Richards v. James H.

106 Cal. App. 3d 326, 165 Cal. Rptr. 61, 1980 Cal. App. LEXIS 1879

• Court: California Court of Appeal
• Decided: May 29, 1980
• Docket: Civ. 18097
• Status: Published

Opinions

Opinion

PARAS, J.

The father (henceforth James) of two minors appeals from a judgment declaring them free of his custody and control. (Civ. Code, § 232.) The proceeding was initiated by the minors’ maternal grandparents who have cared for the children since the death of their mother in May 1975. The mother’s death was caused by a beating administered by James in the presence of the children, who were then aged three and one.¹

James was arrested on May 27, 1975, and released on bail. He had been drinking for several hours prior to the homicide and assertedly had no recollection of the events of the evening. On September 4, the juvenile court denied him visitation of the children pending resolution of the homicide charge, and transferred custody to the grandparents. On September 13, James was arrested for another homicide following a shooting in a Plumas County bar; he was convicted by a jury of involuntary manslaughter and use of a deadly weapon on that charge and conviction was affirmed on appeal by this court. (3 Crim. 8707.) He was also convicted of voluntary manslaughter regarding the death of his wife after a plea of nolo contendere. He was incarcerated at the time of the trial court’s hearing in this matter and his release date was uncertain.

Letters of guardianship were issued to the grandparents on December 26, 1975, and the present petition was filed by them on July 1, 1977. The petition alleged James cruelly treated and neglected both children by killing their mother, and that he was thus an unfit parent. After a series of delays and continuances, the matter was heard on June 19 and on July 26, 1978. The court received testimony from the grandparents, James, two correctional officers then supervising James, four teenage children of James by a previous marriage, and James’ present wife. It then announced its intention to declare the minors free of parental control and custody pursuant to Civil Code section 232, subdivisions (a)(1) (abandonment),² (a)(2) (cruel treatment or neglect), (a)(4) (felony conviction), and (a)(7) (foster care for two or more years).³ The court also found that a custody award to the father would be detrimental beyond a reasonable doubt⁴ to the children and that an award to a nonparent was required to serve their best interests. (Civ. Code, § 4600.) Judgment was entered accordingly on September 26, 1978.

James contends there was insufficient evidence to support the trial court’s findings under any of the subdivisions of Civil Code section 232, or the finding of detriment pursuant to Civil Code section 4600. He also contends the court’s failure to consider appointment of counsel for the children resulted in a miscarriage of justice and requires reversal. We affirm the judgment on the basis of the evidence supporting the Civil Code section 232, subdivision (a)(4) finding, the finding of detriment under Civil Code section 4600, and the harmlessness of any possible error in the failure to appoint counsel for the children.

It is true that uxoricide is not per se a basis for termination of parental rights. (In re James M. (1976) 65 Cal.App.3d 254, 265-266 [135 Cal.Rptr. 222].) The statute provides that any felony can be the basis for termination if the facts of the crime “are of such nature as to prove the unfitness of such parent... to have the future custody and control of the child.” (Civ. Code, § 232, subd. (a)(4); Adoption of D. S. C. (1979) 93 Cal.App.3d 14, 26 [155 Cal.Rptr. 406] (armed burglary); In re Geoffrey G. (1979) 98 Cal.App.3d 412 [159 Cal.Rptr. 460] (voluntary manslaughter).) Our review of the evidence supporting the trial court’s finding requires resolution of all factual matters, credibility, and conflicts in favor of the prevailing party. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926 [101 Cal.Rptr. 568, 496 P.2d 480].) The evidence before the trial court showed that James had two previous criminal convictions associated with the excessive use of alcohol, was intoxicated when the mother was beaten, administered the fatal beating in the presence of the two children, and killed a man in a bar four months later. The probation report prepared for the court recommended grant of the petition; a diagnostic study and the probation reports for the two homicides indicated alcohol-induced violence was consistent with the father’s character. Given these facts, we shall not say the conclusion of unfitness was unsupported.

There is also sufficient evidence to support the court’s finding that parental custody would be detrimental to the children, and their best interests require nonparental custody. The determination is one to be made as of the time of the hearing. (In re James M„ supra, 65 Cal. App.3d at p. 265.) There was testimony showing that Sarah was still suffering ill effects from witnessing the beating; she was afraid of blood, afraid to sleep alone, and skeptical of strangers. Matthew no longer recognized James and was happy and well adjusted in the only home he has ever really known (he lived with his father for only six months). Given this and the circumstances of the mother’s death, the trial court could reasonably conclude that the probability of recurrence of alcohol-induced violence by James posed a threat to the children’s mental and/or physical well being should he regain custody.

Finally, any error in the court’s failure to consider the appointment of counsel for the children (Civ. Code, § 237.5; In re Richard E. (1978) 21 Cal.3d 349 [146 Cal.Rptr. 604, 579 P.2d 495]; In re Dunlap (1976) 62 Cal.App.3d 428 [133 Cal.Rptr. 310]), was harmless. The central issue in the case was James’ fitness to retain parental rights; it was not a close question and was properly determined by the trial court. There was no miscarriage of justice. (In re Richard E., supra, at p. 355.)

The judgment is affirmed.

Regan, Acting P. J., concurred.

1 Sarah was born August 9, 1972; she was four when the petition was filed and is now seven. Matthew was born May 8, 1974; he was three when the petition was filed and is now five.

2 This ground was not alleged in the petition, although there was testimony as to lack of communication by the father at the hearing.

3 This ground was not alleged in the petition and is unsound since the grandparents’ home was not a foster home. (See In re Antonio F. (1978) 78 Cal.App.3d 440, 452-454 [144 Cal.Rptr. 466].)

4 The trial court went beyond the standard required by the Legislature, which is “by clear and convincing evidence,” not “beyond a reasonable doubt.” (See Civ. Code, § 232, subd. (a)(7).) Our concurring brother errs in his statement to the contrary (see cone, opn., post p. 330).