Filed 8/27/20 Adoption of K.S. 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----



 Adoption of K.S., a Minor.                                                                    C090528


 O.S. et al.,                                                                             (Super. Ct. No.
                                                                                         18CVSA006156)
                    Petitioners and Respondents,

           v.

 H.M.,

                    Objector and Appellant;
 D.S.,

                    Respondent.




         H.M. (mother), the biological mother of K.S., a minor, appeals from a judgment
terminating her parental rights and declaring the minor free from her parental control.
(Fam. Code, § 7822 et seq.; unless stated otherwise, statutory references that follow are to
the Family Code.) Mother contends the judgment must be reversed because, in her view,
the evidence was insufficient to support the trial court’s finding she abandoned the minor


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within the meaning of section 7822 and because the record does not reflect the court
considered whether to appoint counsel for the minor. We affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
         The facts are taken from the paternal grandparents’ petition to declare the minor
free from parental custody, the court appointed investigator’s report, the reports from the
California Department of Social Services, and the paternal grandparents’ testimony.
Neither mother, nor the minor’s biological father, presented any evidence in the trial
court.
         The minor was born in 2007 to mother and D.S., her biological father (father,
collectively parents). Mother and father dated intermittently for six years but were never
married. Both mother and father have criminal histories and have been addicted to illegal
drugs for many years. Mother also has mental health issues.
         The minor had “ ‘bounced’ ” between mother and father amidst child welfare
referrals and custody battles, until she began living with her maternal grandfather and
paternal grandparents in a shared living arrangement. The paternal grandparents filed for
guardianship at the request of the minor and assumed fulltime custody of the minor when
they were granted temporary guardianship on December 9, 2018. Neither mother nor
father participated in, or appeared in court for, the guardianship hearings, and neither
parent ever sought to overturn the guardianship. As part of the guardianship order, the
court also ordered both parents to maintain contact with Family Court Services and
complete (and show proof thereof) specified addiction and dependency services.1
Neither parent complied.



1  Specifically, mother was ordered to complete a 12-month drug and alcohol program,
attend a 90-day residential drug treatment program, and drug test at her own expense.
Mother was further ordered to attend a parenting program and to sign releases allowing
Family Court Services and Shasta County Child Protective Services to access her mental
health information.

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         The letters of guardianship provided the parents visitation rights at the discretion
of the paternal grandparents. Nonetheless, father never called to speak to the minor and
never requested visits. He visited the minor four times in 2017 and once in 2018, but
each visit was facilitated by the paternal grandparents. He has not had, or made any
attempt to have, any contact with the minor since September 2018, and the last gift he has
given the minor was a Christmas gift in 2017. He never provided any support for the
minor.
         Mother’s efforts at contact were also minimal. She visited the minor only a
handful of times after the guardship—each visit supervised at the paternal grandparents’
home. The paternal grandparents described mother’s visits as “out of the blue” and stated
she was always late. She visited the minor three times in 2017—the last visit being on
December 23, 2017. She has not visited, nor requested a visit, since December 2017.
Mother also called the minor for her birthday in July 2017. Mother attempted to call the
minor for her birthday in July 2018, but the paternal grandmother would not permit her to
speak with the minor because mother was under the influence of heroin at the time.
Mother has not called or attempted to contact the minor in any way since July 2018.
Mother never sent the minor any cards or letters and, like father, the last gift she has
given was a Christmas gift, in 2017. She never provided any support for the minor.
         At the request, and with the consent, of the minor, the paternal grandparents filed a
petition to declare the minor free from parental custody and terminate parental rights,
with a supporting declaration on February 28, 2019. The paternal grandparents sought to
adopt the minor, who calls them “mom” and “dad,” and provide the minor with the
stability and permanency the minor wants and needs.
         Several months before filing the petition seeking termination of parental rights, the
paternal grandmother attempted to contact mother about the adoption. Mother did not
return the contact. The adoptions specialist at California Department of Social Services
also attempted to contact the parents. Father did not return her detailed message and

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request for a return call. The adoptions specialist was unable to leave a voicemail for
mother and mother did not complete the declaration of mother form.
       The court appointed investigator also attempted to contact the parents. She sent
father messages by telephone, social media, and mail. The person answering the
telephone told her she had the wrong number, the mail was returned with no forwarding
address, and she got no response from social media. The investigator sent mother a letter
at the maternal grandfather’s address and attempted contact through social media. She
got no response to either effort. Mother’s friend told the investigator she would send
mother a text message instructing mother to contact the investigator’s office. Mother did
not contact the office, so the friend provided the investigator with mother’s current cell
phone number. The investigator called the number and an individual named “Michelle”
answered the call and reported that mother was at the store and would return the call as
soon as she returned. Mother did not return the call and did not answer subsequent calls
placed by the investigator to her number. The maternal grandfather also requested
mother call the investigator, to no avail. The adoptions specialist and the court appointed
investigator both supported the paternal grandparents’ petition seeking to terminate
parental rights and adopt the minor.
       Mother appeared at the May 15, 2019 hearing on the petition. Father did not
appear. Mother was appointed counsel and the matter was continued to June 5, 2019, for
confirmation of counsel. Mother was ordered to submit to a drug test. Mother also
appeared, with counsel, at the June 5, 2019 hearing. Mother had not drug tested and
claimed she thought she had to drug test only when she was going to see the minor. The
court “clarif[ied]” that mother was ordered to take the drug test at the previous hearing.
The hearing was continued to July 22, 2019, for an estimated two-and-a-half-hour
hearing.
       Mother did not appear at the July 22, 2019 hearing, although her counsel was
present. The paternal grandparents testified briefly, answering questions from the court

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and mother’s counsel. At the conclusion of the hearing, the court granted the petition,
finding mother had not contacted the minor since December 2017 and specifically found
mother’s attempted telephone call in July 2018 to have been a “token contact.” The court
found father had no contact with the minor since September 2018. The court further
found neither parent had provided support since December 2016 and that the parents had
abandoned the minor within the meaning of section 7822. Mother’s and father’s parental
rights were terminated. The court’s written order was filed on July 25, 2019. Mother
filed a timely appeal on September 23, 2019.
                                      DISCUSSION
                                             I
                          Substantial Evidence of Abandonment
       Mother contends there is insufficient evidence to support the trial court’s findings
that she “left” the minor in the paternal grandparents’ care and custody and intended to
abandon the child within the meaning of section 7822, subdivision (a)(2). We disagree.
       A proceeding to free a child from the custody and control of a parent may be
brought when “[t]he child has been left by both parents or the sole parent in the care and
custody of another person for a period of six months without any provision for the child’s
support, or without communication from the parent or parents, with the intent on the part
of the parent or parents to abandon the child.” (§ 7822, subd. (a)(2).) Proof of an “intent
to abandon for the statutory period,” rather than permanently, suffices. (In re Daniel M.
(1993) 16 Cal.App.4th 878, 886.)
       The failure to communicate with a child is presumptive evidence of an intent to
abandon. (§ 7822, subd. (b).) To overcome the statutory presumption, the parent must
make more than token efforts to support or communicate with the child. (Ibid.) In
determining a parent’s intent to abandon, the court may take into consideration the
frequency of a parent’s efforts to communicate with the child, the genuineness of the



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effort under all the circumstances, and the quality of the communication that occurs. (In
re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.)
       In reviewing the trial court’s findings under section 7822, we apply the substantial
evidence standard of review. (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th
491, 503 (Marriage of Jill).) We do not pass on the credibility of witnesses, resolve
conflicts in the evidence, or determine the weight of the evidence, but simply determine
whether there is substantial evidence, believed by the trial court, that supports the court’s
findings. (Ibid.) “ ‘The questions of abandonment and of intent . . . , including the issue
of whether the statutory presumption has been overcome satisfactorily, are questions of
fact for the resolution of the trial court.’ ” (Id. at p. 506.) “ ‘The appellant has the burden
of showing the finding or order is not supported by substantial evidence.’ [Citation.]”
(Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.)
       “In determining the threshold issue of whether a parent has ‘left’ . . . her child, the
focus of the law is ‘on the voluntary nature of a parent’s abandonment of the parental role
rather than on physical desertion by the parent.’ [Citations.] [¶] Thus, this court has
held that 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].” (Marriage of Jill, supra, 185 Cal.App.4th at p. 504, italics
added.)
       Here, there is no dispute the minor was removed from parental custody by a
judicial decree in 2016 and has remained in the paternal grandparents’ custody and care
since that time. However, the evidence amply demonstrates that, despite such court
intervention, mother “left” the minor within the meaning of section 7822 by her own,
voluntary inaction.
       Mother was permitted postguardianship supervised visitation with the minor and
participated in some visits in 2017. She did not, however, attempt to have any visits with

                                              6
the minor after December 2017. The paternal grandparents had the same telephone
number throughout the guardianship and mother knew where they live. Nonetheless,
mother made only one attempted telephone call, while noticeably under the influence of
heroin, around the minor’s birthday in July 2018 and, since then, made no attempts at any
contact at all. She did not send the minor cards or letters and did not provide any support.
Mother did not testify or put on any evidence that she did not intend to abandon the
minor to overcome the presumption.
       Mother argues her failure to contact the minor after July 2018 was not a result of
voluntary inaction because she “believed that she needed to drug test clean if she wanted
to see [the minor].” There is simply no evidence in the record to support this conjecture.
Not only was there no evidence that mother believed she had to test clean in order to call
or visit the minor during the guardianship, there was no evidence to support such a belief.
For example, there was no evidence mother drug tested prior to her 2017 visits. Nor was
there any evidence the paternal grandparents told her she had to drug test prior to calls or
visits. In fact, the paternal grandfather testified that “[t]he only rule we have with
[mother] about contacting [the minor] is we know where she’s at and a phone number if
she’d like to have contact.” The paternal grandfather then added that “[mother’s] always
had the opportunity to come by, have supervised visitation at any time. That was her
choice not to do that.”
       The only evidence in the record regarding mother’s belief about drug testing was
her statement to the court that she had not drug tested after the May 15, 2019 hearing, as
ordered by the court, because she thought the drug test was only when she was going to
see the minor; and the court clarified that she had, in fact, been ordered to test at the
May 15, 2019 hearing. This is not evidence of mother’s beliefs regarding a precontact
testing requirement during the guardianship.
       Moreover, mother acknowledges that sending letters, cards, and gifts, may also be
considered by the court when determining the frequency of a parent’s efforts to

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communicate with the child, the genuineness of the effort, and the quality of the
communication. (See In re Cattalini (1946) 72 Cal.App.2d 662, 667-668.) Nonetheless,
mother has offered no excuse as to why she did not communicate with the minor in these
ways, even if she did believe she had to drug test clean prior to visits.
       Citing In re H.D. (2019) 35 Cal.App.5th 42, mother argues that her failure to
contact the minor between July 2018 and the hearing did not show she intended to
abandon the minor because she was working to treat her addiction at that time. In that
case, the children had been placed in the father’s temporary sole custody due to the
mother’s substance abuse. (Id. at pp. 45-46.) The mother attempted to contact the
children several times after the custody order but the father, in protection of the
children’s interests, prohibited all contact. (Id. at p. 46.) The mother then spent a year in
rehabilitation, after which she filed a request to modify the custody order. (Ibid.) The
children’s stepmother filed petitions to free the children from the mother’s custody and
control under section 7822 so she could adopt them, alleging the mother had not been in
contact with the children for more than a year. (In re H.D., at pp. 46-47.) The court held
that, because the father had prevented the mother from contacting the children, the
mother’s failure to maintain contact with them was not evidence of her intent to abandon
them. (Id. at pp. 52-53.) In re H.D. is inapposite.
       First, unlike the mother in In re H.D., mother failed to show she was working to
treat her addiction during that time, so as to permit an inference that this, not
abandonment of the minor, was her intent at the time. Although she had been ordered to
drug test and participate in addiction treatment, mother did not provide any evidence of
her sobriety, her participation in a drug treatment program, or repeated refused attempts
to contact the minor. The only evidence in the record of any attempt by mother to
address her addiction is a reference from a process server, who indicated mother replied
to a social media contact on March 15, 2019, and claimed she was in Oregon in a



                                              8
rehabilitation center and would call the process server when she returned to Redding,
California.
       Additionally, unlike the mother in In re H.D., mother has not shown she was
prohibited from contacting the minor or that she has been in a rehabilitation program
throughout all or most of the statutory timeframe. Mother was permitted card and letter
contact, supervised in-person contact, and telephone contact. She was prevented from
speaking to the minor on only a single occasion, when she called while noticeably under
the influence of heroin. Unlike In re H.D., this is not a case of mother being unable to
contact the minor. Mother was permitted contact with the minor and simply chose not to
exercise that privilege. The evidence, as we have recited, amply supports the trial court’s
finding that mother had not contacted the minor for well over the statutory timeframe,
with the intent to abandon the minor.
       Finally, mother points out that where a parent has an inability to support, the
presumption of an intent to abandon arising from the failure to provide support is
dispelled. (In re Cattalini, supra, 72 Cal.App.2d at p. 667.) In this respect, she argues
the paternal grandparents did not prove she had the financial ability to provide support so
as to render her failure to provide support evidence of her intent to abandon. With no
authority for so doing, mother appears to place the burden on the petitioners to provide
evidence disproving the existence of a fact which might dispel the presumption in their
favor. If mother wished to dispel the presumption, it was incumbent upon her to present
evidence of her financial inability to provide support. (Evid. Code, § 604; In re Aubrey
T. (2020) 48 Cal.App.5th 316, 327; see also In re Gano (1958) 160 Cal.App.2d 700,
706.) She did not. In any event, mother’s failure to communicate with the minor was
sufficient, without consideration of her additional failure to provide support, to find an
intent to abandon.




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                                               II
                             Appointment of Counsel for Minor
       Mother also contends the court’s order terminating her parental rights must be
reversed because there is no evidence in the record that the court considered whether it
would be in the minor’s best interests to appoint her counsel. While mother correctly
notes that section 7861 requires the court “consider whether the interests of the child
require the appointment of counsel” in section 7822 cases seeking termination of parental
rights, and there is no indication in the record that the court considered the matter, we
find the error of the court failing to do so in this case harmless.
       “Statutes authorizing an action to free a child from parental custody and control
are intended foremost to protect the child. (In re Sherman M. (1974) 39 Cal.App.3d 40,
45.) Typically, such statutes are invoked for the purpose of terminating the rights of one
or more biological parent, so the child may be adopted into a stable home environment.
(See § 7800 [‘The purpose of this part 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’]; In re Daniel M. (1993) 16 Cal.App.4th 878,
883-884 (Daniel M.).) In any event, the best interests of the child are paramount in
interpreting and implementing the statutory scheme. (See Daniel M., supra, at pp. 883-
884.) Indeed, our Legislature has declared that the statutory scheme ‘shall be liberally
construed to serve and protect the interests and welfare of the child.’ (§ 7801.) It further
directs that the trial 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.’ (§ 7890, italics added.)”
(Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162-163 (Neumann).)
       At the commencement of a proceeding on a petition to free a child from parental
custody and control, section 7860 provides that “counsel shall be appointed as provided
in this article.” Under section 7861, “[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

                                              10
child require representation by counsel, the court shall appoint counsel to represent the
child, whether or not the child is able to afford counsel.” (Italics added.) Construing the
statutory predecessor to section 7861, the California Supreme Court held that “in absence
of a showing on the issue of the need for independent counsel for a minor, failure to
appoint constitutes error.” (In re Richard E. (1978) 21 Cal.3d 349, 354.) Nonetheless,
the “failure to appoint counsel for a minor in a freedom from parental custody and control
proceeding does not require reversal of the judgment in the absence of miscarriage of
justice.” (Id. at p. 355; see also In re Mario C. (1990) 226 Cal.App.3d 599, 606.)
Counsel need be appointed for the children only if the trial court, in its discretion,
determines that their interests are not satisfactorily represented during the adjudication of
the other issues. (Richard. E., at p. 354.)
       “[I]n proceedings to free a child from parental custody and control, typically each
side asserts it is protecting the best interests of the child and, in the process, the court
becomes fully advised of matters affecting the child’s best interests.” (Neumann, supra,
121 Cal.App.4th at p. 170.) Here, the court appointed investigator provided a lengthy
and detailed report to the court, outlining the family’s past and current circumstances, as
well as the 11-year-old minor’s feelings on the subject of adoption and termination of
parental rights. The state adoptions specialist also provided a report to the court and the
paternal grandparents were subjected to cross-examination by mother’s counsel at the
hearing. The court was fully advised of the matters affecting the minor’s interests.
       Mother argues there was some evidence the paternal grandparents were restricting
the minor’s relationship with the maternal grandfather, which mother argues may not
have been in the minor’s best interests. As mother acknowledges, this information was
presented to the trial court for consideration and, in fact, was fleshed out upon
questioning by mother’s counsel at the hearing. Minor’s lack of separate counsel did not
result in prejudice in this regard.



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       Mother also argues there was evidence the minor did not understand the impact of
adoption and, without counsel, did not make an informed choice that adoption was her
preference. She argues the minor needed counsel so the impact and consequences of
adoption could be communicated to the minor in an age appropriate way. She argues
evidence of the minor’s misunderstanding is reflected in the minor’s statement to the
court appointed investigator, made after noting that she had last seen mother in December
2017 and that her parents never call her, that she wished parents would stop doing drugs
for the rest of her life, that her birth parents would be back together, or even if they did
not, that they would “all get along and be family again.” In light of the fact that the
minor is being adopted by her paternal grandparents and has an ongoing relationship with
the maternal extended family members, mother’s construction of the minor’s comments
is tenuous, at best. In any event, the investigator stated that she had a private interview
with the minor and explained the nature of the proceedings to her, and expressly stated
that the minor “has a good understanding of the meaning of adoption.” Thus,
appointment of separate counsel for the minor for this purpose was not necessary.
       The central issue in this case was whether parents had left the minor without any
provision for support, or without communication, with the intent to abandon the child
since they had ceased contact in 2017. It was not a close case and it was properly
determined by the trial court. (See In re Sarah H. (1980) 106 Cal.App.3d 326, 330.)
There was no miscarriage of justice in the failure to consider appointing separate counsel
for the minor. (In re Richard E., supra, 21 Cal.3d at p. 355.)




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                                    DISPOSITION
      The judgment (terminating parental rights) is affirmed.



                                                   /s/
                                               RAYE, P. J.



We concur:



    /s/
ROBIE, J.



   /s/
MAURO, J.




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