Adoption of Janelle M.
Filed 2/26/13 Adoption of Janelle M. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
Adoption of JANELLE M., a
Minor.
R.B.,
Plaintiff and Respondent,
v.
R.M.,
Defendant and Appellant.
D062595
(Super. Ct.
No. A58225)
APPEAL from
an order of the Superior Court of San
Diego County, Cynthia Bashant, Judge.
Affirmed.
Father R.M.
appeals an order granting the petition
of stepfather R.B. and allowing R.B. to adopt minor Janelle M. without R.M.'s
consent (Fam. Code, § 8604, subd. (b)).
petition did not allege, and the trial court did not expressly find, that R.M.
had willfully failed to support Janelle.
We affirm.
BACKGROUND
Janelle's
mother, B.B., married R.M. in 2002.
Janelle was born in January 2005.
R.M. was present at the birth and his name is on Janelle's birth
then.
B.B.
reported that during their marriage, R.M. abused her physically and
emotionally. In October 2008, B.B. filed
for divorce. In November, R.M.'s friend told B.B. that
R.M. was planning to have B.B. killed.
B.B. called the police and terminated R.M.'s visits with Janelle. B.B. kept her location confidential because
R.M. had threatened her life. The last
contact between R.M. and Janelle took place in November or December 2008, when
Janelle was three years old.
In December
2008, R.M. was arrested and jailed. B.B.
obtained a restraining order protecting her from R.M.
soliciting B.B.'s murder. R.M. was
sentenced to three years in prison.
During his incarceration, he earned no money with which to pay child
support.
In mid-2009,
R.M. sent a letter to Janelle at the maternal grandparents' address. The maternal grandmother told B.B. about the
letter. B.B. asked her friend Alana to
read the letter and determine whether it was appropriate for Janelle. Alana read the letter and told B.B. it was a
message to B.B. B.B. did not read the
letter. R.M. sent no more letters to
Janelle, and did not send her any cards or gifts.
In July
2009, B.B. and R.M.'s divorce became final.
B.B. was granted sole legal and physical custody of Janelle. R.M. was denied visitation and was not
ordered to pay child support. In the
spring of 2010, R.B. began supporting Janelle financially and emotionally.
R.M. was
released from prison in August 2010. He
began working in September, two weeks after his release, and worked
consistently after that. In January
2011, R.M. hired an attorney. According
to R.M., the attorney told him not to contact Janelle and not to send money,
and the attorney said he could not file a visitation request until R.M.'s
parole terminated. In September, R.M.'s
parole terminated and his attorney filed a motion in family court seeking
visitation between R.M. and Janelle. In
November, B.B. and R.B. married. In
December, the court renewed B.B.'s restraining order against R.M.
In January
2012, B.B. and R.M. attended family court
mediation. The mediator recommended that
B.B. retain legal custody and that her home be Janelle's primary
residence. The mediator noted that R.M.
had not been a part of Janelle's life since 2008, and it was critical to
determine whether R.M. posed a risk of harm to Janelle. The mediator therefore recommended that there
be no contact between
R.M. and Janelle pending psychological evaluations and clinical assessments of
R.M., B.B., Janelle and any other party deemed appropriate.
In March
2012, R.B. filed a request to adopt seven-year-old Janelle. B.B. joined in the request. A hearing was set for June, but taken off
calendar after R.B. and B.B. were told they had not given R.M. sufficient
notice.
support.
On June 14, 2012, R.B. filed his
petition. B.B. filed a declaration
consenting to R.B.'s adoption of Janelle.
The San Diego County Health and Human Services Agency (Agency)
recommended that the petition be granted.
In July
2012, R.M. underwent a psychological evaluation. That month, B.B. received two child support
payments as a result of the garnishment of R.M.'s wages. This was the first time she had received
financial support from R.M. She received
one more support payment before trial.
In August
2012, R.M. told an Agency social worker that his arrest "was all a
mistake; [h]e had talked to his 'best friend' and the information was
misunderstood." R.M. denied there
was any violence during his marriage to B.B.
Janelle did not remember R.M. and viewed R.B. as her
"daddy." On August 20, the
court found the allegations in the petition true and granted the petition.
DISCUSSION
Section
8604 sets forth circumstances under which the consent of a presumed father is
not required for the child's adoption.
custody by judicial order, or has custody by agreement of both parents, and the
other birth parent for a period of one year willfully fails to communicate with
and to pay for the care, support, and education of the child when able to do
so, then the birth parent having sole custody may consent to the
adoption . . . ."
(Id.,
subd. (b).) "Failure of a birth
parent to pay for the care, support, and education of the child for the period
of one year or failure of a birth parent to communicate with the child for the
period of one year is prima facie evidence that the failure was willful and
without lawful excuse. If the birth
parent . . . ha[s] made only token efforts to support or
communicate with the child, the court may disregard those token
efforts." (
(c).) The petitioner has the burden of
proof by clear and convincing evidence.
(In re Jay R. (1983) 150
Cal.App.3d 251, 265 [construing § 8604's predecessor, Civil Code former
§ 224].) On appeal, we apply the
abuse of discretion standard. (
245, 251 [construing Civil Code former § 224].)
R.M. is
incorrect in his contention that R.B.'s petition and adoption request did not
allege that R.M. had willfully failed to support Janelle. In his verified petition, R.B. alleged
Janelle "has not communicated with and seen [R.M.] since November 2008 to
the present . . . ."
An attachment to the petition stated, "Please note that child,
Janelle M[.], has never received any child support payment and has never
received any payment for child care or medical expenses[.]" In his adoption request, R.B. cited section
8604, subdivision (b), and declared, under penalty of perjury, R.M. "has
not contacted [Janelle] in one year or more." Furthermore, R.M. received the citation for
adoption, which states: "It is
alleged that the other birth parent has been awarded custody of the child by
judicial order or has custody by agreement of both parents. It is further alleged that you have, for a
period of one year, willfully failed to communicate with and to pay for the
care, support, and education of the child when able to do so."
The court
found there had been no contact between R.M. and Janelle for at least one year
and concluded "the allegations in the petition are sustainable." In
the minute order, boxes are checked corresponding to statements including
"The Petition is true"; "The Court grants the petition by clear
and convincing evidence"; "Mother alone may consent to
adoption"; and "The adoption may proceed pursuant to . . . Section
8604." The box next to one more
statement is also checked: "Father
has willfully failed to communicate with the minor and support the minor for
one year or more." In that
statement, the words "and support the minor" are crossed out. R.M. argues that, in light of the language
that is crossed out, the court did not expressly find that R.M. had willfully
failed to support Janelle, and the record does not support a finding by clear
and convincing evidence that he failed to support her. This argument is contradicted by the court's
statement on the record that "the allegations in the petition are
sustainable" and the minute order's remaining statements quoted
above. These statements, taken together,
encompass the statutory requirements of a failure to support as well as a failure
to communicate. Thus, the presumption
remains that the court acted properly in reaching its decision. (In re
Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556, citing Evid. Code,
§ 664.)
R.M.
testified he had worked since September 2010 but did not pay support for
Janelle until ordered to do so in April 2012, more than one and one-half years
later. The evidence is equally clear
that he made no attempt to communicate with her from mid-2009, when he sent the
letter to the maternal grandmother's address, through the date of the hearing,
a period of approximately three years.
R.M. does not contend, and the record does not show, that the
restraining order prevented him from attempting contact with Janelle. The court did not abuse its discretion in
granting the petition.
DISPOSITION
The order
is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All further statutory references are to the Family Code
unless otherwise specified.
name="_ftn2" title="">[2] The restraining order did not apply to Janelle.
