Adoption of F.G

Filed 4/3/06 Adoption of F.G. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Z.G. (appellant), the mother of F.G., appeals from the juvenile court's order granting a petition filed by respondents William H. and J.H. to terminate appellant's parental rights due to abandonment and a felony conviction. (Fam. Code^[1],

§§ 7820, 7822, 7825.) She contends the order is not supported by substantial evidence. Although we conclude that the court erroneously relied on appellant's felony conviction in terminating her parental rights, substantial evidence supports the finding that she abandoned F.G. as contemplated by section 7822. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Respondents are a married couple who befriended appellant in 1998 when she was 14 years old. In 2000, respondents became appellant's foster parents. In November of 2001, appellant voluntarily left respondents' home. At the time, she was using drugs and refusing to attend school or counseling. She also stole money from respondents' bank account. According to respondents, appellant became involved with an older man who "supplied her with drugs, food and a place to live and she took care of him sexually."

In March of 2002, appellant called respondents and told them she was pregnant.^[2] Respondents assisted her in obtaining a room in a maternity home. After F.G. was born in November of 2002, appellant was asked to leave the maternity home for refusing to follow the rules. She and F.G. subsequently moved to the Salvation Army facility, but they had to leave due to appellant's drug use. After staying with a friend for a few days, appellant and F.G. moved in with respondents. Appellant enrolled in a residential program called Miracle for Moms, but she left and did not contact respondents for several weeks.

On July 25, 2003, appellant left F.G. with respondents because "[she] could not handle [her] life at that time." The following month, respondents obtained emergency guardianship of F.G. after appellant threatened to take her while she was using drugs. Respondents obtained full legal guardianship of F.G. on November 20, 2003. Appellant did not appear at the guardianship hearing or at mediation, nor did she ever petition for visitation or offer any money for F.G.'s care.

Respondents filed an adoption request for F.G. on August 14, 2004. The following month, appellant was convicted of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), and was granted three years probation, including a condition that she serve 120 days in jail. On February 16, 2005, respondents filed a petition to declare F.G. free from appellant's care and control. The petition alleged that appellant had abandoned F.G. by leaving her with respondents for over a year without any communication or provision for support (§ 7822), and that she was unfit to parent as a result of her felony conviction (§ 7825).

Respondents were interviewed by an adoptions worker on March 2, 2005. The adoptions worker noted that F.G. was "a very attractive, active, happy, talkative, healthy 2½ year old little girl" who considered respondents to be her parents. On March 8, 2005, appellant told the adoptions worker that she wanted F.G. back, but that she was not yet ready to care for her. Appellant told the adoptions worker that she was living with a friend in Oxnard, but she was unable to provide an address. Appellant was unemployed at the time, and there was a warrant for her arrest because she had tested positive for drugs while on probation and had failed to report.

The adoptions worker found that it would be in F.G.'s best interest to terminate appellant's parental rights and allow respondents to adopt her. Appellant did not appear at the termination hearing held on July 18, 2005. Although her attorney claimed that she was unable to attend due to a hearing on the criminal matter that was set for the same time in a different courtroom, it was subsequently determined that no such hearing was pending.

At the conclusion of the hearing, the court found by clear and convincing evidence that F.G. should be declared free from the custody and control of appellant pursuant to section 7820. The court found that appellant had intended to abandon F.G. as contemplated by section 7822, by leaving her in the care and custody of respondents for over a year without any provision for the child's support. The court further found that appellant is "unfit to have the future custody and control of her child since she was convicted of a felony on October 10, 2004 . . . ."

DISCUSSION

Appellant contends the juvenile court erred in declaring F.G. free from her parental custody and control pursuant to section 7820 because the court's findings that she abandoned the child (§ 7822) and that she was convicted of a felony that proved her unfitness to have future custody and control (§ 7825) are not supported by substantial evidence.

We agree with appellant that the court erred in relying on her felony conviction in declaring F.G. free of her parental custody and control. The termination of parental rights pursuant to section 7825 requires a finding by clear and convincing evidence that the parent has been convicted of a felony in which "[t]he facts of the crime

. . . 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." (§ 7825, subd. (a)(2).) "Where parental unfitness is demonstrated not by the facts underlying a felony conviction, but by other factors, courts must rely on other statutory provisions, if applicable, to terminate a parent's parental rights." (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1539.) Moreover, "courts interpreting section 7825 and its predecessor statute have upheld termination of parental rights only where felony convictions have involved egregious underlying facts that have a direct bearing on parental fitness, such as the murder of a family member." (Ibid.; see, e.g., In re Sarah H. (1980) 106 Cal.App.3d 326, 328 [father beat mother to death in child's presence]; In re Mark V. (1986) 177 Cal.App.3d 754, 756 [father fatally stabbed mother while children were sleeping].)

It is beyond dispute that mother's felony conviction for unlawfully driving or taking a vehicle does not involve such egregious facts. Although respondents argue that those facts and appellant's prior criminal history demonstrate her unfitness to parent, "unlike all of the cases previously upholding the termination of parental rights based on a felony conviction, the facts of the felon[y] of which [appellant] was convicted . . . show no indications of violence, lewd behavior, use of the family home, harm to family members, involvement or victimization of minors, or other direct indicators of parental unfitness. Consequently, the underlying facts of [appellant's] felony conviction[] simply cannot support the requisite finding that '[t]he facts of the [felony] 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.' [Citation.]" (In re Baby Girl M., supra, 135 Cal.App.4th at p. 1544.)

Substantial evidence does, however, support the court's finding that appellant abandoned F.G. as contemplated by section 7822. "The elements of abandonment for purposes of section 7822 are delineated as follows: (1) the child must be 'left' by a parent in the care and custody of another person for a period of six months; (2) the child must be left without any provision for support or without communication from the parent; and (3) the parent must have acted with the intent to abandon the child. [Citation.]" (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) Our review of a finding of abandonment pursuant to this section "'. . . is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.' [Citation.]" (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211.) "'. . . All conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment. . . .'" (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)

Subdivision (b) of section 7822 provides that "[t]he failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. 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 or parents." Appellant does not dispute that she failed to provide any support for F.G. after she left the child with respondents. She nevertheless contends that the court erred in finding that she abandoned F.G. because (1) the guardianship proceeding effectively precluded a finding that she "left" F.G. in respondents' care as defined by section 7822; and (2) the "or" in section 7822, subdivision (b) should be construed in the "conjunctive sense" such that there can be no finding of abandonment absent clear and convincing evidence that she failed to provide support and failed to communicate with the child. Neither contention is persuasive.

In arguing that the guardianship proceeding precluded a finding of abandonment, appellant relies on In re Jacklyn F., supra, 114 Cal.App.4th 747. The court concluded in that case that the mother could not be said to have "left" her child in the custody and care of another (the child's grandparents) as contemplated by section 7822 because the child had been involuntarily removed from her custody in a guardianship proceeding. The court reasoned that "although we do not discount the possibility that, under different circumstances, it might be proper to conclude that a parent has 'left' a child within the meaning of section 7822 despite court intervention, we conclude this is not such a case. When the grandparents filed the petition for guardianship, the minor had been left in their care for only three days. Just over a month later, appellant was present at the hearing on the grandparents' petition for guardianship, and she contested the petition. She also filed an opposition to the guardianship petition, seeking return of the minor to her custody. Similarly, she told an investigator for the court that she wanted the minor returned to her and that the minor was only staying with the grandparents until she was able to get her life together. [¶] Appellant contested the grandparents' efforts to secure a court order taking custody of the minor from her. Once the guardianship was granted, appellant was no longer legally entitled to custody of the minor without further court order. At such point, the minor's custody status became a matter of judicial decree, not abandonment. We conclude that appellant's conduct following the granting of the guardianship--which included sending 'stacks' of letters to the minor but failing to visit her--did not constitute 'parental nonaction' amounting to a leaving." (Jacklyn F., supra, at p. 756.)

Here, appellant's conduct following the granting of the guardianship constitutes the type of "parental inaction" that demonstrates an intent to abandon as contemplated by section 7822. In this regard, the case is similar to In re Amy A. (2005) 132 Cal.App.4th 63, in which a father was deemed to have abandoned his daughter notwithstanding the fact that his right to care for and communicate with the child had been curtailed by a judicial decree granting the mother sole custody of the child when the parents divorced. The court reasoned that the father "did not appear during the divorce proceedings and made no attempt in the following years to seek modification of the custody order. Although the custody order gave [father] visitation rights, he made no effort to exercise them. He did not provide for Amy's care, participate in her medical emergencies, or have any kind of a parental relationship with her. [Father's] repeated inaction in the face of the custody order provides substantial evidence that he voluntarily surrendered his parental role and thus 'left' Amy within the meaning of section 7822. [Citation.]" (Id., at p. 70.)

Appellant did not appear for the guardianship proceedings, or, for that matter, the parental termination proceedings. She never sought to terminate or modify the guardianship, nor did she make any effort to provide for F.G.'s care after July of 2003. Although respondents indicated that they would have allowed appellant to visit F.G. if she were drug free, appellant never took them up on their offer. Appellant contends that she regularly called respondent William H., but she only did so more than six months after she had left F.G. with respondents, and there is no indication that she ever asked to speak to F.G. when she called. The undisputed evidence indicates that appellant left F.G. with respondents for more than six months, and that during that time she failed to provide any support for the child or make any meaningful effort to communicate with the child. Accordingly, substantial evidence supports the court's finding that appellant intended to abandon F.G.

Regarding appellant's claim that subdivision (b) of section 7822 should be construed to require both a failure to provide support and a failure to communicate in order to give rise to a presumption that she intended to abandon F.G., substantial evidence supports the court's findings that she failed to do either. Because appellant offered no evidence overcoming the presumption of an intent to abandon, the court did not err in declaring that F.G. had in fact been abandoned as contemplated by section 7822.

The judgment (order terminating parental rights) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Charles W. Campbell, Judge

Superior Court County of Ventura

______________________________

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.

Lascher & Lascher and Alfred Vargas for Plaintiffs and Respondents.

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^[1] Statutory references are to the Family Code, unless otherwise noted.

^[2] The presumed father is not a party to this appeal.