Opinion
E076875
09-16-2021
In re N.B., a Minor. J.C., Petitioner and Respondent, v. M.B., Objector and Appellant.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Objector and Appellant. No appearance by Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. ADHE2001368. John M. Davis, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance by Petitioner and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
N.B. was born in the Republic of Armenia in 2010 and is the biological daughter of A.G. (Mother) and objector and appellant, M.B. (Father). Approximately seven months after N.B.'s birth, Father was arrested, charged, and incarcerated in a prison as the result of allegations that he murdered two men. Father was convicted on the murder charges, and Mother subsequently divorced Father, remarried, and immigrated to the United States with N.B.
On July 15, 2020, N.B.'s stepfather, J.C., filed a petition seeking to have N.B. freed from Father's custody, pursuant to Family Code section 7800 et seq., in order to permit him to adopt N.B. Specifically, the petition alleged Father had abandoned N.B. as defined in section 7822. On March 11, 2021, following a contested hearing in which Father appeared telephonically and testified, the trial court granted the petition and terminated Father's parental rights.
Undesignated statutory references are to the Family Code.
Father appeals, arguing: (1) the order terminating parental rights must be reversed for lack of personal jurisdiction because Father was not properly served pursuant to the requirements of the Hague Service Convention, and (2) the order terminating parental rights must be reversed because the trial court's finding of abandonment is not supported by substantial evidence. We conclude that any challenge to personal jurisdiction has been waived because Father made a general appearance in the action to contest the merits of the petition. We further conclude that substantial evidence in the record supports the trial court's findings, and we affirm the order.
II. FACTS AND PROCEDURAL HISTORY
A. Background Facts and Petition
N.B. is the daughter of Mother and Father. She was born in April 2010 in the Republic of Armenia. In November 2010, Father was arrested and charged with the murder of two men. In 2012, he was convicted on the murder charges, sentenced to life in prison with the possibility of parole, and has been held in prison custody in the Republic of Armenia since that time. Mother divorced Father in 2013, married J.C. in 2016, and moved to the United States in 2017. N.B. remained in Mother's care and custody throughout these events.
On July 15, 2020, J.C. filed a petition seeking to free N.B. from Father's parental custody and control, pursuant to section 7841, in order to permit him to adopt N.B. The only ground alleged for the termination of Father's parental rights was abandonment as defined in section 7822.
B. Probation Officer Report
On November 5, 2020, the Riverside County Probation Department submitted a report on J.C.'s freedom from custody petition pursuant to section 7851. The probation officer summarized interviews with J.C., N.B., and Mother. J.C. reported that he began dating Mother in 2014; the two began the process of obtaining the appropriate documentation to permit Mother to immigrate to the United States in 2015; and the two legally married in 2016. J.C. reported that he has assisted Mother with the responsibilities of parenting N.B. for years; he has been the only father figure in N.B.'s life; and he and Mother only recently revealed to N.B. that he was not her biological father.
N.B. reported that she had no knowledge of Father, could not recall ever speaking with Father, and could not recall ever seeing a photograph of Father. She had no memories of Father and did not recall ever receiving any gifts, cards, or letters from him. She referred to J.C. as her “dad, ” and she affirmed that J.C. exercised a parental role in her life, which included assisting with homework, providing emotional support, and participating in family recreation.
Mother acknowledged that Father was N.B.'s biological father, but she reported that Father became estranged, was unsupportive, and was abusive during her pregnancy with N.B. Mother stated that Father had only seen N.B. on one occasion prior to being incarcerated, did not have contact with Mother or N.B. since his incarceration, and never provided any financial child support for N.B. Mother claimed that, despite her move to the United States, defendant still had the ability to contact her through her parents, but never attempted to do so.
The probation officer was also able to contact and obtain information from Father. Father acknowledged that he was aware of the pending petition and request for adoption of N.B., acknowledged that he had refused service documents pertaining to the petition on more than one occasion, and stated that he objected to both the petition and request for adoption. Father expressed to the probation officer that the court needed to “take ‘appropriate measures [to] ensure he is properly served pursuant to the Hague Convention,' ” requested that the court appoint him a public defender, provided a written response to the petition, and provided responses to a detailed questionnaire from the probation officer.
Father's questionnaire responses indicated that N.B. had visited him on a few occasions while he was incarcerated, and that he had spoken with N.B. on approximately 10 occasions via the telephone. Father acknowledged he had minimal communications with N.B. and did not financially support N.B., but he stated this was the result of Mother's refusal to cooperate in his attempts to communicate or provide support. He stated he was unaware of Mother or N.B.'s whereabouts until someone attempted to serve him with the petition. Father's written response repeated his contentions regarding defective service, his request for appointment of counsel, and his claims that Mother had actively prevented him from participating in N.B.'s life.
C. Initial Hearing on Petition
On November 19, 2020, the trial court held a hearing on J.C.'s petition. It noted that Father had provided a response to the petition, in which Father contested service and requested appointment of counsel. As such, the trial court appointed counsel for Father and continued the hearing to permit appointed counsel time to review the case. The trial court also encouraged J.C. to contact Father's appointed counsel prior to the continued hearing, stating “that will help you understand whether or not or how she's going to proceed forward in representing her client.”
Father was self-represented.
D. Continued Hearing on Petition
On March 11, 2021, the trial court held a continued hearing on J.C.'s petition. In advance of the hearing, Father submitted a “Joint Stipulation Regarding Issues for Trial.” The stipulation stated that Father intended to contest the factual issues of whether he had the requisite intent to abandon as defined by section 7822, and whether termination of Father's parental rights would be in the best interests of N.B. When the contested hearing was called, Father's counsel personally appeared, and Father made a telephonic appearance.
1. Stipulated Facts
The parties' joint stipulation also included a list of stipulated, undisputed facts. The parties stipulated that N.B. was born in April 2010; Mother and Father were legally married at the time of her birth; Father was taken into custody and charged with murder in November 2010; in 2012, Father was convicted and sentenced to life in prison with the possibility of parole after 15 years; and N.B. had always resided with Mother.
The parties further stipulated that Mother had visited Father at some point during his incarceration and had provided him photographs of N.B.; Father attempted to send gifts to N.B. on at least three occasions since 2010; and, at various times, Father attempted to set up financial accounts to provide money to N.B.
The parties further stipulated that Mother changed her mobile phone number in 2013 and did not provide that information to Father; the only telephone number available to Father was the home phone for Mother's parents; Mother and N.B. moved to the United States in August 2017; Mother did not provide Father with any contact information in the United States; and Mother had not voluntarily facilitated any contact between N.B. and Father since 2015. Father's last contact with Mother occurred in 2015, when Mother requested Father's written permission to travel with N.B. to the United States, ostensibly for a vacation.
2. Father's Testimony
Father was the only witness called to testify at the contested hearing. Father testified that he attempted on several occasions to set up a financial account in N.B.'s name in order to facilitate the transfer of monetary support to N.B.; he was advised by attorneys that he needed Mother's permission to do so; and Mother never cooperated in attempting to set up those accounts. When the trial court inquired how much financial support Father would be able to provide N.B. if the trial court were to facilitate the creation of an account in the United States, Father admitted he currently earned no prison wages and had only $300 in his prison account. However, Father stated that he anticipated making up to $200 a month, if permitted to perform prison work in the future.
Father also testified that he lived with Mother and N.B. the first seven months of N.B.'s life, and that N.B. accompanied Mother on prison visits on three or four occasions in 2010 and 2011. However, sometime in 2011, Mother stopped bringing N.B. to visits, claimed that the atmosphere in the prison was not good for N.B., and refused further requests to bring N.B. to any visits. Father testified that he attempted to make telephone contact with N.B. in 2011, 2012, 2013, and 2014, but that on each occasion, Mother or Mother's family members would not permit him to speak with N.B. Finally, Father testified that in 2016 and 2017, he petitioned prison officials and pursued various legal remedies in Armenia to require Mother to reestablish contact with N.B.
Father testified that he sent various gifts to N.B. on special occasions. However, Father also admitted that he never attempted to write any letters to N.B. as an alternative means to communicate with her. Father produced only one picture depicting him with N.B., but he claimed that Mother had possession of more photographs, which she would not release. Finally, Father admitted that the last time he was physically present with N.B. was in 2011.
3. Argument and Decision
Following Father's testimony, both J.C. and Father's counsel argued the merits of the petition. The only ground for denial of the petition asserted by Father's counsel was that the evidence did not support a finding that Father intentionally abandoned N.B. as defined in section 7822. No objections based upon service were made. The trial court granted the petition and issued an order terminating Father's parental rights. Among other reasons, the trial court noted, “[T]he very fact that he killed somebody to go into prison is a sign that he has abandoned anybody that's on the outside.” Father appeals from this order.
III. DISCUSSION
A. Any Defect in Service Was Waived by Father's General Appearance
As an initial matter, Father claims that any and all orders pertaining to J.C.'s petition must be reversed for lack of personal jurisdiction because Father was not served according to the requirements of the Hague Service Convention. We need not address Father's arguments in detail because Father appeared at the time of hearing and contested the merits of the petition. Accordingly, Father made a general appearance conferring personal jurisdiction notwithstanding any defects in service.
“ ‘The Hague Service Convention is a multilateral treaty that was formulated in 1964' ” and “ ‘was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.' ” (In re Vanessa Q. (2010) 187 Cal.App.4th 128, 133-134.) Where the party to be served is a resident of a signatory country to the Hague Service Convention, service on that party, “including petitions brought under family law or juvenile dependency law, must be accomplished in accordance with the Hague Service Convention's requirements.” (Id. at p. 134.) However, “defective service is not fatal to personal jurisdiction if the defendant consents to jurisdiction over him or her by making a general appearance in the action. [Citations.] [¶] A general appearance occurs when the defendant takes part in the action and ‘in some manner recognizes the authority of the court to proceed.' ” (Id. at p. 135.)
Here, it is undisputed that Father initially contested service and requested appointment of counsel. In response, the trial court appointed counsel for Father, continued the hearing on the petition, and further expressed that it would not presume how Father would choose to proceed following appointment of counsel. Father made no further mention of any claim of defective service following appointment of counsel. Instead, Father's written submissions and conduct at the time of hearing made clear he intended to litigate the merits of the petition. Father submitted a joint statement of disputed issues that made no mention of an objection based upon defective service and stated his intent to contest factual disputes relevant to the substantive merits of the petition. Father testified regarding the disputed factual matters related to the substantive elements of abandonment under section 7822, and Father's counsel argued the substantive merits of the petition before the trial court.
It is well established that an appearance for the purpose of contesting the substantive merits of an action constitutes a general appearance, waiving any defect in personal jurisdiction. (See In re B.G. (1974) 11 Cal.3d 679, 689 [mother waived right to challenge jurisdiction in filing points and authorities contesting substantive matters before the court]; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200 [father made general appearance by substantively contesting termination of parental rights at hearing because “a party waives all jurisdictional objections to a proceeding, including lack of notice, by opposing or resisting the proceeding on its merits”].) Thus, even assuming service upon Father was defective, any such defect was waived by Father's appearance at the time of the hearing and his opposition on the merits of the petition. Where Father has made a general appearance, the trial court's order is not subject to reversal for lack of personal jurisdiction.
Father's reliance on In re D.R. (2019) 39 Cal.App.5th 583 is unavailing. In that case, counsel for the party contesting service made a special appearance to request the continuance of a juvenile dependency proceeding for the express purpose of reviewing the matter to investigate notice issues. (Id. at p. 594.) The Court of Appeal held that such an appearance constituted a special appearance instead of general appearance because counsel “could not have been clearer that he was making a special appearance and requesting a continuance... to investigate and pursue notice issues, ” and such an act “in no way acquiesced to the court's personal jurisdiction over [the father].” (Ibid.) The case has no application here, where at the time of his appearance, Father made no mention of any defect in service and, instead, sought to litigate the merits of the action.
B. Substantial Evidence Supports the Trial Court's Finding of Abandonment
Father also contends the trial court's order freeing N.B. from his custody is not supported by substantial evidence. Specifically, Father argues there is insufficient evidence to support a finding that he voluntarily “left” N.B., intended to abandon N.B., or that termination of his parental rights is in the best interests of N.B. We conclude substantial evidence in the record supports each of these requisite findings in support of the trial court's order.
1. General Legal Principles and Standard of Review
“Under section 7822, a court may declare a child free from a parent's custody and control if the parent has abandoned the child. Abandonment occurs when a ‘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.' [Citation.] Thus, a section 7822 proceeding is appropriate where ‘three main elements' are met: ‘(1) the child must have been left with another; (2) without provision for support or without communication from... his parent[] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done ‘with the intent on the part of such parent... to abandon [the child].' ” (Adoption of Allison C. (Allison C.) (2008) 164 Cal.App.4th 1004, 1010.) Additionally, “the best interests of the child are paramount in interpreting and implementing the statutory scheme, ” which “ ‘shall be liberally construed to serve and protect the interests and welfare of the child.' ” (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.)
“An appellate court applies a substantial evidence standard of review to a trial court's findings under section 7822. [Citation.] Although a trial court must make such findings based on clear and convincing evidence [citation], this standard of proof ‘ “is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.”' [Citation.] Under the substantial evidence standard of review, ‘ “[a]ll 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.”' [Citation]... ‘The appellant has the burden of showing the finding or order is not supported by substantial evidence.' ” (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011.)
2. Substantial Evidence Supports a Finding Father Voluntarily Left N.B.
Father first argues there is insufficient evidence to show he voluntarily left N.B. within the meaning of section 7822. However, it was stipulated that Father has been incarcerated since 2011 as the result of being arrested, charged, and convicted of murder. As this court has previously explained, “[l]eaving a child in the care of another does not require a literal physical desertion; instead, ‘[c]ase law consistently focuses on the voluntary nature of a parent's abandonment of the parental role....' [Citation.]... [A] parent voluntarily abandons their parental role if they choose to commit criminal acts that result in incarceration.” (In re H.D. (2019) 35 Cal.App.5th 42, 51; see Allison C., supra, 164 Cal.App.4th at p. 1012.) Thus, the stipulated facts alone constitute substantial evidence upon which the trial court could rely to conclude Father voluntarily left N.B.
3. Substantial Evidence Supports a Finding Father Intended to Abandon N.B.
Father also argues the evidence was insufficient for the trial court to find that he intended to abandon N.B. Again, we disagree.
Mother provided a statement to the probation officer that Father has never provided any financial support for N.B. According to Father's own responses to the probation officer's questionnaire, the last time Father had any direct communication with N.B. was in the Spring of 2013. By statute, the failure to provide support, or the failure to communicate, for a period longer than one year is presumptive evidence of the intent to abandon. (§ 7822, subd. (b); Allison C., supra, 164 Cal.App.4th at p. 1010.) Moreover, because section 7822, subdivision (b), states the elements of abandonment in the disjunctive, the failure to communicate and the failure to provide support may each independently provide sufficient grounds upon which a finding of abandonment may be premised. (See Adoption of A.B. (2016) 2 Cal.App.5th 912, 923 fn. 10.) Thus, substantial evidence in the record supports a finding that Father intended to abandon N.B. Further, as we explain, Father's evidence was not sufficient to overcome the statutory presumption in this case.
First, the fact that Father made some unsuccessful attempts to arrange for the provision of financial support to N.B. does not dispel the statutory presumption in this case. Father's evidence showed that he engaged in efforts to set up an account for the purpose of transferring money to N.B. in the years 2013, 2015, 2016, and 2017. However, “a parent need not intend to abandon their child permanently for the court to employ the ‘ “drastic remedy”' of terminating their parental rights under section 7822, subdivision (a)(3)....” (In re H.D., supra, 35 Cal.App.5th at p. 52.) Instead, “[t]he plain language of section 7822, subdivision (a)(3), describes abandonment ‘for a period of one year'....” (Adoption of A.B., supra, 2 Cal.App.5th at p. 919.) And any yearlong period may be sufficient to support such a finding of abandonment. (Id. at pp. 919-924.) Thus, even if Father's claims that Mother frustrated his attempts to set up an account to provide financial support were fully credited, the trial court could still make a finding of intent to abandon based upon the lack of any attempt to provide support from the time of Father's incarceration in 2011 until 2013 or, alternatively, from Father's last noted effort in 2017 until the filing of the petition in 2020.
Specifically, the parties stipulated that Father made an attempt in 2013 and 2015 to set-up accounts to provide money directly to N.B., and Father testified he sought legal advice regarding how he might set up such an account in 2016 or 2017.
On appeal, Father also suggests that he lost the financial ability to support N.B. once he was incarcerated. However, nothing in the record supports this assertion. Father openly testified that he was capable of earning prison wages. While Father's response to the probation officer's questionnaire stated he did not begin earning prison wages until 2014, Father gave no explanation why he could not have earned prison wages earlier. Further, despite the fact Father was not earning prison wages, the parties stipulated that Father sent gifts to N.B. in 2012 and 2014, and Father testified he sent gifts to N.B. in 2013. Thus, Father clearly had access to some form of income notwithstanding the fact he was not earning a prison wage.
Second, the fact there was evidence that Mother actively frustrated Father's attempts to communicate with N.B. does not preclude a finding of Father's intent to abandon N.B. based upon his failure to communicate. Even where a parent's initial separation from a child is not intentional, “if[, ] after the child is taken against the parent's wishes that parent does not endeavor to secure the child's return but instead fails to act, their inaction can ‘convert[]' the earlier taking into a leaving.” (In re H.D., supra, 35 Cal.App.5th at p. 51; see In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504 [“Numerous appellate decisions have long agreed that the leaving-with-intent-to-abandon-the-child requirement of section 7822 can be established by evidence of a parent's voluntary inaction....”].)
Here, Father admitted that his last attempt to contact N.B. by telephone occurred in 2017, and his last attempt to obtain outside assistance in contacting N.B. occurred that same year. That was well over two years before the petition seeking to free N.B. from custody was filed, and Father offered no explanation as to why he ceased his efforts. Moreover, Father also admitted that he never attempted to communicate with N.B. in writing, despite being able to successfully send N.B. gifts. Thus, even assuming that the trial court credited Father's testimony that Mother actively obstructed his earlier attempts to communicate with N.B., his admitted voluntary failure to attempt communication by a means available to him and his admitted inaction after 2017 was substantial evidence upon which the trial court could rely to conclude his abandonment eventually became intentional.
While N.B. moved to the United States in 2017, Father claimed he was unaware of this fact until he received a copy of the petition in 2020.
The parties stipulated that Mother has not facilitated any contact between Father and N.B. since 2015; Father testified that mother repeatedly refused requests to allow N.B. to visit father in prison; and Father testified that mother and Mother's family repeatedly refused to allow him to speak with N.B. when he called on the telephone.
Because evidence in the record supports the statutory presumption of Father's intent to abandon N.B. based upon a failure to communicate or to provide support for a period of more than one year, the trial court's finding of intent is supported by substantial evidence. Further, because Father's evidence did not address multiple yearlong periods upon which the trial court could rely to support a finding of abandonment, Father failed to adequately rebut the statutory presumption of intent to abandon in this case.
4. Substantial Evidence Supports a Finding that Termination of Father's Parental Rights Is in N.B.'s Best Interest
Finally, Father briefly contends that substantial evidence does not support a finding that freeing N.B. from his custody is in her best interests. However, the probation officer's report included a summary of an interview with N.B. in which she stated she has no knowledge and no memory of Father; she views J.C. as occupying the parental role in her life; she desired to be adopted by J.C.; and she did not wish to have any relationship with Father. This was substantial evidence upon which the trial court could rely to conclude that freeing N.B. from Father's custody was in her best interests. Indeed, by statute, the trial court was required to consider this evidence. (§ 7890 [“[T]he court shall consider the wishes of the child” when determining the best interests of the child.].) Thus, substantial evidence in the record supports a finding that N.B.'s freedom from Father's custody was in N.B.'s best interests.
Because substantial evidence in the record supports each of the requisite findings upon which the trial court must rely to conclude Father intentionally abandoned N.B., we find no error warranting reversal and affirm the order terminating Father's parental rights.
IV. DISPOSITION
The order is affirmed.
We concur: RAMIREZ P. J., McKINSTER J.