Filed 11/18/14; pub. order 12/5/14 (see end of opn.)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                               DIVISION EIGHT


Adoption of I.M., a Minor.                                 B255038
                                                           (Los Angeles County
                                                           Super. Ct. No. BT55600/BN5881)

C.M.,

         Plaintiff and Respondent,

         v.

S.R.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Amy Pellman,
Judge. Affirmed.
         Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Janette Freeman Chocran, under appointment by the Court of Appeal, for Minor.
         Angela M. Rooney for Plaintiff and Respondent.


                                                       ******
          S.R., the presumed father of I.M. (father), appeals from the trial court’s order finding
I.M.’s adoption by her stepfather could proceed without father’s consent. The court’s order
was based on the ground that father had failed to communicate with I.M. and pay for her
care and support for over one year, under Family Code section 8604, subdivision (b).1 We
affirm.
                               PROCEDURAL BACKGROUND
          Stepfather, C.M., filed a request to adopt I.M. in January 2013. I.M. was nine years
old at the time. The request did not indicate whether father would consent to the adoption.
Mother signed her consent to stepfather’s adoption of I.M. in May 2013.
          The Los Angeles County Department of Children and Family Services (DCFS)
contacted father, who was incarcerated. Father indicated he did not consent to the adoption.
          In July 2013, stepfather filed a petition requesting an order freeing I.M. from father’s
custody and control. The petition stated stepfather was the spouse of mother, who had sole
legal and physical custody of I.M. It further stated father was incarcerated for felony
convictions and had not had contact with I.M. since 2006. The court issued a citation to
father advising him that he could appear on September 4, 2013, to show cause why I.M.
should not be declared free from his custody and control.
          Father filed a motion for continuance and request for a removal order under Penal
Code section 2625 so that he could be present for the hearing. His motion also requested
that the court appoint Attorney Mitchell Sperling to represent him because Sperling was
already “knowledgeable about some aspects of this matter.” Father also filed an opposition
to stepfather’s petition. Sperling appeared at a hearing on August 21, 2013, on behalf of
father and indicated father’s wish to contest the petition. The court instructed Sperling to
file a substitution of attorney and set the matter for trial on December 17, 2013.




1         Further undesignated statutory references are to the Family Code, unless otherwise
stated.



                                                  2
        The probation office submitted a report recommending the court grant stepfather’s
petition. DCFS submitted a report recommending conditional approval of stepfather’s
adoption. Stepfather filed a declaration from mother in response to father’s opposition.
        On the December date set for trial, counsel for stepfather and counsel for I.M.
appeared. Counsel for father did not appear, but he had communicated via telephone with
stepfather’s and I.M.’s counsel “regarding his inability to be present and his assumption that
the matter had been continued due to settlement.” Stepfather’s and I.M.’s counsel informed
the court that the parties had reached a settlement but had yet to finalize it, and they had
circulated a contact after adoption agreement, which father’s counsel had mailed to father.
The court set a status conference for February 5, 2014, and continued trial to February 20,
2014.
        At the status conference on February 5, father’s counsel appeared telephonically.
The parties continued to indicate there was a possibility of settlement. On February 20, the
court went forward with trial. Father’s counsel appeared on his behalf.
        After trial, the court found father was a parent within the meaning of section 8604,
subdivision (b) in that he had left I.M. with mother for a period greater than one year, and he
had failed to communicate with I.M. and pay for her care, support, and education during that
time. The court further found father’s failures to communicate and pay support were willful
and without lawful excuse. The court ordered that the consent of father was not necessary
for the adoption to proceed and no further notice of the proceedings need be given to father.
        Father filed a timely notice of appeal from the court’s order. Counsel for I.M. has
filed a respondent’s brief in which stepfather joins.
                                FACTUAL BACKGROUND
        During these proceedings, father was incarcerated in Tehachapi, California. Father’s
opposition to stepfather’s petition stated father had not abandoned contact with I.M.
voluntarily; instead, mother had kept I.M.’s contact information from father and had
intentionally prevented contact. Further, mother never asked for support for I.M. and never
initiated contact with father, even though she was aware of how to contact him. Father



                                               3
reported that he was on the wait list for enrollment in substance abuse prevention programs
and parenting classes.
       Mother’s declaration in support of the petition explained she and father were together
from early 2002 to June 2005, when they separated because father became abusive and was
using methamphetamine. They never married. I.M. was born in June 2003. Father worked
some odd jobs while he and mother were together, but he did “not really” provide support
for the family. Father had seen I.M. only twice since the separation, both times when she
was approximately two and a half years old.
       Mother said she met stepfather when I.M. was three years old, and she married
stepfather when I.M. was five years old. I.M. refers to stepfather as “daddy,” and they have
a father-daughter relationship. For example, stepfather taught her to swim and ride a
bicycle, tucks her in at night, attends her soccer practices and orchestra performances, helps
her with homework, and takes her to the “Daddy Daughter Dance” at school. In 2010,
I.M.’s last name was legally changed to stepfather’s last name. DCFS reported that
stepfather’s references described him as responsible, hardworking, caring, and trustworthy.
Stepfather told the DCFS social worker that he viewed I.M. as his own child. I.M. told the
social worker that she wanted stepfather to adopt her.
       In July 2005, mother filed a petition to establish parental relationship to which father
never responded. In June 2006, the court in that proceeding entered a default judgment for
custody and support awarding mother sole physical and legal custody of I.M. The default
judgment ordered that father pay 50 percent of reasonable uninsured health care costs for
I.M. but did not otherwise impose a mandatory child support payment because father was
unemployed at the time and had no income. The default judgment also ordered reasonable
supervised visitation. Father never had supervised visitation with I.M. Father gave mother
money for I.M.’s support once, sometime in 2006, in the amount of $500.
       Mother obtained a three-year restraining order against father in August 2005, which
restrained him from contacting her except for brief and peaceful contact as required for
visitation. Despite the restraining order, mother said father continued making harassing
telephone calls to her until she changed her telephone number.


                                               4
       Father filed an order to show cause (OSC) for child custody and visitation in August
2009. The parties scheduled a mediation conference on the OSC, but it did not occur
because father failed to appear. At the OSC hearing in December 2009, at which father’s
counsel was present, the court ordered father could have visitation and contact with I.M.
only if he completed reunification therapy. It also ordered father to submit to a full panel
random drug testing. Father never engaged in reunification therapy.
       Mother asserted she had not kept I.M.’s contact information from father, as father
alleged. She had only changed her telephone number because of his harassing calls in
violation of the restraining order. But father knew where she lived and worked and where
I.M.’s maternal grandfather lived and worked. Mother had worked at the same firm since
I.M. was three years old, and father had contacted her there before. He could have tried to
contact I.M. through any of these means.
       There were only two occasions when father asked to see I.M., both around 2008 or
2009, and mother did not give her consent because the circumstances were not consistent
with the court orders in place. First, in 2008 or 2009, father was getting married in Las
Vegas and wanted I.M., who was five or six years old at the time, to attend. Father
contacted mother at her workplace. I.M. had not had contact with father in three to four
years, and he had never before exercised his right to supervised visitation. The custody
order required not only reasonable supervised visitation but mother’s consent to I.M.
traveling outside of Los Angeles County with father. Under these circumstances, mother
did not give her consent. Second, in July 2009, father wanted I.M. to attend a birthday party
for his other child. Mother believed the situation was not going to be supervised as required
by the court order and did not permit I.M. to go to the party. Mother had not heard from
father since July 2009.
       The probation officer’s report found that father had “clearly” abandoned his
responsibilities to I.M., even prior to being incarcerated. The officer was also clear that
stepfather had “maintained a positive and loving environment” for I.M., who was
flourishing with stepfather and mother.



                                               5
                                         DISCUSSION
1. Father’s Absence at Trial
       Father contends the trial court erred by failing to issue a removal order for his
transport to court and by proceeding in his absence. We are not persuaded.
       Father relies on Penal Code section 2625, subdivision (d). This provision requires a
court to order a prisoner-parent’s temporary removal and production before the court only
when the prisoner requests it and the proceeding seeks (1) to terminate the parental rights of
the prisoner under Welfare and Institutions Code section 366.26 or part 4, division 12 of the
Family Code (section 7800 et seq.); or (2) to adjudicate the child of the prisoner a dependent
child. (Pen. Code, § 2625, subds. (b), (d); In re Jesusa V. (2004) 32 Cal.4th 588, 599.)
       Penal Code section 2625, subdivision (d) does not apply here. The court conducted
this proceeding under section 8604, which falls under part 2, division 13 of the Family
Code—not part 4, division 12 of the Family Code, as the Penal Code requires for a
mandatory removal order. Father presumes the hearing was a proceeding under section
7822 to terminate his parental rights, and thus fell under the requisite part of the Family
Code. It was not. The differences between section 8604 and section 7822 are significant.
       Section 8604 deals with whether the consent of birth parents is needed for adoption.
Section 8604, subdivision (b) simply permits an adoption to proceed with the consent of the
parent who has sole custody, and without the consent of the noncustodial parent, if the
noncustodial parent has willfully failed to communicate with and support the child for over
one year. (In re Marriage of Dunmore (2000) 83 Cal.App.4th 1, 4.) The narrowly drawn
provisions of section 8604 operate to facilitate adoptions, especially stepparent adoptions,
but the proceeding and order under this section do not terminate the noncustodial parent’s
rights. (Ibid.) It is the later adoption that may relieve the parent of his or her rights and
obligations. (Ibid.; see also § 8617.) And, as one can determine from the record, the court’s
order from which father appealed did not terminate his parental rights or order I.M.




                                                6
adopted.2 In fact, at the end of the proceedings, the court stated the parties would “come
back for the adoption” proceedings at a later date.
       Section 7822, on the other hand, makes abandonment an independent ground for
termination of one or both parents’ rights when the evidence shows the parent abandoned
the child. (§ 7822, subds. (a), (b); In re Marriage of Dunmore, supra, 83 Cal.App.4th at pp.
4-5.) Unlike section 8604, section 7822 requires a finding of intent to abandon. (In re
Marriage of Dunmore, supra, at p. 5.) Once the requisite finding under section 7822 has
been made, the court may enter an order declaring the child free from the parent’s custody
and control, which terminates all parental rights and responsibilities. (§§ 7802, 7803, 7820,
7822.) “Whatever similarities may exist in the language in the two provisions, the
consequences of a finding under section 7822 are vastly different from a finding under
section 8604. . . . [¶] . . . Although the loss of the right to veto the adoption is significant, it
is not the equivalent of a termination of parental rights or a declaration of freedom from
parental custody and control under section 7803.” (In re Marriage of Dunmore, supra, at
p. 5 & fn. 4.)
       This was not a proceeding to terminate parental rights under the requisite part of the
Family Code, and the court did not terminate parental rights or order I.M. free from father’s
custody and control. Thus, the court had no mandatory obligation under Penal Code section
2625, subdivision (d), to order father’s removal and transport to court. Instead, the court
had discretion to order father’s removal and transport. (Pen. Code, § 2625, subd. (e) [“In
any other action or proceeding in which a prisoner’s parental or marital rights are subject to


2       The minute order of the proceedings stated father’s parental rights were terminated,
but in the reporter’s transcript, the court made no such finding. In the transcript, the court
found only that father failed to communicate with and pay for I.M.’s support for over one
year, and his consent was therefore not required to proceed with adoption. The formal order
after the hearing also did not terminate father’s parental rights. When the minute order and
the reporter’s transcript differ, the reporter’s transcript generally prevails as the official
record of the proceedings. (Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 569-
570.) We hold the reporter’s transcript (and the formal order) should prevail here.




                                                 7
adjudication, an order for the prisoner’s temporary removal from the institution and for the
prisoner’s production before the court may be made by the superior court . . . .” (italics
added)]; In re Jesusa V., supra, 32 Cal.4th at p. 599.) Father has not shown the court abused
its discretion in failing to order his removal, especially given that father requested the court
appoint counsel of his choice, the court did so, and counsel was present.
       Father contends his counsel was ineffective because counsel did not object to
proceeding in father’s absence and instead “stood silently by.” When the record is silent on
why counsel acted or failed to act, and counsel was not asked to explain his or her actions in
the trial court, we must reject the claim of ineffective counsel on direct appeal “‘unless there
simply could be no satisfactory explanation.’” (People v. Kipp (1998) 18 Cal.4th 349, 367.)
Here, there is at least one obvious satisfactory explanation. “Because the trial court has
discretion whether to order the prisoner’s removal in this category of cases, ‘it follows that
such a case may proceed without attendance by the prisoner-parent.’” (In re Jesusa V.,
supra, 32 Cal.4th at p. 599.) Counsel could have rightly perceived that the court was not
under a mandatory obligation to order father’s removal, and thus any objection to
proceeding without him would have been futile.
2. Finding of Intent to Abandon Under Section 7822
       Father also contends the trial court erred because it could not terminate his parental
rights without a finding of intent to abandon under section 7822. Father argues that, without
this finding, there was no showing of parental unfitness as required by Adoption of Kelsey S.
(1992) 1 Cal.4th 816, 849 (Kelsey S.) (holding that “[i]f an unwed father promptly comes
forward and demonstrates a full commitment to his parental responsibilities—emotional,
financial, and otherwise—his federal constitutional right to due process prohibits the
termination of his parental relationship absent a showing of his unfitness as a parent”).
       As we explain in part 1 of the Discussion, the court in this case did not terminate
father’s parental rights under section 7822. It found father’s consent was not necessary for
the adoption to proceed under section 8604. These are two distinct ways to proceed to
adoption. The actions causing a father’s consent to become unnecessary may be tantamount
to abandonment, but “abandonment” within the meaning of section 7822 is not an issue in a


                                                8
stepparent adoption pursuant to section 8604. (In re Jay R. (1983) 150 Cal.App.3d 251,
258.)3 In section 8604 proceedings, “the sole issue, other than the child’s best interests, is
whether the noncustodial parent had the ability to communicate with and provide for the
child, but willfully failed to do so. [Citations.] In contrast, the essential element in an
abandonment proceeding [under section 7822] is whether the parent failed to communicate
with or provide for the child with the intent to abandon the child.” (In re Jay R., at p. 258.,
italics in original.)
       We disagree with father’s premise that the court terminated his parental rights. As a
result, we disagree that the court was required to make a finding of intent to abandon under
section 7822 or parental unfitness under Kelsey S. There is no requirement that the court
find an intent to abandon under section 8604.
                                        DISPOSITION
       The order is affirmed.




                                                    FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.



3      In re Jay R., supra, 150 Cal.App.3d at page 258 construed Civil Code former
sections 224 and 232, which were the predecessor statutes of Family Code sections 8604
and 7822, respectively. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1015;
Adoption of Duckett (1975) 48 Cal.App.3d 244, 246.)




                                                9
Filed 12/5/14
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                     DIVISION EIGHT


Adoption of I.M., a Minor.                         B255038
                                                   (Los Angeles County
                                                   Super. Ct. No. BT55600/BN5881)

C.M.,                                              ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
        Plaintiff and Respondent,

        v.

S.R.,

        Defendant and Appellant.




THE COURT:*


        The opinion in the above-entitled matter filed on November 18, 2014, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.




*       BIGELOW, P. J.                    FLIER, J.                   GRIMES, J.



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