In re A.B., a Minor. JOHN O. et al., Petitioners and Respondents, v. SCOTT R., Objector and Appellant.
D069257
(Super. Ct. No. A60345)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 8/24/16
CERTIFIED FOR PUBLICATION
Lelah S. Fisher, under appointment by the Court of Appeal, for Objector and Appellant.
Elizabeth C. Alexander and Neal B. Gold, under appointment by the Court of Appeal, for Petitioners and Respondents.
Carl Fabian, under appointment by the Court of Appeal, for Minor A.B.
Scott R. appeals from an order terminating his parental rights to his biological daughter, A.B., under
FACTUAL AND PROCEDURAL BACKGROUND
Scott and Michaela O. met in November 2005. The couple moved in together three and one-half months later, and lived together on and off for almost four years. During that time, Scott was using marijuana and alcohol. After Michaela became pregnant with A.B., she broke up with Scott and moved out. Michaela gave birth to A.B. in November 2009. Scott was not present for the birth, but visited the hospital two or three hours later, bringing a pizza and asking to hold the baby. Scott was not named as A.B.‘s father on A.B.‘s birth certificate.
Scott sent Michaela a $50 money order, but she rejected it. He also offered to bring her baby food, but Michaela told him she did not need it, as A.B.
In early 2010, Michaela sought benefits for A.B. through the Department of Child Support Services (DCSS). Scott questioned whether he was A.B.‘s father and requested a paternity test, noting on his income and expense declaration that if A.B. was his child, he would pay support and “wish for partial custody.” Around that same time, Scott visited Michaela‘s house but Michaela was not available to see him, and she did not learn of the visit until after Scott had left.
Scott was determined to be A.B.‘s biological father and the court issued an order in September 2010 requiring him to pay DCSS for A.B.‘s support and to obtain health insurance for her if “available at no or reasonable cost.” Scott did not request visitation, but began paying support in October 2010, and continued paying consistently, through wage garnishment, almost every month thereafter, although he never provided A.B. with health insurance.
Sometime in 2011, when Scott tried, unsuccessfully, to visit Michaela, Michaela‘s brother suggested that he seek court authorization to visit A.B. Scott went to family court and obtained the necessary paperwork to set up visitation, but did not take any further action after being told it would cost $400 to file the forms. Scott attempted to visit Michaela again in 2012, but she was not home.
In April 2013, Michaela began dating John O. Within a few months, John became involved in A.B.‘s care and he began providing financial support for her in October 2013. A.B. called John “Daddy” and became very bonded to him. In the fall of 2014, Michaela moved in with John and they thereafter married.
At about the same time, Michaela had a “falling out” with her family. In October 2014, Scott sent a letter to Michaela, inquiring about A.B. and explaining that he planned to seek visitation through the court by A.B.‘s fifth birthday (in November 2014). Shortly thereafter, Michaela‘s mother contacted Scott.
In late October 2014, Scott initiated a family court proceeding to obtain visitation. He acknowledged that he did not know A.B. and had only seen her a few times since her birth, but emphasized his self-improvement, stating that although he “use[d] to have a drinking problem . . . “, he was now sober and had worked on becoming “a more responsible and more reliable [f]ather.” In
Michaela and Scott participated in mediation to address Scott‘s visitation request. Based on their agreement, the family court ordered a therapist to oversee A.B.‘s introduction to Scott and subsequent visitation. The therapist met individually with A.B., Scott, and Michaela and held conjoint sessions with Scott and A.B. in February and March 2015, although Scott did not take full advantage of the authorized visitation. Scott tried to develop a relationship with A.B., but they had limited interaction during the therapy sessions. At the second session, Scott played his guitar and A.B. hugged him when the session was over.
The conjoint therapy sessions proceeded “on a reasonable basis,” but ended in March 2015, when John petitioned to terminate Scott‘s parental rights so that he could adopt A.B.2 In response to John‘s petition to terminate Scott‘s rights, a social worker scheduled interviews with A.B.‘s family. Scott was hesitant to meet, and the social worker had to contact him four to five times to set up his interview, which was unusual for a parent facing termination of parental rights. Moreover, at Scott‘s request, Michaela‘s mother and stepfather were included in his interview.3 In her report, the social worker recommended that Scott‘s parental rights not be terminated, based on her conclusion that he neither abandoned nor intended to abandon A.B.
Despite her earlier recommendation, the social worker testified at the hearing on John‘s petition that Scott‘s five-year absence deprived A.B. of stability and that John had provided A.B. with stability and continuity of care during the preceding two years. The
social worker also acknowledged that the timing of the falling out between Michaela and her mother and Scott‘s request for visitation “was likely not to be coincidental.”
Michaela and Scott presented conflicting testimony at the hearing as to Scott‘s attempts to initiate contact with A.B. between 2010 and 2014. Scott introduced evidence (including testimony from Michaela‘s family members)
Similarly, Scott testified that Michaela started blocking his telephone calls in 2012 and introduced testimony from Michaela‘s family that he had called Michaela several times asking to see A.B., but Michaela had ignored his messages. By contrast, Michaela testified that Scott had called her periodically through 2011 but never requested visitation with A.B., and she had not returned his calls because she did not want to give him false hope regarding their relationship. Michaela admitted that she changed her phone number in 2012, but retained voice mail for her old number (which she checked weekly), until late summer of 2013.
After the close of evidence, the court noted the absence of evidence as to the cause of the “huge falling out” between Michaela and her family, but indicated that its focus was on Scott and his actions with respect to A.B. It ruled in relevant part that: (1) Michaela‘s testimony as to Scott‘s efforts to establish contact was much more credible
than that of her family members; (2) Scott was aware of the family court and its procedures but made no meaningful attempt to request visitation until 2014; (3) when Scott first sought visitation at that time, he did not emphasize that Michaela had kept him away from A.B., but instead focused on his personal struggles, which suggested that he was not actively interested in establishing contact with A.B. prior to 2014; (4) Scott failed to have meaningful contact with A.B. for a period of more than one year; (5) the support Scott paid sporadically over the years was token; (6) Scott‘s communications with Michaela‘s family members failed to establish that he had a meaningful relationship with A.B.; and (7) A.B. had a good relationship with John, such that adoption was in her best interests. The court therefore ordered termination of Scott‘s parental rights.
Scott timely appealed.5
I
Application of Section 7822
A. One-year Statutory Period for Abandonment
Scott contends the one-year period of abandonment referenced in
“The interpretation of a statute is a question of law we review independently.” (In re Lana S. (2012) 207 Cal.App.4th 94, 108.) To ascertain legislative intent, we first examine the words of the statute and, if the statutory language is clear and unambiguous, its plain meaning governs. (In re Joshua A. (2015) 239 Cal.App.4th 208, 214.) A court may not interpret a statute to reflect an intention that does not appear from its plain language (In re Y.A. (2016) 246 Cal.App.4th 523, 527), and when a particular word or phrase is used in a particular statutory scheme, the omission of similar language from a related provision is often evidence of a different legislative intent. (In re Joshua A., at p. 215.)
The plain language of
The predecessor statute was analyzed in Connie M., in which a three-month-old child was placed in foster care from November 1979 to January 1983, when she was briefly returned to the custody of her biological parents. After efforts at reunification failed and Connie was placed back in foster care, the Department of Public Social Services successfully petitioned on her behalf to terminate parental rights. Connie‘s mother appealed, contending in part that the statutory one-year period only applied to the year immediately preceding the filing of the petition.
The Connie M. court rejected the mother‘s argument, concluding that “to hold that the one-year period immediately preceding the filing of the petition is the requisite year would defeat the legislative purposes” of the statute. (Connie M., supra, 176 Cal.App.3d
at p. 1239.) The court examined the legislative intent for former Civil Code section 232 and observed that the chapter containing the section required courts to liberally construe its provisions to ” ‘protect the interests and welfare of the child.’ ” (Connie M., at p. 1239, quoting from former
The Connie M. court also found “convincing support for the interpretation that the one-year period can be any time prior to the filing of the petition” based on a comparison of the subdivisions of former Civil Code section 232. (Connie M., supra, 176 Cal.App.3d at p. 1240.) Former
[former Civil Code section 232,] subdivision (a)(7) to be the one year immediately prior to the filing of the petition, [it] would have done so explicitly, as [it] did in [former] subdivision (a)(3).”8 (Connie M., at p. 1240.)
The express legislative purpose underlying
for abandonment was first enacted as part of former
We find the analysis of Connie M. persuasive here and therefore conclude that limiting the language of
For these reasons, we conclude that the Legislature did not intend to limit the one-year period in
B. Intent to Abandon A.B.
Scott contends that even if section 7822‘s one-year statutory period is interpreted as occurring at any time prior to the filing of the petition, he has rebutted any presumption that he intended to abandon A.B. ” ‘The questions of abandonment and of intent . . . , including the issue of whether the statutory presumption has been overcome satisfactorily, are questions of fact for the resolution of the trial court.’ ” (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 506.)
Although a court must make such findings based on clear and convincing evidence (
In determining a parent‘s intent to abandon, the superior court must objectively measure the parent‘s conduct, “consider[ing] not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of” the parent‘s efforts. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) There is no requirement that a parent intend to abandon the child permanently. (In re Daniel M. (1993) 16 Cal.App.4th 878, 883 (Daniel M.)) The Legislature has determined that a child‘s need for stability cannot be postponed indefinitely to conform to an absent parent‘s plans to reestablish contact “in the distant future.” (Id. at p. 884.)
Under
as compared to the contrary testimony of Michaela‘s family members (and implicitly of Scott himself). Further, it is essentially undisputed that, although Scott initially expressed an interest in having “partial custody” when paternity was established, he did not thereafter actively inquire about A.B. or seek visitation with her until shortly before she turned five.10
Although Scott may not have intended to abandon A.B. permanently and his efforts toward self-improvement were admirable, the law does not require that A.B.‘s life be kept in limbo based on such circumstances. In fact, doing
Scott attempts to factually analogize his case to E.M., supra, 228 Cal.App.4th 828, wherein this court upheld an order denying a petition to terminate the parental rights of a father who was separated from his children while he addressed his substance abuse issues. (Id. at pp. 833, 841.) However, unlike Scott, the father in E.M. “regularly telephoned the children” and “asked to see the children numerous times during the
statutory period” and his failure to maintain regular contact was “solely because [the mother] had prevented him from doing so.” (Id. at pp. 840-841.) In contrast, here substantial evidence establishes that Scott did not make anything other than perfunctory efforts to see A.B. from 2010 to late 2014.
Because substantial evidence supports a finding that Scott made only token efforts to communicate with A.B. for well over a one-year period of her life, the court did not err in ruling that he intended to abandon her within the meaning of
C. The Court‘s Order Is in A.B.‘s Best Interests
Scott also argues that even if substantial evidence supports the trial court‘s findings on abandonment, we should nonetheless reverse the termination order because A.B.‘s adoption by John is not in her best interests. In Scott‘s view, Michaela‘s marriage to John provided less stability to A.B., who was cut off from her grandparents and other family; he also expresses concerns about John‘s character. A.B. similarly argues that because she was recently deprived of her relationship with her maternal grandmother, it is not in her best interests to also be deprived of the opportunity to have a relationship with her biological father.
“[T]he decision to terminate parental rights lies in the first instance within the discretion of the trial court, ‘and will not be disturbed on appeal absent an abuse of that discretion.’ ” (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.) “When applying the deferential abuse of discretion standard, ‘the trial court‘s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of
the law to the facts is reversible only if arbitrary and capricious.’ ” ( In re C.B. (2010) 190 Cal.App.4th 102, 123.)
The trial court‘s finding that adoption by John was in A.B.‘s best interests is amply supported by the record. The evidence shows Scott did not know A.B. and had no relationship with her, other than to the extent it developed during two conjoint therapy visits. In contrast, A.B. had formed a relationship with John beginning in 2013 and was very bonded to him by the time of the hearing. The therapist supervising the conjoint therapy and visitations testified that John and Michaela were the primary people in A.B.‘s life and A.B. initially expressed no interest in Scott. Even the social worker who prepared the
Contrary to Scott‘s implication on appeal, the “evidence” of any purported issues with John‘s character consists of unsubstantiated hearsay statements in Scott‘s declarations, none of which were specifically cited to at the hearing. Moreover, although Scott argues that John‘s presence in A.B.‘s life brought less stability and security because A.B. was cut off from Michaela‘s mother and other maternal family members, he cites no evidence establishing that John‘s relationship with A.B. and Michaela caused the family rift or that A.B. would have been better off if the court did not allow John to adopt her. Scott likewise has failed to identify any evidence to suggest that his acting as an intermediary between A.B. and Michaela‘s family would have created greater stability for A.B. Similarly, no evidence established that A.B.‘s new relationship with Scott was an
essential substitute for her lost relationship with Michaela‘s mother. In any event, the test on appeal is not whether substantial evidence supports a finding the appellant wishes the court had made but rather whether substantial evidence, contradicted or not, supports the conclusions the court did make. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873.)
Scott further argues that termination of his parental rights is not in A.B.‘s best interests because he will no longer be obligated to provide child support for her. However, Scott forfeited appellate review of this issue because he did not raise it in the trial court. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811.) Moreover, he has not directed us to any evidence establishing that A.B. would suffer harm if Scott stopped paying such support.
Because the record contains substantial evidence to support the juvenile court‘s finding that adoption was in A.B.‘s best interests, the juvenile court did not abuse its discretion in terminating Scott‘s parental rights.
ICWA
Congress enacted ICWA to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .” (
providing the child‘s tribe with notice “by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (
ICWA notice requirements “are mandatory and cannot be waived by the parties.” (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) However, “a notice violation under ICWA is not jurisdictional in the fundamental sense, but instead is subject to a harmless error analysis.” (In re G.L. (2009) 177 Cal.App.4th 683, 695) ” ‘An appellant seeking reversal for lack of proper ICWA notice must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error.’ ” (In re Autumn K. (2013) 221 Cal.App.4th 674, 715 (Autumn K.).)
Under California law, a court may find that ICWA does not apply to termination proceedings if proper notice is given and neither a “tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice.”11 (
addition, no termination proceeding “shall be held until at least 10 days after
During the course of the proceeding, Scott submitted an ICWA-030 form identifying four separate tribes with which A.B. might be affiliated. Respondents mailed a copy of the form and notice of the termination hearing to each of the tribes and filed a copy of the notice, proof of service and counsel‘s declaration with the court. By the time of the hearing in August 2015, three of the four tribes had responded, indicating that A.B. was not affiliated with them At the continued hearing, the court was informed that no response had been received from the United Keetoowah Band and, with the assent of Scott and A.B., it made a finding that ICWA did not apply.
On appeal, Scott contends the court failed to comply with ICWA‘s notice provisions because there is no evidence the United Keetoowah Band received actual notice of the proceeding as the result of an error in the zip code used in sending the notice. Scott is correct that the date of receipt of an ICWA notice, rather than the date of its service, is the critical time for determining whether ICWA applies in the absence of any tribal response. (
not to intervene.12 Although this evidence was not before the juvenile court at the time of the continued hearing on the termination petition and thus the court erred in finding ICWA inapplicable, it nonetheless establishes that there is no reasonable probability that Scott would have obtained a more favorable result in the absence of error, as required to establish reversible error. (Autumn K., supra, 221 Cal.App.4th at p. 715.)
The order terminating parental rights is affirmed.
IRION, J.
WE CONCUR:
McDONALD, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.