Filed 6/24/14 Adoption of D.L. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

Adoption of D.L., A Minor.

V.G.
, Plaintiff and Resp ondent,

v.
Y.T.,
Defendant and Appellant ;
E.L.,
Respondent. B250258 (Los Angeles County Super. Ct. No. LT000975)

APPEAL from an order of the Superior Court of Los Angeles County. John L. Henning, Judge. Affirmed as modified

. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Douglas R. Donnelly; Diane M. Goodman for Plaintiffs and Respondents. Janette Freeman Cochran, under appointment by the Court of Appeal, for
Minor.2

A ppellant Y.T. appeals the court’s finding under Family Code section 8604 that she willfully failed to communicate with or contribute to the support of her son
D.L. for one

- year, leaving the door open for D.L. to be adopted by his stepmother
, respondent V.G

. , and terminating appellant’s parental rights. 1 Appellant contends
section 8604 is unconstitutional because it permits loss of parental rights without a finding of unfitness
, and that the court should have proceeded under an alternate statutory procedure requiring a finding of “abandonment” to support termination of parental rights. Appellant forfeited these contentions by failing to raise them in the trial court. Moreover, we would reject her claim on the merits. T he findings under
section 8604 do est ablish parental unfitness and, in any event, a specific finding of unfitness is not required where, as here, a mother has left her child to be raised and supported by others for a lengthy period without reasonable excuse or justification. We conclude, how ever, that the trial court ’s inclusion in its order of language terminating appellant’s parental rights over D.L. was premature. A true finding under section 8604 permits D.L.’s adoption to go forward absent appellant’s

consent but does not, in itself, op erate to terminate parental rights. Accordingly, we modify the court’s order and affirm as modified

.

FACTUAL AND PROCEDURAL BACKGROUND D.L.’s f ather E.L. (Father) and appellant married in March 2006

. D.L. was born in May 2006. The couple separated in December 2006 , when D.L. was seven
months old.

1 Undesignated statutory references are to the Family Code.3

A. Prior Proceedings After the separation, a ppellant had primary custody of D.L. In March 2007,
Father asserted that appellant had prevent ed him from seeing his son since January of that year

. The cour t issued an order grant ing Father evening and alternate
weekend visitation. In October 2007, the parties entered into a settlement agreement , approved by court order
, under which Father was to have visitation every Tuesday evening through Thursday morning and alternate weekends from Friday evening until Monday morning. 2 The custody exchanges were to take place

at a sheriff’s station. After the settlement agreement was signed and approved , appellant moved
with D.L. but did not notify Father of her new ad dress or telephone number

. In late 2007 and early 2008, Father appear ed at the sheriff’s station for the custody exchanges, but appellant did not. 3 In February 2008, having no knowledge of appellant’s or D.L.’s whereabouts, Father filed a missing person’ s report. In April 2008, t he court granted Father’s application for full custody of D.L. and ordered the district attorney to locate and return the boy

. A ppellant and D.L.
were located

. Appellant was arrested and subsequently pled guilty to child

conc ealment (Pen. Code, § 278.5, subd. (a)). 4 The court placed D.L. in Father’s

2 In the fall of 2007, when the parties were attempting to settle their marital and custody disputes , appellant went to court seeking to change D.L.’s last name . In that proceeding, she falsely represented that she did not know where Father was

. 3 Father was se nding child support payments to appellant’s attorney, but the attorney advised Father that he did not know where to contact appellant.

4 After being located, appellant claimed she “did not know what to do” with respect to visitation because she did not h ave a copy of the settlement agreement, although she had signed it and was present in court when it was approved.4

custody and for a period permitted appellant monitored visitation only

. 5 In early 2009, the court ordered a psychiatric evaluation of appellant. In April 2009, at the
recommenda tion of minor’s counsel and the psychiatric evaluator, the court changed the visitation order, permitting appellant to have daytime unmonitored
visits

. Appellant did not take advantage of the unmonitored visit ation approved by
the court , refusing to coope rate in selecting a location where D.L. c ould be dropped off and picked up

. 6 In July, appellant reported to the Department of Children and Family Services ( DCFS ) that D.L. was being abused , causing Father to be investigated by DCFS and the police

. Minor’ s counsel reported that appellant’s behavior had become “dangerously erratic
, ” and that she had reverted to her “uncooperative, somewhat paranoid positions.” Minor’s counsel
recommended that visitation revert to monitored
, and that any future claims of
ab use be reviewed by minor’s counsel before being reported to authorities . In August 2009 , the court adopted these recommendation s

. T hereafter, the court’s orders continued to permit appellant monitored visitation only. The orders also
stated that all com munication between the parties was to be through Our Family
Wizard. In April 2010, minor’s counsel learned that appellant had not seen D.L. for many months and set up a Skype visitation schedule for appellant and D.L . In August, the court changed the visitation order, permitting appellant to have three
10

- minute Sky p e sessions with D.L. per week
, in addition to the monitored

5 From August 2008 to April 2009, appellant visited D.L. at the monitoring facility. During these visits, she examined D.L. for marks and constantly complained that he was not being well cared for by Father, although the monitor warned her this behavior was detrimental to D.L. N o one else with regular contact with the boy observed any signs of abuse or neglect.

6 Appellant and D.L. had a visit in June 2009, apparently monitored. There is no indication in the record of any other in person visitation after that date.5

visitation

. In early fall of 2010, after two brief periods of Skype communication, appellant ceased all contact with D.L.

B. Underlying Proceedings In March 2011, Father married V.G. In October of that year
, when D.L. was five, V.G. filed a request seeking to adopt him

. The adoption request alleged that appellant had not contacted the child for over a year within the meaning of section
8604. 7 Appellant filed an objection. In addition, in November 2011 , appellant sought mediation of the “dispute relating to [the] existing custody order.” She stated in a supporting declaration that she had not visited D.L. for over two years and had not had Skype contact with the boy for over a year

. She claimed this was because “Father [was] making i t very difficult for [her] to visit and maintain

contact

. . . . ” 8

T he court issued a citation re adoption, ordering appellant to appear and

s how cause why the adoption petition should not be granted . The court appointed counsel for appellant. The court notified DCFS that it had issued the citation/notice of hearing in connection with the petition for adoption filed under section 8604, seeking a report and recommendation from the agency. DCFS

7 Section 8604, subdivision (a) states that “[e]xcept as provided in subdivision (b), a child having a presumed father under Section 7611 may not be adopted without the consent of the child’s birth parents, if living.” Subdivision (b) provides: “If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth par ent for a period of one year willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption .

. . .”

8 After receiving the petition , appellant was permitted to communicate with D.L. through Skype again for a brief period. During the ir conversations
, she told D.L. that V

. G

. was just a “ temporary babysitter, ” and advised him to not call V.G. “ ‘ Mommy ’ ” or Father “ ‘ Daddy ,’ ” and to tell h is teachers he needed to see a psychologist. She also called D.L.’s school, claimed he was being abused, and urged the principal to report it.6

personnel interviewed the family and in September 2012, filed a report recommending V.G. be permitted to adopt D.L. In December 2012, t he court appointed a psych iatric expert, Nancy Kaser

Boyd, Ph.D., t o interview the parties, evaluate bonding issues, and determine whom D.L. considered to be his parents and where his best interests lay

. The court
also instructed Dr. Kaser

- Boyd to include an evaluation of appellant’s ability to cooperate, and her ability to care for and control the minor. In her interview with
Dr. Kaser

- Boyd , appellant claimed to have been abused
, manipulated , and
threatened by Father throughout their marriage
, and to have hidden her address
from him after they separated because she was afraid of him. Dr. Kaser

- Boyd found nothing to support appellant’s assertions of abuse. She found appellant to be
defensive and not amenable to treatment or change. Dr. Kaser

- Boyd was unable to give appellant a “‘ clean bill of mental health ’

. . . for p arenting ” in view of her defensiveness and her history of failing to follow the rules of shared custody or make appropriate child

- centered decisions

. During his interview, Father stated that appellant’s visits with D.L. had stopped in June 2009 because appellant did not want to pay her share of the monitoring expenses. He explained that the 2010 Skype visits lasted only two or
three months. B ecause appellant had not regularly visit ed D.L. for some time, D.L.
did not remember her or underst and her relat ionship to him and considered V.G. to
be his mother. V.G. said she accepted D.L. as her son and wanted their relationship to be made legal. During Dr. Kaser

- Boyd’s interview with D.L. , the boy made clear that he believed V

. G

. was his mother and had no un derstanding of appellant’s relationship to him. Dr. Kaser

- Boyd observed the interactions between
D.L. and V

. G

. They were affectionate toward each other and the two appeared to
be bonded. The report stated that a lthough D.L. had enjoyed his visits with

a ppellant and was comfortable with her , he was not cognizant of her relationship to7

him. He referred to her as “ ‘ a girl ’ ” who “ ‘ brings [him] stuff

. . . . ’ ” Dr. Kaser

Boyd concluded that it would be in D.L.’s best interest for the adoption to go
forward. The court held hearings o ver the cours e of three weeks to determine whether appellant had willfully failed to contact D.L. and provide support for the child over a period of one year or more within the meaning of section 8604. It was undisputed that ap pellant had never paid support. In addition
, appellant acknowledged that she had had no contact with D.L. for more than a year at the time the petition was filed . She and her mother, who was also called as a witness,
claimed Father was abusive and interf ered with her contact. 9 Father denied abusing appellant. He testified appellant did not visit D.L. during the period unmonitored visits were permitted. After June 2009, she did not seek in person visitation of an y kind . In 2010, the parties agreed ap pellant could have Skype communication with D.L. Appellant stopped the Skype contact in early 2010
, complaining that D.L. , who was only three at the time
, was not speaking to her or s itting still in front of the camera. Appellant renewed Skype
visits in September 2010 for approximately three weeks before stopping again

. Father denied interfer ing with any of these contacts

. In October 2010, a t around the same time as the last Skype interaction, appellant informed Father that s he

w ould no longer communica te through Our Family Wizard, leaving no court

sanctioned way to set up visitation or Skype co ntact

. Father testified that D.L. began calling V.G. “ M ama” on his own, without any prompting from Father or

9 Appellant also claimed that she could not afford to pay her share of the monitoring expenses. However, she had been employed continuously since the dissolution. Moreover, the record reflected that she had spent thousands of dollars in attorney fees contesting visitation and other issues in the marital dissolution and child custody litigation and had expended f unds to hire a private investigator to follow Father.8

V.G. Father perceived no current relationship betwe en appellant and D.L. and believed D.L. had begun to forget appellant due to the passage of time after regular
visitation ceased.
T he court found the evidence supported a prima facie case under section
8604 : that appellant had not, in fact, communicate d with or support ed D.L. for more than one year

. T he issue was whether the failure had been willful and
, in particular
, whether appellant had been prevented from assuming her parental obligations

. This presented an issue of credibility. The court found the testimony of appellant and her mother to be “highly unbelievable” and concluded that appellant was “not credible in almost any aspect of her testimony

. ” The court “question[ed] almost each and every word that [appellant] testified to in this
matter.” T he court found it “clear beyond any reasonable doubt” that the requirements of section 8604 had been met. With respect to D.L.’s best interest, the court agreed with Dr. Kaser

- Boyd that the boy was “‘very bonded’” to Father and V.G and saw them as his p arents , but had no parent/child relationship with appellant. It followed that “ i t would not be in the best inter e s t of this child to be with the natural mother, that it’s i n the best intere st of the child to be with the
natural father and his wife.”
Th e court entered a

n order “find [ ing ] that the requirements under Section 8604 of the Family Code have been met” and “terminat [ ing ] the parental rights of [appellant].” This appeal followed. 10

10 D.L.’s appointed counsel filed a separate brief urging affirmance of the trial court’s findings under section 8604.9 DISCUSSION
A. Section 8604 Is Not Unc onstitutional
, and Dep rivation of the Right to Object to an Adoption Need Not Be Supported by a Finding of “Abandonment” Appellant contends the court erred in proceeding under section 8604 because the provision did not afford her the due process protections to which she was

e ntitled as a biological mother . She further contends that any termination of her parental rights or determination that her consent to adoption is not required must fail
, absent a finding that she abandoned her child within the meaning of section
7822. Ap pellant failed to challenge the constitutionality of section 8604 or argue the applicability of section 7822 below

. 11 She has, therefore
, forfeited these
contention s . (See City of San Diego v. Bog g ess (2013) 216 Cal.App.4th 1494, 1503 [facial challenge to constitutionality of statute may be forfeited if not presented to trial court]; see also In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 825

- 826 [appellate court declined to consider timeliness of service of contempt motion whe re appellant fa iled to raise issue in trial court]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [mother foreclosed from challeng ing computation of child support award on appeal where she did not raise
issue in trial court ] .) Moreover, f or the reasons discus sed, we would reject her
claims

. As noted, section 8604 provides that consent of a non

- custodial birth parent to an adoption is not required where that parent “for a period of one year willfully fails to communicate with and to pay for the care, support a nd education of the
child when able to do so.” Section 7822, subdivision (a)(3) provides: “A

11 Not only did appellant fail to raise the applicability of section 7822 in the c ourt below, but on the first day of trial, when V.G. sought to amend her petition to add allegations under section 7822, appellant’s counsel objected, preventing any issues pertaining to section 7822 from being addressed.10

proceeding under this part [governing freedom from parental custody and control]

may be brought if .

. . [¶] . . . [¶] [o] ne parent has left the child in the car e and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent with the intent on the part of the parent to abandon the child.” I t is clear that the provisions of section
8604 and section 7822 create two distinct procedures, supported by different evidence and leading to different results. U nder section 8604, “the sole issue, other than the child’s best interests, is whether the noncustodial parent had the ability to commu nicate with and provide for the child, but willfully failed to do so.” ( In re Jay R

. (1983) 150 Cal.App.3d 251, 258 [ citing former Civil Code section 224, now section 8604].) A successful action under section 8604 “cause[s] a parent to lose his or her ri ght to withhold consent to [an] adoption
, ” but does not terminate parental rights. ( In re Jay R ., supra, at p. 258 ; accord, In re Marriage of
Dunmore (2000) 83 Cal.App.4th 1, 4 [successful proceeding under section 8604 “permits an adoption to proceed with out the consent of a parent who has willfully failed to communicate and support a child for one year,” but parental rights are not terminated and parental support obligations are not alleviated until adoption is
consummated ].) 12 In contrast, a petition und er section 7822 requires a showing that the parent
either failed to support or failed to communicate for one year, with the intent to
abandon the child . ( In re Jay R

. , supra, 150 Cal.App.3d at p. 258 [citing former Civil Code section 232, now section 7822 ] .) If the moving party prevails in a petition brought under section 7822, the child will be “‘declared free from the

12 As will be discussed further below, the court erred in entering a judgment stating that appellant’s parental rights over D.L. were terminated based solely on its true findings on the allegations asserted under section 8604.11

custody and control of either or both of his parents’”; in other words, parental rights will be immediately terminated. ( In re Jay R

. , s upra, at p. 257; see § 7820.) Appellant is correct that unlike section 7822, section 8604 requires no evidence of an intent to abandon. ( In re Marriage of Dunmore
, supra , 83 Cal.App.4th at p. 5.) “The action [] which may cause a parent to lose his or h er right to withhold consent to [an] adoption may be ‘tantamount to abandonment,’ but ‘abandonment’ within the meaning of section [7822] is not an issue in a stepparent adoption

. . . . ” ( In re Jay R ., supra , 150 Cal.App.3d at p. 258
, italics deleted, quo ting Adoption of Thevenin (1961) 189 Cal.App.2d 245, 250 .)
C ontrary to appellant’s belief, however, our Supreme Court’s decision in Adoption of Kelsey S . (1992) 1 Cal.4th 816 ( Kelsey S .) does not support t he
contention that a n absent biological mother’s parental right to object to an adoption
cannot be terminated without a finding of abandonment

. Kelsey S

. involved the rights of a biological father who had not established himself as a presumed father.
The then

- applicable statutes permitted a biological father’s parental rights to be
terminated if the trial court found by a preponderance of the evidence that it was in the best interests of the child to be adopted, without regard to the father ’s fitness or
unfitness or any action the father had taken to a ssume responsibility for the child

. ( Id . at p. 823.) T he pertinent statutory scheme permitted the biological father to become a presumed father only if he openly held out the child as his own and
received the child into his home

. ( Id . at p. 825.) Notin g that the father had been prevented from physically receiving the child into his home by the mother, the trial

court , and the prospective adoptive parents, the c ourt held that the statutory scheme governing presumed father status “ violates the federal con stitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child ’ s biological father from becoming a presumed father and thereby allowing the state to terminate h is parental rights on12

nothing more than a showing of the child ’ s best interest. If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities

-- emotional, financial, and otherwise

-- his federal constitutio nal right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.

. . . [W] hen the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal prote ction as those of the mother .” ( Id . at p p. 825 , 849 .) In the context of its determination that biological fathers were not afforded equal treatment under the statutes governing adoption and termination of parental rights , the court examine d the precurs or to section 8604, former Civil Code section
221.20. 13 The child’s prospective adoptive parents had obtained the mother’s consent to the adoption, and contended that under the statute, only her consent was required. ( Kelsey S
., supra , 1 Cal.4th at p. 822 .) The court explained that the provision provided a biological mother or presumed father “far greater rights”
because it permitted the mother and presumed father to prevent an adoption “except in certain specified and narrow circumstances,” such as where the mother or presumed father “willfully fail [ed] for a year or more to communicate with and support the child

. . . . ” ( Id

. at p. 824.) According to the court, this language required the consent of a mother or presumed father to an adoption “ absent a

s howing by clear and convincing evidence of that parent’s unfitness

. ” ( Id

. at
p. 825. ) In so stating, the court equated proof of the elements of section 8604

-- a noncustodial parent’s willful failure for a year or more to communicate and

13 As the court explained, former Civil Code section 224 was repealed effective 1991 and its provisions set forth without material change in Civil Code section 221.20. ( Kelsey S., supra, 1 Cal.4th at p. 825, fn. 5.) Civil Code section 221.20 was repealed effective 1994 and replaced by section 8604. (1992 Stats., ch. 162, § 10.)13

support a child

-- with proof of that parent’s “unfitness.” (1 Cal.4th at p p. 824

- 825 .) 14

Moreover , since deciding Kelsey S
., the Supreme Court has held that “a showing of current unfitness is not always necessary when a court terminates parental rights.” ( Guardianshi p of Ann S . (2009) 45 Cal.4th 1110, 1118 ( Ann S .)
italics deleted ; accord, In re Charlotte D . (2009) 45 Cal.4th 1140, 1147

- 1150 .) At
issu e in Ann S

. was a provision of the Probate Code

-- section 1516.5

-- which authorizes the termination of parental righ ts when children have been placed in a guardianship for at least two years
, and the court finds that adoption by the guardian would be in the children’s best interest. The court explained that Kelsey
S . stand s for the proposition that “the best interest o f the child cannot justify terminating the rights of a parent who has demonstrated a full commitment to parental responsibility, but whose efforts to secure custody have been thwarted .” ( Ann. S., supra, 45 Cal.4th at p. 1130 , italics added .) The court re ject ed a facial challenge to section 1516.5, finding that termination of parental right s could occur under its provisions only where the parent had “surrendered custody to the guardian and exercised no parental care or control for at least two years
, ” whic h in the majority of cases would be antithetical to a finding of a “‘ full commitment to

. . . parental responsibilities

- - emotional, financial, and otherwise

. ’” ( Ann S.,

supra, at pp. 1131

- 1132 , quoting Kelsey S
., supra , 1 Cal.4th at p. 849 .) As the

cou rt explained: “[T]he procedural standards governing proceedings to terminate parental rights are not invariable. The nature and stage of the proceeding, and the

14 The court also equated a finding under section 8604 with a finding of unfitness in the summar y of its holding: “[T]he federal constitutional guarantees of equal protection and due process require that the father be allowed to withhold his consent to his child’s adoption and therefore that his parental right s cannot be terminated absent a showing of his unfitness with in the meaning of Civil Code section 221.20 [now section 8604].” ( Kelsey S
., supra , 1 Cal.4th at p. 822, italics added.)14

passage of time without parental custody
, may make a difference. [¶] After years of guardian ship, the child has a fully developed interest in a stable, continuing, and permanent placement with a fully committed caregiver.” ( Id . at pp. 1135

- 1136.) 15
The procedures applicable under section 8604 fully comply with those the
court deemed sufficient in Ann S

. The issue under the statute is whether the parent
has “willfully fail[ed] to communicate with and to pay for the care, support, and
education of the child

. . . . ” ( § 8604, subd. (b) .) The statute provides that “[f]ailure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with child for the period of one year ” presents “ prima facie evidence that the failure was willful
and without lawful excuse.” ( I d.
, at subd. (c).) Howe c ver, the parent is given an opportunity to present evidence concerning the circumstances surrounding the failure to support and communicate , his or her efforts to maintain contact, and any exigencies or special circumstances that p revented communication or support in
order to refute that his or her actions were willful. (See Adoption of Smith (1969)
270 Cal.App.2d 605, 608

- 609 [“[B]efore a failure to communicate with her children for a period of one year may operate to deprive a mo ther of her right to

15 In Ann S . t he court also addressed the contention that the provision might be invalid as applied. The court acknowledged that there were “imaginable scenarios” of a parent who “find[ing] it necessary to place a child in guardianship and, despite mainta ining a parental commitment as full as the circumstances permit[ted],” facing a termination proceeding. ( Ann S ., supra, 45 Cal.4th at p. 1132.) But because Probate section 1516.5 required the trial court to consider “‘all factors relating to the best int erest of the child,’” including “the circumstances leading to guardianship, the parent’s efforts to maintain contact with the child, any exigencies [ , ] that might hamper those efforts, and other evidence of commitment to parental responsibilities,” it was n ot likely to be applied invalidly. (

Ann S ., supra, at p. 1132. ) The court explained in the companion case, In re Charlotte D ., that the statute was nonetheless “open to constitutional challenge as applied to an individual parent.” ( In re Charlotte D ., s upra, 45 Cal.4th at p. 1143.)15

object to the adoption of her children, it must be shown that during the interval in question she was able to communicate with them and failed to do so.”].) 16 Appellant was provided the protections discussed in Ann S

. I n a lengthy

p roceeding covering a period of weeks , appellant was given an opportunity to refute the prima facie case by establishing that she had made an effort to fulfill her parental obligation s but had been thwarted in her ability to do so

. The court took a
broad v iew of relevan ce , permitting appellant to testify concerning the couple’s interactions during the marriage and the dissolution proceedings
, as well as the more pertinent period between 2010 and 2011 when she maintained no contact with her child

. Appellant claimed that Father had been abusive from the beginning
and that she was afraid of him. She further claim ed that she had tried to maintain

contact with D.L. but that Father had interfered with her visitation and Skype

co mmunication

. Father denied that h e was abusive or that he interfered with visitation. The court, as trier of fact, was free to determine whose testimony to
credit

. Moreover, other evidence in the record refute d appellant’s claim that she

was thwarted by the actions of others from mainta in ing contact with her son

. Her initial actions in concealing D.L. from Father caused her to be limited to monitored visitation. She used monitored visitation as an opportunity to find a basis for accusing Father of abuse. When the court permitted a per iod of unmonitored visitation, she failed to avail herself of the opportunity to re

- establish a normal parental relationship with D.L. and engaged in behavior that caused visitation to revert to monitored. When she was offered Skype as a supplement to mon itored visitation, she blamed Father for three

- year old D.L.’s inability to sit still and

16 Appellant erroneously states that the findings under section 8604 are under the preponderance of the evidence standard. In a section 8604 hearing, the petitioner has the burden of proof by clear and convincing evidence. ( In re Jay R ., supra , 150 Cal.App.3d at p. 265.)16

unilaterally stopped that form of communication. Although she claims Father interfered with her visitation, t here was no evidence that in the year preceding
October 2011, when the adoption petition was filed, she made any effort to communicat e with or visit D.L. On this record, the court ’ s finding s that appellant’s lack of communication and support was willful and that the requirements of section 8604 had been met we re amply supported. The court’s
conclusion that D.L.’s adoption by V.G. c ould go forward without appellant’s consent in no way violated her right to due process

.

B

. The Court Erred in Issuing a n Order Terminating Parental Rights
As noted above , a succ essful action under section 8604 “cause[s] a parent to lose his or her right to withhold consent to [an] adoption,” but does not terminate parental rights. ( In re Jay R ., supra , 150 Cal.App.3d at p. 258 ; accord, In re Marriage of Dunmore
, supra , 83 Cal.Ap p.4th at p. 4.) After finding that the requirement s of section 8604 had been met, permit t ing D.L. to be adopted by V.G. without appellant’s consent, the court added language to its order terminating appellant’s parental rights. T his was premature and in excess of the relief authorized by section 8604. Accordingly, the language in the order terminating appellant’s parental rights must be stricken. Appellant’s parental rights may be
terminated only upon completion of the adoption of D.L . (See § 8617.)17 D ISPOSITION
We modify the trial court’s June 11, 2013 order by striking the language “and terminates the parental right s of [appellant].” As modified, the order is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.