Adoption of T.O.
Filed 12/9/11 Adoption of T.O. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
| Adoption of T.O., a Minor. | |
| S.Z. et al., Plaintiffs and Respondents, v. J.W., Defendant and Appellant. | A131988 (Del Norte County Super. Ct. No. CVPT 11-1021) |
J.W. (Father), in propia persona, appeals from a judgment terminating his parental rights to his three-year-old son, T.O., in anticipation that T.O. will be adopted by his stepfather, respondent S.Z. (Stepfather). The trial court found that T.O. had been abandoned by Father within the meaning of Family Code section 7822.[1] The court’s finding was supported by substantial evidence and we affirm the judgment.
I. BACKGROUIND
T.O. was born in January 2008. His mother, E.G. (Mother), and Father were
never married. Mother and Father lived in an apartment in Folsom, where Father stayed on weekends when he returned from fighting fires with the California Conservation Corps. Father acknowledged to the court-appointed investigator that, because of his job, he had little contact with T.O.
Mother moved out of the apartment in March 2008, broke up with Father in April and moved with her mother to Crescent City in October. Father had sporadic visitation with T.O. up to August 2008, and last saw T.O. in September 2008, when he stopped by Mother’s residence and dropped off some diapers.
In November 2008, Mother filed a Petition to Establish Parental Relationship, seeking sole legal and physical custody of T.O. She requested that Father’s visitation with T.O. be supervised, explaining that T.O. “cried whenever [Father] held him because it was as if a stranger were holding him.” Father admitted to the case investigator that “[T.O.] would cry when he tried to hold him and that he really never spent enough time with him to establish a relationship.” Father’s response to Mother’s petition agreed to her sole custody of T.O., and requested genetic testing to confirm that he was T.O.’s father. Father’s paternity was established through testing in a child support proceeding initiated by the County of Sacramento.
Stepfather met T.O. in December 2008. Mother and Stepfather lived for a time with Mother’s brother, and then moved into their own place on Second Street in Crescent City in April 2009. Father moved to Crescent City in December 2009, and stayed for a time with his mother, D.W. (Paternal Grandmother). Paternal Grandmother testified that Father also lived for awhile “kitty-corner from where they [Mother, Stepfather, and T.O.] were living.” When Paternal Grandmother was asked whether Father knew that he was living adjacent to Mother, Stepfather, and T.O., she testified that Father had “seen them driving by and seen their car parked over there, but he did not know for sure that’s where they were living.” She said that Father made no attempt to contact T.O. while T.O. was living across the street.
Mother and Stepfather moved to Seventh Street in Crescent City in April 2010, were married in June, and moved to an address on Endert in Crescent City in August. According to the investigator’s report, “[i]n early December 2010, [Father] . . . requested assistance from the Family Law Facilitator’s Office in obtaining visitation with [T.O.].” On January 14, 2011, Stepfather filed the petition in this case to terminate Father’s parental rights in anticipation of his adoption of T.O. On January 19, 2011, Father obtained an order to show cause in the paternity action filed by Mother in November 2008. He sought joint legal custody of, and visitation with, T.O. Father and T.O. were represented by court-appointed counsel at the hearing on the petition filed by Stepfather and the order to show cause on May 4, 2011.
Stepfather testified at the hearing that T.O. referred to him as “Daddy, Da-Da,” and that he considered T.O. “my own. As if he was my own blood.” The investigator observed T.O. call Stepfather “Dada,” and reported that T.O. “seemed comfortable and at ease” in Mother and Stepfather’s home. Mother testified that T.O. did not know that someone other than Stepfather was his biological father, and she told the investigator that “she would not know how to explain things to [T.O.] if [Father] were to try to start visiting now.”
Father admitted at the hearing that he had never established a relationship with T.O., but said that he “didn’t know where they [Mother, Stepfather, and T.O.] were living,” and “felt like I was being hidden from.” ~RT 128)~ Father testified that it: “Feels like [Mother’s] ducking and dodging . . . [¶] She didn’t give me an address, no numbers. She didn’t give me an e-mail. I mean, we were friends on My Space and the internet, whatnot. She could have gave me a[n] e-mail and – but she didn’t. [¶] I know she doesn’t have to, but out of respect for the father, that would be nice.”
Mother testified: “I wasn’t avoiding [Father]. And anyway, he’s never come up to my doorstep, knocked on my door, and I’ve never answered the door and said: Go away, and neither has my husband. [¶] He’s never come to my mother’s house which is five houses down from where his [other] son, J.C.W., was living a few months back. [¶] I know this from . . . [J.C.W.’s] mother . . . we have exchanged e-mails back and forth . . . .”
The investigator reported that Father actively participated in family court proceedings involving J.C.W. and established a visitation schedule with him. In the investigator’s view, “the critical issue is not whether [Father] fully utilized informal avenues through which he may or may not have been able to contact [Mother]. Of much more importance is his failure to seek formal help with enforcing his parental rights much earlier than December 2010. It is hard to find any claim that [Father] did not understand the family law process entirely credible, given that he had been involved in very similar custody proceedings with regard to his older son [J.C.W.] since 2007. In [my] opinion, [Father’s] current attempts to initiate mediation and pursue an Order to Show Cause are simply too little, too late . . . .”
The court likewise did not find Father’s suggestion that he could not locate T.O. in Crescent City to be credible. The court stated: “[The Paternal Grandmother] testified that . . . [Father and Mother] were kitty-corner from each other for a while when he came into town. [¶] He certainly knew where . . . [M]other was. He could do what you would do. You could get your sheriff’s department to go out and serve the papers, say: ‘This is for . . . [M]other.’ [¶] They would try to . . . find out where she is. . . . [T]his is not difficult. . . . [I]t’s one thing if they were in Sacramento and never ran into each other, but this is Crescent City.” The court added: “I dare say that . . . 99 percent of the people in this community you could find in two days if you wanted to. [¶] Maybe some people that are homeless or living out in the forest you wouldn’t be able to, but there’s no evidence that occurred. [¶] I find that there was no communication [between Father and T.O.] for a period of more than two years.”
The investigator recommended that Stepfather’s petition be granted because Father had made no “more than ‘token’ efforts to maintain contact with [T.O.] i[n] the period from approximately December 2009, when he moved back to Crescent City, to December 2010, when he initiated mediation [in Mother’s paternity proceeding] through Family Court Services.” Counsel for T.O. also recommended that the petition be granted. Counsel had observed T.O. and found him to be “very well-adjusted, very well-cared for.” He believed that terminating Father’s parental rights was in T.O.’s best interest.
The court found by clear and convincing evidence that Father had abandoned T.O. for more than one year within the meaning of section 7822, and that “in the interests of long-term stability and permanency . . . it is in the best interests of the child to declare the child free from the custody and control of his biological father.”
II. DISCUSSION
The provisions for termination of parental rights in section 7800 et seq. “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.” (§ 7800.) “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.” (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) The statutes are to be “liberally construed to serve and protect the interests and welfare of the child.” (§ 7801.)
Section 7822 states: “(a) A proceeding under this part may be brought if any of the following occur: [¶] . . . [¶] (3) One parent has left the child in the care and custody of the other parent for a period of one year . . . without communication from the parent, with the intent on the part of the parent to abandon the child. [¶] (b) The . . . failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to . . . communicate with the child, the court may declare the child abandoned by the parent or parents.”
“Father need not have intended to abandon the minor[] permanently; it was sufficient that the evidence supports a finding he intended to abandon [him] during the statutory period [one year].” (In re Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 506; see also In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1015-1016, citing In re Daniel M. (1993) 16 Cal.App.4th 878, 884.)
“The ‘fundamental’ nature of parental rights requires that there be clear and convincing evidence of the facts necessary to terminate such rights.” (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1535; § 7821.) “Although a trial court must make such findings based on clear and convincing evidence [citation], this standard of proof ‘ “is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusion reached by the trial court in utilizing the appropriate standard.” ’ [Citation.] Under the substantial evidence standard of review, ‘ “[a]ll conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment.” ’ [Citation.]” (In re Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1010-1011.) Applying this standard, “we do not pass on the credibility of witnesses . . . or determine the weight of the evidence.” (In re Marriage of Jill and Victor D., supra, 185 Cal.App.4th at p. 503.)
Father contends that Mother was to blame for his failure to communicate with T.O. for over two years, but the trial court found otherwise. It rejected Father’s testimony about his inability to locate T.O. because it was not credible. Thus, the evidence adequately supports the finding that the lack of contact between Father and T.O. was due to his neglect, not any evasion on Mother’s part. While Father states that “[i]t is not now, nor ever has been my desire to give up my parental rights to my son,” the issue is not whether Father intended to permanently abandon T.O. The issue is whether he abandoned T.O. for one year as specified in section 7822 (In re Marriage of Jill and Victor D., supra, 185 Cal.App.4th at p. 506; In re Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1015-1016), and the court’s finding that he did was supported by substantial evidence.
III. DISPOSITION
The judgment is affirmed.
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Siggins, J.
We concur:
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McGuiness, P.J.
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Jenkins, J.
