Opinion
F078421
09-26-2019
In re JOAQUIN A. et al., Persons Coming Under the Juvenile Court Law. JOAQUIN A. et al., Petitioners and Appellants, v. VICTORIA R., Objector and Respondent.
Mary Steele, under appointment by the Court of Appeal, for Petitioners and Appellants. Jamie A. Moran, under appointment by the Court of Appeal, for Objector and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VAD008227)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. David C. Mathias, Judge. Mary Steele, under appointment by the Court of Appeal, for Petitioners and Appellants. Jamie A. Moran, under appointment by the Court of Appeal, for Objector and Respondent.
Before Levy, Acting P.J., Meehan, J. and DeSantos, J.
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INTRODUCTION
Appellants, Joaquin A. and Luz A. (collectively, appellants), the grandparents and legal guardians of the minors, appeal the trial court's denial of their petition to terminate parental rights under Family Code section 7822. Appellants contend the trial court erred by applying Family Code section 7822 and should have instead applied Probate Code section 1516.5. We affirm.
The last names of all parties have been omitted to protect the privacy of the children. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent, Victoria R., and Joaquin A., Jr. (father), are parents to Joaquin A. III (Joaquin) and Isaiah A. Joaquin was born in October 2014, and Isaiah was born in September 2015. Respondent lived with father and his parents (appellants) for a time in 2015. At the end of 2015 or early 2016, respondent moved out of appellants' home. Joaquin and Isaiah continued to live with appellants.
On April 15, 2016, appellants were appointed legal guardians of Joaquin and Isaiah. On January 27, 2017, appellants filed requests to adopt Joaquin and Isaiah. On May 19, 2017, appellants filed a petition in propria persona to free the children from parental custody and control pursuant to Family Code section 7662.
Family Code section 7662 describes the circumstances under which a petition should be filed to terminate the parental rights of an alleged father.
On September 11, 2017, mother filed a declaration in response to appellants' petition requesting the court deny the petition. In the declaration, respondent alleged she loved her children. Respondent declared she had entered herself into drug treatment and parenting classes in order to improve herself, so she could get her children back in her custody. Respondent also declared that she had filed papers to terminate appellants' guardianship. Respondent attached several supporting documents, including proof of her successful participation in drug treatment and parenting classes, as well as negative drug tests. On December 8, 2017, father signed parental consent forms as to appellants' adoption of both Joaquin and Isaiah.
On January 4, 2018, the Tulare County Health and Human Services Agency (agency) filed an investigative report referencing Family Code section 7851 and Probate Code section 1516.5. The social worker concluded the children did not have a relationship with mother and that mother reported she last had contact with the children in November 2015. The social worker recommended that the children be freed from the custody and control of the parents. The social worker recommended the court find by clear and convincing evidence that the children have been in the physical custody of appellants for a period of not less than two years, that the children would benefit from being adopted by appellants, and that it would be in the best interest and protection of the children to be declared free from the custody and control of the parents.
On April 20, 2018, appellants filed another petition to terminate parental rights in propria persona without citing any statutory authority. On July 20, 2018, appellants, through counsel, filed a memorandum of points and authorities in support of their petition citing Family Code section 7822, subdivision (a)(3). Family Code section 7822, subdivision (a)(3) provides that a proceeding to free a minor from parental custody and control may be brought if "[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." The memorandum alleged both parents had abandoned the children. The memorandum was approximately six pages long and presented a factual and legal analysis, citing case authority, for each element of Family Code section 7822 as to each parent.
A contested hearing was held on August 13, 2018. The record before us does not contain the evidence appellants presented in their case-in-chief at the hearing. Respondent presented evidence that she did not intend to abandon her children. Respondent testified she became addicted to drugs in 2014. After she moved out of appellants' home in early 2016, she attempted to visit her children and while appellants allowed her to visit at first, there was an incident where she attempted to visit, and appellants called the police. When the police responded, they asked respondent to leave. In October 2016, respondent entered a residential drug treatment facility. She entered the facility in order to address her personal problems in hopes she could see Isaiah and Joaquin again. Respondent completed a one-year program. Respondent attempted to see Joaquin and Isaiah while she was in the facility, but appellant Luz informed respondent she "wasn't ready for [respondent] to see the kids." Respondent left the facility in January 2017. Respondent wanted to see Joaquin and Isaiah but did not feel free to do so because appellants told her she could not. Respondent filed a petition to terminate the guardianship in 2017, but the termination proceeding was stayed due to the pending petition to terminate parental rights. Respondent testified she never wanted to abandon her relationship with Joaquin and Isaiah.
Appellant Luz testified in rebuttal. Luz testified she never told respondent that respondent could not visit the children. Luz also testified respondent called her and asked her to bring Joaquin and Isaiah to the drug treatment facility, and she said yes. Luz did not take them to visit because she was not ready, and felt it was not healthy for the children. Luz had not heard from respondent since October 2016 until she saw respondent in court in relation to the adoption petition.
At the close of evidence, counsel for appellants argued that the petition should be granted because, pursuant to Family Code section 7822, respondent abandoned the children. Father's conduct was not at issue at the hearing because he had signed forms consenting to adoption. After hearing counsels' arguments, the court concluded that mother did not intend to abandon the children and denied appellants' petition. Appellants appealed the court's denial of their petition.
DISCUSSION
Appellants contend the trial court erred by applying Family Code section 7822 and should have instead applied Probate Code section 1516.5. Appellants' claim is not well taken.
Appellants petitioned for a proceeding under Family Code section 7822, which may be brought if, as relevant here, "[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." (Fam. Code, § 7822, subd. (a)(2).) Probate Code section 1516.5 " 'create[s] yet another avenue for a guardian [in addition to Family Code section 7822 et seq.] where the child has been in the custody of the guardian for a long time and the parent or parents are not likely to reclaim the child but the parent or parents do not fall under one of the categories covered by existing law.' " (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1124-1125.) A proceeding under Probate Code section 1516.5 may be brought when all of the following requirements are satisfied: "(1) One or both parents do not have the legal custody of the child. [¶] (2) The child has been in the physical custody of the guardian for a period of not less than two years. [¶] (3) The court finds that the child would benefit from being adopted by his or her guardian." (Prob. Code, § 1516.5.) In determining whether the child would benefit from being adopted, "the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following: [¶] (A) The child and the birth parent. [¶] (B) The child and the guardian, including family members of the guardian. [¶] (C) The child and any siblings or half siblings." (Prob. Code, § 1516.5, subd. (a)(3)(A), (B) & (C).)
An appellate court generally does not review issues that were not presented in some proper method by a party in the trial court. (Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 913.) The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court. (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436.)
Here, appellants filed a petition expressly indicating it was being brought pursuant to Family Code section 7822. The points and authorities contained a detailed analysis of the elements under Family Code section 7822. Appellants' counsel's argument at the hearing was lengthy, spanning nearly 10 pages in the reporter's transcript, and was exclusively focused on an analysis under Family Code section 7822. Specifically, defense counsel argued that respondent's lack of contact with the children constituted presumptive evidence she intended to abandon them, citing Family Code section 7822 and related case law. Appellants' counsel said at one point, "There is presumptive evidence of abandonment because there's protracted time gaps where they had no support and no contact. Given those factors, I don't need to prove that the children were—that is in their best interest." (Italics added.) A best interest determination would have been central to a Probate Code section 1516.5 proceeding. Probate Code section 1516.5 is not mentioned once in any of appellants' moving papers or in the reporter's transcript of the proceedings. The application of Probate Code section 1516.5 simply was not an issue before the trial court. When the trial court ruled on appellants' petition filed pursuant to Family Code section 7822, appellants did not object or request further clarification. Accordingly, we find any argument that the trial court erred by not applying Probate Code section 1516.5, or otherwise misapplying the law, is forfeited on appeal.
Appellants have not cited any authority to support an assertion that the court erred because it had a sua sponte duty to raise an issue pursuant to Probate Code section 1516.5 on behalf of appellants. Appellants call attention to the fact that the social worker's report cited Probate Code section 1516.5 and presented an analysis under that code section. As respondent points out, neither the department nor the social worker was a party to the present case. The social worker's report was not mentioned by appellants once during the hearing or in any of their moving papers. We presume the trial court read and considered the social worker's report and gave it the weight it felt was appropriate.
To the extent the court committed any error, we find any error to be clearly harmless, as there is nothing on this record that precluded or is precluding appellants from bringing a petition pursuant to Probate Code section 1516.5.
DISPOSITION
The juvenile court's order is affirmed.