Filed 4/10/13 Adoption of X.Z. CA3
                                                 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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
                                           THIRD APPELLATE DISTRICT
                                                           (San Joaquin)
                                                                    ----



Adoption of X.Z., a minor.

D.T.,

                     Petitioner and Respondent,                                                           C072109

          v.                                                                               (Super. Ct. No. FL363663 )

D.Z.,

                     Objector and Appellant.


          D.Z., father of the minor, appeals from a judgment declaring the minor free from
the custody and control of his natural father. (Fam. Code, § 7860 et seq.) Father
contends (1) the trial court erred in failing to appoint counsel for, and interview, the
minor and (2) substantial evidence did not support the trial court’s finding he abandoned
the minor within the meaning of Family Code section 7822. We conclude any error in
failing to interview the minor or not appointing counsel for the minor was harmless. We
reject father’s substantial evidence contention. There was ample evidence supporting the
trial court’s finding that father abandoned the minor. Accordingly, we affirm the
judgment.

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                                          FACTS
       In December 2009, stepfather filed an adoption request. The request alleged father
had abandoned the 10-year-old minor because there had been no contact from father in
more than a year. Probation Officer Harmon, while investigating the matter in January
2010, contacted father who was in jail. Father refused to consent to adoption and said he
was due to be released soon. Harmon told father to contact the family court if he wanted
visitation.
       Harmon’s stepparent adoption report stated mother lost contact with father when
the minor was about three years old. Prior to that time the parents had an informal
visitation agreement, which the mother ended when father threatened to take the minor to
Mexico. Shortly thereafter, father and another person tried to break into mother’s home.
At that time, mother got a restraining order against father and also filed for custody and
child support orders. Father did not attend these hearings but did appear at a hearing on
visitation initiated by the paternal grandmother. Visitation was denied and mother said
father made no further effort to contact the minor.
       In April 2011, a petition to free the minor from father’s custody was filed. The
petition alleged father left the minor without provision for support and had not contacted
the minor from August 2001 to the present.
       In March 2011, father was sent letters regarding consent to adopt and again
declined to consent. Father called Harmon and said he went to family court but the filing
fees were too expensive. Harmon gave father information about the adoption petition
process but had no further contact from him.
       Harmon’s report stated the minor was living with his mother and stepfather.
When interviewed, the minor was fully aware of the adoption petition and expressed
interest in being adopted soon. He wanted to change his last name because he did not
like his current last name. He did not want to have to see father or go with him. When
asked if there was anything the minor would like to tell the judge, the minor stated, “It’s

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so important so he [father] can’t take me anymore.” The report discussed the family and
residence of mother and stepfather who were married in 2007. Harmon believed the
stepfather was suitable to adopt the minor and the best interests of the minor would be
served if the adoption petition were granted.
       A social worker from the San Joaquin County Human Services Agency (Agency)
prepared an evaluation and report pursuant to Family Code section 7850. The report
described the minor as a generally healthy child who was developing normally, doing
well in school, and had no behavioral problems. Mother and stepfather had provided a
stable nurturing family for the minor. The stepfather wanted legal status as the minor’s
father in the event anything happened to mother, and the name change for the minor
would make him clearly a part of the family.
       The social worker’s report also set forth the facts supporting the allegations of
father’s abandonment. Mother lived with father for several years until his drug use
caused her to ask him to leave in 2001, when the minor was about two years old. They
had an informal visitation agreement but father did not visit as scheduled. Father did not
appear at a court hearing regarding visitation and mother was awarded full custody of the
minor. Although ordered to do so, father never paid child support and never called or
sent cards or gifts to the minor for birthdays or holidays. After father and his friends tried
to break into her home, mother got a restraining order, which was lifted in 2003. Father
was in and out of custody over the intervening years and was in custody in 2009 when the
stepfather tried to adopt the minor. Father was unwilling to give consent at that time.
Mother and stepfather decided to wait on the adoption to see if father would try to
establish a relationship with the minor. Father made no attempt to do so.
       The social worker explained to the minor what adoption would mean to him and
he said he understood. The minor told the social worker he really wanted to be adopted,
and would then have the same last name as the rest of his family. He was clear that his
stepfather was a good “dad” and they enjoyed a positive relationship. The minor said he

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did not know father and would not recognize him if he saw him. The minor was
somewhat bothered that father did not want to contact him or know him and said he did
not “want a father that doesn’t want me.” The minor was informed of his right to be
present at the hearing but stated he did not care either way. The minor did not attend the
hearing.
       The social worker concluded Family Code section 7822, subdivision (a), applied
and the facts demonstrated that father abandoned the minor. The social worker felt
adoption would “positively impact the minor’s emotional well being” and would be in his
best interests. The Agency recommended termination of father’s parental rights with
adoption by the stepfather.
       At the hearing, mother testified the court ordered child support in 2003 but she
received no support from father thereafter. She then filed for custody and restraining
orders. Mother stated father had no contact with the minor since the minor was about
three and he is now 12. Mother testified she did not try to keep her address secret from
father. Father did try to get her address and telephone number through her brother about
three years ago, but mother did not provide it. Mother testified that the minor goes to the
same school as father’s nephews but their parents did not tell her father was asking for
contact information for her. She had not had contact with father’s family since the
paternal grandmother took her to court seeking visitation with the minor. Within the last
year, father did tell a friend of hers he bought a bike for the minor.
       Father testified it was difficult to contact the minor because he did not know where
mother lived. He did not try to approach her because of a restraining order and his family
was “stonewalled” when they tried to get information. Father testified he was in prison
when mother filed for custody. He did leave a note for mother’s brother asking the
brother to contact him and continuously tried over the years through family to contact
mother and the minor. Father said he had been in custody about 26 months during the
last six years and about 48 months in the last nine years. Father said Harmon contacted

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him about adoption of the minor when he was in jail in 2009 and he told Harmon he
objected to it. When released in May 2010, he tried to contact Harmon and also went to
family court to pursue the matter, but the fees were more than he could afford and he did
not understand the pro per packet so he waited until the current proceedings. Father
testified he initially paid some support. Father stated he had no intent to abandon the
minor.
         The stepfather testified he met the minor in 2003. They developed a relationship
over the years. He provides support and guidance to the minor and loves him very much.
He never met or had conversations with father. The stepfather asked the trial court to
consider a statement prepared by the minor. The court declined to do so because the
parties had not agreed the statement could be considered, but noted the minor’s
statements were in the report.
         In July 2012, the trial court issued a written decision finding abandonment by
father and declaring the minor free from the custody and control of father.
         The court found mother’s testimony “very credible” in that father made no
attempts to provide for or contact the minor. Mother said father’s family did not attempt
to contact her although the minor and father’s nephews went to the same school. Mother
acknowledged an attempt by father three years earlier to get her telephone number but
father did not say his attempt related to the minor. That was father’s only attempt.
Father did not exercise his visitation with the minor under the early informal agreement,
he failed to provide support when ordered to do so, and he sent no cards or letters to the
minor.
         The court also found stepfather’s testimony that he was the only father the minor
knew and he had never seen or heard from father to be credible. The court noted the
minor’s statement that “he would not recognize his natural father if he bumped into him
on the street.” The court found the evidence established the presumption of
abandonment.

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       Assuming father’s few efforts to contact the minor over the last nine years really
happened, the court found father’s efforts were not even token efforts. The court further
found father’s incarceration did not impede his ability to contact the minor since the
majority of the time he was not in custody and could have made serious efforts to find the
minor. The court noted father presented no proof of support payments or testimony from
relatives or other witnesses about attempts to contact mother.
       In conclusion, the court found that failure to provide support for the minor for over
a year coupled with failure to communicate with the minor for that period established by
clear and convincing evidence father had the intent to abandon the minor. The court
declared the minor free from the custody and control of father.
                                       DISCUSSION
                                              I
                                      Minor’s Interests
       Father contends the trial court erred in failing to consider whether the minor’s
interests required the appointment of counsel and interview the minor prior to making
that decision.
                                              A.
                                  Appointment of Counsel
       In a proceeding to declare a minor free from the custody of a parent, “[t]he court
shall consider whether the interests of the child require the appointment of counsel. If the
court finds that the interests of the child require representation by counsel, the court shall
appoint counsel to represent the child, whether or not the child is able to afford counsel.”
(Fam. Code, § 7861.)
       The statute does not require the court to indicate on the record whether the
interests of the minor do or do not require appointment of counsel. In the absence of any
evidence to the contrary, we may presume the court performed the required task of



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considering the minor’s interests and determining counsel was not required. (Evid. Code,
§ 664.)
       Even assuming the court did fail to consider the interests of the child, reversal is
not required. When the claimed error is a violation of a statutory duty, an appellant must
show prejudice. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419 [failure to comply
with statutory notice]; People v. Henning (2009) 178 Cal.App.4th 388, 398 [failure to
allow defendant to enter the plea of his choice].) Here, father argues there was prejudice
because the minor’s counsel might have sought visitation between father and the minor
and the minor’s interests would have been protected. We are not persuaded.
       Failure to appoint counsel for a minor in a freedom from custody case does not
require reversal in the absence of a miscarriage of justice. (In re E. (1978) 21 Cal.3d 349,
355.) The question in appointing counsel for a minor is whether the minor has separate
interests not otherwise protected in the contest between mother, stepfather, and father.
(Id. at p. 354.) Based on the testimony and the information in the reports, it was clear the
minor’s interests aligned with those of mother and stepfather and could be protected by
them. Based on the record, there was no miscarriage of justice in not appointing counsel
for the minor.
                                             B.
                                 Interview with the Minor
       “[T]he court shall consider the wishes of the child, bearing in mind the age of the
child and shall act in the best interest of the child.” (Fam. Code, § 7890.) “[I]f the child
who is the subject of the petition is 10 years of age or older, the child shall be heard by
the court in chambers” on the child’s feelings and thoughts about the proceeding, the
parents, and custody preference. (Fam. Code, § 7891.) Further, the court shall inform
the child of the child’s right to attend the hearing. (Fam. Code, § 7890.) However, “[t]he




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child shall not be present in court unless the child so requests or the court so orders.”
(Fam. Code, § 7861.)1
       Although the legislative preference is clear, there is no absolute requirement that a
minor always be interviewed by the court. (In re Jack H. (1980) 106 Cal.App.3d 257,
269.) Here, the minor had been interviewed by the probation officer and the social
worker. His position on adoption and his feelings about father were clear and consistent
over time. An additional interview by the court would not have revealed new or different
information. We conclude any error in failing to interview the minor was harmless.
       Father relies on Neuman v. Melgar (2004) 121 Cal.App.4th 152, which found
reversible error in a freedom from custody case where the court did not receive the
evaluator’s report in evidence, interview the minor, or consider whether to appoint
counsel for the minor. (Id. at pp. 168-171.) The Neuman case is factually
distinguishable. Here, the court admitted into evidence two evaluation reports, both of
which contained similar information on the minor’s thoughts and feelings about the
adoption and his parents. Also, the minor’s interests were aligned with mother and
stepfather and could be protected by them. Based on the record, we conclude any error in
failing to interview the minor or not appointing counsel for the minor was harmless.
                                              II
                                    Substantial Evidence
       Father contends substantial evidence does not support the trial court’s finding that
he intended to abandon the minor.




1      We note there is a requirement that a citation issue commanding the custodial
parent to bring the minor to court. (Fam. Code, § 7880.) No such citation issued and the
court did not issue any other order for the minor to appear. The minor did not express
any interest in appearing and was not present at the hearing.

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        When the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and convincing, the
reviewing court must determine if there is any substantial evidence -- that is, evidence
that is reasonable, credible, and of solid value -- to support the conclusion of the trier of
fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d
1206, 1214.) In making this determination we recognize all conflicts are to be resolved
in favor of the prevailing party and issues of fact and credibility are questions for the trier
of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990)
217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when
assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319.)
        A proceeding to free a child from the custody and control of a parent may be
brought 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.” (Fam. Code, § 7822, subd. (a)(3).) “The failure . . . to provide support or failure
to communicate is presumptive evidence of the intent to abandon. If the parent [has]
made only token efforts to support or communicate with the child, the court may declare
the child abandoned by the parent.” (Fam. Code, § 7822, subd. (b).)
        There was ample evidence supporting the trial court’s decision. After father was
asked to leave mother’s residence, he did not contact or provide support for the minor.
Assuming father actually made the efforts to contact or support the minor about which he
testified, those efforts were, at best, token efforts and inadequate to rebut the presumption
of abandonment established by the credible evidence in the reports and mother’s
testimony. Father was not hampered in his efforts by his time in custody since he was out
of custody for the majority of the minor’s life. Even after father was aware of the
adoption request and petition to free the minor from father’s custody and control, he did

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not make any significant efforts to create or develop a parental role in the minor’s life.
The trial court resolved conflicts in the evidence adversely to father. We may not
reweigh the evidence to reach a different conclusion.
                                      DISPOSITION
       The judgment is affirmed.



                                                     HOCH            , J.



We concur:



       RAYE            , P. J.



       HULL            , J.




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