1 Filed 5/15/13 T.W. v. T.P. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

T.W., Plaintiff and Respondent,

v. T.P., Defendant and Appellant. A134575
(Contra Costa County Super. Ct. No. D0905194)

This case is before us for the second time. (See T.P. v. T.W. (2011) 191 Cal.App.4th 1428.) In this appeal, T.P. (Father) challenges a judgment freeing his daughter (Minor) from his parental custody and control. The judgment was entered in a proceeding brought by responde nt T.W. (Mother) seeking a finding that Father had
abandoned Minor within the meani ng of Family Code section 7822. 1 The trial court found Mother had proved the existence of all of the elements of section 7822 abandonment by clear a nd convincing evidence. Father asks us to reverse the judgment for two reasons. He first claims the trial court’s failure to consider appointing indepe ndent counsel for Minor makes the judgment voidable as in excess of the trial court’s jurisd iction. He also contends the court’s finding
that he intended to abandon Minor is unsu pported by substantia l evidence. We find neither contention persuasi ve and therefore affirm.

1 All statutory references are to the Family Code.2 F ACTUAL AND P ROCEDURAL B ACKGROUND Mother and Father were introduced in 1998. They began dati ng and con tinued to do so until August of that yea r, when Mother left to study nu rsing in Washington, D.C. After that, they dated sporadically, seeing ea ch other on holidays and school breaks. At some point thereafter, Mother and Fath er began living together in Sacramento. Mother became pregnant and gave birth to Minor in June 2003. Mother and Father were no longer living together by that time, having separated earlier in that year. Mother testified they broke up becaus e Father “wasn’t working a nd wasn’t really making an effort to find employment to help with the finances at ho me.” Mother remained in Sacramento until she gave birth to Minor, at which time she moved to her parents’ home in Antioch, where she liv ed until January 2006. Since Minor’s birth in June 2003, Mother has had sole custody of Minor and has provided for all of Minor’s financial, emotiona l, educational, and health needs. Father has not provided any such s upport since Minor was born. During the period in whic h Mother lived with her parents, from approximately July 2003 until January 2006, Father visited Minor only once. The visit occurred in August 2003, when Minor was two months old. The visit was brief because Mother and Father began arguing after Mother asked Fa ther if he had brought anything for Minor, such as diapers or money. Mother never soug ht a formal order of support, and this was the only time Mother asked Father for support for Minor. Father did not visit Mother at her parents home after August 2003, although he knew where Mother’s parents lived; in addition to the August 2003 visit, he had been to th e house many times while he and Mother were dating.
Mother moved out of her parents’ house in January 2006, and then moved again before buying the home in whic h she currently lives. Mother resided in Antioch at all times, however, and at all times her telephon e number and addresses were listed in the3 telephone directory. 2 Father did not visit Mother or Mi nor at any of these residences, and
Mother received no mail from him. Father did not send Minor birthday or Christmas cards. Indeed, Mother has never receiv ed any type of written communication from Father concerning Minor. Be tween August 2003 and Octobe r 2009, Mother received no telephone calls, messages, or voicemail from Father, and she was unaware of any
communications between Father and Minor du ring this period. After June 2003, Mother’s parents received no communications fro m Father, either. Mo ther did happen to
see Father four or five times in the Antioch-Pittsburgh area where they bo th lived, but during these chance encounters, Fatherdid not inquire about Minor. Mother never refused to give Father e ither her home address or telephone number,
and Father never asked her for her address. Although Mother was listed in the telephone directory, Father never looked in the director y or called 411 to find Mother’s number. At trial, Father claimed he did not have a te lephone book and did not call 411 because he thought it could be used only to find businesses and not people . Before 2008, Father did not use any computer searches in an attempt to find Motherand Minor. Father testified that in 2008, he performed a computer sear ch and found Mother’s telephone number. In October 2009, while employed at Comcas t, Father called Mo ther’s unlisted cell phone number from a Comcast phone. He ad mitted to Mother he had obtained her cell phone number by looking at her Comcast file and informed her he had her address.
Mother told Father it was un acceptable for him to access her file without a reason, and she explained she would be complaining to Comcast about his conduct. She did so, and
Comcast terminated Father on October 31, 2009, because he had looked at computer files for personal reasons.

2 The parties stipulated that Mother’s te lephone number and address were listed in the local phonebooks for the years 2007, 2008, and 2009. At th e time of trial, Mother still had the same home telephone number she had obtained in January 2006. Mother also maintained the same cell phone number from 2003 to 2006. Father knew this number, because he claimed at trial th at in 2003, he would call Moth er at that number every other day and continued to do so until her number changed.4 On November 6, 2009, less than one week after his te rmination, Father filed a petition to establish parentage over Minor. Although Father ackn owledged he was angry at Mother over his termination, he claimed at trial that he did not file the petition because he was angry, but rather because someone in Comcast’s human resources department had advised him to do so. In resp onse to Father’s petition, Moth er filed a petition seeking to terminate Father’s parental rights. 3 The superior court granted Father’s petiti on to establish parentage on January 26, 2010. At the same time, it de nied Mother’s petition to terminate Father’s parental rights. As we explained in our prior op inion in this case, the superi or court ruled Mother had no standing to seek termination of Father’s parental rights. ( T.P. v. T.W., supra, 191 Cal.App.4th at pp. 1431-1432.) Mother appe aled from the resulting judgment, and in the prior appeal, we reversed the trial court and concluded Mother did have standing to petition for termination of Fath er’s parental rights. ( Id. at pp. 1430, 1434-1439, 1440.)
We therefore remanded the case for furt her proceedings on Mother’s petition. ( Id . at pp. 1440-1441.) After remand, the trial court referred the matter to a court investigator. (See § 7850.) The investigator conducted intervie ws with Mother, Father, and Minor. Minor was interviewed on July 11, 20 11. After the investigator to ld Minor, who was eight years old at the time, “she had two dads,” Minor re plied, “‘I don’t think I have another dad. I’ve never seen him. I only have this dad that is in my house.’” Minor said she did not want to meet or visit with Father and expresse d a desire to live with her mother. She told the investigator she was happy with her fami ly and couldn’t wait for her two parents to get married, which they did in August 2011. The investigator explained to Minor that Mother was seeking to prevent Father from being able to vi sit her and asked Minor what

3 At the time she filed her petition, Mother wa s living with Eric E., whom she had met in 2005. Mother and Eric E. began living together in 2007, and he is the father of Mother’s other daughter. Minor refers to Eric E. as “Daddy,” and he is the only father she has known since she was approximately two years old.5 she thought of that. Minor responded, “‘We ll, I don’t really have another dad,’” and “said it was okay with her if the court ended [Father’s] rights to visit her.” In summarizing his findings, the investig ator stated Father did not pay child support or otherwise provide support for Mi nor, although no support was ever ordered
and Mother had made no demand s for support. The investigator noted that Mother had
told him Father had visited Mi nor only once since Minor was two months old and that all subsequent contact had been the result of “r andom encounters around Antioch.” Father, on the other hand, claimed to have visited with Minor three or four times a year. While acknowledging the facts of the case were dis puted, the investigator presumed Father was telling the truth about his visits with Mino r, but nevertheless concluded that Father’s “communications with [Minor] appear[ed] to be only token communications.” The investigator observed that Father knew Mother and Minor’s address when the latter were living with Mother’s parents, but during this period, Father took no steps either to establish parentage or regular visitation with his daughter. Despite Father’s claim that he did not know Mother’s address or telepho ne number, the investigator found this
information was “read ily accessible.” The investigator concluded that Fath er “does not appear to have had any meaningful contact with [Minor] for a third of her life and appears to have abandoned her for the statutory period.” Since the only father Minor had k nown was Eric E., the investigator stated, “It does not appear to be in [Minor’s] best interest to put her through a therapeutic reunification under these circum stances.” The report therefore recommended that Mother’s petition be granted.
The matter was tried to the court on N ovember 2, 2011. The record does not
reflect that the trial court considered whethe r it should exercise its discretion to appoint independent counsel for Minor. (See § 7861.) It does not appear that either party brought the issue to the court’s attention.
Mother and Father both testified at th e trial, and there was brief testimony by Mother’s father, John W. Af ter the close of the evidence, the court ruled orally from the
bench. The court found there was “zero ev idence” Father was financially unable to6 support Minor, and it further found that the “min imal efforts” Father made to visit Minor
between 2003 and 2009 showed an intent to abandon. It found Father had Mother’s phone number and that he could have done a computer search to locate her as early as
2004. 4 The court ruled that Mother had estab lished all of the elements required under section 7822, and it therefore granted her pe tition. It also declared Minor free for adoption. On February 6, 2012, the court filed its written factual findings and ju dgment. It found Mother had established by clear and co nvincing evidence that Father “voluntarily left the child in [Mother’s] care and cust ody for a period of one year without any provision for the child’s support with the intent to abandon the child.” It al so found there was no evidence Father was unable to support Minor and that Mother had not interfered with Father’s right and ability to visit his daught er. It ruled it was in Minor’s best interest that Father’s parental rights be terminated . The trial court declared Minor “free for purposes of adoption with no consent of [F]ath er with regard to the adoption required.” Father filed a notice of appeal from the judgment on February 10, 2012. In June 2012, Father made an offer of proof to this court that Minor might have Native American ancestry. We granted his request to remand the matter without revers ing the judgment so the trial court could “effectuat[e] proper inquiry and notice, if necessary, under the Indian Child Welfare Act (ICWA), 25 U. S.C. § 1901 et seq.” (See In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388-1390 ( Noreen G. ).) On March 8, 2013, the superior court f iled written findings on the issue of ICWA compliance. 5 Its findings state that notices were se nt to the tribes de signated by Father as

4 The trial court found Father’s testimony not credible in seve ral respects. The trial judge refused to accept his claim that he had file d his petition to estab lish parentage “because somebody in HR told him he ought to,” statin g, “I just don’t believe that.” She also disbelieved his testimony “concerning having bi rthday cards that are signed that weren’t sent to her because of a lack of address.” Finally, the trial judge stated, “I don’t believe he would have filed this action sooner if he had her address or phone number. It’s simply not credible.” 5 On March 19, 2013, we grante d Mother’s motion to augment the record on appeal with the documents filed in the superior court ICWA compliance proceedings.7 having a potential interest in Minor’s ancestry. None of th e responding tribes elected to intervene as they had found no evidence indicating that Minor has Native American ancestry. The superior court therefore rule d that the requirement s of ICWA had been fulfilled, and it ordered the proceedings closed.
D ISCUSSION Father raises two issues in this appeal. 6 First, he contends the failure to appoint independent counsel for Minor requires revers al of the judgment. Second, he argues the trial court’s ruling that he abandoned Minor is unsupported by substantial evidence. As we explain, we disagree with Father on both counts.
I. The Trial Court’s Failure to Appoint Counsel for Minor Wa s Harmless Error. Father first challenges the judgment on a ground not ra ised below. He argues the trial court’s failure to appoint counsel fo r Minor compels reversal of the judgment declaring Minor free from his custody and contro l. In his view, th e failure to appoint independent counsel for his daughter renders the judgment voidable because it was in excess of the trial court’s jurisdiction. Al though we agree with Father that the trial court’s apparent failure to consider appoin ting separate counsel for Minor was error, we
find the error harmless.
A. The Trial Court Should Have Considered Appointing Counsel for Minor. At the beginning of a pr oceeding on a petition to fr ee a child from parental custody and control, section 7860 provides th at “counsel shall be appointed as provided in this article.” Under section 7861, “[t]he court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the c ourt shall appoint coun sel to represent the child, whether or not the child is able to afford counsel.” (Italics added.) Construing the statutory predecessor to section 7861, the Calif ornia Supreme Court held that “in absence of a showing on the issue of the need for independent co unsel for a minor, failure to

6 Father’s opening brief also raised the above-described issue of ICWA compliance, but that matter has now been resolved by the superi or court. By letter dated March 20, 2013, Father’s counsel confirmed that the trial cour t’s March 8, 2013 findings dispose of the ICWA issue. Accordingly, we do not address it further.8 appoint constitutes error.” ( In re Richard E. (1978) 21 Cal.3d 349, 354 ( Richard E. ).) Nevertheless, “failure to appo int 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.” ( Id . at p. 355.) As we have explained, “in proceedings to free a child from parental custody and control, typically each side asserts it is protecti ng the best interests of the child and, in the process, the court becomes fully advised of ma tters affecting the child ’s best interests.” ( Neumann v. Melgar (2004) 121 Cal.App.4th 152, 170 ( Neumann ).) But “section 7861
makes clear that the court has a non discretionary duty to at least consider the appointment” of coun sel for the child. ( Id . at p. 171.) Thus, while the ultimate decision whether to appoint counsel is a matter within the trial court’ s discretion, where there has been no showing on the issue of whether the child’s intere sts will be satisfactorily represented, “the court’s failure to appoint counsel is deemed erroneous .” ( Ibid .) If the
record fails to demonstrate whether there wa s a need to ap point independent counsel, we
must conclude the failure to appoint counsel was error. 7 ( Ibid .)
A. We Are Bound by Richard E. Father therefore devotes a considerable por tion of his opening brief to arguing that the prejudice requirement established in Richard E. is outdated and unsound. He contends the trial court’s error requires re versal of the judgmen t without a need to examine the issue of prejudice. Confronted with unfavorable California Supreme Court authority, “Father is reduced to arguing that [ Richard E. ] was wrongly decided[.]” ( T.P. v. T.W., supra, 191 Cal.App.4th at p. 1439.) We are not free to reconsider the holding of

7 We note that Father has standing to raise the issue of the trial court’ s failure to consider appointment of independent co unsel for Minor, because inde pendent representation of a child’s interests may impact a parent’s inte rest in the parent-child relationship. ( Noreen G., supra, 181 Cal.App.4th at pp. 1377-1378.) In addition, because the procedural protections afforded by secti on 7861 and other provisions of the same article “are all calculated to promote the best interests of th e affected children,” we have held that the issue of a trial court’s failure to consider appointment of independent counsel may be raised for the first time on appeal. ( Neumann, supra, 121 Cal.App.4th at p. 164.) Thus, we may consider this issue even th ough Father did not raise it below.9 Richard E., because as an inferior court, we obviously are bo und by that opinion

. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, we have no reason to doubt the continuing vitality of Richard E.’s holding. As Mother points out, the California Supreme Court recently relied on the reasoning of Richard E. in holding that the failure to appoint separate counsel for separate siblings in a juvenile dependenc y proceeding was subject to harmless error review. (See In re Celine R. (2003) 31 Cal.4th 45, 58-59 [following Richard E. ].) This
would seem to refute Father’s contention that the prejudice ru le is unsound and outdated. In any event, because Richard E. is binding on us, any change in the prejudice rule “must come, if at all, from the California Supreme Court.” ( Taylor v. Elliott Turbomachinery
Co. Inc. (2009) 171 Cal.App.4th 564, 593.)
C. Father Does Not Explain How He or Minor Might Have Been Prejudiced by the Trial Court’s Failure to Co nsider Appointment of Counsel for Minor. There is nothing in the re cord to indicate the trial c ourt ever considered whether Minor’s interests required the appointment of independent co unsel, and “[b]ecause the
record fails to demonstrate whether there wa s a need to appoint independent counsel, we
must conclude the failure to appoint counsel was error.” ( Neumann, supra, 121 Cal.App.4th at p. 171; but see In re Helen J. (1973) 31 Cal.App.3d 238, 242-243 [failure of appellant to provide transcripts of releva nt hearings permitted court to assume trial court had properly performe d its duty and considered appointment of counsel].) 8 This does not end our inquiry, however, fo r under the rule announced in Richard E., supra, 21 Cal.3d 349, the trial court’s failure to cons ider appointment of in dependent counsel for the minor child is subject to harmless error analysis. ( In re Sarah H. (1980) 106 Cal.App.3d 326, 330.) We therefore turn to the question of harmless error.

8 The record before us does not contain repor ter’s transcripts of a number of hearings held below. The clerk’s minutes of those h earings do not reflect whether the trial court considered appointing co unsel for Minor, although they do reflect that the court ordered appointment of coun sel for Father.10 Father does not point to any factua l circumstances specific to this case demonstrating that failure to appoint counse l was prejudicial. Instead, he argues that failure to appoint coun sel for a minor child cannot be de emed harmless “where, as in the instant case, the petitioner is a custodial parent and/or step-parent seeking to terminate the non-custodial parent’s rights, and there is a background of the custodial parent having antagonism toward the non-custodial parent’s rights to participate in the child’s life[.]” In Father’s view, “when the proceeding is brought by a person authorized to do so because they have their own ‘interest’ in fr eeing the child from the pa rent, that indicates that the child’s interests will not be repr esented without appoin tment of independent counsel for the child, and therefor e, in such a case, failure to appoint counse l for the child requires reversal of the judgment termin ating parental rights.” We disagree. First, Father’s argument fails as a factua l matter. Father does not explain what he means by Mother’s claimed “anta gonism” to his right to participate in Minor’s life, and the trial court did not appear to believe there was any such an tagonism. In fact, Father’s argument flies in the face of the trial cour t’s express finding that Mother “has not interfered with [F]ather’s right and ability to visit the child.” The trial court also found
that Father could have loca ted Mother and Minor years be fore he filed his petition to establish parentage, but the court did not belie ve he would have filed the petition earlier if he had had their address and telephone number. Thus, there is nothing in the trial court’s findings to support Father’s assertion that Moth er was antagonistic to his participation in
Minor’s life. To the extent Fa ther seeks to base this clai m on his own testimony, the trial court was not required to believe his version of events. 9 (See In re Marriage of Jill &

9 The only claimed evidence of antagonism be tween Minor’s parents is Father’s assertion that he and Mother agreed in mediati on to a process permitting him to develop a relationship with Minor, but Mother refused to en gage in that process. It appears that the process contemplated by the mediation agre ement was one in which Father and Minor would participate in reunificati on therapy. The record does not indicate whether this process was undertaken, although the trial co urt’s comments at a May 5, 2011 hearing suggest the court intended to permit the reunification proc ess to go forward only if it denied Mother’s petition to te rminate Father’s parental ri ghts. Whatever may have occurred in this regard, we find no evidence that Moth er refused to engage in the process.11 Victor D. (2010) 185 Cal.App.4th 491, 506 [trial court not requir ed to believe father’s testimony regarding intent to abandon child] ( Jill & Victor D. ).) Second, Father does not explain what in terests Minor might have that were not adequately represented at trial. Instead, he simply seems to assu me that because this proceeding was brought by Mother, a custodi al parent, against Father, who was a noncustodial parent, Minor’s in terests cannot have been ade quately represented. While Father complains that “lack of counsel for the child will inhe rently tend to result in the record not showing that the child had interests that should have been independently represented,” he does not even te ll us what these interests could possibly have been. Since Father does not identify Minor’s supposed independent interests, and he does not suggest Mother has failed to provide for Minor’s welfare, we will not assume Minor had unspecified interests that we re not represented. (Cf. In re Jenelle C. (1987) 197 Cal.App.3d 813, 818-819 [where there was no suggestion that department of social services failed to take steps in furtherance of minor’s welf are, trial court did not abuse discretion in failing to appoint i ndependent counsel for minor].) Moreover, the record contains no indicatio n that Minor had any interest in having the petition denied. The investigator inte rviewed Minor about her wishes, and she expressed no desire to re unify with Father. (See In re Mario C. (1990) 226 Cal.App.3d 599, 607-608 [where minors expressed no interest in living with th eir biological mother, there was no evidence they had an interest in having termin ation petition denied; failure to appoint independen t counsel held harmless].) Ra ther, Minor was happy with her family and expressed the desire to continue living with Mother. It was also undisputed that Mother and Eric E. were providing a stab le and loving home for Minor and that Eric E. intended to adopt her. In these circumstances, we do not see what interest Minor might have had that was not ad equately addressed by the par ties’ presentations below. (See Adoption of Michael D. (1989) 209 Cal.App.3d 122, 135 [where probation report and witness testimony agreed that minor wanted stepfather, not biological father, as his dad, failure to ap point counsel for mi nor was harmless].)12 Third, even if we ignore the flawed prem ises of Father’s argument, it nevertheless fails. Father has cited no case holding that in a freedom from custody and control proceeding, a minor child’s interests can never be adequately represented without independent counsel if the petitioner is a cust odial parent seeking to terminate the rights of a noncustodial parent. (See T.P. v. T.W., supra, 191 Cal.App.4th at p. 1439 [Father’s legal argument rejected because he failed to cite a single case supp orting it].) This is unsurprising, since the rule Father urge s us to adopt would effectively require appointment of independent counsel for minor children in all such cases. But the case law interpreting section 7861 makes clear that the decision whether to appoint counsel for
the minor child is a matter within the trial court’s discretion. (See, e.g., Richard E.,

supra, 21 Cal.3d at pp. 354-355 [“The [trial] court possesses broad discretion in determining need for counsel”]; Neumann, supra, 121 Cal.App.4th at p. 171 [“the ultimate decision whether to appoint coun sel is certainly in the lower court’s discretion”].) Acceptance of Father’s argumen t would be tantamount to eliminating the trial court’s discretion in any case in whic h a custodial parent seeks to terminate a noncustodial parent’s rights.
D. The Cases Upon Which Father Relies Are Distinguishable. Father relies on cases holding that where freedom from custody and control proceedings are instituted by a public agen cy, counsel for the ag ency can adequately represent the child’s interests. (See In re Laura F. (1983) 33 Cal.3d 826, 839-840; In re Jenelle C., supra, 197 Cal.App.3d at pp. 818-819.) He seems to ask us to infer from these cases that parties other than public agencies cannot, as a matter of law, effectively represent the child’s interest s. In our view, no such inference is justified. We do not quarrel with the ho ldings of the cited cases, but we do not read them as implying that only counsel for a public agency—a nd no one else—is capable of representing the child’s interests in a freedom from custody and control proceeding. To the contrary, Neumann, supra, 121 Cal.App.4th 152 was a ca se in which the mother, the custodial parent, petitioned to free her children from their father’s custody and control. ( Id . at p. 156.) We explained that “in pro ceedings to free a child from parental custody13 and control, typically each side asserts it is protecting the best intere sts of the child and, in the process, the court becomes fully advi sed of matters affecting the child’s best interests.” ( Id . at p. 170.) Father does not explai n why the court below would not have been adequately advised of matters affectin g Minor’s interests, and absent such an explanation, we are unwilling to assume the court’s decisi on was uninformed.
Father cites a number of cases for the ar gument that failure to appoint independent
counsel for the child can ne ver be harmless when the proceeding is brought by a “custodial parent having antagonism toward th e non-custodial parent’s rights[.]” These
cases do not assist him. In re Sarah H., supra, 106 Cal.App.3d 326 concluded that the trial court’s failure to consider appointm ent of counsel for th e children was harmless error. ( Id. at p. 330.) Because the central issue in that case was the father’s fitness to retain parental rights, and the issue was not a close one, there was no miscarriage of justice. ( Ibid .) Likewise, in Adoption of Mic hael D., supra, 209 Cal.App.3d 122, the court concluded that failure to appoint inde pendent counsel for the minor was harmless. ( Id . at p. 135.) Adoption of Jacob C. (1994) 25 Cal.App.4th 617, upon which Father also relies, bears no resemblance to the case before us. In that case, Division Three of this district concluded the failure to appoint independent counsel for the minors was prejudicial. ( Id . at pp. 625-626.) But there, th e minors’ biological mother, who had
absconded with one of the children and di sappeared, was barred from contesting the petitions and thus “the termination proceedings were uncontested.” ( Id . at p. 626.) The
court also noted more than once thatthe proceeding was “unusual.” ( Ibid .) That is not
the case here. Father also seeks support from our decision in Neumann, supra, 121 Cal.App.4th 152, and he devotes a portion of his opening brief to a lengt hy analysis and criticism of our opinion. Father’s counsel perceives “un-clarity” in our decision, finds our disposition of the case “puzzling,” and opines that it miss tates applicable law. We do not share
counsel’s view.
In Neumann, the trial court failed to comply with a number of procedural requirements applicable to proceedings to free a minor from parental custody and control.14 It did not consider the evaluator’s report; it failed to interview one of the minors, although the child was 10 years old at th e time of trial; and it did not consider appointment of counsel for the children. ( Neumann, supra, 121 Cal.App.4t h at pp. 168- 171; see §§ 7851, subd. (d) [requiring cons ideration of evaluator’s report]; 7891, subd. (a) [requiring in-chamber s hearing with subject child who is 10 years of age or older].) We held that both the failure to consider the evalua tor’s report and the failure to
interview one of the minors cons tituted “prejudicial error.” ( Neumann, supra, 121 Cal.App.4th at pp. 169, 170.) We also deemed the trial court’s failu re to appoint counsel erroneous ( id . at p. 171), but we had no need to determine whether this error alone was prejudicial, since the other prejudicial errors already identified required us to vacate the judgment. We then concluded that “the trial court’s errors compel us to vacate the judgment.” ( Id . at p. 171, italics added.) Our decisi on was therefore predicated upon the sum of the trial court’s errors, rather than so lely upon its failure to consider appointment of counsel for the minors. There is thus nothing in Neumann that would support Father’s argument that failure to appoint counsel can never be harmless error in a freedom from parental control proceeding br ought by a custodial parent w ho is allegedly “antagonistic” to the rights of the noncustodial parent against whom the proceeding is brought. For the foregoing reasons, we conclude th at the trial court’s failure to consider appointing counsel for Mi nor was harmless error.
II. Substantial Evidence Supports the Trial Court’s Finding that Father Intended to Abandon Minor. Father contends substantial evidence does not support the trial court’s finding that he intended to abandon Minor. He appe ars to make three separate arguments. 10 First, he
contends there was insufficient evidence to support a finding that he left Minor in Mother’s care and custody. Second, he ar gues his undisputed failure to provide any

10 Contrary to the requirements of California Ru les of Court, rule 8. 204(a)(1)(B), Father’s brief does not place these arguments under sepa rate headings. We would therefore be justified in deeming them forfeited. ( In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294.) We are not required to “consider a ll of the loose and disparate arguments that are not clearly set out in a heading[.]” ( Provost v. Regents of University of California (2011) 201 Cal.App. 4th 1289, 1294.)15 support for Minor during her lif etime does not evidence an in tent to abandon her, because no demand for support was made and he mere ly acquiesced in Mo ther’s support for Minor. Third, Father claims the trial cour t did not have clear and convincing evidence
that his failure to communicat e with Minor indicated he in tended to abandon her, because the trial court allegedly did not consider th e “underlying dynamics” of his relationship
with Mother. Father thus appears to contend that ther e is insufficient eviden ce to establish the
first and third elements of section 7822 aban donment—that he “left” Minor with Mother
and that he intended to abandon his child. (See Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 ( Allison C. ) [listing elements of abandonment under § 7822].)
Our examination of the record reveals abundant evidence of both of these elements. We therefore reject Father’s arguments.
A. Standard of Review and Statutory Elements A trial court’s finding of abandonment is fundamentally a que stion of fact and must be upheld on appeal so long as it is supported by substantial evidence. ( Allison C.,

supra, 164 Cal.App.4th at pp. 1010-1011.) Although in the co urt below, such a determination must be made by clear and conv incing evidence (§ 7821), our review is limited to determining whether substantial evidence supports the conclusions reached by the trial court in applying this standard. ( In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211 ( B.J.B. ).) On review for substantial evidence, “[i] t is the trial court’s role to assess the credibility of the various witne sses, to weigh the evidence to resolve the conflicts in the
evidence. We have no power to judge the effect or va lue of the evidence, to weigh the evidence, to consider th e credibility of witnesses or to reso lve conflicts in the evidence or the reasonable inferences which may be draw n from that evidence. [Citations.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as
true and discard the unfavorable evidence as not having sufficient ve rity to be accepted by the trier of fact.” ( In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) On appeal, all
conflicts in the evidence must be resolved in favor of the prevailing party and all16 reasonable inferences must be indulg ed in to support the judgment. ( Allison C., supra, 164 Cal.App.4th at pp. 1010-1011.) Father has the burden of showing the challenged finding or order is not supported by substantial evidence. ( Id. at p. 1011.) As relevant here, section 78 22 provides, “(a) A proceed ing under this part may be brought if any of the following occur: [¶] . . . [¶] (3) One parent ha s left the child in the care and custody of the other parent for a peri od of one year without any provision for the child’s support, or without co mmunication from the parent, with the intent on the part of the parent to abandon th e child. [¶] (b) The fa ilure to provide . . . support, or failure to communicate is presumptive eviden ce of the intent to abandon. If the parent or parents have made only token efforts to support or communicate w ith the child, the court may declare the child abandoned by the parent or parents.” “Thus, a section 7822 proceeding is appr opriate where ‘three main elements’ are met: ‘(1) the child must have been left with another; (2) without pr ovision for support or without communication from . . . his parent [ ] [for the relevant period]; and (3) all of such acts are subject to the qualification that they must have been done “with the intent on the part of such parent . . . to abandon [the child].”’” ( Allison C., supra, 164 Cal.App.4th at p. 1010.)
B. Substantial Evidence Su pports the Finding that Father “Left” Minor.
Father first contends the ev idence is insufficient to estab lish that he left Minor in Mother’s care. (See § 7822, subd. (a).) A pare nt leaves a child with in the meaning of the statute by voluntarily surrender ing the child to another person’s care and custody. ( Allison C., supra, 164 Cal.App.4th at p. 1011.) In determining whether Father left Minor, “the focus of the law is ‘on the voluntar y nature of a parent’s abandonment of the parental role rather than on physical desertion by the parent.’ [Citation.]” ( Jill & Victor D., supra, 185 Cal.App.4th at p. 504.) Even wh ere a child is effectively taken from a parent, “the parent’s later voluntary inactio n may constitute a leaving with intent to abandon the child. [Citation.]” ( Ibid .) Thus, if a father never seeks to take parental responsibility for his child and instead chooses to leave the child with the mother, he may17 be found to have left the child in the mother’s care and custody. ( Allison C., supra, 164 Cal.App.4th at p. 1012.) In this case, Mother’s testimony establis hed that Father left Minor in Mother’s
care around the time of Minor’s birth in June 2003. Since that time, he has never provided any financial support for his daughter. (Cf. Allison C., supra, 164 Cal.App.4th at p. 1012 [father who gave daughter $1,100 in a three-year period failed to provide support].) After Minor’s birth, Father visited her only once , when she was approximately two months old. Thereafter, Father made no attempt to contact Mi nor, even though he
knew where she lived when she re sided with Mother’s parents, and even though he could easily have found Mother’s address and telepho ne number after Mother moved out of her parents’ house. (See In re Randi D. (1989) 209 Cal.App.3d 624, 629-630 [finding that
father left minor children su pported by substantial evid ence where father did not communicate with children for five years].) Like Mother and Minor, Father resided in the Antioch-Pittsburgh area until s hortly before trial, and he had random encounters with Mother over the years. (See B.J.B., supra, 185 Cal.App.3d at p. 1212 [ample evidence of
intent to abandon where father and minor lived in same geographical area for relevant period].) Yet at no time prior to filing his pe tition in November 2009 did Father seek any parental role in Minor’s life. “In other words, he was content to leav e to [M]other all real parental responsibility for [Minor].” ( Allison C., supra, 164 Cal.App.4th at p. 1012.) Since Father “voluntarily abdicated the parental role,” the trial court did not err in finding
he had left Minor in Mother’s care a nd custody for the statutory period. ( Ibid .) Despite this evidence, Father argues that what is required to prove he “left [Minor] . . . in the care and custody of [Mother] for a period of one year” (§ 7822, subd . (a)(3)) is “a history in which [Father] deliberately left th e child and rejected [M ]other’s attempts to get him to continue a parental relationship.” He contends such a history is “exemplified” by Amy A. (2005) 132 Cal.App.4th 63 ( Amy A .). Father’s argument is both factually and legally flawed. Father bases his argument on the factual cl aim that “[Mother] left him, taking the child with her. Thus, the ch ild was ‘taken’ from him withou t his consent.” The portions18 of the record Father cites to support these claims actually contradict them. For example, Father cites the investigator’s report of an interview with Mothe r, but the report clearly states, “[Mother] said [ Father ] moved out . . . . [S]he stayed in Sacramento and worked.” (Italics added.) Father may not simply ig nore this evidence as if it did not exist. 11 ( James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 10 21.) Much less may he rely on inaccurate representations of the evidence itself.
Father’s reliance on Amy A., supra, 132 Cal.App.4th 63 is so mewhat puzzling. In that case, the court concluded “that a parent ma y be found to have ‘left’ a child in another person’s care and custody within the meaning of section 7822 even when the child moves away with the other parent.” ( Id. at p. 69.) This is precisely what occurred here. Indeed,
the facts of Amy A. were arguably more favor able to the appellant father, because he had been deprived of legal custod y by a court order in the pare nts’ divorce proceeding. ( Id . at p. 66.) While Father argues his “acquiescence in [Mother’s] custody does not reasonably indicate that he had a subjective intent to aban don the child,” other courts have held that such voluntary abdication of the parental role is evidence that a parent has left his child in the care and custody of the other parent. ( Allison C., supra, 164 Cal.App.4th at p. 1012;

see Jill & Victor D., supra, 185 Cal.App.4th at p. 505 [fa ilure to communicate with and provide support for child for a year is ci rcumstantial evidence that father left his children].) This evidence suppor ts the trial court’s finding that Father left Minor in Mother’s care and custody for the statutory pe riod. Since the evidence also supports the findings that he failed to support Minor and failed to communicate with her (matters we discuss below), it gave rise to a presumption that Father intended to abandon Minor. (See § 7822, subd. (b) [“failure to provide support , or failure to communicate is presumptive
evidence of the inte nt to abandon”].)

11 Father also relies heavily on his own testim ony, which our standard of review requires us to discard “as not having sufficient verity to be accepted by the trier of fact.” ( In re Casey D., supra, 70 Cal.App.4th at p. 53.)19 C. Father’s Failure to Suppo rt Minor Indicates an Intent to Abandon Her.
Father next contends the trial court mi sunderstood the law when it found he had failed to provide support for Minor. He argu es no intent to abandon is shown where a parent was either unable to provide suppor t or no demand for support was made and the parent merely acquiesces in the support provi ded by the child’s caregiver. Father seems to argue both of these circumstances apply here. With regard to the issue of ability to support the child, it is undisputed that Father has never provided any financial support for Minor, and on appeal he does not claim he has. Instead, he appears to argue he was fi nancially unable to provi de support for her, but the trial court explicitly reso lved this issue against him, finding there was no evidence Father could not support his child. In a ra ther surprising argument, Father blames the
trial court for this lack of evidence, criticizing the court fo r failing to ask questions about
what he calls the “non-issue of whether he ha d been financially unable to pay when no demand for support had been made[.]” But it was not the trial court’s function to make
Father’s case for him. In arguing Mother failed to make a sufficiently clear demand for support, Father also ignores our standard of review. He edless of our limited function as a reviewing court, Father attempts to reargue the facts of the case. Referring to Mother’s testimony that she once “asked him if he brought anyt hing for [Minor] in terms of diapers or money,” Father suggests this “hardly indicates that [Mother] was actually asking him for child support” and claims “her testimony at trial may have been an attempt to provide support for a finding of failure to support, when the facts di d not actually support such a claim.” The import and weight of this testim ony were matters for the trial court. (See Jill & Victor D., supra, 185 Cal.App.4th at p. 503.) Father’s undisguised attack on Mother’s veracity also invites us to “pass on the credibility of witnesses,” which we may not do. ( Ibid .) Father seeks to excuse his undisputed failure to provide support for his daughter by referring to his own testimony that he offe red to help Mother with support, but she20 told him she did not need any. 12 Once again, however, the tr ial court was not required to believe this testimony. ( Jill & Victor D., supra, 185 Cal.App.4th at p. 506.) Although
Father claims the trial court made no find ing on whether Mother had demanded support, Father does not claim he requested any such specific finding, and thus no such finding was required. ( In re Randi D., supra, 209 Cal.App.3d at p. 631.) Moreover, the trial court found Mother had proved all the elem ents of abandonment under section 7822. Even assuming that a demand for support is a prerequisite to a fi nding of abandonment, then the trial court impliedly found Mother had demanded s upport, and its finding must be upheld if substantia l evidence supports it. ( Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793.) Mother’s testimony pr ovides all the ev idence necessary.
D. The “Emotional Dynamics” of the Pare nts’ Relationship Are Irrelevant to the Issue of Father’s Intent. Addressing the issue of his failure to communicate with Minor, Father claims the
trial court should have consid ered the “emotional dynamics” at work in his break-up with Mother, because these dynami cs “may reasonably affect the non-custodial parent’s
conduct in a manner that can look like lack of interest in developing or maintaining a relationship with the child.” We fail to see how such emotional dynamics are relevant to determining whether Father’s failure to comm unicate with Minor indicates an intent to abandon her. (See Jill & Victor D., supra, 185 Cal.App.4th at p. 503 [reasons why family initially broke up are irre levant to § 7822 analysis]; id . at p. 508 [mother’s feelings about father’s failure to pay child support irrelevant to issue of father’s intent].) Furthermore, as the Second District has explained, “the reality is that parents sincerely interested in maintaining contact, whether by telephone, card or personal visit,
with their children . . . will do so under ordinary circumstances in any six-month period.” ( In re Rose G. (1976) 57 Cal.App.3d 406, 420.) Here , the trial court expressly found that Mother had not interfered with Father’s right and ability to visit his daughter. Father

12 “[A]n absence of demand may be significant to the third element of section 7822 abandonment, i.e., whether a parent intended to abandon a child, but not to the second element of whether a parent act ually supported a child.” ( Allison C., supra, 164 Cal.App.4th at p. 1013, fn. 8.)21 simply did not exercise that right, even though Minor lived nearby. ( B.J.B., supra, 185 Cal.App.3d at p. 1212.) Thus, the trial court was entitled to find that Father’s efforts to contact Minor “were at best perfunctory, and it was not required to credit his protestations of continuing parental inte rest, particularly given the vagueness and inconsistency of his testimony.” ( Id . at p. 1213, fn. omitted.)
E. No Authority Requires a Showing of Pa rental Unfitness Before a Child May Be Freed From Parental Custody and Control Under Section 7822. Finally, Father contends there can be no abandonment under section 7822 unless his conduct shows “parental unfitness.” Father cites no case decided under section 7822 or its predecessors holding that a finding of parental unfitness is required before a child may be considered abandoned. We find this lack of author ity unremarkable, because in contrast to other provisions of this part of the Family Code, section 7822 does not mention parental unfitness. (Compare § 7822, subd. (a) [elements of abandonment] with § 7825, subd. (a)(2) [freedom from control pr oceeding may be brought where facts of crime of which parent was convicted “prove th e unfitness of the parent”].) We are not at liberty to add a finding of parental unfitness to the findings the Legislature has chosen to require in section 7822, and Father offers us no authority for doing so. We thus reject this argument as legally unsuppor ted and because it is not set fo rth in a separate heading. ( In re Marriage of Carlsson, supra, 163 Cal.App.4t h at p. 294.)22 D ISPOSITION The judgment is affirmed.

_ ____________ ____________ Jones, P.J.

We concur:

_____________ ____________ Needham, J.

_____________ ____________ Bruiniers, J.