Roger B. v. Randall D.

209 Cal. App. 3d 624, 257 Cal. Rptr. 421, 1989 Cal. App. LEXIS 331

• Court: California Court of Appeal
• Decided: April 10, 1989
• Docket: G005008
• Status: Published

Opinions

Opinion

SCOVILLE, P. J.

Randall, the natural father of minors Randi D. and Shawn D., appeals from a judgment freeing said minors from his custody and control. (Civ. Code, § 232.) The action to sever Randall’s parental rights was filed by the children’s proposed stepfather (Roger) and alleged Roger had filed a petition for stepparent adoption.

After the appeal was filed, Randall sought this court’s permission to file a supplemental brief and to present evidence regarding events occurring after entry of judgment on December 8, 1986. We allowed the filing of the supplemental brief and construed the motion to present additional evidence as a motion to take judicial notice of specified superior court records, copies of which were attached to the supplemental brief. (Evid. Code, § 452, subd. (d).) Those documents include, (1) a request for dismissal showing Roger’s petitions for stepparent adoption of minors were dismissed on July 13, 1987; (2) a judgment of dissolution showing that the marriage of Roger and minors’ natural mother (Sharon) was terminated as of November 27, 1987.

Based on these new developments, Randall asks us to set aside the judgment severing his parental relationship to minors. He argues the only purpose behind Civil Code section 232 proceedings is to “facilitate the adoption of a child.” He argues the judgment in this case was granted in contemplation of the proposed stepparent adoption and now that there is to be no such adoption his status as natural father should be restored.

The general rule is that matters occurring after the entry of judgment are not reviewable because an appeal reviews only the correctness of the judgment as of the time of its rendition. (In re James V. (1979) 90 Cal.App.3d 300, 304 [153 Cal.Rptr. 334].) Randall relies on the concurring opinion of Chief Justice Bird in In re Elise K. (1982) 33 Cal.3d 138, 139-151 [187 Cal.Rptr. 483, 654 P.2d 253]. In that case, while an appeal was pending from a judgment terminating a natural mother’s parental rights in order to free her child for a proposed adoption, the child’s adoptive placement had to be terminated and the child was returned to foster care. There the parties stipulated the judgment could be reversed and the matter remanded to the trial court for further proceedings in light of subsequent evidence that the adoption had fallen through and the child, because of her age (14 years), was unlikely to be adopted.

Chief Justice Bird’s concurring opinion appears to be a proposed guide in situations where the parties do not agree to reverse the judgment. She suggests an appellate court should take additional evidence under Code of Civil Procedure section 909 “if compelling new circumstances arise which undermine the basis for a section 232 order during a parent’s appeal from such an order . . . .” {In re Elise K., supra, 33 Cal.3d at p. 150.) Chief Justice Bird acknowledges the general rule, that matters occurring after judgment are immaterial on appeal, but urges “[a] narrow exception to the general rule” where, as in Elise K„ the trial court’s order has, in effect, left a child parentless. {Ibid.)

The case before us is very different from that considered by the court in Elise K.¹ Here the minors have been and remain in the custody of Sharon, their natural mother, since the parents’ separation in 1979. It is true that Civil Code section 232 proceedings were commenced by Roger when Randall refused to consent to Roger’s proposed stepparent adoption of minors. But the stepparent adoption proceeding is entirely separate from the Civil Code section 232 proceeding, and failure of the adoption does not take away the factual basis for the decision to terminate Randall’s parental rights.

Civil Code section 232, subdivision (a)(1) specifically provides in part: “(a) An action may be brought for the purpose of having any child under the age of 18 years declared free from the custody and control of either or both of his or her parents when the child comes within any of the following descriptions: [fl] (1) The child has been left ... by one parent 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.” (Italics added.) The code section clearly contemplates severance of the parental right in such a situation without reference to whether or not adoption proceedings are pending.^{1 2}

Ultimately, the court in deciding a petition under Civil Code section 232 must determine whether it would be detrimental to minors to continue the parental relationship. Here we conclude that the trial court did so and the judgment should be affirmed even in light of the subsequent events.

The trial court’s determination that there was clear and convincing evidence Randall had left minors in Sharon’s care and custody for a period in excess of a year without communicating with minors and without making any provision for their support with the intent to abandon the minors is supported by the record.³ Dissolution of Randall and Sharon’s marriage was entered August 13, 1979, when minors were approximately three and two years old. Testimony at trial indicated Sharon was given custody of minors and they had lived continuously with her through the day of trial, more than seven years from the date of dissolution. Sharon last received child support of any kind from Randall in May 1980. Randall exercised visitation rights as to the minors immediately after the divorce in 1979, but thereafter he never visited the children. In April or May 1985 he went to two or three baseball games minors were participating in. Other than the baseball games in 1985, Randall admitted he had no contact whatsoever with his son in the five years from 1982 through 1986. He believed he may have seen his daughter “one or two” times in 1982, but admitted having no other contact with her, other than the 1985 baseball games, from 1981 to 1986.

Randall testified he was in police or prison custody in 1985 and 1986.⁴He admitted he had sent no cards or presents to either child and had made no telephone calls to either of them from 1981 to the date of the hearing. He was in prison from January 1986 through the day of trial. Although he had writing materials available to him in prison he admitted never writing to either child.

Civil Code section 232, subdivision (a)(1), also provides, “The . . . failure to provide support, or failure to communicate shall be presumptive evidence of the intent to abandon. If the parent [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . .” As was said in In re Brittany H. (1988) 198 Cal.App.3d 533, 550 [243 Cal.Rptr. 763], “ ‘[T]he question whether such intent to abandon exists and whether it existed for the statutory period is a question of fact for the trial court to be determined upon all the facts and circumstances of the case.’ [Citations.]”

Randall contends a finding of abandonment could not be predicated upon his failure to support his children because there was no evidence he was able to support them. (Guardianship of Pankey (1974) 38 Cal.App.3d 919, 932 [113 Cal.Rptr. 858].) However, as was said in In re Cheryl E. (1984) 161 Cal.App.3d 587, 605 [207 Cal.Rptr. 728], “Although a parent’s failure to contribute to his child’s support absent demand does not necessarily show abandonment, such failure coupled with failure to communicate, may do so. [Citation.]” Here the evidence of abandonment was clear. Randall made no attempt to communicate or take any interest in his children for approximately five years.

Randall also contends he should have been advised of the provisions of Civil Code section 224 “at the outset of the stepparent adoption proceeding,” and that failure to so advise him resulted in a deprivation of due process sufficient to mandate reversal of the judgment. Civil Code section 224 provides, in pertinent part, that consent of a parent to an adoption of his or her child is unnecessary when the parental relationship has been severed, pursuant to Civil Code section 232 or where one parent has legal custody of the child and the other parent “willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so” for a period of one year. Randall argues, “With such knowledge [he] could have protected, from the start of the stepparent adoption proceeding, his rights by communicating with his children . . . .” Rarely have we heard a more callous argument. What love, parental instinct, or even basic decency could not supply, that is, interest in his children, would have miraculously appeared if only Randall had known he could prevent the stepparent adoption (and a modicum of security for his children) by communicating with them. To cloak this argument in the trappings of a constitutional right is particularly offensive. Not surprisingly, Randall cites no authority to support this contention. Suffice it to say, the stepparent adoption proceedings were brought by the proposed stepparent, not the state, and were entirely separate proceedings from those we consider here. The alleged shortcomings of the adoption proceedings are not cognizable here.

The last answer is also applicable to Randall’s argument concerning the alleged failure to provide him with an attorney in the stepparent adoption proceedings. That proceeding is not before us. Any complaint about nonrepresentation in the adoption proceeding was not raised in the court below; it may not be raised for the first time on appeal. (In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1076 [210 Cal.Rptr. 73]; Fleming v. Safeco Ins. Co. (1984) 160 Cal.App.3d 31, 43 [206 Cal.Rptr. 313].) Randall was represented by counsel here and the stepparent adoption proceeding has been terminated. The matter appears to be moot.

Randall contends he was entitled to some kind of rehabilitation or reunification plan prior to severance of his parental relationship. He made no such request at the trial level. Whether reunification services are to be ordered and termination proceedings delayed until the results of reunification attempts are evaluated lies within the sound discretion of the trial court. {In re Angelia P. (1981) 28 Cal.3d 908, 923 [171 Cal.Rptr. 637, 623 P.2d 198]; In re Clarence I. (1986) 180 Cal.App.3d 279, 283 [225 Cal.Rptr. 466].) No abuse of discretion is shown here.

Finally, Randall contends the trial court is required to make express findings of fact that an abandonment occurred, and the judgment must be reversed in the absence of such a finding. One case has so held. That holding does not appear to have been followed by any other case, nor has it been disagreed with. In In re Rose G. (1976) 57 Cal.App.3d 406 [129 Cal.Rptr. 338] the court held findings of fact and conclusions of law were required in Civil Code section 232 proceedings when they were requested by one of the parties. In listing the findings which would be necessary to support a termination of parental rights, the court stated that in that particular case the intent to abandon on the part of the natural parents was a crucial factual finding. The court determined that a finding of intent to abandon should be express and should not be implied from the judgment. The court stated, “We hold that such a finding must be an express finding in a Civil Code section 232 proceeding, especially since a parent is being deprived of custody of a child, unless findings are waived.” {Id., at p. 417.)

Here, Randall did not request findings, or more properly now, a statement of decision. Hence, the holding of Rose G. is inapplicable here.

The judgment is afiirmed.

Moore, J., concurred.

1 Among other things, far from agreeing the judgment should be reversed, counsel for minors here urges that we sustain the judgment in the best interest of the children.

2 The cases relied on by Randall, including Elise K„ are all cases in which the minor was in foster care at the time of the severance proceeding, and adoption was the ultimate goal for the child. (See Civ. Code, § 232.6.)

3 The trial court’s written findings include the finding, required by Civil Code section 4600, that an award of custody to Randall would be detrimental to minors. (In re Carmaleta B. (1978) 21 Cal.3d 482, 495-496 [146 Cal.Rptr. 623, 579 P.2d 514]; In re B.G. (1974) 11 Cal.3d 679, 698-699 [114 Cal.Rptr. 444, 523 P.2d 244].)

4 He had been released on bail in March 1985 and was not actually sent to prison until January 1986. The probation officer’s report filed in connection with these proceedings indicates Randall suffered a felony conviction for grand theft in March 1982. He was given five years formal probation and ordered to pay restitution of $199,210. In November 1985 he was convicted of conspiracy to sell cocaine and possession of cocaine for sale. He was sentenced to three years and eight months in prison on the probation violation and a one-year consecutive term for the narcotics violations. Randall was scheduled to be released from prison in September or October 1987.