In re J.S.
Filed 7/3/08 In re J.S. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re J.S. et al., Minors. | |
DAVID S., Petitioner and Appellant, v. MARYLOU A., Objector and Respondent. | F054934 (Super. Ct. No. S-1501-AT2464) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John L. Fielder, Judge.
David S. Springs, in pro. per., for Petitioner and Appellant.
Marylou A., in pro. per., for Objector and Respondent.
-ooOoo-
David S. appeals from the denial of his petition (Fam. Code,[1] 7820, 7822, subd. (a)) to terminate the parental rights of Marylou A., his childrens mother.[2] In the trial court, David alleged Marylou left the children in Davids exclusive custody for a period exceeding one year without provision for their support and any communication or contact and did so with the intent to abandon the children.
Following a contested trial, the court denied Davids petition by finding there was no clear evidence that Marylou intended to abandon the children. The court also found that Marylou lacked the ability to pay support. Further, the court recited the conflicting evidence presented by David and Marylou regarding the alleged lack of contact and communication. In particular there was conflicting evidence, even from David, regarding the last time Marylou actually visited the children and the frequency with which she contacted the children by telephone. The court repeated, however, it did not find that Marylou intended to abandon her children.
On appeal, David asks us to reverse the trial courts decision because he alleges there was an error at trial regarding the date of Marylous last visit. Even if Marylous last visit occurred in December 2005, rather than April 2006, as David claims, he would not be entitled to reversal. To find in Davids favor, the court also had to find that Marylou intended to abandon the children. ( 7822, subd. (a).) However, as previously mentioned, the court found there was no clear evidence of an intent to abandon on her part.
The courts finding against an intent to abandon is presumed correct unless David can establish it was error. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) On appeal, David does not dispute the courts finding in this respect. Having failed to establish reversible error, David may, in this court's discretion, be deemed to have abandoned his appeal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)[3]
Under these circumstances, we hereby dismiss this appeal.
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* Before Vartabedian, Acting P.J., Hill, J. and Kane, J.
[1] All further statutory references are to the Family Code unless otherwise indicated.
[2] We will refer to these parents by their first names for the sake of convenience. We mean no disrespect to them.
[3] Even if David did challenge the courts finding on the intent to abandon issue, we would not reverse because the courts decision involved a credibility determination which we may not second guess on appeal. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860 [issues of fact and credibility are matters for the trial court alone].)
