as being unsupported, the power of the reviewing court begins and ends with the determination of whether there was any substantial evidence, contradicted or uncontradicted, that supported the conclusions reached by the trial court. “‘If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed [citation].’” (In re Brittany H. (1988) 198 Cal.App.3d 533, 549 (Brittany H.).)
Section 7821 requires that all findings pursuant to section 7822 be supported by clear and convincing evidence. Where the law requires proof of a fact to be clear and convincing, the sufficiency of evidence to establish the fact is primarily a question for the trial court to determine. If there is substantial evidence to support its conclusion, the determination is binding upon the reviewing court. An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence legally is sufficient to support the finding of fact as to the abandonment. This also is true on the question of intent. (Brittany H., supra, 198 Cal.App.3d at p. 549.)
Abandonment
Section 7822, subdivision (a)(2), authorizes the termination of parental rights when a child has been left by both parents or the sole parent in the care and custody of another for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child. (In re Daniel M. (1993) 16 Cal.App.4th 878, 882-883 (Daniel M.) [construing predecessor statutes].) The purpose of this statute and other statutes governing the termination of parental rights 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. (§ 7800.) To this end, these statutes are liberally construed to serve and protect the interests and welfare of the child. (§ 7801.)
The Legislature has determined the state’s interest in the welfare of children justifies the termination of parental rights when the criteria of section 7822 are satisfied. This is true even though the parent desires to eventually reestablish the parent-child relationship. A child’s need for a permanent and stable home cannot be postponed indefinitely merely because the absent parent may envision renewing contact with the child sometime in the distant future. A child cannot be abandoned and then put “‘on hold’” for a parent’s whim to reunite. (Daniel M., supra, 16 Cal.App.4th at pp. 883-885.)
Section 7822 contemplates that abandonment is established only when there is a physical act-leaving the child for the prescribed period of time-combined with an intent to abandon, which may be presumed from a lack of communication or support. (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) The parent need not intend to abandon the child permanently. Rather, it is sufficient that the parent had the intent to abandon the child during the statutory period. (In re Amy A. (2005) 132 Cal.App.4th 63, 68.) Intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire. In determining a parent’s intent to abandon, the court may consider not only the number and frequency of his or her efforts to communicate with the child, but also the genuineness of effort under all the circumstances, as well as the quality of the communication that occurs. (In re B. J.B. (1986) 185 Cal.App.3d 1201, 1212.)
Abandonment and parental intent are questions of fact for the trial judge’s determination. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011 (Allison C.).) The failure to provide support, or failure to communicate, is presumptive evidence of the intent to abandon. If the parent has made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent. (Id. at p. 1010; § 7822, subd. (b).) The presumption regarding the intent to abandon is a presumption affecting the burden of producing evidence. (In re Rose G. (1976) 57 Cal.App.3d 406, 417-418.) The presumption “may be overcome by opposing evidence … and the question whether such intent to abandon exists and whether it has existed for the statutory period is a question of fact for the trial court, to be determined upon all the facts and circumstances of the case. [Citation.]” (In re Neal (1968) 265 Cal.App.2d 482, 488.)
Here, the mother failed to provide any financial support of I.V. since 2004. The mother failed to see I.V. since the first week of January 2008, evidence provided by the guardians’ verified and uncontroverted first amended petition. There was no evidence before the court that the mother communicated with I.V. within the year prior to the termination hearing. Section 7822, subdivision (b), provides that only token attempts to support or contact the minor also constitute abandonment. Even if we construe the statement in the mediator’s report that the mother occasionally tried to talk to I.V. by telephone as evidence of communication, and even if we assume arguendo such communication occurred within a year prior to the hearing, it was token communication at best. The failure to provide support or to communicate with the minor leads to a statutory presumption of abandonment. (§ 7822, subd. (b).) Here, there was substantial evidence of both.
The mother has failed to meet her burden of establishing that the court’s findings and orders were not supported by substantial evidence. (Allison C., supra, 164 Cal.App.4th at p. 1011.) When the court’s findings on intent and abandonment are supported by substantial evidence, they will not be disturbed on appeal. (Brittany H., supra, 198 Cal.App.3d at p. 549.)
DISPOSITION
The court’s order terminating parental rights is affirmed.