Opinion
F060549 Super. Ct. No. F29376
08-25-2011
In re the Marriage of CAROL M. and WILLIAM G. SNYDER. CAROL M. SNYDER, Respondent, v. WILLIAM G. SNYDER, Appellant.
William G. Snyder, in pro. per., for Appellant. No appearance for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Gerald W. Corman, Commissioner.
William G. Snyder, in pro. per., for Appellant.
No appearance for Respondent.
Appellant appeals from the denial of his motion, made in a marital dissolution proceeding, to terminate his parental rights and responsibilities for the children of the marriage. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Apparently, in the course of the parties' dissolution proceeding, the court granted custody of the parties' children to respondent mother and required appellant father to pay child support. The court authorized mother to move to Colorado with the children. It ordered that the children make two telephone calls per week to father and that mother keep telephone records of the calls. At some point, mother apparently obtained restraining orders against father in both California and Colorado.
In April 2010, father filed a motion requesting that the court terminate his parental rights and responsibilities. He requested that the court eliminate his child support obligation, including payment of arrears. He asserted he had effectively abandoned and neglected his children, because he was denied access to them and they rarely communicated with him, despite the order regarding telephone calls. The court heard oral argument and denied father's motion, finding that termination was not in the best interest of the children. Father appeals.
DISCUSSION
I. Standard of Review
On appeal, the trial court's order is presumed to be correct. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) "'The burden of affirmatively demonstrating error is on the appellant.'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) "[W]here the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557 (Yield Dynamics).)This means an appellant must do more than assert error; he "must present an adequate argument including citations to supporting authorities and to relevant portions of the record." (Ibid.)
"[T]he decision to terminate parental rights lies in the first instance within the discretion of the trial court, 'and will not be disturbed on appeal absent an abuse of that discretion.'" (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.) "When applying the deferential abuse of discretion standard, 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citations.]" (In re C.B. (2010) 190 Cal.App.4th 102, 123)
II. Termination of Parental Rights and Responsibilities
Although it is not clear from either father's brief in this appeal or the motion presented in the trial court, it appears father's motion for termination of his parental rights and responsibilities was based on Family Code sections 7820 and 7822. Section 7820 provides: "A proceeding may be brought under this part 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." The descriptions include: "One 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).)
All further statutory references are to the Family Code unless otherwise indicated.
The purpose of the part of the Family Code in which these sections are found 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.) It is to "be liberally construed to serve and protect the interests and welfare of the child." (§ 7801.) Specifically, "[i]n a proceeding under this part, the court shall ... act in the best interest of the child." (§ 7890.) Thus, in ruling on father's motion, the trial court properly based its decision on the best interest of the children.
State statutes emphasize the importance of the parent-child relationship and the parents' obligations toward their children, even when the parents have ended their relationship with each other. "The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child." (§ 3020, subd. (b).) Joint custody is presumed to be in the best interest of the child, when the parents have agreed to it. (§ 3080.)
California law provides that every child has a right to support from both parents. (§§ 3900, 3901.) "Both parents are mutually responsible for the support of their children" (§ 4053, subd. (b)) and "[a] parent's first and principal obligation is to support his or her minor children." (Id., subd. (a).) Child support takes priority over other debts: "Payment of child support ordered by the court shall be made by the person owing the support payment before payment of any debts owed to creditors." (§ 4011.) "[P]ublic policy ... prohibits a parent from waiving or limiting, by agreement, a child's right to support." (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 789 (Kristine M).)
In Kristine M., Kristine filed a petition to establish that David was the father of her child, Seth. The parties entered into a stipulation in which they agreed that David was Seth's father, David consented to termination of his parental rights and to any future adoption, David would pay Kristine a specified sum "in lieu of child support and child care arrears," and Kristine waived any future child support. (Kristine M., supra, 135 Cal.App.4th at p. 787.) The parties relied on section 7800 and expressed their belief termination of David's parental rights was in the best interest of the child. Accepting the stipulation as an adequate basis, the trial court terminated David's parental rights and obligations. The minor, through appointed counsel, appealed and the court reversed. (Id. at pp. 786, 788.)
The court cited the public policy against permitting a parent to waive or limit the child's right to support, and section 7632, which provides that a private agreement between a mother and an alleged or presumed father does not bar an action to determine paternity under the Uniform Parentage Act (UPA). "The UPA protects the child's right to establish paternity and obtain support irrespective of a parent's intent to foreclose that right." (Kristine M., supra, 135 Cal.App.4th at p. 789.) The court distinguished a situation in which the parent or parents consent to the child's adoption through independent or stepparent adoption proceedings. In that situation, the court may order the adoption if it is in the child's best interest; at the time of adoption, the adoptive parent or parents assume responsibility for the child and the birth parent or parents are relieved of their parental duties toward, and responsibility for, the adopted child. (Ibid.)
No adoption of Seth was pending. "The request for termination, although couched in terms of the parents' assessment of Seth's best interest, was in fact intended to serve their personal convenience: convenience not to have David insert himself in Seth's and Kristine's lives in the future, and convenience that David not be burdened with child support or other parental obligations." (Kristine M., supra, 135 Cal.App.4th at p. 790.) The court concluded:
"Further, the order severing David's parental rights was beyond the court's power to render. '"[E]stablishment of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic of constitutional rights."' [Citation.] Likewise, parents have a fundamental liberty interest in the custody, care, management and companionship of their children. [Citations.] Given the supremacy of these familial rights—of the child and of the parent—a decision to terminate parental rights is one of the gravest a court can make. Thus it is only under specified circumstances, and upon specific findings that include the interests of the child, that a court has authority to terminate parental rights. These circumstances are confined to special proceedings related to implementation of permanent plans in dependency cases [citation], actions to declare a minor free from parental custody and control (§ 7800 et seq.) and adoptions [citations]. The circumstances giving rise to such proceedings are not present in this case. Moreover, the court accorded primacy to the parents' convenience and decision, rather than to the long-term interests of Seth." (Kristine M., supra, 135 Cal.App.4th at p. 791.)
In In re Marriage of Jackson (2006) 136 Cal.App.4th 980 (Jackson),after the marriage of Michael and Deborah had been dissolved, Deborah moved to terminate her own parental rights and responsibilities, leaving sole responsibility for the children to Michael. Michael did not oppose the motion, and his attorney attended and participated in the hearing to ensure that any order entered would be enforceable. The trial court granted the motion. More than two years later, Deborah sought custody of the children, and the trial court declared the order terminating her rights to be void. It concluded the termination order was the result of the functional equivalent of a stipulation and that no inquiry had been made into the best interests of the children. Michael appealed and the appellate court affirmed.
The court concluded the termination order was impermissibly based solely on the parties' agreement to terminate Deborah's parental rights. (Jackson, supra, 136 Cal.App.4th at p. 990.) It added that, even if it analyzed the order as one based on Deborah's uncontested motion, rather than on an agreement of the parties, the result would be the same. The fundamental problem with a stipulated order is "not simply that the trial court ... entered an order based on the parties' agreement, but that it did so without itself evaluating what would serve the best interest and welfare of the parties' minor children." (Id. at p. 994.) The trial court, by its own admission, had not made a best interest determination and had had no evidence before it from which to make such a determination when it granted the motion to terminate Deborah's rights. (Id. at p. 987.)
In his motion, father sought termination of his own parental rights and responsibilities. He asserted the children had been in mother's custody for two years, with little or no communication with father. The August 28, 2008, order required the children "to complete two phone calls each per week to their father's cell phone." The court deleted a provision requiring the phone calls to be made at a specified date and time, and ordered that the children "be instructed that it is their responsibility to make the two phone calls per week." Father asserted in his motion that the children had had only token communications with him during the past two years; he had "had zero physical contact with his children over the last two years" and "no role in his children's life." Father continued to support his children financially. He complained in his motion that more than one-half of his salary and "checks from any source" were taken to pay child support.
Under section 7822, subdivision (a)(3), termination of parental rights and responsibilities is authorized when the parent leaves the child in the custody of the other parent for one year without communication and with intent to abandon the child, and termination is in the best interest of the child. Father's motion did not evidence an intent to abandon his children. It indicated the children were in mother's custody pursuant to court order; the lack of communication was caused by mother's removal of the children to Colorado, the restraining orders against him, and the children's failure to make the phone calls to him that the court ordered them to make. The motion expressed father's frustration with being required to support his children financially, while having his efforts to remain a part of his children's lives impeded. The motion, however, focused on father's situation. It did not discuss the children or offer any reasoned argument why terminating his parental rights and responsibilities would be in the best interest of the children.
The record includes a proof of service for a responsive declaration submitted by mother. The declaration itself is not in the record, so we have not been apprised of what information regarding the children's best interests may have been presented in opposition to the motion.
As indicated by Kristine M., supra, 135 Cal.App.4th 783, termination of parental rights and responsibilities is not authorized when a parent simply wishes to terminate the financial burden of supporting the children. One of the statutory grounds for termination must be shown and the court must find that termination would be in the best interest of the children. The trial court found that termination of father's parental rights and responsibilities would not be in the best interest of the children. Father has not demonstrated that the trial court's finding is not supported by substantial evidence. The trial court did not abuse its discretion by denying the motion to terminate on the ground termination would not be in the best interest of the children.
III. Due Process and Equal Protection
Father contends he was denied his rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution because he was not allowed to present his case, he was not given a court appointed attorney, his children's attorney was not present at the hearing, and he was not given an equal opportunity to be heard. The Fourteenth Amendment provides, in part, that the state shall not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (U.S. Const., 14th Amend., § 1.)
A. Notice and opportunity to be heard
Due process requires that a party be afforded notice and a meaningful opportunity to be heard. (In re J.F. (2011) 196 Cal.App.4th 321, 335.) The essence of an equal protection claim is that two groups, similarly situated with respect to the law in question, are treated differently. (Grossmont Union High School Dist. v. State Dept. of Education (2008) 169 Cal.App.4th 869, 892.)
Father had notice of the motion and the hearing. He filed the motion himself, and had an opportunity to include with it any evidence and argument he wished to rely on at the hearing. He appeared at the hearing and presented argument in support of his motion. He has not identified any evidence or argument he was prevented from submitting in his papers or at the hearing.
Father asserts the court listened to mother's attorney, "put[] more weight on his argument and became over bearing and shut[] down any attempt to present" father's case. Father fails to cite us to any portion of the record in which the court prevented him from speaking. Father asserts the reporter's transcript shows "the amount of time allotted to" mother's attorney, implying mother's attorney was given more time to speak than father. Mother's attorney only briefly addressed the motion to terminate. After father presented his argument in support of the motion to terminate his parental rights, mother's attorney began addressing other issues. The reporter's transcript does not indicate the court inhibited father's argument or preferred mother's attorney in any way.
Father seems to argue he was denied the opportunity to fully present his case because, at the May 5, 2010, hearing, the court set another hearing date; at the later hearing on May 25, 2010, however, mother's attorney represented the motion to terminate had already been decided and was not before the court that day. The court was confused, reviewed its notes, and concluded it had already denied the motion to terminate; it did not allow father to argue the motion to terminate at that hearing.
Both the reporter's transcript and the order entered after the May 5, 2010, hearing indicate the court denied the motion to terminate father's parental rights and responsibilities on that date. The court did not continue the hearing on that motion to May 25, 2010. At the outset of the May 5, 2010, hearing, mother's attorney explained the status of the case. He stated that, in January, the court had temporarily reduced father's child support obligation, but ordered it to resume at the previous level unless father brought a motion showing a change in circumstances warranting a continued reduction. Instead, father filed his motion to terminate his parental rights and responsibilities. Additionally, mother's attorney indicated there were papers father needed to sign in order for the children to obtain benefits in Colorado under father's health insurance plan. After father presented his argument in support of his motion to terminate, mother's attorney addressed the other issues, noting the absence of a motion to reduce the support payments and father's lack of cooperation in signing the health insurance papers. Father objected to signing the health care documents, asserting it would increase his costs.
The court then stated: "I'm going to put this over to a long cause calendar. We don't have the time to go into this. I'm going to deny the termination. It's clearly not in the best interest or there's not clear and convincing evidence anyway that it's in the best interest of the children to terminate parental rights.... [E]stablishing it's in the best interest of the child or children to terminate the parental rights basically cuts off — 1. The opportunity ... the Court has to obtain some support for the children and also to provide for health care coverage." The court scheduled the next hearing for May 25, 2010, and stated: "I want a responsive declaration from you as to — or some verification that this health insurance document that they're requesting is necessary, or is going to cost additional funds. That may also give you an opportunity to file a motion to address the support because [mother's attorney] is correct in stating this motion doesn't involve the modification request for the support." Father stated: "Your Honor, the only thing I'm asking is that we leave the child support until we're able to confront the termination on the 25th — that we could eliminate child support until that time." The court then reiterated that it was denying the motion to terminate parental rights and that any change in support needed to be requested by motion with an income and expense declaration and other supporting documentation.
The May 5, 2010, hearing addressed father's motion to terminate his parental rights and responsibilities. Father was given an opportunity to argue his motion at that time. He presented argument. The court did not continue the hearing on the motion to terminate and then deny him an opportunity to finish his argument at the second hearing. At the initial hearing, the court clearly stated, more than once, that it was denying the motion to terminate. It set a new hearing to address the health insurance issue — to permit father to present evidence that requiring him to sign papers allowing the children to obtain coverage in Colorado would increase the cost to him — and to permit father to file a motion to modify the child support, with supporting documentation, if he wished to do so. The reporter's transcript does not support father's assertion that the court prevented him from fully presenting his case or that it gave mother's attorney a greater opportunity to argue the matter than it did father. Father has not demonstrated he was denied a meaningful opportunity to be heard on his motion.
B. Court appointed attorney
The only authorities father cites for the proposition that the trial court should have appointed him an attorney to prosecute his motion to terminate his parental rights are the Sixth Amendment, and Welfare and Institutions Code section 366.26, subdivisions (f)(2) and (f)(3). The Sixth Amendment establishes the right of a defendant to an attorney in a criminal prosecution. (U.S. Const., 6th Amend.) This dissolution, custody, and support proceeding is not a criminal prosecution, and therefore the right to counsel under the Sixth Amendment does not apply. Welfare and Institutions Code section 366.26 "applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360." (Welf. & Inst. Code, § 366.26, subd. (a).) Termination of parental rights was not sought pursuant to this section and nothing in the record indicates father's children were adjudged dependent children of the juvenile court. Father has not shown that the provision for appointed counsel under Welfare and Institutions Code section 366.26 applies.
Father has not asserted or shown that the provision for counsel in section 7862 required that the trial court appoint counsel for him. Section 7862 provides: "If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless that representation is knowingly and intelligently waived." Regarding the predecessor of section 7862 (former Civ. Code, § 237.5, subd. (b)), the court has stated: "There is no federal constitutional right per se to be represented by counsel in all parental termination proceedings. [Citation.] ... The existence of a federal right to counsel is a matter for case-by-case adjudication. [Citation.] However, California provides by statute for the right to counsel in parental termination cases." (In re Nalani C. (1988) 199 Cal.App.3d 1017, 1026.)
Former Civil Code section 237.5, subdivision (b), provided, in pertinent part: "If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless such representation is knowingly and intelligently waived." (Stats. 1981, ch. 810, § 3.) It was repealed when the Family Code was enacted and was replaced with section 7862. (See Stats. 1992, ch. 162, §§ 2, 10; In re J. W. (2002) 29 Cal.4th 200, 205-206).
Courts have emphasized the fundamental nature of the rights involved when the state seeks to separate parents from their child in proceedings to free a child from the custody and control of the parent pursuant to sections 7800 through 7895 (former Civ. Code, § 232, et seq.). "'[Former] Civil Code section 237.5 is legislative recognition of the fundamental rights involved when the state seeks to separate parents from their child'" (In re Angela R. (1989) 212 Cal.App.3d 257, 276) and of "the severity of the parent's possible loss in [former] section 232 proceedings." (Id., at p. 274.) By enacting the provision for appointed counsel, the Legislature intended to ensure the right to counsel to protect the interests of indigent parents. (Nalani, supra, 199 Cal.App.3d at p. 1027.)
"'In freedom from custody and control cases, the state seeks permanently to sever the parent/child bond. The natural parent's desire for and right to the companionship, care, custody and management of his or her children is an interest far more precious than any property right.'" (Nalani, supra, 199 Cal.App.3d at p. 1027.) "[W]henever the power of the state is thrown upon the scales of justice in opposition to the vastly lesser power of an individual in a proceeding wherein such basic rights as the fundamental integrity of the family is the stake, the scales can only be balanced in the interests of justice by the appointment of counsel for indigent parents. Certainly the issues in a contest between the state and a parent, over parental fitness, involves as great, if not greater, need for counsel than most criminal cases especially when the matter of fitness may turn upon highly complex psychological evaluations." (In re Rodriguez (1973) 34 Cal.App.3d 510, 514-515.)
Thus, the provision in section 7862 for appointment of counsel for a parent in a proceeding to free a child from the custody and control of the parent was intended to protect the parent's interest in maintaining the parent-child relationship and retaining the "companionship, care, custody and management of his or her children" in the face of attempts by the state or third parties (such as the other parent or potential adoptive parents) to sever the parent-child relationship. It was not intended to assist a parent to unilaterally sever that fundamental relationship himself or herself, in order to relieve the parent of the burden of financially supporting his or her children. As previously discussed, a parent cannot, by stipulation with the other parent or by the parent's own motion to terminate parental rights, eliminate his or her responsibilities toward the children. Father has presented no authority for the proposition that he has a right to appointment of an attorney to assist him to do what the law does not allow.
C. Absence of children's attorney
Citing unspecified provisions of the Welfare and Institutions Code, father contends the children's attorney was required to be present at the hearing, and he was not. Father bears the burden of demonstrating error through citation to applicable legal authority and relevant portions of the record. (Yield Dynamics, supra, 154 Cal.App.4th at p. 557.) Father has not identified any legal authority that applies to this case and establishes a requirement that the children's attorney be present at the hearing of his motion to terminate his parental rights and responsibilities.
"'The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.' [Citation.]" In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Generally, under this rule, reversal is warranted only when "there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Father has not shown how the presence of the children's attorney would have affected the outcome of his motion or caused a result more favorable to him. He seems to suggest that the children wished to terminate their relationship with him, implying their attorney would have supported his motion. Father has not shown there is a reasonable probability that, if the children's attorney had been present at the hearing, the attorney would have advocated ending father's financial support of his children or otherwise supported father's motion. He has not shown that, if the children's attorney had been present at the hearing, there was a reasonable probability the trial court would have granted father's motion. Thus, father has not demonstrated prejudicial error.
D. Other arguments
Father makes various other arguments that do not require extensive discussion. He asserts his Fifth Amendment rights not to be "deprived of property without due process of law" and not to have his "private property ... taken for public use, without just compensation" were violated because of the amount taken from his paychecks for child support. He also argues that the destruction of his relationship with his children and the deduction of sums from his paychecks for child support constitute cruel and unusual punishment under the Eighth Amendment and involuntary servitude under the Thirteenth Amendment.
The order from which father appealed was an order denying his motion to terminate his parental rights and responsibilities. It was not an order to pay child support or an order authorizing withholding of sums from his paychecks to make his child support payments. Those matters are not before this court. We note that the trial court gave father an opportunity to file a motion for modification of child support, with supporting documentation, both before father filed his motion to terminate his parental rights and at the time the court denied that motion. Father declined to file such a motion.
Finally, father repeatedly asserts he was not offered a reunification plan. He cites no authority for the proposition that a parent who attempts to terminate his relationship with his children by filing a motion to terminate his parental rights and responsibilities is entitled to a reunification plan. "'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' [Citation.]" (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) This rule applies even when the litigant is self-represented. (Id. at p. 523.) Father's assertion is not supported by argument or authority. Further, father did not request reunification services in the trial court. "It is settled that points not raised in the trial court will not be considered on appeal. [Citations.] This rule precludes a party from asserting on appeal claims to relief not asserted in the trial court. [Citations.]" (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422-423.)
DISPOSITION
The judgment is affirmed.
HILL, P.J.
WE CONCUR:
CORNELL, J.
DETJEN, J.