 


Filed 8/13/14 In re E.M. CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



In re E.M. et al., Persons Coming Under the
Juvenile Court Law.
RANDALL M.,
                                                                                           F068527
         Petitioner and Respondent,
                                                                               (Super. Ct. No. 13A0028)
                   v.
                                                                                         OPINION
JOSE M.,

         Objector and Appellant.


                                                   THE COURT1

         APPEAL from an order of the Superior Court of Tulare County. James T.
LaPorte, Judge.
         Marsha F. Levine, under appointment by the Court of Appeal, for Objector and
Appellant.
         Randall M., in pro. per., for Petitioner and Respondent.


                                                             -ooOoo-

                                                                 
1               Before Hill, P. J., Gomes, J., and Chittick, J.†
†       Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.



 
 



        Jose M. (father)2 appeals from a judgment granting a petition, under Family Code,
section 78223, declaring his daughter, E.M., and son, E.P., (collectively, the children),
free from his parental custody and control. Father contends (1) the trial court erred in
failing to consider whether independent counsel should be appointed for the children and
(2) insufficient evidence supports the trial court’s finding he intended to abandon the
children. We affirm.
                       FACTUAL AND PROCEDUAL BACKGROUND
        On June 21, 2013, Randall M. (stepfather) filed a petition to declare the children
free from father’s custody and control and to terminate his parental rights in conjunction
with a stepparent adoption. The petition alleged that the children had not seen or heard
from father since November 2008, and father had not provided any support for the
children.
          Denise M. (mother) provided a declaration in support of the petition. According
to mother’s declaration, she began an intimate relationship with father in the spring of
2004, when she was 17 years old and father was 32 years old. E.M. was born in April
2006. E.P. was born in November 2007. Father started physically abusing mother in
December 2007. After two incidents of physical abuse in July 2008, mother called the
police and stopped living with father.
        In October 2008, mother allowed father to visit the children in the yard outside her
residence. After father demanded to know who mother was talking to on the phone and
refused to leave, mother called the police and had father removed from her property. The
following day, father left 20 messages on mother’s answer machine within a two-hour
period.


                                                                 
2               In this opinion, certain persons are identified by initials and/or by status in accordance
with our Supreme Court’s policy regarding protective nondisclosure. No disrespect is intended.
3      Further statutory references are to the Family Code unless otherwise specified.
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       In November 2008, mother obtained a restraining order against father. Father was
granted supervised visits with the children, as well as phone visits. The last time father
saw the children was during a supervised visit before he was arrested in December 2008,
for violating the restraining order. Following an investigation, the district attorney’s
office charged father with felony stalking with special circumstances. Father received a
three-year prison term. Father was released on parole a number of times but then sent
back due to parole violations. His expected release date from prison was August 9, 2013.
       Mother’s relationship with stepfather began in December 2010. Since that time,
stepfather had helped support the children. The children believed stepfather was their
father and called him “daddy.” Stepfather thought of the children as his own and was a
loving father. He was involved in all of their school functions, doctor’s appointments,
and mental health treatment. Mother and stepfather were recently married and had a
baby in January 2013. Mother felt it was in the children’s best interests for stepfather to
adopt them.
       On October 4, 2013, the Kings County civil investigator filed a report on the
matter. The investigator stated that he had duly informed the children about the petition
and court proceedings to end father’s parental rights. E.M., who was in second grade, did
not remember having a father other than stepfather. Similarly, E.P., who was in
kindergarten, did not know any person who might be his father other than stepfather.
Both children referred to stepfather as “daddy” and were comfortable living in their
current environment. Neither child wanted to attend the court proceedings.
       Stepfather reported that father had not been involved in the children’s lives but
had been in and out of incarceration. Nor had father supported the children for the last
five years. Stepfather had been acting as the children’s parent for the past three years and
the children were doing well. The investigator observed that the children considered
stepfather to be their father and there was genuine affection between them.


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       The investigator concluded by recommending that the trial court grant stepfather’s
petition. The investigator explained:

       “While [father] has been incarcerated multiple times, there has been no
       contact between [father] and the [children] for the majority of the children’s
       lives. The children indicated that they did not know who [father] is and
       cannot remember him. [Stepfather] is willing to ensure that the physical,
       educational and emotional needs of the children … are a priority and that
       these needs will be met. It would seem that the best interest of the
       [children] would be to allow a relationship that already exists to become
       legally binding. The children have an adult father figure who has been in
       their life consistently, has provided for the children and is willing to
       continue to do so for the foreseeable future.”
       On October 7, 2013, father filed a declaration opposing the petition to terminate
his parental rights. Father stated he had always wanted to be part of his children’s lives.
In October 2010, father “began parenting classes as a step towards being truly prepared
for the responsibility of interacting with my children.” Father had also completed anger
management and domestic violence classes and was currently receiving counseling.
Father found it was best to let go of his past relationship with mother but not his
relationship with the children.
       A contested termination hearing was held on November 8, 2013. During the
hearing, father testified he had never paid child support (due to unemployment resulting
from physical and mental disabilities) and the last time he saw the children was on
December 23, 2008. When asked why he had not seen the children since then, father
testified: “I have filed continuously to see the children, but through mutual differences or
differences from [mother] and myself I have—when I filed to see the kids I was sent back
to prison or I was re-arraigned on a new case.”
       Father testified he filed twice for visitation—once in August 2011 and once in
April 2012—but each time he was sent back to prison. When he was in prison, father
tried to get visitation but “ran into litigation problems.” Father explained: “The
visitation and modification … papers…I was never able to get them out through the

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prison system so I just waited until I got out.” Father never tried to write to the children
or send them birthday or Christmas presents because he thought it might violate the
protective orders against him and get him in legal trouble.
       Father wanted to reestablish a relationship with the children because he never had
a father growing up and he did not want his children questioning why he was not present
in their lives. He wanted also to support them emotionally, mentally, and, eventually,
physically. Father was now “a totally different person” because of the classes he had
completed on parenting, domestic violence, and anger management. Father tried to do
everything he could to be a better person for the children.
       Father testified his “intentions” were to wait until April 20, 2014, to file for
visitation with the children. Father explained: “I do not wish to disturb [mother] or upset
her, I just wish for us to reach the end in the best manner possible, and then when it came
time for the termination of the original stay-away order then I was going to file for
visitation one more time and see what we can reach in a mutual understanding.”
       After listening to the argument of counsel, the trial court granted stepfather’s
petition to terminate father’s parental rights, explaining:

               “…The Court concludes that [father] has pursuant to Family Code
       Section 7822[, subdivision] (a)(3) left the children in the care and custody
       of the other parent for a period of more than one year without any provision
       for the children’s support or without communication with [intent] to
       abandon for the statutory period. Although [father] may have never
       intended to permanently abandon the children, he did by his own
       actions .…

               “Abandon them by no communication and nonsupport for the
       statutory periods. The Appellate Court in Adoption of Allison C.
       [(2008)]164 Cal.App.4th 1004 [(Allison C.)] held that the father’s action
       there of incarceration for domestic violence, burglary, and driving under the
       influence were voluntary and that court citing the case of [In re Rose G.
       (1976)] 57 Cal.App.3d 406 held that being incarcerated does not in and of
       itself provide a legal defense to abandonment of the children.



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               “The Court holds that [father]’s own actions resulting from his
       incarceration are not an excuse from providing support nor communicating
       with his children for the statutory period. [E.M.] is now seven years old
       and [E.P.] is six years old .… And the child’s need for a permanent and
       stable home, which is now provided by the stepfather …, according to the
       civil investigation report cannot be postponed for an indefinite period
       awaiting for [father]’s rehabilitation of himself. The civil investigation
       report notes that the children have had no contact with [father] for the
       majority of their lives, they don’t know who he is, and cannot remember
       him in any way. As the civil investigator noted in this report, [stepfather] is
       willing to ensure that the physical, educational, and emotional needs of
       [E.M.] and [E.P.] are priority and that these needs will be met.

               “It would seem that the best interest of the minors would be to allow
       a relationship that already exists become legally binding. The children
       have an adult father figure who has been in their life … consistently, has
       provided for the children, and is willing to continue to do so for the
       foreseeable future. For all these reasons the Court would grant the request
       in this particular circumstance to free the two children, [E.M.], age seven,
       and [E.P.], now age six, from the … care, custody, and control of [father].”
       On December 5, 2013, the trial court filed a judgment declaring the children free
from father’s parental custody and control. This timely appeal followed.
                                      DISCUSSION
I.     Failure to Consider Appointment of Counsel for the Children
       Section 7861 requires the trial court to “consider whether the interests of the child
require the appointment of counsel.” While the court has discretion in deciding whether
to appoint counsel for the minor, the court “‘must exercise its discretion.’” (Adoption of
Jacob C. (1994) 25 Cal.App.4th 617, 625, italics added.) If the record does not
demonstrate that the court exercised its discretion, error has occurred. (In re Richard E.
(1978) 21 Cal.3d 349, 354 (Richard E.).)
       The record does not indicate that the trial court ever considered the question of
whether counsel should be appointed for the children. Therefore, the court erred in
failing to exercise its discretion.



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       Reversal is not required, however, because the error did not result in a miscarriage
of justice. (Richard E., supra, 21 Cal.3d at p. 355.) As in the Richard E. case, father was
afforded a full opportunity to demonstrate that terminating the parental relationship
would not further the best interests of the children, just as stepfather was afforded an
opportunity to show that freeing them from father’s parental control was in the best
interests of the children. Father suggests nothing which independent counsel for the
children might have done to better protect the children’s interests when both father and
stepfather participated in the proceedings and the petition was contested.
       As father acknowledges, the civil investigator observed the children were unable
to remember father and were happy living with stepfather whom they regarded as their
father. Father suggests that independent counsel could have better protected the
children’s interests by making an “effort to help them remember father” or by informing
them of “the details surrounding father’s absence from their lives,” which he claims the
children had the right to know. We are not persuaded this would have been the proper
role of counsel, let alone in the children’s best interests.
       We likewise reject father’s assertion that appointment of independent counsel was
necessary to protect the children’s interests because no one else involved in the
proceedings, including the civil investigator, was acting solely to protect the children’s
interests. The statutory mandate of the civil investigator was to investigate the children’s
circumstances and “render to the court a written report of the investigation with a
recommendation of the proper disposition to be made in the proceeding in the best
interest of the child.” (§§ 7851, subd. (a), italics added, 7850.)
        We conclude any error in failing to appoint or to consider appointing independent
counsel for the children was not prejudicial and did not result in a miscarriage of justice.
(Richard E., supra, 21 Cal.3d at pp. 355-356.)




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II.    Sufficiency of the Evidence of Intent to Abandon
       Under section 7822, a court may terminate parental rights of a natural parent when
it finds, by clear and convincing evidence, 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).) The court considers the frequency
of the parent-child communications, the genuineness of the effort and the quality of the
communications that occurred. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.)
       The court may presume an intent to abandon the child where the evidence shows
the absent parent has failed to provide support to the child or failed to communicate with
the child for the one-year period. Token efforts to support or communicate do not
suffice. (§ 7822, subd. (b).)
       We apply a substantial evidence standard of review to the trial court's findings.
The standard of review places a heavy burden on father. We need not accept his
testimony at face value. Instead, we resolve all evidentiary conflicts in favor of the trial
court’s conclusions regarding abandonment and intent. We will not disturb a decree
adjudging that a minor is an abandoned child if the evidence is legally sufficient to
support the findings of fact. We do not decide questions of witness credibility, nor do we
resolve evidentiary conflicts. (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011; see
In Re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.)
       Father’s own testimony shows he last saw the children in December 2008, when
E.M. was 2 years old and E.P. was 1 years old. By the time of the termination hearing,
E.M. was 7 years old and E.P. was 6 years old. Father’s failure to provide support and to
communicate with the children for five years constitutes presumptive evidence of intent
to abandon under section 7822, subdivision (b).
       While acknowledging he provided no support and last saw the children in
December 2008, father asserts there was insufficient evidence he intended to abandon the
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children because he made “efforts” to visit the children over the years. Father asserts he
twice filed for a visitation order but “circumstances” occurred which “resulted in father
again being incarcerated, thereby obviating his efforts to obtain orders at those times.”
Father claims he continued to try to obtain a visitation order when he was in prison but
was “thwarted from transmitting the necessary documents to the court.”
       Father’s argument resembles claims rejected in Allison C., supra, 164 Cal.App.4th
1004, which the trial court cited in correctly rejecting father’s argument below. In
Allison C., the father left his daughter with her mother after he was incarcerated; the
father provided only token support for his daughter for more than three years; the father
failed to communicate with her for the same period; and the father argued communication
was restricted first by his incarceration, then by the mother’s restraining order, and later
by the terms of his parole. The Court of Appeal held the trial court’s finding the father
failed to communicate for more than three years, “coupled with its finding of nonsupport
for the same period, are sufficient to show father intended to abandon her for that
period.” (Id. at p. 1013.)
       As the trial court observed, the circumstances father claims limited his efforts to
communicate with the children were a consequence of his own voluntary actions.
(Allison C., supra, 164 Cal.App.4th at p. 1012 [“His actions underlying his incarcerations
for domestic violence, burglary, and driving under the influence were voluntary, and in
any case, ‘being incarcerated does not, in and of itself, provide a legal defense to
abandonment of children.’ [Citation.]”].) Despite father’s “emphatic” statements that he
wished to “reestablish” a relationship with the children, the court could reasonably find
father did not overcome the presumption he intended to abandon the children for the
statutory period. (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212 [intent to abandon
must be based on objective measure of conduct, not parent’s stated wish].) Moreover,
while it is commendable father took classes in parenting, domestic violence, and anger
management, childhood is brief and a child’s need for a permanent home cannot wait for
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a parent to rehabilitate himself or herself. (Allison C., supra, 164 Cal.App.4th at
p. 1016.) Substantial evidence supports the court’s finding of abandonment under section
7822.
                                      DISPOSITION
        The judgment is affirmed.




         




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