In re T.M.

Filed 7/18/06 In re T.M. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Edward M., father of the minor, appeals from orders granting a petition to terminate his parental rights. (Fam. Code, § 7822.) Appellant contends the evidence did not support the court's findings that he left the minor with others and abandoned her and further that the court erred in concluding the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were met. We affirm.

FACTS

The minor, T.M., was born in January 1998 with multiple birth defects that would require several corrective and cosmetic surgeries. Appellant was in state prison at the time. Shortly thereafter, the minor and the mother moved to the maternal great-grandmother's home, although the mother moved out within a few months to live with the maternal grandmother and left the minor in the maternal great-grandmother's care. In April 1998 the maternal great-grandmother declined the mother's request to transport the minor to visit appellant in state prison.

Twice in April 1998 appellant wrote from prison to the maternal grandmother. Appellant identified himself as T.M.'s father; discussed problems his wife, T.M.'s mother, was causing; referred to divorce proceedings he had instituted; asked for information on the mother's expenses for the minor and the minor's medical condition for appellant's attorney; and indicated he had papers and photographs he wanted the minor to have. Appellant also noted his attorney was trying to get an order for either the mother or appellant's family to bring the minor to visit him.

The maternal great-grandmother petitioned for guardianship of the minor to provide stability and medical care for her. In October 1998 the court granted the petition, appointing the maternal great-grandmother and a maternal aunt as coguardians for the minor. A judgment regarding parental obligations pursuant to appellant's signed waiver and stipulation was entered about the same time in Glenn County.

The probate and family court services investigator filed a supplemental report in July 1999, apparently in response to a letter from appellant requesting rehearing. The investigator noted appellant was currently unavailable to parent his child and urged caution because of appellant's violent criminal history. The report stated appellant had never played a role in the minor's life because of his imprisonment. Further, the minor's special needs had been and continued to be met by the guardian, and there was no compelling reason to recalendar the case. The investigator observed that appellant could petition to terminate the guardianship when he was released from prison. A copy of the report was mailed to appellant.

In 2000 appellant sent three letters to the minor. The first, in January, stated he was in prison and expressed his love for the minor. The second, in March, apologized for not writing sooner, stating he lacked paper and envelopes, and promised that when he was released, he would stay out of prison. The third, in May, expressed his love and stated that the mother had sent him photographs of the minor.

In 2002 appellant was released from prison but was out of custody only 20 days before being incarcerated again. Although he talked to his wife during this time, he did not contact the minor. Appellant did send mail to the minor from prison: a birthday card in January, a letter in October that also contained a card, and a letter in December telling the minor he expected to be released in January 2003.

In February 2003 the Glenn County support order was registered in Shasta County. Appellant was released from prison and was at liberty for about four months. Appellant's adoptive mother contacted the maternal great-grandmother and arranged a visit. During the visit, the maternal great-grandmother spoke to appellant about the minor's ongoing medical needs and told him she wanted to adopt the minor. Appellant was unwilling to sign a relinquishment of his parental rights because he wanted to try to succeed in building a life out of prison.

Appellant returned to prison and had no contact with the minor until he sent a Christmas card in December 2004. During December appellant's adoptive mother asked for, and received, permission from the maternal great-grandmother to send a gift to the minor.

In January 2005 the minor's mother signed a relinquishment of her parental rights designating the maternal great-grandmother and maternal aunt as the prospective adoptive parents. In May 2005 the Shasta County Department of Social Services (DSS) filed a petition to terminate appellant's parental rights pursuant to Family Code section 7822 on the ground of abandonment. DSS located appellant in custody. Upon being notified of the proceedings, appellant expressed his desire to maintain his parental rights.

Appellant was present at a hearing in July 2005 and informed the court that although he was adopted, he might have Indian heritage in the Lakota (Sioux) Tribe through his biological mother. On July 20, 2005, the social worker mailed notification of the proceedings and a â€