IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
January 13, 2011
IN RE V.M., A MINOR. C.B. ET AL., PETITIONERS AND RESPONDENTS,
T.D., OBJECTOR AND APPELLANT.
Super. Ct. No. FL351109
The opinion of the court was delivered by: Hull,j.
In re V.M. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Objector and appellant T.D., alleged father of 10-year-old minor V.M., appeals from the trial court's order terminating his parental rights. (Prob. Code, § 1516.5; Fam. Code, § 7800 et seq.) Respondents, V.M.'s prospective adoptive parents, have not filed a brief.
Objector, who was incarcerated in Kansas when the hearing on termination of parental rights occurred, contends only that the trial court erred by failing sua sponte to provide for him to testify by telephone. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second appeal in this proceeding. In his first appeal, objector in propria persona attacked an order appointing respondents V.M.'s permanent guardians. (Guardianship of V.M. (May 24, 2010, C059553) [nonpub. opn.].) We take judicial notice of our prior opinion and generally draw the facts from that opinion up to the time of that order.
We note that in the prior opinion we called objector the minor's biological father because he called himself that, respondents filed no brief, and nothing in the record controverted his claim. However, the record as of now shows that he has not established biological paternity, although he has offered to do so. Therefore we call him only the alleged father this time.
Respondents became V.M.'s legal guardians in Arkansas in August 2004 when V.M. was four years old. The Arkansas probate court found that V.M. lived with respondents and her mother consented to the adoption. (Guardianship of V.M., supra, C059553.)
In June 2007, after relocating to California, respondents filed a petition in San Joaquin County Superior Court to declare V.M. free from parental custody and control. The petition declared that her mother was aware of her whereabouts but had minimal contact with her, had made no provisions for her support, and that her father was unknown. (Guardianship of V.M., supra, C059553.)
In August 2007, the superior court directed respondents to file a petition for guardianship. After they did so, the court appointed them V.M.'s temporary guardians and ordered the guardianship petition consolidated with their petition to adopt. (Guardianship of V.M., supra, C059553.)
On August 22, 2007, having learned that objector claimed to be V.M.'s father, respondents issued notice to him at his last known address, in Kansas, to appear and show cause why V.M. should not be declared free from his parental custody and control. However, he could not be found at that address and no other was known. (Guardianship of V.M., supra, C059553.)
On December 10, 2007, the trial court terminated the parental rights of V.M.'s mother, and thereafter entered judgment freeing V.M. from her mother's custody and control. (Guardianship of V.M., supra, C059553.)
On December 31, 2007, the State Department of Social Services (Department) informed the trial court that objector was incarcerated in the county jail in Johnson County, Kansas, and if he sought to contest the proceedings his parental rights would have to be adjudicated. (Fam. Code, § 7600 et seq.; Guardianship of V.M., supra, C059553.)
On January 8, 2008, respondents filed an amended petition to declare V.M. free from objector's custody and control. On February 8, 2008, he was personally served with a citation to appear. (Guardianship of V.M., supra, C059553.)
On March 3, 2008, after objector failed to appear at the hearing on termination of parental rights scheduled for that date, the trial court entered an order terminating his parental rights and a judgment freeing V.M. from his custody and control. However, after receiving a communication from objector, the court vacated its order and judgment and reset the termination of parental rights hearing to March 24, 2008. On that date, the court appointed the public defender to represent objector, who was still in jail in Kansas, and continued the matter to June 23, 2008. (Guardianship of V.M., supra,C059553.)
On June 20, 2008, counsel moved for an order to transport objector from custody to attend the hearing, and requested a continuance until objector was either transported or released from custody (which counsel expected to occur in December 2009). (Guardianship of V.M., supra, C059553.)
At the hearing on June 23, 2008, pursuant to counsels' agreement, the trial court continued the hearing on termination of parental rights to February 1, 2010. The court also made an order appointing respondents as V.M.'s permanent guardians, despite the protest of objector's counsel that he and his client had not received notice this order could be made at this hearing. Finally, the court observed that objector was now on notice (through counsel) of the February 2010 hearing. (Guardianship of V.M., supra, C059553.)
Objector appealed from the order of permanent guardianship, claiming that the lack of notice as to that order violated due process. We upheld the order, finding that objector, as a mere alleged father, was not entitled to notice of interim orders in these proceedings, and he had not shown that the order impaired his ability to contest the termination of his parental rights. (Guardianship of V.M., supra,C059553.)
When the matter came on for hearing on February 26, 2010, objector was not present. Counsel said he would move again for an order to transport objector from Kansas or to continue trial until he was released from custody. (Counsel did not give any estimated release date.) The trial court replied that it had already continued the matter for a long time in the hope that objector would be able to appear personally, and further continuances for that reason were unnecessary because counsel was adequately representing objector's interests. However, the court continued the matter to May 5, 2010 (subsequently reset to June 30, 2010), to allow respondents to file an amended petition stating the statutory grounds under which they were now proceeding.
On April 14, 2010, respondents filed a new amended petition, citing Family Code section 7822 (abandonment). They also cited Probate Code section 1516.5, which provides that if one or both of a child's parents do not have legal custody of the child, and the child's legal guardians have had physical custody for at least two years, they may seek adoption on the ground that it would benefit the child, without needing to prove parental unfitness. (Cf. Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1124-1135 [construingstatute].)
On June 25, 2010, objector's counsel filed a written motion for transport and to continue the trial; the motion also requested paternity testing. In an accompanying declaration, counsel asserted that objector "believes that he will be free from custody in November 2010," and that Kansas had no established procedure to transport prisoners out of state for hearings. Counsel also declared (on information and belief) that objector would testify he had had V.M. in his physical custody for "certain days," had tried to remain in contact with her, had repeatedly asked for photographs of her, had requested the opportunity to contact her by telephone or writing, and had never intended to abandon her. (This offer of proof did not specify dates or time periods for these alleged actions.)
At the hearing on June 30, 2010, the trial court denied objector's continuance motion. The court expressly found that objector's absence did not violate federal or state due process guarantees of notice and opportunity to be heard, given his representation by counsel, the minor's right to a speedy resolution of the matter, and the long delays that had already occurred.
Respondents (Mr. and Mrs. B.) testified that V.M., now 10 years old, had lived with them continuously since she was just under three years old; they were her maternal aunt and uncle. They had never seen objector, so far as they knew. (They could not rule out the possibility that they might have come in contact with him unknowingly during the first nine months of V.M.'s life, when they had not yet met her and did not know where she was living.) He had never provided V.M. any support. Between 2003, when respondents took V.M. in, and 2007, when this proceeding began, they had never heard from anyone claiming to be her father. After this proceeding began, objector (then incarcerated) called Mr. B. on the telephone and requested photographs of V.M.; respondents did not send any because they were not comfortable with sending photographs to an inmate. Within the last month, objector, through counsel, had requested further contact with V.M.
The trial court ruled: (1) Even if objector were the natural or presumed father, clear and convincing evidence showed it was in V.M.'s best interest to proceed with adoption (Fam. Code, § 7664); (2) All required tests under Probate Code section 1516.5 had been met; therefore the termination of objector's parental rights was proper under this statute; and (3) Abandonment had also been proved by clear and convincing evidence--objector had not supported or communicated with V.M. for a period of at least six months and there was no evidence he had tried to contact her between 2003 and the date this petition was filed. (Fam. Code, § 7822.) The court therefore ordered the termination of objector's parental rights under both provisions.
On appeal, objector raises only one contention: Due process required his personal appearance at the hearing to terminate his parental rights, and if his incarceration prevented him from appearing physically, he should have been given the opportunity to do so by telephone. Apparently recognizing that this contention is forfeited because trial counsel did not request a telephonic appearance, objector contends the trial court had a duty to arrange such an appearance sua sponte. We disagree. Even assuming objector's claim is not forfeited, he cites no apposite authority that supports it, and the general principles of due process he relies on do not do so.
As direct authority that the trial court had a duty to provide for his telephonic appearance sua sponte, objector cites only Family Code section 3411, a part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.). This provision states in part: "(a) . . . [A] party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties . . . , by [any] means allowable in this state for testimony taken in another state. The court, on its own motion, may order that the testimony of a person be taken in another state and may prescribe the manner in which . . . the testimony is taken. [¶] (b) A court of this state may permit an individual residing in another state . . . to testify by telephone . . . before a designated court or at another location in that state." (Italics added.) This provision does not assist objector.
First, as the statute makes clear on its face, it is discretionary, not mandatory, even within the context of the UCCJEA. Second, the UCCJEA elsewhere states clearly: "This part [i.e., the UCCJEA itself; see § 3400] does not govern an adoption proceeding[.]" (Italics added.) For both reasons, objector's reliance on Family Code section 3411 is misplaced.
As persuasive authority for the claim that he was entitled to appear personally, if only by telephone, objector falls back on general principles of due process in parental rights termination proceedings. This argument also fails because those principles do not mandate any particular procedure in an adoption proceeding under Probate Code section 1516.5, as here.
"Parents are entitled to fundamentally fair procedures in proceedings to terminate their rights, whether or not they have custody of their children and whether it is the state or a private party that moves to sever the parental bond. 'The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child . . . . Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.' (Santosky v. Kramer  455 U.S. [745,] 753 [71 L.Ed.2d 599]; see In re Sade C. (1996) 13 Cal.4th 952, 987-988 .) However, the procedural standards governing proceedings to terminate parental rights are not invariable. The nature and stage of the proceeding, and the passage of time without parental custody, may make a difference." (Guardianship of Ann S., supra, 45 Cal.4th at p. 1135 [construing Prob. Code, § 1516.5], italics added.)
Here, the proceeding was a petition for adoption by V.M.'s long-time probate guardians, the only real parents she had known for most of her life, brought in part under Probate Code section 1516.5, which does not require a showing of parental unfitness. Aside from objector's extremely belated claim to fatherhood, which had yet to be even biologically substantiated, there were no impediments to adoption at the earliest possible time. So far as the record shows, V.M. had never been in objector's custody and had no recollection of him. Even if objector had testified (as counsel's declaration averred) that he had had physical custody of V.M. for "certain days", those days could not have been more recent than 2003. Finally, objector was at all times ably represented by counsel, who fought vigorously on his behalf. Thus, the factors cited by Guardianship of Ann S., supra, 45 Cal.4th at page 1135, as relevant to what process is due in a parental rights termination proceeding under Probate Code section 1516.5, all weigh heavily against objector's claim that his personal appearance was required.
Furthermore, as explained in our prior opinion in this case (Guardianship of V.M., supra, C059553), under the Uniform Parentage Act (Fam. Code, § 7600 et seq.) a mere natural father cannot block an adoption by withholding consent; only a presumed father--i.e., a person who has done everything within his power, from the moment he learned of his child's existence, to act as the child's father--can do so. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) Nothing in this record, including what was alleged in objector's offer of proof, could qualify him as a presumed father. Thus, it is inconceivable that his personal presence at the hearing could have affected the outcome. That fact distinguishes this case from those objector cites which were decided under the juvenile dependency statutes, where a parent can produce evidence even at a section 366.26 hearing that will forestall the termination of parental rights.
Because objector has failed to support his only contention with apposite authority, or with a showing that general due process principles required his personal appearance at the hearing on termination of parental rights, he has shown no grounds for reversal.
The judgment (order terminating parental rights) is affirmed.
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