In re Ronin D.





















Filed 4/18/13 In re Ronin D. CA3







NOT TO BE PUBLISHED





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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)




>

In re RONIN D., a Person Coming Under the Juvenile Court Law.
AMANDA D., Petitioner and Respondent, v. ALICIA O., Objector and Appellant.	C072206 (Super. Ct. No. SAD0003019)

Alicia O., the mother of
three-year-old Ronin D., appeals from an order of the Placer County Superior
Court freeing Ronin from her custody and control and terminating her href="http://www.mcmillanlaw.com/">parental
rights. ( ADDIN BA xc <@ost> xl 9 s
ECMBST000008 xpl 1 l "Fam. Code" Fam. Code,href="#_ftn1" name="_ftnref1" title="">[1] ADDIN
BA xc <@osdv> xl 20 s ECMBST000010 l "§ 7822, subd. (a)(3)" § 7822, subd.
(a)(3).) The court found that
mother, with intent to abandon Ronin, had left him in the care and custody of
his father, James D., for more than a year while maintaining only token
communication with Ronin and providing him only token and de minimis
support. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)

On appeal, mother contends (1) the
trial court failed to consider whether Ronin’s interests required the
appointment of independent counsel, and (2) the court failed to read and
consider the investigation report. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father met at a 12-step
program and moved in together. Within a
few months, he suspected that she had resumed using drugs. Mother moved out of their shared residence,
but she returned when father learned that she was pregnant with Ronin. They lived together with a single father,
Patrick F., and his young daughter.

Ronin was born in June 2009. Father again suspected that mother was using
drugs, and he again asked her to leave.
In August 2009, when Ronin was about two months old, mother left Ronin
with father. She moved, first, to the
residence of some friends; and then to the residence of her parents. That same month, father filed in family law
court for sole legal and physical custody
of Ronin.

For a few months after mother and
father separated, she babysat Ronin at his residence while father was at
work. Mother brought no food or baby supplies
for the child. Mother proved to be
unreliable; items, including Patrick F.’s prescription medication, were missing
after mother’s visits. In October 2009,
after mother failed a drug test and failed to attend co‑parenting classes
and mediation, the family law court granted father’s request for sole legal and
physical custody of Ronin.

The family law court awarded mother
generous visitation rights with Ronin while she was undergoing href="http://www.mcmillanlaw.com/">rehabilitation
for drugs. In July 2010, after mother
spent months going in and out of rehabilitation programs and jail, the family
law court reduced mother’s visitation to one supervised three-hour visit per
week. Following the court’s order, the
maternal grandparents had two visits with Ronin in September 2010, but mother
did not attend. Mother had just two
one-hour visits with Ronin, on October 3, 2010, and on December 9, 2010.
Thereafter, mother did not request another visit. She telephoned the visitation monitoring agency
and left a message stating she would call again, but she did not do so. Ronin was 18 months old when he last saw
mother.

Ronin has lived with father since
birth. After mother’s last visit with
Ronin in December 2010, father allowed the maternal grandparents to visit Ronin
because he wanted the child to have a relationship with his grandparents.

Father met petitioner Amanda D. in
late 2009. She visited with Ronin during
her visits with father. Amanda began
residing with father and Ronin when Ronin was 10 months old. From that point on, Amanda has acted as
Ronin’s mother, doing all the things mothers do for their children such as
feeding him, bathing him, and reading stories to him. Amanda and father married in January 2011
and, several months later, gave Ronin a half brother, Rayden. Ronin loves Rayden. Amanda decided to adopt Ronin because she
wanted to ensure that Ronin would remain with her and Rayden if anything were
to happen to father.

In March 2012, Amanda filed a
petition for stepparent adoption of Ronin.
She also filed a petition to declare Ronin free from mother’s custody
and control pursuant to ADDIN
BA xc <@osdv> xl 22 s ECMBST000011 l "sections 7822 and 7825" sections 7822 and 7825.

Shortly thereafter, the maternal
grandparents sought to join the family court proceedings and sought to increase
their visitation with Ronin. The
grandparents’ action was stayed pending the resolution of the petition to
terminate mother’s parental rights.

Lori Coopwood of Quest Intelligence
Group conducted an investigation for the stepparent adoption. ( ADDIN BA xc <@osdv> xl 6 s
ECMBST000012 xpl 1 l "§ 7850" § 7850.) Coopwood reviewed the parties’ criminal
records, reviewed the social worker’s adoption investigation report, and
interviewed father and Amanda. Coopwood
talked with Ronin, but she did not formally interview him because of his age of
slightly less than three years. Coopwood
attempted to contact mother at the telephone number she provided to the court,
which belonged to the maternal grandmother.
Coopwood spoke briefly to the grandmother who promised to forward the
message to mother. But at trial, the
maternal grandmother acknowledged she did not forward the message as promised
because she believed Coopwood was working for father, rather than the court,
and the grandmother “did not want to put [mother] through anymore stuff.” Coopwood recommended that the petition to
free Ronin from mother’s custody and control be granted. Her report was filed May 31, 2012.

A hearing on the petition was held
on June 1, 2012. The maternal
grandfather attended but mother did not attend.
The grandfather told the court that mother wanted to contest the
petition. A court trial was set for June
12, 2012. On that date, the court
appointed counsel for mother and set a contested hearing for July 3, 2012. The case was continued at the request of
mother’s counsel.

The trial began on July 31, 2012,
and continued on August 14, 2012. Amanda
testified at trial and she presented testimony from father, former roommate
Patrick F., the paternal grandmother, and the custodian of records for the
agency that supervised mother’s visitation.

Mother testified and she presented
testimony from the maternal grandparents, the maternal great aunt, and a
friend. The trial court accepted
Amanda’s exhibits including the Coopwood report.

After the case was submitted for
decision, this exchange occurred:

“THE COURT: Return the exhibits at the time of the
ruling.

“[COUNSEL FOR AMANDA]: Okay. >I believe that all of my exhibits are in.

“ ADDIN BA xc <@nper> xl 20 s
ECMBST000013 l "THE COURT: >Correct." THE COURT: Correct. But I just want to stipulate at the time of
the ruling I can return all those.”
(Italics added.)

In its oral ruling, the trial court
found by clear and convincing evidence that Amanda
had satisfied the elements of ADDIN
BA xc <@osdv> xl 13 s ECMBST000014 l "section 7822:" section 7822: one, mother left Ronin
in father’s care and custody; two, mother failed to support or communicate with
Ronin for a period of one year; and three, mother intended to abandon
Ronin. The court found that the
testimony of the maternal grandmother and maternal great aunt was “not
credible” and that “they flat-out lied” about mother’s contacts with the child
and the grandparents. In contrast, the
court found that Amanda’s testimony was “very powerful” on the issues of
frequency of visits and telephone contacts.
After discussing the evidence supporting each statutory element, the
court concluded; “Based on all the
above, the Court finds [Amanda] has clearly met her burden by clear and
convincing evidence that the mother intended to abandon her child until she got
her life back in order. Unfortunately
for her, she took many sidesteps along the way and delayed her reunification
until after the statutory time period had elapsed. Grandparents’ intention to maintain contact
with this child cannot bolster mother’s case.”

DISCUSSION

I

Mother contends the trial court
erred when it failed to comply with its statutory duty to consider whether
Ronin’s interests required the appointment of counsel and consequently failed
to appoint counsel for Ronin. We
disagree.

A parent has standing to assert her
child’s right to independent counsel. ( ADDIN BA xc <@cs> xl 54 s
ECMBST000001 xhfl Rep xpl 1 l ">In re Noreen G. (2010)181
Cal.App.4th 1359, 1377-1378" In re Noreen G. (2010) 181 Cal.App.4th 1359, 1377-1378.)

ADDIN
BA xc <@osdv> xl 12 s ECMBST000015 l "Section 7860" Section 7860 provides in relevant part
that, “[a]t the beginning of the proceeding on a petition filed pursuant to
this part, counsel shall be appointed as provided in this article.”

ADDIN
BA xc <@osdv> xl 12 s ECMBST000016 l "Section 7861" Section 7861, pertaining to counsel
for the child, states: “The 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. The child shall not be
present in court unless the child so requests or the court so orders.”

“A proceeding to free a child from
parental custody and control is essentially accusatory in nature, directed to
challenges against the parent -- not against the child. [Citation.]
The petitioner must establish that a parent is guilty of abandoning,
cruelly treating or neglecting the child; or is addicted, morally depraved; or
is a convicted felon, is mentally deficient, or is otherwise incapable of
caring for the child. [Citation.] Thus, the issue at a hearing is whether a
parent is fit to raise the child. To
that end are directed all the arguments of opposing parties, parents claiming
they are fit and petitioners claiming otherwise, and with each side generally
contending it is protecting the best interests of the child. It is
thus likely that in a particular case the court will be fully advised of
matters affecting the minor's best interests, and little assistance may be
expected from independent counsel for the minor in furtherance of his client’s
or the court’s interests. However,
when the court finds a child has separate interests not protected in the contest
between parents and a petitioner, the court must exercise its discretion by
appointing separate counsel.” ( ADDIN BA xc <@cs> xl 42 s
ECMBST000002 xhfl Rep xpl 1 l ">In re Richard E. (1978)21
Cal.3d 349, 354" In re Richard E. (1978) 21 Cal.3d 349, 354 ( ADDIN BA xc <@$cs> xl 10 s
ECMBST000002 xpl 2 Richard
E.), italics added.)

Although, as a general proposition,
independent counsel likely will be of little assistance, the >trial court must consider whether this
is so in the particular case. Thus,
independent counsel must “be appointed at the commencement of proceedings >absent an immediate showing upon which
the court can exercise its discretion against
making an appointment.” ( ADDIN BA xc <@$cs> xl 38 s
ECMBST000002 xhfl Rep xpl 1 Richard E., supra,
21 Cal.3d at p. 355.)

In this case, the trial court
appointed counsel for mother on June 12, 2012, but it did not appoint separate
counsel for Ronin. The minute order for
that date does not indicate what the parties requested or argued; nor does it
indicate what the trial court considered in the course of appointing counsel
for mother but not for Ronin. The
reporter’s transcript commences with subsequent proceedings on July 31, 2012.

“ ‘[I]n the face of a silent
record, we … apply the established principle that “official duty has been
regularly performed” ( ADDIN BA xc <@st> xl 17 s
ECMBST000003 xpl 1 l "Evid. Code, § 664"
Evid.
Code, § 664) . . . .’ ” ( ADDIN BA xc <@cs> xl 64 s
ECMBST000004 xhfl Rep xpl 1 l ">Saraswati v. County of San Diego (2011)202 Cal.App.4th 917, 929" Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 929.) Where, as here, the appellate court is not
furnished a transcript for the date the trial court would have considered the
appointment of independent counsel, the court is “justified in relying on the
presumption that official duty was regularly performed.” ( ADDIN BA xc <@cs> xl 44 s
ECMBST000005 xhfl Rep xpl 1 l ">In re Helen J. (1973)31
Cal.App.3d 238, 243" >In re
Helen J.
(1973) 31 Cal.App.3d 238, 243 ( ADDIN BA xc <@$cs> xl 8 s
ECMBST000005 xpl 2 >Helen
J.).)

Mother
claims this case is not like ADDIN
BA xc <@$cs> xl 8 s ECMBST000005 >Helen
J., “where the appellant has failed to provide a
complete record. [Citation.] Here, no oral record of the initial
proceedings is available.
[Citation.]” But ADDIN
BA xc <@$cs> xl 8 s ECMBST000005 >Helen
J. does not purport to limit the ADDIN
BA xc <@ost> xl 13 s ECMBST000017 l "Evidence Code" Evidence Code
presumption to cases in which the record’s silence is attributable to the
action or omission of a party. Mother’s
argument would needlessly jeopardize official actions whenever the record is
silent for reasons beyond the parties’ control.

The
ADDIN BA xc <@$cs> xl 8 s
ECMBST000005 >Helen
J. court noted that the “chance that any
of the five children, whose maximum age was eight[,] would have retained
private counsel seems miniscule.” ( ADDIN BA xc <@$cs> xl 44 s
ECMBST000005 xhfl Rep xpl 1 >Helen
J, supra, 31 Cal.App.3d at pp. 242-243.) Mother claims private counsel was necessary
for Ronin, who was under age three, because Ronin had spent almost half of his
first year with mother; Ronin remembered that mother was his “mommy”; Ronin was
capable of being interviewed even though the investigator had not done so; and
Ronin could have been “asked and definitively answered” the “question of
whether or not mother had maintained regular contact by phone with him
. . . .” None of these points
has merit.

Nothing
in the record suggests that counsels for Amanda and mother were incapable of
fully advising the trial court as to whether, or how, Ronin’s contacts with
“mommy” during the first year of his life affected his best interests. ( ADDIN BA xc <@$cs> xl 38 s
ECMBST000002 xhfl Rep xpl 1 Richard
E., supra, 21 Cal.3d at p. 354.) Although Ronin was capable of “identify[ing]”
Amanda, Rayden, and various objects in his bedroom, nothing in the record
suggests the young child was capable of a meaningful or “definitive” interview
about his telephone contacts with mother.
Even if Ronin was capable of discussing telephone contacts, an
acknowledgment by Ronin that mother had maintained regular contact would not
have assisted her. As the trial court
explained, the family court had not authorized telephone contact and all
in-person contact had to be supervised by an agency. At most, an interview with Ronin would have
demonstrated that mother had not adhered to the family court’s visitation order.

As in ADDIN
BA xc <@$cs> xl 10 s ECMBST000002 Richard E., it appears the trial court had before it all
factual matters that might have persuaded it that Ronin’s interests would best
be served by not depriving mother of custody.
(Richard E., supra, 21 Cal.3d ADDIN
BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 at
p. 356.) Under these circumstances,
no miscarriage of justice could have resulted from the court’s failure to
exercise its discretion to appoint counsel for Ronin. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)

Mother’s
reliance on ADDIN
BA xc <@cs> xl 44 s ECMBST000006 xhfl Rep l "Neumann v. Meglar (2004)121 Cal.App.4th 152" Neumann v. Meglar (2004) 121 Cal.App.4th 152 ( ADDIN BA xc <@$cs> xl 7 s
ECMBST000006 xpl 1 >Neumann) is
misplaced. ADDIN
BA xc <@$cs> xl 7 s ECMBST000006 >Neumann
reversed an order terminating parental rights where the appellate court had a
full transcript of the trial court proceedings and the transcript did not
contain any showing on the issue of need for independent counsel for the
children. ( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 >Id. at
pp. 170-171.) The court concluded,
“[b]ased on the record before us, the trial court did not undertake this
consideration.” ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 >Id. at
p. 171.) ADDIN
BA xc <@$cs> xl 7 s ECMBST000006 >Neumann is
distinguishable because the record in the present case does not include a
reporter’s transcript of the hearing at which counsel was appointed for mother
but not for Ronin. Absent an adequate
record, the presumption that official duty was regularly performed must
prevail.

II

Mother contends the trial court
erred when it failed to comply with its statutory duty to read and consider the
investigation report. The record does
not support mother’s argument.

ADDIN
BA xc <@$osdv> xl 12 s ECMBST000012 Section 7850
provides that, upon the filing of a petition to declare a child free from
parental custody and control, the “juvenile probation officer, qualified court
investigator, licensed clinical social worker, licensed marriage and family
therapist, or the county department . . . shall immediately
investigate the circumstances of the child and the circumstances which are alleged
to bring the child within any of the [alleged statutory] provisions
. . . .” ADDIN
BA xc <@$st> xl 12 s ECMBST000007 Section 7851
requires the person or agency conducting the investigation to “render to 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.” ( ADDIN BA xc <@osdv> xl 17 s
ECMBST000018 xpl 1 l "§ 7851, subd. (a)"
§ 7851, subd. (a).) ADDIN
BA xc <@osdv> xl 29 s ECMBST000019 l "Section 7851, subdivision (d)" Section 7851,
subdivision (d), provides that “[t]he court shall receive the report in
evidence and shall read and consider its contents in rendering the court’s judgment.” The court has a duty to “read and consider
the report sua sponte.” ( ADDIN BA xc <@$cs> xl 41 s
ECMBST000006 xhfl Rep xpl 1 Neumann,
supra, 121 Cal.App.4th at p. 169.)

In this case, Lori Coopwood of Quest
Intelligence Group conducted the investigation and rendered the requisite
report to the court. During trial,
Amanda’s counsel introduced the Coopwood report as petitioner’s ADDIN
BA xc <@rec> xl 10 s ECMBST000020 l "exhibit 13" exhibit 13. As mother
notes in her reply brief, the reporter’s transcript of the introduction of the
report states that “Exhibit No. 13 was marked for identification.” Mother argues “nowhere does the record
reflect that ADDIN BA xc <@$rec> xl 10 s
ECMBST000020 Exhibit 13, or any other exhibit for that
matter, was ever admitted into
evidence.” Mother overlooks the trial
court’s exchange with Amanda’s counsel in which she voiced her belief that all
her exhibits were “in” evidence and the court said counsel was “correct.” Mother’s argument has no merit.

Following the trial court’s oral
ruling, the court signed a formal “Order and Judgment to Declare Minor Free
from Parental Custody and Control” that had been prepared by Amanda’s
counsel. The order indicates in relevant
part that the court “examined the
parties, and evidence, both oral >and documentary, [that had] been
introduced . . . .”
(Italics added.) After examining
the evidence, the court found in relevant part that “The court-appointed
investigator, Lori Coopwood with Quest Intelligence Group, has filed a written
report of her investigation of the circumstances of the child as required by ADDIN
BA xc <@st> xl 24 s ECMBST000007 l "Family Code Section 7851" Family Code Section
7851, in which she recommends that Ronin . . . be declared free
from the custody and control of Alicia . . . .”

Mother claims this order “does not
reflect that the trial court read and considered the report.” But she overlooks the notation that the court
examined the documentary evidence, which includes the report, and she makes no
claim that the court somehow “examined” the report without “read[ing] and
consider[ing] it.” ( ADDIN BA xc <@osdv> xl 17 s
ECMBST000021 xpl 1 l "§ 7851, subd. (d)"
§ 7851, subd. (d).) Mother’s claim that the court failed to
fulfill its duty to read and consider the report has no merit.

DISPOSITION

The order freeing Ronin D. from
parental custody and control is affirmed.







BLEASE , J.





We concur:





RAYE , P.
J.





BUTZ ,
J.