Opinion
B232787
10-26-2011
Adoption of NATHALIE L., a Minor. PEDRO C, Plaintiff and Respondent, v. JEAN L., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Andre F. F. Toscano, under appointment by the Court of Appeal, for Plaintiff and Respondent. Christopher Blake, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BT50184)
APPEAL from an order of the Superior Court of Los Angeles County. John L. Henning, Judge. Affirmed as modified.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Plaintiff and Respondent.
Christopher Blake, under appointment by the Court of Appeal, for Minor.
Jean L., the biological father of Nathalie L., appeals from the order allowing the adoption of Nathalie by her stepfather Pedro C. to proceed without his consent. Jean contends that the trial court erred by determining his consent was not necessary for the adoption. We modify the order to delete reference to termination of Jean's parental rights and, as modified, affirm the order allowing Pedro's adoption of Nathalie to proceed without Jean's consent.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Adoption Request
On August 23, 2010, Pedro filed an adoption request with respect to Nathalie, who was born on March 23, 2005, and then five years old. According to the request, Pedro and Nathalie's mother, Blanca C., married on August 13, 2010, and Pedro wished to adopt Nathalie. Blanca consented to the adoption. The request asserted that Jean, who was described as the presumed father, did not need to consent to the adoption because "his whereabouts have been unknown for five years" and he has not contacted his child in more than one year, citing Family Code section 8604, subdivision (b). Pedro requested that the court "approve the adoption and . . . declare that the adopting parent[] and the child have the legal relationship of parent and child, with all the rights and duties of this relationship, including the right of inheritance."
Statutory references are to the Family Code unless otherwise specified. Section 8604, subdivision (b), provides the circumstances in which a child may be adopted without the consent of a presumed father.
2. The Adoption Citation
On November 2, 2010, the trial court issued an adoption citation, which was personally served on Jean on November 18, 2010. The citation, addressed to Jean, identified Pedro as the adopting parent and stated, "By order of this Court, you are hereby cited and required to appear personally concerning the adoption of Nathalie . . . before the Judge of this Court in the County of Los Angeles, State of California, at the Courtroom of Department 421, 201 Centre Plaza Drive, Suite 2100[,] Monterey Park, CA 91754 on January 10, 2011, at 9:00 a.m., of that day, then and there to show cause, if any, why said adoption should not be granted according to the petition on file therein."
3. The January 10, 2011 Hearing
At the 9:00 a.m. January 10, 2011 hearing, Pedro appeared with counsel and Blanca, and counsel appeared for Nathalie. Jean did not appear.
Blanca testified that, although she and Jean had never married, she lived with him while pregnant with Nathalie. Blanca and Jean separated in June 2005, when Nathalie was three months old, after Jean was convicted of domestic violence against Blanca and a five-year restraining order was issued protecting Blanca from Jean. Since that time, Jean did not contact Blanca or her relatives regarding Nathalie (including after expiration of the restraining order), nor did he provide any form of financial support for Nathalie. Blanca worked with Jean's mother from 2006 to 2007 or 2008, but Jean made no attempt through his mother to see or provide for Nathalie. Once in 2007, Jean's relative contacted Blanca's mother requesting to see Nathalie, but she did not pursue her request, and Jean was not involved in the request.
Pedro's counsel represented that he had received a telephone call from Jean the day after Jean was personally served with the adoption citation. Jean said "that he was upset and angry . . . because [Blanca] didn't contact him to tell him that she was getting married and that her husband was adopting the baby. He thought she should tell him personally instead of his learning about it from the process server." Jean did not express any interest in the child, but only that he was "angry."
Recognizing personal service of the citation on Jean, the trial court found "the allegations of the [adoption request] are true. The court finds that [Jean], the biological father, has not communicated with this child for more than one year, nor has he paid any funds for her care, her support, or education. That failure was willful and without lawful excuse. The court further finds an award of custody to him would be detrimental to this child. Therefore, his parental rights are terminated. The court finds his consent is not necessary for this adoption. . . . We need to wait the 60-day appellate period. And we will need to send notice to him again indicating to him that his rights have been terminated today. And unless he comes forward by the 60th day expressing an interest in the matter, expressing good cause . . . to set aside this default, it will become final on the 60th day." The court gave Jean until March 14, 2011, to show good cause for setting aside the default and set a hearing for March 15, 2011, at 1:30 p.m.
4. The Events After the January 10, 2011 Hearing
After the January 10, 2011 hearing, Jean appeared about 11:00 a.m. that morning and informed the trial court that he was contesting the adoption. The court requested that Nathalie's counsel inform Jean what had happened at the hearing. Jean explained to Nathalie's counsel that he was late to court because he had had a 7:00 a.m. interview that morning. Nathalie's counsel told Jean that the court had entered a default against him for failing to appear on the adoption citation and explained that "he would need to show good cause why the ruling of the court should not stand." Nathalie's counsel further informed Jean that the court would appoint counsel to represent him if he could not afford to hire counsel. Jean said that he wanted to hire his own attorney. Nathalie's counsel asked Jean to wait briefly so she could obtain adoption attorney referrals for him. Nathalie's counsel went into the courtroom, and, when she returned less than two minutes later, Jean was gone. She waited until 12:00 p.m., but Jean did not return. The court appointed counsel to represent Jean.
On January 11, 2011, Nathalie's counsel personally served Jean with a letter reiterating what she had told him in court the previous day. The letter explained that Jean had "until March 14, 2011 to file an appeal/motion with the Court contesting the decision made by the court and showing good cause why the order should not stand. If you fail to do so, the Court's ruling terminating your parental rights will become permanent and the adoption will proceed without your consent at our next hearing on March 15, 201[1] at 1:30 p.m. This means that you will lose all your parental rights with regard to your daughter and you will not be able to see your daughter nor make any future decisions regarding her life or wellbeing." (Emphasis omitted.) The letter provided Jean with the name and information for his court-appointed attorney and told Jean to contact him. It also gave Jean the telephone numbers of Nathalie's counsel and the trial court.
Nathalie's counsel mistakenly indicated the year of the hearing was 2010 instead of 2011.
On January 19, 2011, Pedro's counsel filed a notice of ruling, detailing the court's orders from the January 10, 2011 hearing and informing that Jean had 60 days from January 10, 2011 to file a notice of appeal or to appear on March 15, 2011 at 1:30 p.m. to show good cause why his parental rights should not be terminated. The notice was served by mail on Jean at the address where he had been served personally with the adoption citation.
On January 19, 2011, Nathalie's counsel received a telephone call from Nathalie's paternal grandmother. In that call the paternal grandmother stated "that they wanted to hire a private attorney because they could not afford to go meet with court[-]appointed counsel . . . . [Nathalie's counsel] asked what she meant and she said, well, we live in South Central. And an attorney that was appointed lived in Burbank. . . . [Nathalie's counsel] told her, you're certainly welcome to obtain private counsel, but if you do, I recommend it be an adoption attorney. However, I imagine you would spend more money on a private attorney than you would on transportation getting down to meet with [the court-appointed attorney.] [The paternal grandmother] said that she had understood and would let her son know, meaning the birth father." Nathalie's counsel contacted Jean's court-appointed attorney, informed him of the call from the paternal grandmother and gave him the paternal grandmother's contact information.
After receiving his appointment, Jean's counsel sent at least two and possibly three letters to Jean. He also spoke with Jean by telephone and, at Jean's request, "interviewed relatives of [Jean's] pertaining to the facts of the case." Jean's counsel informed him of the hearing on March 15, 2011, at 1:30 p.m.
On March 10, 2011, the Department of Children and Family Services filed its report regarding Pedro's adoption request. According to the report, Blanca and Pedro met through Blanca's sister, and the two "were friends for a few months before they began dating and they moved in together in 2006." Pedro has been involved in Nathalie's life since that time, and Blanca and Pedro had their own child in 2008. "Three references were received, and all of them commented favorably of [Pedro.] One reference stated, 'Pedro is an excellent father to both of his kids. I believe he is an amazing father and husband. He teaches the kids the numbers, alphabet and reads to them. He does the most to keep his kids happy. I truly believe Pedro makes the perfect father for Nathalie. He loves both of his kids equally. He deserves for Nathalie to carry his last name. She loves him very much.'" The family is financially stable, and "Nathalie appeared to be a sweet girl and she is being well cared for in the home of [Blanca and Pedro]." The report recommended that the court permit Pedro to adopt Nathalie.
5. The March 15, 2011 Hearing
At the March 15, 2011 hearing, Pedro appeared with Blanca and his counsel, and Nathalie appeared with her counsel. Jean's counsel appeared, but Jean did not.
Jean's counsel informed the trial court: "I do believe my client definitely has his view of the events that have occurred in the past. What he indicates to me is slightly different than what I have heard, obviously, from [Pedro's] side. He has a story to tell. That's all I can tell the court at this point. I don't have him here. I have been outside. I have called out for him. I have not found him outside. And at the court's request, I did call his mother prior to leaving a message at her work because that's where she had been right now—left a message for her with a phone number of this court. [Jean's] telephone number, which I had been communicating with him on[,] is now disconnected, so I'm unable to telephone him. The letters have been sent to him at his home address—that's the three letters that I have written to him . . . ." Jean's counsel further stated that Jean had missed the January 10, 2011 hearing because of an interview that morning and trouble finding the courthouse and that Jean left after talking to Nathalie's counsel "because he was angry that he'd been defaulted and was scared . . . [of] the situation." Jean's counsel assured the court that Jean had all of his contact information and, "based on . . . what would seem to [him] a history of [Jean] coming, albeit late, and his expressed desire to be here . . . , . . . move[d] for a continuance and then submit[ted] the matter on that [requested] continuance."
Pedro's counsel objected to a continuance of the proceedings based on Jean's failure to appear, stating that, "[i]f we had a hearing[,] what would be shown about [Jean] is that since this child was about three [months] old—and the child is about to become six years old—that all of these years this man that has not contacted the child directly, or indirectly, has not contributed one penny for this child. He has not ever even contacted the child's relatives trying to find the child or look for the child. . . . [T]he child has [been living] within 10 blocks of his family and maybe this man . . . for all these years. Nobody has made a single effort to contact [her], support or pay any attention at all to this child. . . . [The child] now has the prospect of an actual father in [her] life. I think there's no reason in the world why this court should postpone anything or give [Jean] any more opportunities to delay proceedings."
Nathalie's counsel joined in the objection to a continuance of the proceedings. She represented, "In the letter that I wrote to [Jean] . . . I did make clear that he would need to show good cause why the order should not be done. It also specifies the appellate period. It further goes on to say if he fails to do so, the court ruling terminating . . . parental rights will become permanent and the adoption will proceed." In addition, Blanca testified at the January 10, 2011 hearing that Jean "has not had any contact with the child."
The trial court then requested that Blanca testify again. Blanca testified that the last time Jean had had contact with Nathalie was when she was three months old. At that time Jean was taken "to jail because he had hit [Blanca] . . . and [she] left with [her] parents . . . ." Although the paternal grandmother visited with Nathalie about three times in 2005, Jean was not present, and the paternal grandmother has not seen Nathalie since that time. Neither Jean nor his family provided any financial support for Nathalie. According to Blanca, Jean knew where to find Nathalie and Blanca's family members, and Blanca worked with the paternal grandmother for a few years.
After hearing arguments from counsel and Blanca's testimony, the trial court found "it's clear . . . that the biological father has really not had any contact or provided any emotional [or] financial support for this child since the child was three months old— the child is now six. So it's clear that . . . his parental rights should be terminated unless there's good cause to set aside the default. There's no showing of good cause today. As a matter of fact, the court has made every effort to give him an opportunity to be heard. The court has provided him with counsel to represent him. [Counsel] has advised him of the nature of the proceedings and attempted to prepare for hearing or trial in this matter. And [Jean] has not cooperated in any way. In addition, [Nathalie's] counsel has previously advised [Jean] of the nature of the proceedings and sent him a letter . . . , indicating that if he did not appear today that his rights would be terminated. Therefore, the court finds that [Jean], the biological father, has not communicated with this child for more than one year, nor has he provided any funds for her care, support, or education. That failure was willful and without lawful excuse. The court further finds award of custody to him would be detrimental to the child. Therefore, his parental rights are terminated. The court finds his consent is not necessary for this adoption." The court denied Jean's counsel's request for a continuance. Blanca and Pedro signed the adoption agreement, and the court set a hearing on May 16, 2011 for entry of the adoption order. A minute order dated March 15, 2011 reflects the court's findings. Jean filed a notice of appeal on April 14, 2011.
On April 18, 2011, the trial court entered an order, finding that (1) Jean "failed to contact or contribute to the support of [Nathalie], while he was able to do so, for a period in excess of one year and that his said failure was willful and without lawful excuse"; (2) "the parental rights of Jean . . . in and to . . . [Nathalie] . . . be, and they are hereby, terminated"; and (3) Jean's "consent . . . is not required for the adoption of . . . Nathalie . . . by . . . Pedro . . . ."
"The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes." (Cal. Rules of Court, rule 8.104, subd. (c)(2).) Jean timely filed his notice of appeal after entry of the trial court's March 15, 2011 minute order. Even if the executed formal order entered on April 18, 2011 is operative, as contemplated by California Rules of Court, rule 8.104, subdivision (c)(3), we would treat the April 14, 2011 notice of appeal as timely filed immediately after the order's entry. (Cal. Rules of Court, rule 8.104, subd. (d)(1) ["notice of appeal filed after judgment is rendered but before it is entered is valid and is treat as filed immediately after entry ofjudgment"]; see In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906.)
DISCUSSION
Section 8604 provides the circumstances in which a child may be adopted without the consent of his or her presumed father. Although generally "a child having a presumed father . . . may not be adopted without the consent of the child's birth parents . . . [,]" "[i]f one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption, but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires the birth parent not having custody to appear at the time and place set for the appearance in court . . . ." (§ 8604, subds. (a) & (b).) In determining willfulness under the statute, "[f]ailure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts." (Id. at subd. (c).) Section 8604 thus operates to facilitate adoptions. (In re Marriage of Dunmore (2000) 83 Cal.App.4th 1, 4.)
Jean does not challenge the trial court's determination that he willfully failed to communicate with Nathalie or pay for her care, support and education for a year. Rather, Jean asserts that the court could not allow Nathalie's adoption to proceed without his consent because Pedro did not first file for termination of his parental rights under section 7822. Jean also maintains that he does not fall within the parameters of section 8604, subdivision (b), because Blanca did not have "custody [of Nathalie] by agreement of both parents . . . ."
Jean forfeited these arguments by failing to raise them in the trial court. After defaulting on the adoption citation by failing to appear at the January 10, 2011 hearing, Jean had 60 days to appeal from the trial court's order allowing the adoption to proceed without his consent or to appear and show cause why the order should not stand. Although Jean came into court later in the morning after the January 10, 2011 hearing and said he was contesting the adoption, he did not make any arguments, let alone those he has raised on appeal, either before or at the March 15, 2011 hearing to demonstrate any error in the court's decision to allow the adoption to proceed without his consent. Indeed, Jean was not at the March 15, 2011 hearing, despite repeatedly receiving notice of it and of the consequences of a failure to appear. At that hearing, Jean's counsel reported that Jean had "his view of the events" regarding Nathalie, but made no argument to undermine the court's decision to allow Nathalie's adoption to proceed without Jean's consent. Counsel said that Jean's telephone number had been disconnected, and he moved for a continuance of the proceedings because of Jean's absence. Jean does not contend on appeal that the court erred by denying his counsel's request for a continuance. Rather, he argues for reversal of the order based only on arguments that he did not raise in the trial court. Accordingly, Jean forfeited his asserted grounds for reversal. (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 825-826 [appellate court declined to consider argument that service of contempt motion was untimely when appellant failed to raise issue in the trial court]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [mother foreclosed from appellate challenge to amount of child support awarded because she did not argue in the trial court that the calculations were improper].)
Even if we were to consider Jean's arguments on their merits, we would not find them persuasive. Jean claims that Blanca did not have custody of Nathalie by agreement of both parents and that section 8604, subdivision (b), therefore does not apply to him and could not operate to permit Nathalie's adoption without his consent. According to Jean, the words "custody by agreement of both parents" in section 8604, subdivision (b), mean an explicit, formal agreement entered by the parents, and he did not enter an agreement with Blanca giving her custody of Nathalie. We disagree. Jean's failure to contact Nathalie from the time she was three months old to the time of the adoption proceedings when she was almost six years old, while he knew where to find her in Blanca's care, evidences that Jean agreed Blanca would have custody of Nathalie. At a minimum, Jean surrendered care of Nathalie to Blanca, which Blanca accepted. (See Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011-1012 ["father voluntarily surrendered [child's] custody and care to mother . . . by his voluntary act of domestic violence, le[aving] [child] in mother's care and custody[] [and] "[t]hereafter, . . . never [seeking] to take parental responsibility for [the child's] care, and instead [choosing] to let the child stay with mother[,] . . . content to leave mother all real parental responsibility for [the child]"].) The trial court thus did not err by applying section 8604, subdivision (b), to Jean.
Jean also cites no authority for the blanket proposition he asserts that a stepparent, like Pedro, must obtain an order terminating parental rights based on abandonment of the child under section 7822 before the trial court can determine under section 8604, subdivision (b), that an adoption can proceed without the presumed father's consent. Indeed, the statutes serve different purposes. While "the narrowly drawn provisions of section 8604 . . . operate only to facilitate adoptions, . . . the provisions of section 7822 . . . make abandonment an independent ground for termination of parental rights." (In re Marriage of Dunmore, supra, 83 Cal.App.4th at p. 4.) Terminating parental rights does not necessarily result in adoption, as the termination of parental rights may be sought and achieved for other reasons. (See § 7820 ["proceeding may be brought . . . for the purpose of having a child under the age of 18 years declared free from the custody and control of either or both parents if the child comes within any of the descriptions set out in this chapter," such as abandonment, neglect, parent disability, juvenile dependency with no family reunification services offered to the parent].) Although in this case Pedro perhaps could have sought a termination of parental rights under section 7822 by showing that Jean had abandoned Nathalie, no such termination is required for the trial court to determine under section 8604, subdivision (b), that a stepparent's adoption can proceed without the presumed father's consent.
Section 7822 provides in part that "a proceeding [to terminate parental rights] . . . 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." (§ 7822, subd. (a)(3).) "The failure to provide . . . support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents." (Id. at subd. (b).)
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We note that, in determining that Pedro can adopt Nathalie without Jean's consent, the trial court also terminated Jean's parental rights. This was a premature finding. Section 8604, subdivision (b), allows a trial court to conclude, as occurred here, that the consent of a presumed father is not necessary for an adoption. (In re Marriage of Dunmore, supra, 83 Cal.App.4th at p. 5 ["section 8604 permits an adoption to proceed without the absent parent's consent and over that parent's objection"].) Nevertheless, the statute does not operate to terminate parental rights. The subsequent adoption, after the determination that adoption can proceed without the presumed father's consent, is what terminates the rights of the absent parent. (§ 8617 ["birth parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child"]; see In re Marriage of Dunmore, at p. 5 [§ 8604 determination that adoption can proceed without biological father's consent does not relieve him of support obligations because parental rights are still intact until adoption is complete].) Accordingly, because the trial court could not terminate Jean's parental rights under section 8604, we strike that finding from the order. Jean's parental rights will be terminated when Pedro completes his adoption of Nathalie.
DISPOSITION
The order allowing Pedro to adopt Nathalie without Jean's consent is modified to strike the finding that Jean's parental rights are terminated. As modified, the order is affirmed, and the trial court may proceed to enter the adoption order.
NOT TO BE PUBLISHED.
ROTHSCHILD, J. We concur: MALLANO, P. J. JOHNSON, J.