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T.P v. T.W

January 21, 2011

T.P., PLAINTIFF AND RESPONDENT,
v.
T.W., DEFENDANT AND APPELLANT.



Contra Costa County Super. Ct. No. D09-05194

The opinion of the court was delivered by: Bruiniers, J.

CERTIFIED FOR PUBLICATION

In response to a paternity action initiated by T.P., T.W. filed a petition under Family Code section 7802*fn1 to free her child from the custody and control of T.P., the admitted biological father.*fn2 The trial court ruled Mother had no standing to commence such a proceeding and entered a judgment denying her petition.

Section 7841, subdivision (a) permits an "interested person" to file a petition for an order or judgment to free a minor child from the custody or control of either or both parents. Mother contends that she falls within the definition of "interested person" in this section. Father contends she does not. He argues that an "interested person" within the meaning of section 7841 is limited to a party who seeks to free a minor child from parental custody and control for purposes of adoption. As no adoption is pending or contemplated, Father asserts Mother has no standing.

We conclude that both the language of the statute and the available case law establish that Mother has standing. We will therefore reverse the judgment and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case began on November 6, 2009, when Father filed a pro se "Petition to Establish Parental Relationship" in Contra Costa County Superior Court. (See § 7630, subd. (a)(1).) On that same date, an order to show cause was issued based on Father's application and supporting declaration. Father's petition and application requested that (1) his paternity be adjudicated, (2) he and Mother have joint legal and physical custody of Minor, and (3) he be allowed reasonable visitation. A hearing was set for January 26, 2010.

On January 13, 2010, Mother filed a "Response to Petition to Establish Parental Relationship" and a "Responsive Declaration to Order to Show Cause." Mother admitted Father's paternity and requested the court to make an order establishing his parentage. Mother attached to her responsive pleadings a petition to terminate Father's parental relationship,*fn3 a verified petition to terminate Father's parental rights, and a memorandum of points and authorities and declaration in support of her petition. She claimed Father had not seen or provided for Minor since Minor's birth six years earlier, and she requested legal and physical custody of Minor and denial of visitation to Father. Mother also asked the court to stay the proceedings on Father's petition pending determination of her petition to terminate Father's parental rights.

In her declaration, Mother stated that she had had sole legal and physical custody of Minor since Minor's birth. Mother claimed Father had left Minor in her care and had never shown any interest in either visitation or custody. Specifically, Mother declared that she, not Father, had provided for all of Minor's financial and emotional needs. According to the declaration, since Minor's birth, Father had not provided any money or gifts and had not seen Minor or inquired about Minor's well being. Mother further averred that Father had never participated in Minor's education or medical care and that he had no parental relationship with his child. She asserted that these facts demonstrated Father had acted with an intent to abandon Minor. (§ 7822, subds. (a)(3), (b).) In none of Mother's filings did she claim that she was seeking to sever Father's parental relationship in order that Minor could be adopted.

On January 26, 2010, the court held a hearing on Father's petition to establish parental relationship. At the hearing, the trial court noted that Mother agreed Father was Minor's biological father, and it therefore granted his petition with regard to parentage. Addressing Mother's petition to terminate parental rights, the court explained it would deny the request because "that is a right that goes to the child. The child has a right to have two parents, so I am not going to grant that." Mother's counsel pointed out that Mother had requested a stay of all proceedings based on her petition to terminate parental rights, but the trial court responded that Mother had "no standing to terminate parental rights." When counsel objected that Minor's mother did have standing, the trial court replied: "No, she doesn't, sir. No, she doesn't. I am denying that. That is a right that goes to the child. I am finding him to be the parent. . . . But the child has a right to two parents. He is the biological father. Mother has no standing to terminate his right, so we will proceed as stated." Mother's counsel then indicated he might seek writ review of the court's decision.

Without hearing testimony or taking evidence, the court then entered a judgment establishing Father's parentage and denying Mother's petition to terminate parental rights. It confirmed the case for custody mediation and set a further hearing on the issues of child custody and visitation for March 9, 2010. The minute order from the March 9 hearing states, "Dad to start therapeutic process. If writ is denied minor child to start therapy." A review hearing on the status of the writ was set for May 5, 2010.

On March 29, 2010, Mother filed a notice of appeal from the judgment entered January 26, 2010, denying her petition to terminate parental rights.

II. DISCUSSION

Mother's principal contention is that the trial court erred in concluding she had no standing to petition for termination of Father's parental rights. Briefly stated, Mother's argument is that section 7841 provides that "[a]n interested person may file a petition under this part for an order or judgment declaring a child free from the custody and control of either or both parents." (§ 7841, subd. (a).) She asserts she is an "interested person" within the meaning of this section because she "has a direct interest in the action . . . ." (§ 7841, subd. (b).)

We agree with Mother. We will therefore reverse the judgment denying Mother's petition for lack of standing and remand the case for further proceedings. Our resolution of the standing question renders ...


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