Filed 10/19/17 In re M.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

Beth A. Melvin, under appointment by the Court of Appeal, for Objector and Appellant.

No appearance for Petitioner and Respondent.

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INTRODUCTION

Appellant Patrick C. appeals from the superior court’s order freeing M.B. from his custody and control pursuant to Family Code[1] sections 7822 and/or 7825. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Heidi B. is the biological mother of M.B.; Patrick is the child’s biological father. M.B. was born in 2010. Heidi and Patrick were never married. On January 21, 2016, Heidi married Kimberlee C.

On March 11, 2016, Kimberlee filed a petition to declare M.B. free from Patrick’s custody and control. Kimberlee alleged that Patrick had left M.B. in the primary care of Heidi without any provision for M.B.’s support. She crossed out the allegations in the petition that Patrick had not communicated with M.B. and had the intent to abandon M.B. Heidi signed a consent to the petition. No code sections are referenced in the petition and there are no substantive allegations, except for the allegation that Patrick failed to provide support. Kimberlee also filed a request to adopt M.B.

A hearing on the petition was scheduled for March 25, 2016. At the March 25 hearing, Heidi informed the superior court that Patrick was incarcerated and had been incarcerated for the past two to three years. The court continued the matter because Patrick had not been served notice of the proceedings. On April 22, Kimberlee informed the court she and Heidi were receiving threats from Patrick. The court continued the hearing and directed them to the self-help office for assistance with filing a restraining order.

Patrick sent a letter to the superior court, which was received on May 12, 2016. Patrick’s letter indicated he objected to the petition and Kimberlee’s request to adopt M.B.; he wanted to be present for all hearings; and asked for appointed counsel.

At the May 18, 2016, hearing, the superior court appointed counsel for Patrick and M.B. Patrick’s counsel noted that he was incarcerated in Avenal State Prison and she would be contacting him by letter. Counsel for the minor stated she would be speaking with Heidi, Kimberlee, and the minor, and asked Patrick’s counsel to provide her with a statement from Patrick, which could be attached to her report. The trial court continued the matter to June for a status hearing.

At the June 8, 2016 status hearing, it was brought to the superior court’s attention that Patrick’s counsel had a conflict of interest. The superior court relieved counsel and appointed new counsel for Patrick. At the June 8, 2016 status hearing, the superior court appointed the court investigator’s office to prepare an evaluation. The superior court continued the matter to August 17, 2016, for a contested hearing on the petition.

The evaluation was filed June 21, 2016. The investigator met with M.B., who reported that her two moms had been together for about a year. M.B. knew her father’s name was Patrick and he lived “far away.” M.B. reported that the last time she saw her father, they went to the park and played on the swings and slide. M.B. told the investigator she did not want to live with Patrick; she wanted to stay with her mothers.

Because of her age, M.B. had only a “minimal” understanding of the court proceedings. Heidi had been granted sole legal and physical custody in April 2013, after Patrick was incarcerated. The investigator noted that Patrick was not expected to be released from custody for about three years and the minor should not “be required to put her life on hold pending the father’s release.” The investigator opined that the petition should be granted as in the best interests of the minor.

Minor’s counsel filed a report on August 17, 2016, the day of the contested hearing consisting of several pages and attachments. Minor’s counsel interviewed Heidi, Kimberlee, and M.B. Minor’s counsel attached to the report correspondence Patrick provided to the court stating he objected to the petition for adoption. The report stated minor’s counsel had made requests for a supplemental statement from Patrick to attach to the report. As of the time of the filing of the report, no such supplemental statement had been received. Minor’s counsel also noted that Heidi sought a restraining order against Patrick on May 5, 2016, and on May 9, 2016, Patrick sought a modification of the custody order.

The report noted that Patrick was incarcerated when M.B. was about 18 months to two years old. Prior to his incarceration, Patrick had visitation with M.B. for four hours each week, but the report claimed he did not always avail himself of visitation. Patrick was released accidentally in June 2015 and he contacted Heidi and arranged to visit with M.B. at a park.

The report noted that in June 2015, Patrick pled to one count of attempted murder and was sentenced to a term of seven years in prison.

The report included two newspaper articles concerning Patrick’s arrest and charges in a double homicide that occurred on December 1, 2012. The first article, dated April 25, 2013, reported that Patrick and another suspect (the suspects) were arrested and being held without bail on suspicion of homicide. The suspects were already inmates in county jail on other charges when they were arrested for the murders. Detectives were able to tie the suspects to the double murder after a December 23, 2012 incident in which the suspects entered the home of Patrick’s ex-girlfriend and pistol-whipped one of her male friends. As the victim fled on foot, two shots were fired.[2] Shell casings collected at the ex-girlfriend’s home were fired from the gun used in the homicides. Police believed Patrick assisted in the double homicide but was not the triggerman.

The second article, dated April 2, 2014, reported that “two suspected gang members,” referring to Patrick and another suspect (the suspects), were ordered to stand trial for the December 1, 2012 murders. The suspects pled not guilty. The victims were shot multiple times in the face and head and pronounced dead at the scene. During the preliminary hearing, prosecutors said ballistic evidence tied the handgun to the murders as well as the shooting on December 23, 2012. A detective, testifying as a street gang expert, described both defendants as “known gang members with a long criminal history.”[3]

Heidi took M.B. to visit Patrick about three times while he was incarcerated. After she stopped, Patrick telephoned Heidi frequently for about 18 months. The phone calls stopped and Patrick then wrote letters. Patrick was writing through March 19, 2016.

Minor’s counsel concluded the superior court should consider granting the petition under section 7822, 7824, or 7825.

Also on August 17, 2016, Patrick’s counsel filed written opposition to the petition and to the planned adoption. The opposition stated that Patrick had maintained regular visitation of three times per week with M.B. prior to his incarceration. Subsequent to his incarceration, Patrick sent cards and letters to M.B. Patrick also claimed that he had paid some direct support to Heidi for M.B., but was not paying any support through the Department of Child Support.

The opposition stated that Patrick “vehemently denies” any intent to abandon M.B. and that he was doing all he reasonably could do under the circumstances to fulfill his parental responsibilities.

At the August 17, 2016 hearing, the trial court received and considered the report of minor’s counsel without objection. The court also received and considered the court investigator’s report and points and authorities filed by Patrick’s attorney on the day of the hearing. Patrick appeared telephonically and on questioning by his attorney testified that he “showed up” to see M.B. the day of her birth. He was determined to be the biological father of M.B. and was granted visitation three days a week. The visitation was not overnight and took place at his grandmother’s house. Patrick stated he was working toward obtaining joint custody after M.B.’s birth, and was required to take a parenting class.

Patrick testified he maintained regular visitation with M.B. During the first year of M.B.’s life, although since no court proceedings had been initiated, visits were at Heidi’s discretion. When visits were at Heidi’s discretion, sometimes Patrick would see M.B. twice a week; sometimes he was only allowed a monthly visit. After the first year, Patrick initiated an action to obtain more formal visitation and a regular schedule was established.

Patrick acknowledged that the visitation schedule was Wednesdays, Saturdays, and Sundays. Sometimes he missed Wednesdays because his grandmother worked and was unavailable; a few times he may have missed a day because he was sick. Patrick stated, however, that even if he missed one day in a week, he visited M.B. every week. Having his grandmother supervise the visits was not a requirement of the court; he acceded to Heidi’s request that visits be structured in that manner.

Patrick sent multiple cards to M.B. throughout her life for her birthdays and holidays. He also drew pictures and sent them to her, such as his drawing of My Little Pony that he mailed to M.B. for Valentine’s Day. He also wrote letters, but stopped in April when Heidi obtained a restraining order against him. Patrick did not know if Heidi had given the cards and drawings to M.B.

Patrick was not contributing regularly to M.B.’s support; he made occasional payments to Heidi to help with the child’s expenses. He never indicated to his sister, or anyone else, that he wanted to give up paternity rights to M.B. Patrick pled to a count of attempted murder. His expected release date was February 2019.

Heidi testified that Patrick was not consistently exercising his visitation before his incarceration. She claimed he last visited M.B. in November 2012. After Patrick was incarcerated, Heidi obtained an order giving her sole legal and physical custody; the order was issued April 16, 2013. Heidi claimed she received only $40 for support for M.B. and that Patrick never provided any diapers, clothes, or toys for M.B.

On cross-examination, Heidi acknowledged that she had received drawings from Patrick intended for M.B.; she gave “a couple of them” to M.B. Heidi testified she received “5 to 12” letters from Patrick intended for M.B.; and that she “read a couple” of them to M.B. Patrick also sent multiple letters to Heidi. Patrick would ask how M.B. was doing in preschool; what her favorite color was; and “things like that.” He would also write that he wanted her to tell M.B. that he loved her.

Patrick had sent a letter to Heidi that referenced “Korn lyrics” and “Ride the Wings of Pestilence.” Heidi testified she had not heard of the songs and had to look up the lyrics online. She stated she did not “listen to music like that” and the lyrics “aren’t things that I would take lightly.” Heidi found the lyrics “troubling” because they included comments like “I’ll be waiting in the dark to drive this blade straight through your heart” and “Your throat I take a grasp. Can you feel the pain?” and “Your heart stops beating.”

Kimberlee testified. She gave a statement, not in response to any questions, that “committing a crime is a selfish act” that “tears” families apart.

Patrick was questioned again on re-direct. Patrick stated that after he received paperwork from Heidi in 2013 showing she was seeking sole custody, he filled out and returned responsive paperwork. He did not hear back and when he asked about a court date, “[t]hey refused to take me to court.” He testified he was having trouble filling out the forms correctly and by the time his response was accepted by the court, the adoption and petition to terminate parental rights had been filed.

The superior court found that Patrick did visit with M.B., but “other than a $40 payment” no support had been provided in the form of “money or clothing or gifts.” The superior court also found that Patrick “was arrested as a result of several people dying.” In addition, the superior court found that “the crime, for which [Patrick] pled guilty, strongly indicates” he was not “considering the best interests of his child.” The superior court found that it was in the best interests of M.B. to grant the petition to terminate Patrick’s parental rights and allow the adoption of M.B.

Patrick attempted to interrupt the superior court and correct the findings by stating, “That is not my case at all.… My case itself was a crime of passion. I was not involved in any illegal activity that led up to the case.” Patrick stated he came home to find “an individual in my house and things got out of hand.” There was never any “child endangerment” and he “tried to maintain my contact with my daughter from day one.” Patrick also stated that he had diapers, clothes, and toys for M.B. for when he had visitation with M.B. Patrick maintained that he had done everything he can “to maintain contact” and stopped only after Heidi obtained a restraining order.

The superior court stated it would consider these remarks from Patrick as part of the testimony. The superior court then reiterated that M.B. was declared free of Patrick’s “parental control,” Patrick’s parental rights were terminated, and the petition was granted.

Patrick asked “under what law” the superior court was proceeding because the superior court “can’t use my felony conviction against me.” The superior court did not respond and concluded the proceedings.

The written order filed September 23, 2016, does not reference the code section upon which the superior court based its ruling, but does state the petition is being granted because it is in the “best interest of the minor child.”

Patrick filed a notice of appeal on November 18, 2016.

DISCUSSION

Patrick contends the evidence is insufficient to support a finding that he abandoned M.B. within the meaning of section 7822. We agree; the evidence does not support a finding of abandonment. He also contends the superior court erred as a matter of law if the petition was granted based upon section 7825 because Patrick was never put on notice that Kimberlee was proceeding under section 7825. We affirm the order on the basis of section 7825.

I.Section 7822

Section 7800 states:

“The purpose of this part is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life.”

Section 7822 states in relevant part:

“(a) A proceeding under this part may be brought if any of the following occur: [¶] … [¶]

“(3) One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.”

In order to terminate parental rights pursuant to section 7822, the trial court must find that a parent has left their child with the other parent or a third party, without provision for support or communication for a period of at least one year, and with the intent to abandon the child. (In re E.M. (2014) 228 Cal.App.4th 828, 838–839.) The party who files a section 7822 petition has the burden of proving by clear and convincing evidence that all elements of section 7822 have been met. (In re E.M. at p. 841.)

The evidence does not support the superior court’s finding that Patrick only communicated “some in 2011” with M.B. Patrick began visiting with M.B. in 2011, shortly after her birth; Heidi told M.B.’s counsel that Patrick was visiting with M.B. until his incarceration in 2012; Heidi took M.B. to visit Patrick a few times after his incarceration. Thereafter, Patrick sent cards, drawings, and letters to maintain contact with M.B. All of Patrick’s communication clearly evidences an intent not to abandon, but to remain a part of M.B.’s life.

Consequently, section 7822 cannot be used as a basis for terminating Patrick’s parental rights.

II.Section 7825

Patrick argues that the superior court should not have relied upon section 7825 because the petition did not allege any allegations that would invoke section 7825. Alternatively, he contends the evidence does not support a termination of his parental rights under section 7825.

Section 7825 permits termination of parental rights upon a finding that a parent is unfit because of the nature of the felony of which he or she stands convicted. Subdivision (a) of the section provides:

“(a) A proceeding under this part may be brought where both of the following requirements are satisfied:

“(1) The child is one whose parent or parents are convicted of a felony.

“(2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child.”

In making its determination under section 7825, “the court may consider the parent’s criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent’s ability to exercise custody and control regarding his or her child.” (§ 7825, subd. (a)(2).) “Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child.” (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) The purpose of section 7825 “is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life.” (§ 7800.) In applying the statute, the trial court must make its findings based on clear and convincing evidence and act in the child’s best interest in deciding whether to terminate parental rights. (§§ 7821 & 7890.)

“The 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. [Citation.] While the abuse of discretion standard gives the court substantial latitude, ‘[t]he scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action .…” ’ [Citation.] ‘Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ [Citation.] With respect to challenged factual findings, we will affirm ‘if there is any substantial evidence to support the trial court’s findings,’ i.e., ‘if the evidence is reasonable, credible and of solid value—such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence.’ [Citation.]” (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.)

As a preliminary matter, we acknowledge the petition did not confer allegations or facts pertinent to a termination of parental rights under section 7825. However, the report filed by minor’s counsel the day of the contested hearing references Patrick’s criminal conviction, alludes to additional charges, and invokes section 7825 as grounds for granting the petition. The superior court commenced the contested hearing by stating it had received and considered the report of minor’s counsel; no objection to consideration of the report was made by Patrick’s counsel, nor was there a request for a continuance to adequately respond to the report.

Due process of law requires that each party (a) receive a copy of the report; (b) have an opportunity to subpoena and cross-examine persons whose hearsay statements are included in the report; and (c) be allowed to introduce rebuttal evidence. (See In re George G. (1977) 68 Cal.App.3d 146, 156-157.) Patrick had the opportunity to avail himself of each of these rights at the August 17, 2016 hearing and if he was not prepared to do so, should have requested a continuance or objected to the report of minor’s counsel. Patrick’s failure to object or take any action to exclude minor’s counsel’s report waives the issue on appeal. (Evid. Code, § 353, subd. (a).)

Patrick advances two basic arguments with respect to the trial court’s application of section 7825. First, he argues the facts underlying his attempted murder conviction are insufficient to prove unfitness and secondly, the court improperly found him unfit to parent M.B. based on his past rather than future behavior.

As to the underlying facts, Patrick argues they do not rise to the level of “egregious” conduct that would support a finding of unfitness under the statute. He distinguishes the facts in his case from three others, In re Geoffrey G. (1979) 98 Cal.App.3d 412, In re Mark V. (1986) 177 Cal.App.3d 754 and In re Sarah H. (1980) 106 Cal.App.3d 326, in which a judgment terminating parental rights was upheld. All three cases involved the murder of the child’s mother under violent circumstances (Geoffrey G., at p. 420 [strangulation]; Mark V. at p. 756 [stabbing] and Sarah H. at pp. 328-330 [beating]). We find Patrick’s argument unavailing.

While there are many cases where the parent’s crime is murder, it does not necessarily follow that the crime must be of that magnitude in order to support a finding of unfitness pursuant to section 7825. By its terms, the statute applies where a parent is convicted of “a felony.” The statute makes no determination regarding the type of crime required. Furthermore, the trial court could find Patrick unfit based on his criminal behavior prior to his conviction.

According to the evidence, Patrick was a “known gang member with a long criminal history” who in December 2012 attempted to murder a male victim by pistol-whipping and shooting at him and was implicated in a double homicide where the victims were shot multiple times in the face and head. Patrick pled guilty to a charge of attempted murder stemming from the December 23 shooting and acknowledged this fact at trial. The trial court could reasonably infer from Patrick’s criminal activities in December 2012 that he was engaged in a criminal enterprise, responsible for multiple violent crimes. The fact that he pled guilty to attempted murder involving a shooting demonstrates his personal propensity for extreme violence.

Even so, Patrick argues, the following excerpt from the trial court’s express findings, particularly the last phrase, which he italicized and bolded, demonstrates its improper focus on his past behavior:

“[Patrick] got involved in [an] act where he was arrested as a result of several people dying and eventually pleaded guilty to attempted murder back in June of 2015. He has a release date of February of ’19. The [c]ourt finds that the acts, which led up to the crime, for which he pled guilty, strongly indicates that [Patrick] wasn’t considering the best interest of his child during that period of time.”

On appeal, we review the trial court’s ruling, not its reasoning and if the ruling was correct on any ground, we affirm. (Goles v. Sawhney (2016) 5 Cal.App.5th 1014, 1021.) Here, the trial court could infer from the threatening song lyrics that Patrick directed to Heidi that he was unfit to have future custody and control of M.B.

Heidi testified that in a letter dated March 19, 2016, Patrick identified two songs, “Korn lyrics” and “Ride the Wings of Pestilence,” indicating that he and she would listen to “those songs together.” Heidi looked up the lyrics online as she was unfamiliar with the songs. She interpreted the lyrics as a veiled threat, indicating what Patrick wanted to do to her. “Korn lyrics” describes murder by strangulation:

“Your throat, I take grasp

Can you feel the pain?

Then your eyes roll back

Can you feel the pain?

Love racing through my veins

Can’t you feel the pain?

Your heart stops beating

Can’t you feel the pain

Black orgasms

Can’t you feel the pain

I kiss your lifeless skin

Can’t you feel the pain”

“Ride the Wings of Pestilence” describes murder by stabbing:

“Hiding behind the shadows, I’ll be waiting in the dark

To drive this blade straight through your heart

I’ll drag your body to the car as blood races down my arm

I think everyone will wonder, where you are tonight

I’ll hide you in my walls, your body will never be found”

The trial court could infer from Patrick’s reference to the songs that his violent and even murderous propensities had not abated in the months following his conviction, rendering him unfit to parent M.B.

Further, Patrick’s letter to M.B., written about the same time he sent his March 19 letter to Heidi, affirms his unfitness. In the letter, he proclaims himself a “lil crazy” and “even … a monster” to his five-year-old daughter, explaining:

“Sometimes I Feel Im gonna blow. But than there’s You; You and Your sister are the only reason I keep pushin forward. The reason I keep myself in check why I watch my Temper. Cause If I end up killing somebody else I’d be stuck in here. Then where would I be, without my babies? No, I’ll keep holdin on, keep pushin Forward. I’ll Never give up. Baby your Daddys lil Crazy, might even be a monster but know that I will always love You and once I get out I’ll always be there to protect you.”

After receiving these letters, Heidi applied for and obtained a five-year restraining order against Patrick.

We conclude substantial evidence supports a finding that the underlying facts of Patrick’s attempted murder conviction in light of his gang affiliation and long criminal history, including murder charges, support a finding under section 7825 he is unfit to have future custody and control of M.B. Our conclusion is further buttressed by his murderous threats to Heidi and his seeming acknowledgement that he is a “monster.” We further conclude that the trial court acted in M.B.’s best interest by terminating Patrick’s parental rights in light of the evidence.

DISPOSITION

The order after hearing filed September 23, 2016, is affirmed.

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LEVY, Acting P.J.

WE CONCUR:

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DETJEN, J.

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MEEHAN, J.