Filed 9/30/14 In re A.D. CA5




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re A.D., a Person Coming Under the Juvenile
Court Law.

MICHELLE D.,                                                                               F068823

    Petitioner and Respondent,                                               (Super. Ct. No. VAD007655)

    v.
                                                                                         OPINION
ERICA M.,

    Objector and Appellant.


         APPEAL from orders of the Superior Court of Tulare County. Harry N.
Papadakis, Judge. (Retired judge of the Fresno Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
         Beth A. Melvin, under appointment by the Court of Appeal, for Objector and
Appellant.
         Betty E. Blanks for Petitioner and Respondent.
                                                        -ooOoo-
         Erica M. (mother) appeals from an order terminating her parental rights and
freeing her daughter A.D. (now four years old) from her custody and control due to
abandonment under Family Code section 7822.1 Michelle D. (stepmother) filed the
section 7822 petition as a precursor to adopting A.D.
       Mother contends there is insufficient evidence to support the court’s findings. She
also contends that the court failed to comply with the Indian Child Welfare Act (ICWA)
(25 U.S.C., § 1901 et seq.). We affirm.
                        FACTUAL AND PROCEDURAL SUMMARY
       A.D. was born in February of 2010. Mother and Robert D. (father) were
unmarried at the time, and a dispute over custody of A.D. began almost immediately.
Mother had abused prescription drugs throughout her pregnancy with A.D., and she was
arrested for a drug offense within days of A.D.’s birth. Father was awarded temporary
physical custody of A.D.; mother was allowed supervised visits.
       After mother was released from jail, mother and father briefly shared joint legal
and physical custody of A.D. But at a hearing in May of 2010, the court awarded father
sole legal and physical custody and ordered supervised visits for mother. By October of
2010, the court lifted the requirement that mother’s visits be supervised.
       In February of 2011, mother failed to appear for a custody hearing because she
was afraid of being arrested on an outstanding warrant. The court rescinded its prior
visitation order, confirmed father’s custody of A.D., and gave mother reasonable
supervised visits at father’s discretion. The court also gave mother the right to put the
matter back before the court by filing appropriate pleadings. Mother claims she never
learned of the court’s visitation order.
       During the following two years, mother did not visit or contact A.D. Mother
claimed it was because she was struggling with depression and addiction, and, not being
aware of the visitation order in place, did not believe she had a right to see A.D. In


1      All further statutory references are to the Family Code unless otherwise stated.



                                             2.
August of 2012, mother entered a residential treatment program, which she successfully
completed in May of 2013.
       On May 13, 2013, mother filed a request for visitation and a hearing was set for
June 20, 2013. But mother failed to appear for the hearing because she was incarcerated
on an unrelated outstanding warrant.
       On July 2, 2013, stepmother, who had been married to father since November of
2011, petitioned the court under section 7822 to have A.D. declared free from mother’s
custody and control. Stepmother also filed a request to adopt A.D.
       That same day, father filed the Parental Notification of Indian Status (ICWA-020)
stating he had no Indian ancestry. He filed an attachment (ICWA-010) signed by
stepmother representing the same lack of A.D.’s known Indian ancestry.
       On July 30, 2013, the court investigator for Family Court Services filed her report
on the petition for termination of parental rights. The investigator opined that A.D. and
stepmother shared a close bond and that A.D. and mother did not. In the report, the
investigator noted that father had filed his ICWA-020 indicating he had no known Indian
ancestry. The investigator also noted that on July 29, 2013, mother had stated she “ha[d]
heard she has Cherokee Indian ancestry in her family[,] but attempts to trace ancestry was
not possible as she does not have necessary names and birthdates.” The investigator sent
mother form ICWA-020 by mail on July 29, 2013, for her completion and return.
       The contested hearing on stepmother’s petition was held January 10, 2014. At the
hearing, mother testified she and father had had a tumultuous relationship and she
acknowledged her struggles with drug addiction present at the time of A.D.’s birth.
Mother testified that she began twice weekly supervised visits with A.D. in May of 2010,
and had about five or six overnight visits with A.D. when they were no longer supervised.
But she did not attend a February 2011 custody hearing because she was afraid of being
arrested on an outstanding warrant. Mother’s failure to appear ended her right to
overnight visits and she last saw A.D. January 11, 2011. Mother testified that, although

                                            3.
she stopped abusing prescription drugs when A.D. was born, she fell into deep depression
and began drinking heavily. She eventually decided to turn her life around and entered a
residential treatment program in the summer of 2012. According to mother, she began
asking father to see A.D. within days of completing treatment in May of 2013. When
father ignored her text requests, she petitioned for visitation, although she acknowledged
that she failed to appear for the hearing on her petition because she was incarcerated on
another matter.
       Mother acknowledged that she never paid child support to father, but he never
asked for support. Mother claimed to have sent A.D. birthday cards and birthday and
Christmas gifts, but that she did so anonymously through her own mother (grandmother)
because she believed father would not give them to A.D. otherwise. Grandmother took
mother’s two older children (for whom grandmother was guardian) to visit A.D. a
number of times, although a Christmas 2013 visit request was ignored by father.
       Father testified that stepmother began taking on a parental role for A.D. when
A.D. was eight months old and that A.D. called stepmother “mom.” According to father,
he denied mother visitation with A.D. prior to January of 2011 when mother was under
the influence. Mother did not contact him to ask for visits with A.D. between January of
2011 and May of 2013. Father acknowledged that grandmother asked for visits with
A.D., but he denied her visits were “regular.” Father had refused grandmother’s requests
for visits when A.D. was sick; he had also refused her requests since April of 2013
because that was his “choice.” Father acknowledged that he had called police on mother
on several occasions, once when she was eight months pregnant, not living with him, and
she tried to break into his house.
       Stepmother testified that she considered herself to be A.D.’s mom. Mother’s
failure to appear at the June 2013 visitation hearing prompted stepmother to file the
freedom from custody petition. Stepmother acknowledged that grandmother and the
other two children had visited A.D. in the past. Stepmother denied telling grandmother

                                            4.
that she could not visit again, but she did state she was A.D.’s mom and she could control
who sees her.
       Stepmother and father both testified that they separated for a brief time in
December of 2013 due to the stress of father’s mother’s cancer diagnosis.
       Grandmother testified that she arranged visits with A.D. through father’s mother
and that she saw A.D. as often as twice a month when A.D. was a baby. She often took
mother’s other two children along on visits. According to grandmother, her visits
became less frequent when stepmother came into the picture and she had been denied
visits on occasion because father would not allow it. She last saw A.D. in June of 2013.
       After testimony of witnesses and argument of counsel, the court found that
mother’s failure to contact or support A.D. constituted presumptive evidence of her intent
to abandon A.D. In reaching its decision, the court “particularly noted” the following:
that mother chose her personal freedom over her concern for A.D. when she failed to
appear for a custody hearing; that mother was familiar enough with the court process to
have known that she could have asked to have the hearing continued; that mother was not
yet ready to regain custody of her older two children, as evidenced by grandmother’s
testimony, making it likely that mother would “just be in and out of [A.D.’s] life”; and
that mother had had no contact and provided no support for A.D. for three years.
Although the court stated it had concerns that A.D. might lose contact with grandmother
if the petition was granted, and it had concerns about A.D.’s stability with father, it
determined that A.D. would have a better chance in the care of stepmother who had
mothered A.D. since birth. The trial court then granted stepmother’s freedom from
custody petition.




                                              5.
                                      DISCUSSION

   I. SUFFICIENCY OF THE EVIDENCE TO SUPPORT SECTION 7822
      FINDINGS OF ABANDONMENT AND BEST INTERESTS OF THE
      CHILD
       Mother challenges the sufficiency of the evidence to support the trial
court’s findings under section 7822 that she abandoned A.D. Mother alleges that,
while she did not communicate with A.D. for several years, she never intended to
abandon her. She also contends that the trial court erred when it found termination
of parental rights was in A.D.’s best interest. We disagree.
       General Legal Principles
       “Section 7800 et seq. governs proceedings to have a child declared free
from a parent’s custody and control. The purpose of such proceedings is to
promote the child’s best interest ‘by providing the stability and security of an
adoptive home.’ (§ 7800.) The statute is to ‘be liberally construed to serve and
protect the interests and welfare of the child.’ (§ 7801.)” (Adoption of Allison C.
(2008) 164 Cal.App.4th 1004, 1009-1010 (Allison C.).)
       The court may declare a child free from parental custody and control if the
parent has abandoned the child. (§§ 7820, 7822.) As applicable here,
abandonment occurs when the child has been left by one parent “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).) Failure to
communicate or provide support “is presumptive evidence of the intent to
abandon.” (§ 7822, subd. (b).)
       The factual determination of intent to abandon is made by objectively
measuring the parent’s conduct. (In re B.J.B. (1986) 185 Cal.App.3d 1201,




                                             6.
1212.)2 The parent need not intend to abandon the child permanently; instead, the
parent’s intent is viewed during the period of time specified in the statute. (Allison
C., supra, 164 Cal.App.4th at p. 1015; In re Daniel M. (1993) 16 Cal.App.4th 878,
881.)
        Absent a finding of abandonment, the trial court cannot terminate parental
rights simply on a “best interests of the child” standard. (In re Baby Boy S. (1987)
194 Cal.App.3d 925, 933.) In a section 7822 proceeding, the petitioner bears the
burden to prove the elements of abandonment by clear and convincing evidence.
If the court finds abandonment, then it must consider the child’s best interests
before deciding whether to terminate parental rights. (Neumann v. Melgar (2004)
121 Cal.App.4th 152, 156 (Neumann).)
        Whether a parent has intentionally abandoned a child within the meaning of
section 7822 is a question of fact for the trial court. (Allison C., supra, 164
Cal.App.4th at p. 1011.)
        We review the court’s findings for substantial evidence, i.e., evidence that
is reasonable, credible, and of solid value. We cannot consider the credibility of
witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence.
Instead, we draw all reasonable inferences in support of the findings, view the
record favorably to the trial court’s order and affirm the order even if there is
substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24
Cal.App.4th 596, 610.)




2     In re B.J.B., supra, 185 Cal.App.3d 1201 construed former Civil Code, section
232, Family Code section 7822’s predecessor statute, as do other pre-1994 cases in this
opinion.



                                              7.
       Abandonment and Best Interests Analysis
       A section 7822 proceeding, as pertinent here, is appropriate where “‘three
main elements’” are met: (1) the child must have been left with another; (2)
without provision for support of or without communication from his or her 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].” (Allison C., supra, 164 Cal.App.4th at p. 1010, citing In re Cattalini
(1946) 72 Cal.App.2d 662, 665.)
       In determining the first element of whether a parent has “left” his or her
child with another person, the focus is “on the voluntary nature of a parent’s
abandonment of the parental role rather than on physical desertion by the parent.”
(In re Amy A. (2005) 132 Cal.App.4th 63, 69 (Amy A.).) “[A] parent will not be
found to have voluntarily left a child in the care and custody of another where the
child is effectively ‘taken’ from the parent by court order [citation]; however, the
parent’s later voluntary inaction may constitute a leaving with intent to abandon
the child [citation].” (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th
491, 504 (Marriage of D.).) Therefore, nonaction in the face of a judicial custody
order may result in a finding the parent “voluntarily surrendered” his or her
parental role. (Amy A., supra, 132 Cal.App.4th at pp. 68-69.)
       Here, A.D. had been in father’s care since May of 2010 when the court
awarded father sole legal and physical custody and ordered supervised visits for
mother. Eventually, the visits were unsupervised and continued until January of
2011. But mother failed to attend a custody hearing in February of 2011 because
she was afraid of being arrested on an outstanding warrant. As a result of
mother’s failure to attend the hearing, the court rescinded its prior visitation order
and reverted to supervised visitation at father’s discretion. The court gave mother
the right to put the matter back before the court by filing appropriate pleadings.

                                              8.
Although mother claims she wanted to have contact with A.D., she allowed over
two years to elapse without returning to court to ask for visitation. Mother
testified she used this time to clean up her life and become sober, which is
commendable. But from these facts, a reasonable inference could be drawn that
mother voluntarily surrendered her parental role and “left” A.D. in the sole care
and custody of father for a period of one year within the meaning of section 7822.
       Turning to the second element, we first note section 7822, subdivision
(a)(3) is written in the disjunctive so that a court may declare a child abandoned by
a parent if the parent failed to communicate or failed to provide support for the
statutory period. The failure to support or communicate with A.D. is presumptive
evidence of mother’s intent to abandon her. (§ 7822, subd. (b).)
       Mother admitted that she never provided any support for A.D. when she
was not in her custody, but claims she was not asked to do so. Although the
failure to support when a parent does not have the ability to do so or when no
demand is made does not, by itself, prove intent to abandon, such failure coupled
with failure to communicate may do so. (Adoption of Allison C., supra, 164
Cal.App.4th at p. 1013; In re Randi D. (1989) 209 Cal.App.3d 624, 630.)
       In determining whether a parent has failed to communicate with a child, the
trial court should consider the frequency of times the parent tried to communicate
with the child, the genuineness of the effort under all the circumstances and the
quality of any communications that occurred. (In re B.J.B., supra, 185 Cal.App.3d
at p. 1212.)
       Here, the trial court had before it ample evidence that mother failed to
communicate with A.D. for nearly three years, the bulk of A.D.’s four-year life,
triggering the presumption of abandonment. Mother admitted that she had not
seen A.D. since January of 2011. She acknowledged that she did not try to
telephone her. She made no effort to contact A.D. until May of 2013, after she

                                             9.
completed her substance abuse treatment program. But at that point, she made
only “token” efforts to communicate her desire by text messaging father, an effort
the trial court found “not reasonable.” And when she did file a request for
visitation and a hearing was set for June 20, 2013, she again failed to appear
because she was incarcerated due to another outstanding warrant.
       On the third element, the intent to abandon, mother attempts to rebut the
presumption of abandonment by asserting she was limited by father and
stepmother in her visits and had to send A.D. birthday cards and Christmas and
birthday gifts anonymously through grandmother when grandmother visited A.D.
But the evidence presented certainly established abandonment due to lack of
communication. To overcome the statutory presumption, the parent must make
more than token efforts to support or communicate with the child. (In re B.J.B.,
supra, 185 Cal.App.3d at p. 1212.) “[T]he reality is that parents sincerely
interested in maintaining contact, whether by telephone, card or personal visit,
with their children, or with the persons responsible for their care, will do so .…”
(In re Rose G. (1976) 57 Cal.App.3d 406, 420.)
       Abandonment and intent are questions of fact for the trial court, which the
trial court resolved adversely to mother’s position. (Adoption of Allison C., supra,
164 Cal.App.4th at p. 1011.) Mother essentially asks this court to reweigh the
evidence and substitute our deductions for those of the family court. This we may
not do. The credibility of witnesses and the probative value of their testimony are
questions for the trier of fact. The power to weigh the evidence and resolve issues
of credibility is vested in the trial court and not the reviewing court. (Jamison v.
Jamison (2008) 164 Cal.App.4th 714, 719.)
       Mother has failed to meet her burden of establishing that the trial court’s
findings of abandonment and intent were not supported by substantial evidence,



                                             10.
therefore those findings will not be disturbed on appeal. (In re Brittany H. (1988)
198 Cal.App.3d 533, 549.)
       Finally, we address mother’s contention that there was insufficient evidence
to find that terminating her parental rights was in A.D.’s best interests.
       If the trial court finds abandonment, then it must consider the child’s best
interests before deciding whether to terminate parental rights. (Neumann, supra,
121 Cal.App.4th at p. 156.) When considering whether to terminate a parent’s
rights, the court must liberally construe section 7822 to “serve and protect the
interests and welfare of the child.” (§§ 7800, 7801.) In doing so, the court “shall
consider the wishes of the child, bearing in mind the age of the child .…” (§ 7890;
In re B.J.B., supra, 185 Cal.App.3d at p. 1208.)
       In her report on the termination petition, the court investigator stated that
stepmother had been

       “a stable and consistent parent for the child for the past 2 1/2 years and she
       and the child have a significant bond, something lacking between the birth
       mother and child. [Stepmother] is the only mother figure this child knows.
       Although it appears [stepmother] and father recently separated for a short
       period, investigation reveals the matter was resolved within one month and
       the parties are reunited and currently share a stable and secure relationship.
       During the brief separation, the child … resided with [stepmother] and her
       younger sibling .…”
The investigator noted that A.D. was “too young to make a statement regarding these
proceedings.”
       Here, after finding mother had abandoned A.D., the trial court explicitly
found that termination of mother’s parental rights were in A.D.’s best interests.
The trial court stated it was concerned with “what is in the best interest of the
child.” Noting both father and mother’s lack of stability, the trial court stated that
its “real concern” was for A.D. to have “a real life and a real home, not a home
that’s going to break up, and not someone that’s going to drop in and out of her


                                             11.
life.” Although the trial court bemoaned the fact that it did not have the benefit of
time to see if mother’s rehabilitation was long lasting, a decision “has to be made
today.” It then stated:

       “And ultimately what’s in the best interest of this child, and if we weigh it
       out, this child has a much better chance with someone who has mothered
       the child since she was born, where there is some kind of a home life and
       we don’t have maternal grandmother having her file her guardianship on
       another child or come back into court again. [¶] Therefore, it will be the
       order of this Court … to grant the petition.”
       The test is not whether this court would have made the same order or whether the
trial court could have reasonably made some other order, but “‘whether the trial court
could reasonably have concluded that the order in question advanced the “best interest”
of the child.’” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)
       There was substantial evidence to support the trial court’s findings that
termination of mother’s parental rights was in A.D.’s best interest, and we reject mother’s
contention to the contrary.
   II. SUFFICIENCY OF ICWA INQUIRY
       Finally mother contends that the trial court failed to inquire, pursuant to the
ICWA, whether A.D. had any Indian ancestry after she indicated to the social worker that
she might. Stepmother contends that mother’s statement was insufficient to inform the
trial court that A.D. was an Indian child, triggering notice requirements. We need not
decide whether ICWA notice was required in this case because, if there was error, it was
harmless.
       The ICWA is meant to protect the interests of Indian children and promote the
security of Indian tribes and families by establishing certain minimum standards in
juvenile dependency actions. (25 U.S.C. § 1901(3); In re Kahlen W. (1991) 233
Cal.App.3d 1414, 1421.) Thus, when a child subject to a dependency proceeding is or
may be of Native American heritage each tribe of which the child may be a member or



                                             12.
eligible for membership must be notified of the dependency proceeding and of the tribe’s
right to intervene in the proceeding. (25 U.S.C. § 1912(a); In re Nikki R. (2003) 106
Cal.App.4th 844, 848.) ICWA inquiry and notice requirements apply in a section 7822
proceeding. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 226-227.)
       Here, the petition for guardianship was filed by stepmother on July 2, 2013. That
same day, father filed the Parental Notification of Indian Status (ICWA-020) stating he
had no Indian ancestry. He filed an attachment (ICWA-010) signed by stepmother
representing the same lack of A.D.’s known Indian ancestry. Stepmother filed a proof of
service that those forms had been delivered to mother on July 9, 2013.
       In the court investigator’s report filed July 30, 2013, the investigator noted that
father had filed his ICWA-020 indicating he had no known Indian ancestry. The
investigator also noted that on July 29, 2013, mother had stated she “ha[d] heard she has
Cherokee Indian ancestry in her family[,] but attempts to trace ancestry was not possible
as she does not have necessary names and birthdates.” The investigator stated she sent
mother form ICWA-020 by mail on July 29, 2013, for her completion and return. There
is no evidence in the record that mother completed or returned the form.
       At the initial hearing on August 21, 2013, on stepmother’s petition, mother was
present. She was appointed counsel. At the continued hearing on September 25, 2013,
mother was present, represented by counsel, and a contested hearing was set. On
November 13, 2013, the matter was confirmed for contested hearing on November 20,
2013. On November 20, 2013, the hearing was again continued, due to the trial court’s
schedule and the fact that mother was expected to give birth “right away.” Although not
in the reporter’s transcript of either November 13 or 20, 2013, the minute orders for both
of those dates state that stepmother was “sworn and examined”3 and that the court “finds

3      But the reporter’s transcript of that day states neither stepmother nor mother were
present.



                                             13.
the child does/does not have known Native American Indian ancestry.” At the contested
hearing finally held on January 10, 2014, no mention was made of any possible Indian
ancestry, although the trial court stated that it had read the investigator’s report.
         “Deficient notice under the ICWA is usually prejudicial [citation] but not
invariably so. [Citations.]” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.) In
this case, any deficiency in the ICWA notice was harmless error because there could have
been no different outcome even if the tribe had been properly notified and had chosen to
intervene.
         While the trial court removed mother’s parental rights, A.D. was, and always had
been in father’s custody. There is nothing in the ICWA to indicate that a tribe’s interest
in an Indian child is paramount to the parent’s interest, when that parent (in this case
father) has been found by a state court to be a fit parent. Indeed, the ICWA recognizes
the fundamental rights of parents to the custody and care of their children, inasmuch as it
does not permit a state court to transfer a child custody proceeding involving a child who
does not live on the reservation to the jurisdiction of the tribe if either parent objects to
the transfer. (25 U.S.C. § 1911(a) & (b).) Thus, the ICWA would not compel, or even
allow, a different result in this case, i.e., custody of A.D. to her father who has been
found to be a fit parent. Under these circumstances, any failure to give proper notice
under the ICWA is harmless error. (In re Antoinette S., supra, 104 Cal.App.4th at p.
1413.)
                                       DISPOSITION
         The orders are affirmed.




                                              14.
                                                             _____________________
                                                                  Franson, Acting P.J.
WE CONCUR:


 _____________________
Peña, J.


 _____________________
Chittick, J.*




*     Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                          15.
