Filed 9/18/13 In re K.O. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re K.O., a Person Coming Under the Juvenile Court Law.
L.B. et al., Petitioners and Respondents,

v. A.B., Objector and Appellant. F066933 (Super. Ct. No. 11A0017)



### OPINION

THE COURT * APPEAL from a judgment of the Supe rior Court of Kings County. James LaPorte, Judge. Mary R. Williams, under appointment by the Court of Appeal, for Objector and Appellant. Catherine Campbell for Petiti oners and Respondents.
-ooOoo- A.B., mother, appeals from a judgment granting a petition, pursuant to Family Code section 7822, 1 declaring her daughter, K., free fro m her custody and control. The

* Before Levy, Acting P.J., Franson, J., and Peña, J.2. petition was brought by Loretta, mother’s mo ther and K.’s grandm other, and Angel, Loretta’s husband. The family court grante d the petition to terminat e mother’s parental rights. In its order, the family court also granted the petition to terminate K.’s father’s parental rights. 2
Mother contends there is insufficient evidence to support the family court’s findings. She also contends th at the family court failed to comply with th e Indian Child Welfare Act (ICWA; 25 U.S.C., § 1901 et seq .). We agree with her latter contention and reverse and remand for the sole purpose of compliance with the IC WA. In all other respects, the order terminating moth er’s parental rights is affirmed.
FACTUAL AND PROC EDURAL SUMMARY K. was born in January of 2007. K. came to live with Loretta in February of 2009
when mother said she could no longer afford to take care of her. Mother consented to Loretta having guardianship of K. According to mother, her desire was to one day provide for K., but she agreed with the guardianship as a way for her to better provide for K. When guardianship proceedings started, father’s whereabouts were unknown, but at some point, he was located and notified of th e proceedings. Guardianship was ordered July 27, 2009. A guardianship status report filed in Ma y of 2010, Loretta reported that mother visited K. once a week for a few hours. Ange l testified that, when mother did visit in 2009 and 2010, she often slept during visits. By May of 2011, in a subsequent guardia nship status report, Loretta reported that mother was visiting “1 p/mos” up to three ho urs. According to the report, mother had taken no “meaningful steps to stabilize her life.” She had lost a “good job,” was

1 All further statutory references are to the Family Code unless otherwise noted.
2 K.’s father, J.O., is not a party to this appeal.3. employed at a fast food restaurant, had been ev icted, and was planning to live in her car. Loretta expressed a desire to adopt K. In August of 2012, Loretta and Angel f iled this petition to free K. from her mother and father’s custody and control, so that th ey could adopt her. At the hearing on the petition, Angel testified that he and Loretta or iginally agreed to take K. to protect her from becoming a ward of the state. They su bsequently decided to adopt her and were trying to terminate mother and father’s parent al rights because they wanted to provide K. with stability, consistency and care; if they were able to adop t her, Angel’s military benefits would protect K. Loretta testified that, at the beginning of the guardianship, Loretta and mother agreed to coordinate their re spective work schedule s so mother could visit K. But since then mother had lost two jobs and had been homeless, and she was never able to provide
a stable environment for K. Loretta did not ask mother to help financially with K., and mother never volunteered any assistance.
Loretta testified that she had not known where mother was living since January of
2011. Mother often did not sh ow for visits. During the fall of 2011, mother called to say she was coming over on October 2 and October 9, 2011, but di d not show either of those days. She did come over on October 10, 20 11, for one and one-half hours to visit and asked to borrow $10. On Octo ber 31, 2011, mother came ove r from 6:00 to 8:15 to take K. trick-or-treating. As for 2012, Mother texted Loretta on August 7, 2012, to say that she would stop by the following day from 6:00 to 7:30. That was the first and only contact mother had
with K. in 2012. Lo retta testified that she could coun t “on one hand,” the number of items mother purchased for K. since she had been with her: a sundress someone made for her, a Barbie doll, a bear from Starbucks wher e mother worked at the time, and a “wind
catcher.”4. Angel testified that there were a number of times when K. would get a chair and sit out by the garage and wait for her mother to come, and be then disappointed when she did not come. Even after Loretta and Angel told mother that they hoped to adopt K.,
mother still did not initiate vi sitation with K. Angel testifie d that they never told mother she was not allowed to see K., only th at they asked her to call first.
Mother testified that she visited K. “a couple of times” between August of 2011 and August of 2012, and “one or two” times during the first eight months of 2012.
Mother claimed she called Lore tta to make arrangements to visit about ten times, but her phone calls were not returned. Mother did not have a stable phone number. According to mother, on one occasion, she we nt to Loretta and Angel’s ho use and wanted to park her car, which contained her belongings because she was homeless, in their driveway. Her
brother locked her out of the house and would not let her in. Mother stated she was never given a time frame by Loretta in which she need ed to “get [her] life together” for Loretta
to return K. to her. But at the time of tria l, she conceded that she was not yet ready for her return. She was still unemployed and stayin g with friends. Father never visited or paid any support. The December 10, 2012, inve stigator’s report stated that K. remembered her mother by name, but did not remember when she last saw her. She was too young to understand the purpose of an adoption or the meaning of the court proceedings. K. seemed comfortable living with Loretta and Angel an d called them “momma” and “poppa.” In the investigato r’s opinion, it was appropriate to terminate father and mother’s parental rights under se ction 7822, subdivision (a)(3). 3 According to the

3 Section 7822, subdivision (a)(3) governs wh en one parent has le ft the child in the custody and care of the other parent for a period of one year; section 7822, subdivision (a)(2) governs when the child has been left by one or both pa rents in the care and custody of another person for six months. While section 7822, subdivision (a)(2) is more applicable here, there is no prejudicial harm in referencing the in correct subdivision as5. investigator, mother had had “over three years” in which to become a stable parent and had not done so. The investigator reco mmended that the petition be granted because Loretta and Angel were willing to ensure that K.’s physical, educational, and emotional needs were a priority and would be met in their home. The family court found that father had not supported or contacted K. for more than a year and that, pursuant to section 7822, he evidenced an intent to abandon the child. The family court granted the petition to free K. from father’s care, custody or control and his parental rights were terminated. The family court also found that mother had not supported K. for a one year period and that beginning in January of 2012, “mot her only visited the child on a token basis” and the intent to abandon her had been pr oven within the mean ing of section 7822, subdivision (a)(2). The petition to free K. fro m mother’s care, custody and control was granted and mother’s parental rights terminated.
DISCUSSION
I. SUFFICIENCY OF THE EV IDENCE TO SU PPORT SECTION 7822 FINDING Mother challenges the suffici ency of the evidence to support the family court’s finding under section 7822 that she “left” K. in Loretta’s care and custody with the intent to abandon her. Instead, she claims she only left K. with Loretta until she was able to adequately care for her, and in the meantime, she provided for her as she could and
communicated with her as Loretta a nd Angel allowed. We disagree. Applicable Law “Section 7800 et seq. governs proceedings to have a child declared free from a parent’s custody and control. The purpose of such proceedings is to promote the child’s best interest ‘by providing the stability and se curity of an adoptive home.’ (§ 7800.) The

the time frame sufficient for se ction 7822, subdivision (a)(2) is six months less than that of section 7822, subdivision (a)(3).6. statute is to ‘be liberally construed to serv e and protect the interests and welfare of the child.’ (§ 7801.)” ( Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009-1010.) The court may declare a child free from pa rental custody and control if the parent has abandoned the child. (§§ 7820, 7822.) As applicable here, abandonment occurs
when the child has been left by the sole parent in the care and custody of another person for a period of six months without any pr ovision for the child’s support, or without communication from the parent, with the intent to abandon the child . (§ 7822, subd. (a)(2).) Failure to communicate or provide support “is presumptive eviden ce of the intent to abandon.” (§ 7822, subd. (b).) To overcome the statut ory presumption, the parent
must make more than token efforts to support or comm unicate with the child. ( Ibid. [“If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent”]; In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) 4 Intent to abandon may be fo und on the basis of an objective measurement of conduct, as opposed to stated desire. ( In re B.J.B., supra, at p. 1212.) The court may consider the fre quency with which the parent tried to communicate with the child, the genuineness of the effort under all the circumstan ces, and the quality of the communication that occurred. ( Ibid. ; People v. Ryan (1999) 76 Cal.App. 4th 1304, 1316.) “The parent need not in tend to abandon the ch ild permanently; rather, it is sufficient that the parent had the intent to abandon th e child during the statutory period.” ( In re Amy A. (2005) 132 Cal.App.4th 63, 68.)

4 In re B.J.B., supra, 185 Cal.App.3d 1201 construe d former Civil Code, section 232, Family Code section 7822’s predecessor statute, as do other pr e-1994 cases in this opinion.7. Standard of Review We apply a substantial evidence standard of review to a trial court’s finding under section 7822. ( In re Amy A., supra, 132 Cal.App.4th at p. 67.) “Although a trial court must make such findings based on clear and convincing eviden ce (§ 7821), this standard of proof ‘“is for the guidance of the trial c ourt only; on review, our function is limited to
a determination whether substan tial evidence exists to suppor t the conclusions reached by the trial court in utilizing the appropriate st andard.”‘ [Citation.] Under the substantial evidence standard of review, ‘“[a ]ll conflicts in the evidence mu st be resolved in favor of the respondents and all legitimate and reasona ble inferences must be indulged to uphold the judgment.”’ [Citation.]” ( Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1010- 1011, fn. omitted.) All evidence most favorable to the respondent must be accepted as
true and that which is unfavora ble discarded as not having sufficient verity to be accepted by the trier of fact. ( In re Gano (1958) 160 Cal.App.2d 700, 705.) “Abandonment and intent ‘“are questions of fact for the trial [c ourt] .... [Its] decision, when supported by substantial evidence, is binding upon the revi ewing court. An ap pellate court is not empowered to disturb a decree adjudging that a minor is an aba ndoned child if the evidence is legally sufficient to support th e finding of fact as to the abandonment [citations].”’ [Citation.] ‘The appellant has the burden of showing the finding or order is not supported by substantial evidence.’ [Citation.]” ( Adoption of Allison C., supra, at p. 1011.) The presumption regarding the intent to abandon is a presumption affecting the burden of producing evidence. ( In re Rose G. (1976) 57 Cal.App.3d 406, 419.) The presumption “may be overcom e by opposing evidence ... and the question whether such
intent to abandon exists and whether it has ex isted 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. [Citation.] ( In re Neal (1968) 265 Cal.App.2d 482, 488.)8. Analysis In determining the threshold issue of whet her a parent has “left” his or her child with another person, the focus is “on the volu ntary nature of a parent’s abandonment ...” ( In re Amy A., supra, 132 Cal.App.4th 63, 69; In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504.) “[A] parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively ‘taken’ from the parent by court order [citation]; howev er, the parent’s later volunt ary inaction may constitute a leaving with intent to aban don the child [citation].” ( In re Marriage of Jill & Victor D.,

supra, at p. 504.) Thus, nonaction in the face of a judicial custody order may result in a finding that the parent “voluntarily surre ndered” his or her parental role. ( In re Amy A.,

supra, at pp. 68-69; accord In re Jack H. (1980) 106 Cal.App.3d 257, 264; In re Jacqueline H. (1979) 94 Cal.App.3d 808, 815-816.) Here, there is no question that K. had be en in Loretta’s care since February of 2009 and in her guardianship shortly thereaf ter. But mother argues that her actions agreeing to the guardianship di d not demonstrate any intent to abandon K., but instead that she made provisions for K.’s care a nd support by agreeing to let Loretta take guardianship until mother could establish herself. As argued by mother, in agreeing to guardianship, she was not deserting K. or se eking to sever her parental relationship but “seeking to provide K[.] with a better level of care than [she] was able to provide at that
time.”
Mother relies on Adoption of R.R.R. (1971) 18 Cal.App.3d 973, for the proposition that “‘mere acquiescence in support by others’” cannot prove an intent to abandon, or that “‘the forfeiture of parental rights [cannot] be decreed against a parent who has merely acquiesced in the support of the child by other relati ves. [Citations.]’” ( Id. at p. 981.) In Adoption of R.R.R., the trial court denied the grandpare nts’ petition to adopt, a decision affirmed by the Court of Appeal, which found that that when a parent felt constrained by circumstances to give up custody temporarily in order to act in the child’s best interest9. and make provision for the child, no abandonment can be found. ( Id. at p. 981.) The appellate court noted that mo ther had only failed to provide for her daughter because “on the one hand, no demand had been made upon her for such support and on other
occasions she was without the wherewithal to provide such support; that she had not neglected her daughter because her relatives ha d voluntarily undertaken to provide for her care and support.” ( Id. at p. 984.) But the court also noted that mother had not failed to communicate with her daughter and that she had been rehabilitated. The Court in Adoption of R.R.R. was obligated to uphold the trial court’s decision under the standard rules governing appellate review and could no t reweigh the evidence, which is the same
standard we must use here. Mother’s argument that she never “left” K. in what amounted to abandonment must fail. “In determining the threshold issu e of whether a parent has ‘left’ his or her child, the focus of the law is ‘on the voluntary nature of a parent’s abandonment of the parental role rather than on physical desertion by the parent.’ [Citations.] [¶]...[¶] Numerous appellate decisions have long agre ed that the leaving-w ith-intent-to-abandonthe-child requirement of section 7822 can be established by evidence of a parent’s voluntary inaction after an order granting prim ary care and custody to the other parent. [Citations.]” ( In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 504.) Here, while the guardianship was court ordered, mother consented to it. Substantial evidence supports the trial court’ s implied finding that this leaving amounted
to an abandonment becau se, over time, mother made no effort to either support or have a relationship with K. Mother’s inactions after the guardianship provide substantial evidence that she voluntarily su rrendered her parental role and thus “left” K. within the meaning of section 7822. (See In re Jacqueline H., supra, 94 Cal.App.3d at p. 816 [mother “left” child when she did not seriously attempt to obtain visitation or a change in the order removing the ch ild from her custody].)10. We next address mother’s claim that th e evidence is insuffici ent to find that she abandoned K. by failing to provide for or co mmunicate with K. because, according to mother, she was never asked to provide for K. and she visited her as often as she was allowed to by Loretta and Angel. The failure to support or communicate with K. is presumptive evidence of
mother’s intent to abandon K. (§ 7822, subd . (b).) Mother admitted that she never provided any support for K., but claims she was not asked to do so. This claim was substantiated by Loretta and Angel. Although the failure to support when a parent does not have the ability to do so or when no dema nd is made does not, by itself, prove intent to abandon, such failure coupled with failure to communicate may do so. ( Adoption of Allison C., supra, 164 Cal.App.4th at p. 1013; In re Randi D. (1989) 209 Cal.App.3d 624, 630.)
Mother also admitted that sh e had only seen K. maybe “one or two” times during the first eight months of 2012, but that any further efforts on her part were thwarted by Loretta and Angel. Loretta testified that mother saw K. only once in the first eight months of 2012. Both Loretta and Angel tes tified that they never restricted mother’s visits with K., other than to ask that she call before coming over. The family court could credit the testimony of Loretta and Angel. Abandonment and intent are questions of fact for the family court, which the family court resolved advers ely to mother’s position. ( Adoption of Allison C., supra, 164 Cal.App.4th at p. 1011.) Mother essentially asks this court to reweigh the evidence and
substitute our deductions for those of the fa mily court. This we may not do. The credibility of witnesses and the probative valu e of their testimony are questions for the trier of fact. The power to we igh the evidence and resolve i ssues of credibility is vested in the trial court and not the reviewing court. ( Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719.)11. Mother has failed to meet her burden of establishing that the family court’s findings and orders were not suppor ted by substantial evidence. ( Adoption of Allison C.,

supra, 164 Cal.App.4th at p. 1011.) When th e family court’s findings on intent and abandonment are supported by substantial evid ence, they will not be disturbed on appeal. ( In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
II. BEST INTERESTS OF THE CHILD Mother contends that, in th e absence of the appointment of counsel for K. and the failure of the investigator to ascertain whet her K.’s best interests would be served by adoption, the family court la cked sufficient evid ence upon which to determine adoption
would be in K.’s best interest. We find no prejudicial error and disagree. At no point before or during trial did counsel for mother rais e concerns about the family court’s failure to appoint counsel for K. At a pre-trial hearing on October 30, 2012, Loretta asked if the family court could appoint counsel for K. The family court did not respond to this request. Section 7861 provides, “[t]he court shall c onsider whether the in terests of the child require the appointment of coun sel. If the court finds that the interests of the child require representation by counsel, the court sh all appoint counsel to represent the child,
whether or not the child is ab le to afford counsel.” Cons truing the statutory predecessor to section 7861, the California Supreme Court held that the court is required to appoint
counsel for the minor unless th ere is an affirmative showi ng that the minor’s interests would otherwise be protected. ( In re Richard E. (1978) 21 Cal.3d 349, 354.) Nevertheless, “‘failure to ap point counsel for a minor in a freedom from parental custody and control proceeding does not require reve rsal of the judgment in the absence of miscarriage of justice.’” ( In re Noreen G. (2010) 181 Cal.App.4t h 1359, 1378.)
Mother claims that the failure to appoint counsel for K. was prejudicial because K. spent the first two years of her six years in mother’s custody and care and mother had a continuing presence in her life. According to mother, counsel was necessary to protect12. K.’s interests in that continued relationship. But mother’s assertions that she continued to have a substantial presence in K.’s life ar e not borne out by the evidence and mother cannot point to any other interests of K.’s th at were not adequately represented at the hearing.
We also find mother’s claim that th e investigative report was inadequate unavailing. Pursuant to section 7851, subdivi sion (a), the investigator must provide the court “a written report of the investigati on with a recommendation of the proper disposition to be made in the proceeding in th e best interest of the child.” The report is required to include the following information regarding the child: “(1) A statement that the person ma king the report explained to the child the nature of the proceeding to end pare ntal custody and control. [¶] (2) A statement of the child’s feelings and thoughts concerning the pending proceeding. [¶] (3) A statement of the child’s attitude towards the child’s parent or parents and particularly wh ether or not the child would prefer living with his or her parent or parents. [¶] (4) A statem ent that the child was informed of the child’s right to attend the hearing on the petition and the child’s feelings concerning attending the hearing.” (§ 7851, subd. (b).) “If the age, or the physical, emotional, or other condition of the child precludes the child’s meaningful response to the explanat ions, inquiries, and information required ... , a description of the condition shall satisfy th e requirement ....” (§ 7851, subd. (c).) This section requires the court to “receive the report in evidence” and to “read and consider its contents in rendering the court’s ju dgment.” (§ 7851, subd. (d).) Mother has forfeited her right to complain of inadequacies in the report by failing to object at trial. ( In re Noreen G., supra, 181 Cal.App.4th at p. 1379; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) But in any ev ent, we find the investigator’s report here plainly complied with subdivisions (b) and (c) of section 7851, and re ject mother’s claim to the contrary. The December 10, 2012, investigato r’s report stated that K. remembered her mother by name, but did not remember when she last saw her. She was too young to understand the purpose of an adoption or the meaning of the court proceedings. K.13. seemed comfortable living with Loretta and Angel an d called them “momma” and “poppa.” As previously noted, the pu rpose of proceedings to have a child declared free from a parent’s custody and control is to promote the child’s be st interest by providing the stability and security of an ad optive home. (§7800, et seq.; Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1009-1010.) Throughout K.’s life, mother di d not seek to take parental responsibility for K.’s care or try to develop a parental relationship with her, choosing instead to allow Lo retta and Angel assume that role. Once the guardianship was established, mother took no ne or only token steps in the following three years in an effort to be a part of K.’s life. On the ot her hand, Loretta and Ange l had been a constant in K.’s life since she was two years old. “[A]n important element that a trial court must consider, when making a decision about children, is the impact of the passage of time. Childhood is short; many basic attitudes and capacities are developed in the very early years. Ties are formed to the adults present in the child’s lif e, and can only be broken by inviting emotional disaster.” ( In re Rose G. , supra, (1976) 57 Cal.App.3d at p. 42 5.) “[A] child’s need for a permanent and stable home cannot be postponed for an indefinite period merely because the absent parent may envision renewing cont act with the child so metime in the distant future.” ( In re Daniel M. (1993) 16 Cal.App.4th 878, 884; see also Adoption of Allison C., supra, 164 Cal.App.4th at p. 1016.) K. de serves the security and stability of a permanent home. Substantial evidence suppor ts the court’s finding it was in K.’s best interests to be adopted and we rej ect mother’s claim to the contrary.
III. ICWA APPLICABILITY Finally, mother contends that, at the Janua ry 15, 2013, hearing on the section 7822 petition, the family court failed to inquire of the parties, pursuant to the ICWA, whether K. had any Indian ance stry. We agree.14. The ICWA provides that wh en a child subject to a dependency proceeding is or may be of Native American heritage (referred to in the ICWA as an “Indian child”) each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and of the tribe’ s right to intervene in the proceeding. (25 U.S.C., § 1912(a).) ICWA inquiry and no tice requirements apply in a section 7822 proceeding. ( In re Suzanna L. (2002) 104 Cal.App. 4th 223, 226-227.) The necessity for ICWA notice is implicat ed where there is information the child may have Indian heritage and therefore may be an Indian child, a matter for the ultimate decisi on of the tribe. ( In
re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Here, the petition for guardianship filed by Loretta in February of 2009 included form GC-210(CA) Guardianship Petition - Child Information Attachment, on which
Loretta had checked the box that she had r eason to know that K. might have Indian heritage. The necessary notice form, Notice of Child Custody Proceeding for Indian Child, Form ICWA-030, was appa rently completed and sent. But there is nothing further
in the record before us to indicate what transpired concerning this issue. 5 On the Adoption Request, ADOPT-200, file d June 9, 2011, Loretta and Angel
checked the box that stated that K. did nothave any Indian ancestry. At the subsequent hearing on the petition to decl are K. free from parental cust ody on January 15, 2013, no
mention was made of the ICWA. What likely happened is that ICWA notice in the guardianship proceeding revealed that K. did not have any Indian ancestry, which is evidenced by Loretta’s

5 Mother’s requests that we take judicial notice of the Indian-child notice which was filed in the guardianship proceeding in orde r to establish that no tice was not properly made in compliance with ICWA . Mother claims that only one of the three federally recognized Cherokee tr ibes was noticed. While this ch allenge to the guardianship may have had merit, it is not an issue before this Court in the appeal from the judgment terminating mother’s parental rights. We ther efore deny her request for judicial notice.15. statement to that effect in the adoption reque st. But because we cannot say with certainty
from this silent record in the section 7822 proceeding that the notice requirements of the ICWA were satisfied, we will reverse and re mand for the sole purpose of ensuring ICWA compliance. ( In re J.T. (2007) 154 Cal.A pp.4th 986, 991; In re Nikki R., supra, 106 Cal.App.4th at p. 849.)
DISPOSITION The order declaring K. free from mother’s custody and control is reversed and the matter remanded to the family court for the so le purpose of ensuring compliance with the ICWA. The family court shall make prope r inquiry, and comp ly with the notice provisions of the ICWA. If, after proper inqu iry and notice, the fami ly court determines K. is an Indian child, the fam ily court shall proceed pursuant to the terms of the ICWA. If the family court determines the ICWA does not apply, th e order declaring K. free from mother’s custody and control shall be reinstated. The parties are to bear th eir own costs on appeal.