In re K.O.

 

 

 

 

 

 

 

 

 

Filed 9/18/13 
In re K.O. 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NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 K.O., a Person Coming Under the Juvenile Court Law.
L.B. et al.,        Petitioners and Respondents,        v.   A.B.,        Objector and Appellant.	F066933   (Super. Ct. No. 11A0017)     >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kings County.  James LaPorte, Judge.

            Mary R.
Williams, under appointment by the Court of Appeal, for Objector and Appellant.

            Catherine
Campbell for Petitioners and Respondents. 


-ooOoo-

            A.B.,
mother, appeals from a judgment granting a petition, pursuant to Family Code
section 7822,href="#_ftn2" name="_ftnref2"
title="">^[1] declaring her daughter, K., free from her
custody and control.  The petition was
brought by Loretta, mother’s mother and K.’s grandmother, and Angel, Loretta’s
husband.  The family court granted the
petition to terminate mother’s parental rights. 
In its order, the family court also granted the petition to terminate
K.’s father’s parental rights.href="#_ftn3"
name="_ftnref3" title="">^[2] 

            Mother
contends there is insufficient evidence
to support the family court’s findings. 
She also contends that the family court failed to comply with the Indian
Child Welfare Act (ICWA; 25 U.S.C., § 1901 et seq.).  We agree with her latter contention and
reverse and remand for the sole purpose of compliance with the ICWA.  In all other respects, the order terminating
mother’s parental rights is affirmed.

FACTUAL AND PROCEDURAL SUMMARY

            K. was born
in January of 2007.  K. came to live with
Loretta in February of 2009 when mother said she could no longer afford to take
care of her.  Mother consented to Loretta
having guardianship of K.  According to
mother, her desire was to one day provide for K., but she agreed with the
guardianship as a way for her to better provide for K.  When guardianship proceedings started,
father’s whereabouts were unknown, but at some point, he was located and
notified of the proceedings. 
Guardianship was ordered July 27, 2009. 


            A
guardianship status report filed in May of 2010, Loretta reported that mother
visited K. once a week for a few hours. 
Angel testified that, when mother did visit in 2009 and 2010, she often
slept during visits. 

            By May of
2011, in a subsequent guardianship status report, Loretta reported that mother
was visiting “1 p/mos” up to three hours. 
According to the report, mother had taken no “meaningful steps to
stabilize her life.”  She had lost a
“good job,” was employed at a fast food restaurant, had been evicted, and was
planning to live in her car.  Loretta
expressed a desire to adopt K. 

            In August
of 2012, Loretta and Angel filed this petition to free K. from her mother and
father’s custody and control, so that they could adopt her.  At the hearing on the petition, Angel
testified that he and Loretta originally agreed to take K. to protect her from
becoming a ward of the state.  They
subsequently decided to adopt her and were trying to terminate mother and
father’s parental rights because they wanted to provide K. with stability,
consistency and care; if they were able to adopt her, Angel’s military benefits
would protect K.

            Loretta
testified that, at the beginning of the guardianship, Loretta and mother agreed
to coordinate their respective work schedules so mother could visit K.  But since then mother had lost two jobs and
had been homeless, and she was never able to provide a stable environment for
K.  Loretta did not ask mother to help
financially with K., and mother never volunteered any assistance. 

            Loretta
testified that she had not known where mother was living since January of
2011.  Mother often did not show for
visits.  During the fall of 2011, mother
called to say she was coming over on October 2 and October 9, 2011, but did not
show either of those days.  She did come
over on October 10, 2011, for one and one-half hours to visit and asked to
borrow $10.  On October 31, 2011, mother
came over from 6:00 to 8:15 to take K. trick-or-treating. 

            As for
2012, Mother texted Loretta on August 7, 2012, to say that she would stop by
the following day from 6:00 to 7:30. 
That was the first and only contact mother had with K. in 2012.  Loretta testified that she could count “on
one hand,” the number of items mother purchased for K. since she had been with
her: a sundress someone made for her, a Barbie doll, a bear from Starbucks where
mother worked at the time, and a “wind catcher.”   

            Angel
testified that there were a number of times when K. would get a chair and sit
out by the garage and wait for her mother to come, and be then disappointed
when she did not come.  Even after Loretta
and Angel told mother that they hoped to adopt K., mother still did not
initiate visitation with K.  Angel
testified that they never told mother she was not allowed to see K., only that
they asked her to call first.

            Mother
testified that she visited K. “a couple of times” between August of 2011 and
August of 2012, and “one or two” times during the first eight months of
2012.  Mother claimed she called Loretta
to make arrangements to visit about ten times, but her phone calls were not
returned.  Mother did not have a stable
phone number.  According to mother, on
one occasion, she went to Loretta and Angel’s house and wanted to park her car,
which contained her belongings because she was homeless, in their driveway.  Her brother locked her out of the house and
would not let her in.  Mother stated she
was never given a time frame by Loretta in which she needed to “get [her] life
together” for Loretta to return K. to her. 
But at the time of trial, she conceded that she was not yet ready for
her return.  She was still unemployed and
staying with friends.  Father never
visited or paid any support. 

            The
December 10, 2012, investigator’s report stated that K. remembered her mother
by name, but did not remember when she last saw her.  She was too young to understand the purpose
of an adoption or the meaning of the court proceedings.  K. seemed comfortable living with Loretta and
Angel and called them “momma” and “poppa.” 
In the investigator’s opinion, it was appropriate to terminate father
and mother’s parental rights under section 7822, subdivision (a)(3).href="#_ftn4" name="_ftnref4" title="">^[3]  According to the investigator, mother had had
“over three years” in which to become a stable parent and had not done so.  The investigator recommended that the
petition be granted because Loretta and Angel were willing to ensure that K.’s
physical, educational, and emotional needs were a priority and would be met in
their home. 

            The family
court found that father had not supported or contacted K. for more than a year
and that, pursuant to section 7822, he evidenced an intent to abandon the
child.  The family court granted the
petition to free K. from father’s care, custody or control and his parental
rights were terminated. 

            The family
court also found that mother had not supported K. for a one year period and
that beginning in January of 2012, “mother only visited the child on a token
basis” and the intent to abandon her had been proven within the meaning of
section 7822, subdivision (a)(2).  The
petition to free K. from mother’s care, custody and control was granted and
mother’s parental rights terminated. 

DISCUSSION

I.       
SUFFICIENCY OF THE EVIDENCE TO SUPPORT SECTION 7822
FINDING

            Mother
challenges the sufficiency of the evidence to support the family court’s
finding under section 7822 that she “left” K. in Loretta’s care and custody
with the intent to abandon her.  Instead,
she claims she only left K. with Loretta until she was able to adequately care
for her, and in the meantime, she provided for her as she could and
communicated with her as Loretta and Angel allowed.  We disagree.

>Applicable Law

            “Section
7800 et seq. governs proceedings to have a child declared free from a parent’s
custody and control.  The purpose of such
proceedings is to promote the child’s best interest ‘by providing the stability
and security of an adoptive home.’ (§ 7800.)  The statute is to ‘be liberally construed to
serve and protect the interests and welfare of the child.’  (§ 7801.)”  (Adoption
of Allison C. (2008) 164 Cal.App.4th 1004, 1009-1010.)             The
court may declare a child free from parental custody and control if the parent
has abandoned the child.  (§§ 7820,
7822.)   As applicable here,
abandonment occurs when the child has been left by 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, with the
intent to abandon the child. 
(§ 7822, subd. (a)(2).) 

Failure to communicate or provide
support “is presumptive evidence of the 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. [“If the parent or parents have made only token efforts to
support or communicate with the child, the court may declare the child
abandoned by the parent”]; In re B.J.B.
(1986) 185 Cal.App.3d 1201, 1212.)href="#_ftn5"
name="_ftnref5" title="">^[4]  Intent to abandon may be found on the basis
of an objective measurement of conduct, as opposed to stated desire.  (In re
B.J.B., supra, at p. 1212.)  The court
may consider the frequency with which the parent tried to communicate with the
child, the genuineness of the effort under all the circumstances, and the
quality of the communication that occurred. 
(Ibid.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.)  “The parent need not intend to abandon the
child permanently; rather, it is sufficient that the parent had the intent to
abandon the child during the statutory period.” 
(In re Amy A. (2005) 132
Cal.App.4th 63, 68.) 

>Standard of Review

            We apply a substantial
evidence standard of review to a trial court’s finding under section 7822.  (In re
Amy A., supra, 132 Cal.App.4th at p. 67.) 
“Although a trial court must make such findings based on clear and
convincing evidence (§ 7821), 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 conclusions 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 to uphold the judgment.”’ [Citation.]”  (Adoption
of Allison C., supra, 164 Cal.App.4th at pp. 1010-1011, fn. omitted.)  All evidence most favorable to the respondent
must be accepted as true and that which is unfavorable discarded as not having
sufficient verity to be accepted by the trier of fact.  (In re
Gano (1958) 160 Cal.App.2d 700, 705.) 
“Abandonment and intent ‘“are questions of fact for the trial [court]
….  [Its] decision, when supported by
substantial evidence, is binding upon the reviewing court.  An appellate court is not empowered to
disturb a decree adjudging that a minor is an abandoned child if the evidence
is legally sufficient to support the finding of fact as to the abandonment
[citations].”’  [Citation.] ‘The
appellant has the burden of showing the finding or order is not supported by
substantial evidence.’  [Citation.]”  (Adoption
of Allison C., supra, at p. 1011.) 

            The
presumption regarding the intent to abandon is a presumption affecting the
burden of producing evidence.  (>In re Rose G. (1976) 57 Cal.App.3d 406,
419.)  The presumption “may be overcome by
opposing evidence … and the question whether such intent to abandon exists and
whether it has existed for the statutory period is a question of fact for the
trial court, to be determined upon all the facts and circumstances of the case.  [Citation.] 
(In re Neal (1968) 265
Cal.App.2d 482, 488.)

>Analysis

            In
determining the threshold issue of whether a parent has “left” his or her child
with another person, the focus is “on the voluntary nature of a parent’s
abandonment â€¦â€  (>In re Amy A., supra, 132 Cal.App.4th 63,
69; In re Marriage of Jill & Victor
D. (2010) 185 Cal.App.4th 491, 504.) 
“[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].”  (In re Marriage of Jill & Victor D., supra, at p. 504.)  Thus, nonaction in the face of a judicial
custody order may result in a finding that the parent “voluntarily surrendered”
his or her parental role.  (>In re Amy A., supra, at pp. 68-69;
accord In re Jack H. (1980) 106
Cal.App.3d 257, 264; In re Jacqueline H.
(1979) 94 Cal.App.3d 808, 815-816.)

            Here, there
is no question that K. had been in Loretta’s care since February of 2009 and in
her guardianship shortly thereafter.  But
mother argues that her actions agreeing to the guardianship did not demonstrate
any intent to abandon K., but instead that she made provisions for K.’s care
and support by agreeing to let Loretta take guardianship until mother could
establish herself.  As argued by mother,
in agreeing to guardianship, she was not deserting K. or seeking to sever her
parental relationship but “seeking to provide K[.] with a better level of care
than [she] was able to provide at that time.”

            Mother
relies on Adoption of R.R.R. (1971)
18 Cal.App.3d 973, for the proposition that “‘mere acquiescence in support by
others’” cannot prove an intent to abandon, or that “‘the forfeiture of
parental rights [cannot] be decreed against a parent who has merely acquiesced
in the support of the child by other relatives. 
[Citations.]’”  (>Id. at p. 981.)  In Adoption
of R.R.R., the trial court denied the grandparents’ petition to adopt, a
decision affirmed by the Court of Appeal, which found that that when a parent
felt constrained by circumstances to give up custody temporarily in order to
act in the child’s best interest and make provision for the child, no
abandonment can be found.  (>Id. at p. 981.)  The appellate court noted that mother had
only failed to provide for her daughter because “on the one hand, no demand had
been made upon her for such support and on other occasions she was without the
wherewithal to provide such support; that she had not neglected her daughter
because her relatives had voluntarily undertaken to provide for her care and
support.”  (Id. at p. 984.)  But the
court also noted that mother had not failed to communicate with her daughter
and that she had been rehabilitated.  The
Court in Adoption of R.R.R. was
obligated to uphold the trial court’s decision under the standard rules
governing appellate review and could not reweigh the evidence, which is the
same standard we must use here. 

Mother’s argument that she never “left”
K. in what amounted to abandonment must fail. 
“In determining the threshold issue of whether a parent has ‘left’ his
or 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.]  [¶]…[¶]  Numerous appellate decisions have long agreed
that the leaving-with-intent-to-abandon-the-child requirement of section 7822
can be established by evidence of a parent’s voluntary inaction after an order granting
primary care and custody to the other parent. 
[Citations.]”  (>In re Marriage of Jill & Victor D.,
supra, 185 Cal.App.4th at p. 504.)   


Here, while the guardianship was
court ordered, mother consented to it. 
Substantial evidence supports the trial court’s implied finding that
this leaving amounted to an abandonment because, over time, mother made no
effort to either support or have a relationship with K.  Mother’s inactions after the guardianship
provide substantial evidence that she voluntarily surrendered her parental role
and thus “left” K. within the meaning of section 7822.  (See In
re Jacqueline H., supra, 94 Cal.App.3d at p. 816 [mother “left” child when
she did not seriously attempt to obtain visitation or a change in the order
removing the child from her custody].)

            We next
address mother’s claim that the evidence is insufficient to find that she
abandoned K. by failing to provide for or communicate with K. because,
according to mother, she was never asked to provide for K. and she visited her
as often as she was allowed to by Loretta and Angel. 

            The failure
to support or communicate with K. is presumptive evidence of mother’s intent to
abandon K.  (§ 7822, subd.
(b).)  Mother admitted that she never
provided any support for K., but claims she was not asked to do so.  This claim was substantiated by Loretta and
Angel.  Although the failure to support
when a parent does not have the ability to do so or when no demand is made does
not, by itself, prove intent to abandon, such failure coupled with failure to
communicate may do so.  (>Adoption of Allison C., supra, 164
Cal.App.4th at p. 1013; In re Randi D.
(1989) 209 Cal.App.3d 624, 630.)

Mother also admitted that she had
only seen K. maybe “one or two” times during the first eight months of 2012,
but that any further efforts on her part were thwarted by Loretta and
Angel.  Loretta testified that mother saw
K. only once in the first eight months of 2012. 
Both Loretta and Angel testified that they never restricted mother’s
visits with K., other than to ask that she call before coming over.  The family court could credit the testimony
of Loretta and Angel. 

            Abandonment
and intent are questions of fact for the family court, which the family court
resolved adversely to mother’s position. 
(Adoption of Allison C., supra,
164 Cal.App.4th at p. 1011.)  Mother
essentially asks this court to reweigh the evidence and substitute our
deductions for those of the family court. 
This we may not do.  The
credibility of witnesses and the probative value of their testimony are
questions for the trier of fact.  The
power to weigh the evidence and resolve issues of credibility is vested in the
trial court and not the reviewing court. 
(Jamison v. Jamison (2008) 164
Cal.App.4th 714, 719.) 

            Mother has
failed to meet her burden of establishing that the family court’s findings and
orders were not supported by substantial evidence.  (Adoption
of Allison C., supra, 164 Cal.App.4th at p. 1011.)  When the family court’s findings on intent
and abandonment are supported by substantial evidence, they will not be
disturbed on appeal.  (>In re Brittany H. (1988) 198 Cal.App.3d
533, 549.)

II.    
BEST INTERESTS OF THE CHILD

            Mother contends that, in the
absence of the appointment of counsel for K. and the failure of the
investigator to ascertain whether K.’s best interests would be served by
adoption, the family court lacked sufficient evidence upon which to determine
adoption would be in K.’s best interest. 
We find no prejudicial error and disagree.

            At no point
before or during trial did counsel for mother raise concerns about the family
court’s failure to appoint counsel for K. 
At a pre-trial hearing on October 30, 2012, Loretta asked if the family
court could appoint counsel for K.  The
family court did not respond to this request.  

Section 7861 provides, “[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 child require representation by counsel, the court shall
appoint counsel to represent the child, whether or not the child is able to
afford counsel.”  Construing the
statutory predecessor to section 7861, the California Supreme Court held that
the court is required to appoint counsel for the minor unless there is an
affirmative showing that the minor’s interests would otherwise be
protected.  (In re Richard E. (1978) 21 Cal.3d 349, 354.)  Nevertheless, “‘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.’”  (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1378.)   

            Mother
claims that the failure to appoint counsel for K. was prejudicial because K.
spent the first two years of her six years in mother’s custody and care and
mother had a continuing presence in her life. 
According to mother, counsel was necessary to protect K.’s interests in
that continued relationship.  But
mother’s assertions that she continued to have a substantial presence in K.’s
life are not borne out by the evidence and mother cannot point to any other
interests of K.’s that were not adequately represented at the hearing.   

            We also
find mother’s claim that the investigative report was inadequate
unavailing.  Pursuant to section 7851,
subdivision (a), the investigator must provide the court “a written report of
the investigation with a recommendation of the proper disposition to be made in
the proceeding in the best interest of the child.”  The report is required to include the
following information regarding the child:

“(1) A statement that the person making the report
explained to the child the nature of the proceeding to end parental custody and
control.  [¶]  (2) A statement of the child’s feelings and
thoughts concerning the pending proceeding. 
[¶]  (3) A statement of the
child’s attitude towards the child’s parent or parents and particularly whether
or not the child would prefer living with his or her parent or parents.  [¶] 
(4) A statement that the child was informed of the child’s right to
attend the hearing on the petition and the child’s feelings concerning
attending the hearing.”  (§ 7851,
subd. (b).) 

“If the age, or the physical, emotional, or other condition
of the child precludes the child’s meaningful response to the explanations,
inquiries, and information required … , a description of the condition shall
satisfy the requirement .…” (§ 7851, subd. (c).)  This section requires the court to “receive
the report in evidence” and to “read and consider its contents in rendering the
court’s judgment.”  (§ 7851, subd.
(d).) 

            Mother has
forfeited her right to complain of inadequacies in the report by failing to
object at trial.  (In re Noreen G., supra, 181 Cal.App.4th at p. 1379; >In re Aaron B. (1996) 46 Cal.App.4th
843, 846.)  But in any event, we find the
investigator’s report here plainly complied with subdivisions (b) and (c) of
section 7851, and reject mother’s claim to the contrary.  The December 10, 2012, investigator’s report
stated that K. remembered her mother by name, but did not remember when she
last saw her.  She was too young to
understand the purpose of an adoption or the meaning of the court
proceedings.   K. seemed comfortable
living with Loretta and Angel and called them “momma” and “poppa.” 

            As
previously noted, the purpose of proceedings to have a child declared free from
a parent’s custody and control is to promote the child’s best interest by
providing the stability and security of an adoptive home.  (§7800, et seq.; Adoption of Allison C., supra, 164 Cal.App.4th at pp.
1009-1010.)  Throughout K.’s life, mother
did not seek to take parental responsibility for K.’s care or try to develop a
parental relationship with her, choosing instead to allow Loretta and Angel
assume that role.  Once the guardianship
was established, mother took none or only token steps in the following three
years in an effort to be a part of K.’s life. 
On the other hand, Loretta and Angel had been a constant in K.’s life
since she was two years old. 

“[A]n important element that a
trial court must consider, when making a decision about children, is the impact
of the passage of time.  Childhood is
short; many basic attitudes and capacities are developed in the very early
years.  Ties are formed to the adults
present in the child’s life, and can only be broken by inviting emotional
disaster.”  (In re Rose G., supra, (1976)
57 Cal.App.3d at p. 425.)  “[A] child’s
need for a permanent and stable home cannot be postponed for an indefinite
period merely because the absent parent may envision renewing contact with the
child sometime in the distant future.”  (>In re Daniel M. (1993) 16 Cal.App.4th
878, 884; see also Adoption of Allison
C., supra, 164 Cal.App.4th at p. 1016.) 
K. deserves the security and stability of a permanent home.  Substantial evidence supports the court’s
finding it was in K.’s best interests to be adopted and we reject mother’s
claim to the contrary.

III.   ICWA
APPLICABILITY

            Finally, mother contends that,
at the January 15, 2013, hearing on the section 7822 petition, the family court
failed to inquire of the parties, pursuant to the ICWA, whether K. had any
Indian ancestry.  We agree. 

            The ICWA
provides that when a child subject to a dependency proceeding is or may be of
Native American heritage (referred to in the ICWA as an “Indian child”) each
tribe of which the child may be a member or eligible for membership must be
notified of the dependency proceeding and of the tribe’s right to intervene in
the proceeding.  (25 U.S.C.,
§ 1912(a).)  ICWA inquiry and notice
requirements apply in a section 7822 proceeding.  (In re
Suzanna L. (2002) 104 Cal.App.4th 223, 226-227.)  The necessity for ICWA notice is implicated
where there is information the child may have Indian heritage and therefore may
be an Indian child, a matter for the ultimate decision of the tribe.  (In re
Nikki R. (2003) 106 Cal.App.4th 844, 848.)  
 

            Here, the
petition for guardianship filed by Loretta in February of 2009 included form
GC-210(CA) Guardianship Petition - Child Information Attachment, on which
Loretta had checked the box that she had reason to know that K. might have
Indian heritage.  The necessary notice
form, Notice of Child Custody Proceeding for Indian Child, Form ICWA-030, was
apparently completed and sent.  But there
is nothing further in the record before us to indicate what transpired
concerning this issue.href="#_ftn6"
name="_ftnref6" title="">^[5]   

            On the
Adoption Request, ADOPT-200, filed June 9, 2011, Loretta and Angel checked the
box that stated that K. did not have
any Indian ancestry.  At the subsequent
hearing on the petition to declare K. free from parental custody on January 15,
2013, no mention was made of the ICWA. 

            What likely
happened is that ICWA notice in the guardianship proceeding revealed that K.
did not have any Indian ancestry, which is evidenced by Loretta’s statement to
that effect in the adoption request.  But
because we cannot say with certainty from this silent record in the section
7822 proceeding that the notice requirements of the ICWA were satisfied, we
will reverse and remand for the sole purpose of ensuring ICWA compliance.  (In re
J.T. (2007) 154 Cal.App.4th 986, 991; In
re Nikki R., supra, 106 Cal.App.4th at p. 849.) 

DISPOSITION

            The order
declaring K. free from mother’s custody and control is reversed and the matter
remanded to the family court for the sole purpose of ensuring compliance with
the ICWA.  The family court shall make
proper inquiry, and comply with the notice provisions of the ICWA.  If, after proper inquiry and notice, the
family court determines K. is an Indian child, the family court shall proceed
pursuant to the terms of the ICWA.  If
the family court determines the ICWA does not apply, the order declaring K.
free from mother’s custody and control shall be reinstated.

            The parties
are to bear their own costs on appeal.