Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. No. S1501 AT2690
Seth F. Gorman, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Petitioner and Respondent.
OPINION
VARTABEDIAN, J.
M. M. (mother) filed a petition pursuant to Family Code section 7822 to free M. G. (M.) from the parental custody and control of R. G. (father) and to terminate his parental rights. The court terminated father’s parental rights to M. Father appeals, claiming substantial evidence does not support the termination, the petition cannot be sustained under section 8604, and mother lacked standing to bring the petition.
All future code references are to the Family Code.
Due to financial constraints mother did not file a respondent’s brief.
FACTS AND PROCEEDINGS
Mother and father were married when M. was born in 2001. In 2003, the couple divorced, and it was agreed they would share joint legal and physical custody of M., with mother being the primary custodial parent. Father was granted visitation two days a week and on certain holidays. In addition father, was given the right to make telephone contact with M. on Sunday evenings.
A restraining order was issued in early 2004 ordering that father stay away from mother at her home, job and vehicle. The order applied to M. also, with the exception that the child custody order was to remain in effect. The order expired in January 2007.
Mother married L. (stepfather) in February of 2008. On July 28, 2008, mother filed a petition to declare M. free from the parental custody and control of father pursuant to section 7822. She alleged that M. had been left in her care without any provision for support and without any communication from father for approximately the last three years. Mother claimed this was done with the intent to abandon M.. Mother filed a declaration stating that father had no contact with M. for over one year and provided no support to M. or mother.
An investigator for family court services prepared a report for the hearing. The investigator reported that M. lived with his mother and stepfather. M did not know his biological father and had no understanding of the meaning of the petition filed by mother. M. loved his stepfather and did not want to see his father.
At the time the investigator wrote her report, father was incarcerated and the investigator was unable to speak to him. Father tried to contact the investigator by telephone and sent a letter stating he did not agree with the petition. Jaime G., father’s brother, contacted the investigator and said that father does not want to lose his parental rights. Jaime reported that, until father was incarcerated, father would see M. when he visited father’s mother, Lupe. Jaime took M. to church on Sundays until approximately three months prior to the report.
Mother reported that father had a significant drug problem and a violent temper and was abusive toward her. After her divorce from father, father did not visit with M. at any time. Father never provided support for M. after the divorce and did not send him any cards, letters or gifts. Mother filed the petition because enough time had passed during which father had made no efforts to be a part of M.’s life. Stepfather had formed a good relationship with M. and wanted to adopt him.
The investigator recommended that the petition of mother to free M. from the custody and control of father be granted.
The investigator was asked by the court to speak to father. After speaking to father, the investigator filed a supplemental report. Father told the investigator he frequently had M. for visits. Lupe would facilitate the visits, and father would spend time with M. at Lupe’s home. Father reported that he had consistent visits with M. until he was incarcerated in December of 2007. While father was incarcerated, Jaime and Lupe continued to see M. until approximately July of 2008.
Father expected to be released from prison soon and stated this was the only time he has been incarcerated. He was convicted of possession of a controlled substance and possession of stolen property.
The investigator noted the information provided by mother and father was contradictory. The investigator concluded, “In consideration of all the information presented the undersigned investigator has reconsidered my earlier recommendation to grant [mother’s] petition. While it is difficult to determine the accuracy of either parent’s account of what transpired, it would be inappropriate to deny [M.] an opportunity to re-establish a relationship with his father if [father’s] account is accurate.” (Emphasis added.)
Father testified at the hearing on the petition. He noted that he complied with the visitation order for one year, then “things changed.” He said work and life got in the way of visitation, but he did continue to have some visitation. He blamed his lack of visitation on the restraining order. He stated that Lupe and Jaime would have visits with M. and father would go to Lupe’s house to visit M. on a regular basis. Father stated he visited with M. all day two or three times a month. Father’s visits stopped when he was incarcerated. At the time of the hearing he had just been released from prison, having served a 13-month sentence.
Father claimed that he helped mother out with money, but he has had no contact with M. since his release from prison because he was advised to stay away until this case was resolved. While father was in prison, he sent drawings, letters and pictures for M. to Lupe and to mother.
Lupe testified that mother allowed her to see M. every two weeks. Lupe would pick up M. and bring him to her house. While M. was with Lupe, father would come to visit and stay approximately two hours. In 2008, mother moved and changed her telephone number. Lupe did not have any visits after this. Lupe testified that father sent things from prison for her to give to M.
Mother contradicted father’s testimony. She testified that father picked up M. only once after the visitation order was made in January of 2004. Father never called on Sundays even though the order allowed him to do so. Mother let M. visit with Lupe. Lupe told her that father was not present during these visits. On one occasion when mother arrived to pick up M. from Lupe’s home, Lupe was beating father with a stick.
It was mother’s testimony that father never gave her any financial support for M. even though there was an order for child support. Mother stopped allowing visits between Lupe and M. in late 2008 because M. would come home from the visits and say that mother did not love him. Mother allowed Jaime to take M. to church. This occurred on three occasions. M. never received any letters from father.
The court concluded that Lupe was spending time with M. but the court did not believe father was a consistent part of that visitation. In addition, the court found that father never contacted mother regarding M. and never provided for his support. Father exercised his visitation rights only briefly and never exercised his telephone contact rights. Mother was advised by Lupe that father was not present during visits. M. never received letters, cards or gifts from father. The court found father “was being less than truthful in his testimony” about his contact with M.
The court determined by clear and convincing evidence that father left M. in the care and custody of mother for a period of more than a year without any provision for his support and without contact or communication from father. The court found that, based on father’s actions, there was clear evidence of father’s intent to abandon M. The court also found by clear and convincing evidence that it was in M.’s best interest to grant the petition. Mother’s petition to terminate father’s parental rights was granted.
By order dated November 17, 2009 this court deemed father’s appeal to have been taken from the judgment entered on October 20, 2009 terminating his parental rights.
DISCUSSION
I. Abandonment by One Parent
Section 7822, subdivision (a) lists several different ways a proceeding can be brought. Subdivision (a)(2) provides that a proceeding may be brought if “[t]he child has been left by both parents or the sole parent in the care and custody of another person 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.” Relying on subdivision (a)(2), father contends reversal is required because the trial court did not find abandonment by both parents.
By statement filed with this court on February 5, 2010, father submits he “abandons and withdraws” this claim.
Section 7822 subdivision (a)(3) is another circumstance allowing a proceeding to be brought. A proceeding may be brought under subdivision (a)(3) when “[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.”
II. Section 8604
Father postulates that mother might assert that the termination of his rights could be sustained under section 8604, notwithstanding that the petition was filed under section 7822. He contends the judgment here cannot be affirmed on the basis that parental rights could have been terminated under section 8604.
The subject matter of section 8604 includes the consent to adopt by birth parents or presumed fathers or the consent of one birth parent to an adoption when the other birth parent has abandoned the child.
Mother properly proceeded under section 7822. Section 8604 is not relevant to these proceedings.
III. Standing of Mother to File the Petition
Section 7841 provides: “(a) An interested person may file a petition under this part [Family Code, division 12, part 4 (freedom from parental custody and control)] for an order or judgment declaring a child free from the custody and control of either or both parents. [¶] (b) For purposes of this section, an ‘interested person’ is one who has a direct interest in the action, and includes, but is not limited to, a person who has filed, or who intends to file within a period of 6 months, an adoption petition under Section 8714, 8802, or 9000, or a licensed adoption agency to whom the child has been relinquished by the other parent.”
Father claims mother did not have standing to bring the petition because she is not an interested person for purposes of the statute. He argues that her interest is not direct, but merely consequential. In particular, he contends she is not a person who intends to file an adoption petition and would not have standing to file an adoption petition.
“An interested person is one who has a direct, and not merely consequential, interest in the action--in other words, one who has a real interest in the ultimate adjudication.” (In re Michael R. (2006) 137 Cal.App.4th 126, 139-140.)
The statute clearly sets forth that an interested person is not limited to a person who has filed or intends to file an adoption petition. We believe mother is an interested person. Mother is interested in moving forward with her life and the life of M. without having legal ties to father, who has abandoned M. Her interest is not merely consequential. Mother had standing to file the petition in this matter.
IV. Jurisdiction
Father asserts the trial court acted beyond its subject matter jurisdiction in entertaining and granting the petition.
We have rejected father’s argument that the trial court erred in granting the petition because both parents did not abandon M. and have rejected father’s contention that mother did not have standing to bring the petition. Having made no assertions in addition to those we have rejected concerning his argument that the court lacked jurisdiction, father fails to sustain this claim.
Disposition
The judgment is affirmed.
WE CONCUR: ARDAIZ, P. J. GOMES, J.