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Adoption of X.Z., A Minor. v. D.Z

April 10, 2013

ADOPTION OF X.Z., A MINOR. D.T., PETITIONER AND RESPONDENT,
v.
D.Z., OBJECTOR AND APPELLANT.



(Super. Ct. No. FL363663

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

Adoption of X.Z. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

D.Z., father of the minor, appeals from a judgment declaring the minor free from the custody and control of his natural father. (Fam. Code, § 7860 et seq.) Father contends (1) the trial court erred in failing to appoint counsel for, and interview, the minor and (2) substantial evidence did not support the trial court's finding he abandoned the minor within the meaning of Family Code section 7822. We conclude any error in failing to interview the minor or not appointing counsel for the minor was harmless. We reject father's substantial evidence contention. There was ample evidence supporting the trial court's finding that father abandoned the minor. Accordingly, we affirm the judgment.

FACTS

In December 2009, stepfather filed an adoption request. The request alleged father had abandoned the 10-year-old minor because there had been no contact from father in more than a year. Probation Officer Harmon, while investigating the matter in January 2010, contacted father who was in jail. Father refused to consent to adoption and said he was due to be released soon. Harmon told father to contact the family court if he wanted visitation.

Harmon's stepparent adoption report stated mother lost contact with father when the minor was about three years old. Prior to that time the parents had an informal visitation agreement, which the mother ended when father threatened to take the minor to Mexico. Shortly thereafter, father and another person tried to break into mother's home. At that time, mother got a restraining order against father and also filed for custody and child support orders. Father did not attend these hearings but did appear at a hearing on visitation initiated by the paternal grandmother. Visitation was denied and mother said father made no further effort to contact the minor.

In April 2011, a petition to free the minor from father's custody was filed. The petition alleged father left the minor without provision for support and had not contacted the minor from August 2001 to the present.

In March 2011, father was sent letters regarding consent to adopt and again declined to consent. Father called Harmon and said he went to family court but the filing fees were too expensive. Harmon gave father information about the adoption petition process but had no further contact from him.

Harmon's report stated the minor was living with his mother and stepfather. When interviewed, the minor was fully aware of the adoption petition and expressed interest in being adopted soon. He wanted to change his last name because he did not like his current last name. He did not want to have to see father or go with him. When asked if there was anything the minor would like to tell the judge, the minor stated, "It's so important so he [father] can't take me anymore." The report discussed the family and residence of mother and stepfather who were married in 2007. Harmon believed the stepfather was suitable to adopt the minor and the best interests of the minor would be served if the adoption petition were granted.

A social worker from the San Joaquin County Human Services Agency (Agency) prepared an evaluation and report pursuant to Family Code section 7850. The report described the minor as a generally healthy child who was developing normally, doing well in school, and had no behavioral problems. Mother and stepfather had provided a stable nurturing family for the minor. The stepfather wanted legal status as the minor's father in the event anything happened to mother, and the name change for the minor would make him clearly a part of the family.

The social worker's report also set forth the facts supporting the allegations of father's abandonment. Mother lived with father for several years until his drug use caused her to ask him to leave in 2001, when the minor was about two years old. They had an informal visitation agreement but father did not visit as scheduled. Father did not appear at a court hearing regarding visitation and mother was awarded full custody of the minor. Although ordered to do so, father never paid child support and never called or sent cards or gifts to the minor for birthdays or holidays. After father and his friends tried to break into her home, mother got a restraining order, which was lifted in 2003. Father was in and out of custody over the intervening years and was in custody in 2009 when the stepfather tried to adopt the minor. Father was unwilling to give consent at that time. Mother and stepfather decided to wait on the adoption to see if father would try to establish a relationship with the minor. Father made no attempt to do so.

The social worker explained to the minor what adoption would mean to him and he said he understood. The minor told the social worker he really wanted to be adopted, and would then have the same last name as the rest of his family. He was clear that his stepfather was a good "dad" and they enjoyed a positive relationship. The minor said he did not know father and would not recognize him if he saw him. The minor was somewhat bothered that father did not want to contact him or know him and said he did not "want a father that doesn't want me." ...


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