Opinion
F082241
05-19-2021
In re ANGELINA B., a Minor. C.Z., Petitioner and Respondent, v. EDUARDO B., Objector and Appellant.
Linda J. Conrad, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAT-18-003108)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Gloria J. Cannon, Judge. Linda J. Conrad, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioner and Respondent.
Before Franson, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Eduardo B. (father) appeals from the November 16, 2020 order terminating his parental rights to his daughter Angelina pursuant to Probate Code section 1516.5. After examination of the record, father's appointed counsel was unable to identify any arguable issues.
A letter brief filed by father does not present good cause that an arguable issue exists. As set forth more fully below, father's appeal is dismissed. (In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.).)
In Phoenix H., the Supreme Court held that where an appointed attorney in a juvenile dependency case is unable to find an arguable issue for appeal, the attorney should inform the court that he or she has found no arguable issues for appeal, file a brief setting out the applicable facts and law, and provide a copy of the brief to the parent. The Court of Appeal has discretion to permit the parent to file a brief upon a showing of good cause. (Phoenix H., supra, 47 Cal.4th at pp. 841-846.) --------
ABBREVIATED STATEMENT OF THE FACTS AND CASE
Father and Valerie B. (mother) are the parents of Angelina, who was born in 2012. In May of 2013, father's sister (aunt) was asked to take care of Angelina and her brothers due to father and mother's substance abuse. Angelina has been in probate court guardianship with aunt since August 2015; her brothers were eventually placed with maternal grandmother.
In November of 2018, aunt filed a petition under Probate Code section 1516.5 and Family Code section 7822, subdivision (a) to declare Angelina free from the parental custody and control of mother and father. The petition alleged Angelina had lived with aunt since she was eight months old and legal guardianship was granted in 2015. The petition alleged father had not visited Angelina from September 2016 through September 2017.
In February of 2019, father objected to termination of his parental rights, stating he did not want custody but wanted visits. The family court services investigator recommended that the petition be granted. A supplemental report found father's attempts to provide Angelina support and have a relationship with her were token.
At the March 2020 hearing, aunt testified that father had not had contact with Angelina from 2016 to the filing of the petition in November of 2018. Aunt refuted father's insistence that he had regularly visited Angelina. Father insisted that he had provided Angelina with $30 a month from his disability check, had given her gifts, made telephone calls, and never intended to abandon her. Father insisted that he had visited Angelina, although he acknowledged that the visitation supervisor was not always present, and he had called the visit supervisor 20-30 times in 2016 to arrange visits. Father testified that he attempted to arrange many other visits but was told by aunt he could not have them due to weddings, funerals, and vacations.
On April 28, 2020, the juvenile court found that, because father had made four attempts to modify visitation in April and June of 2018, there was insufficient evidence to find that father had the intent to abandon Angelina and denied aunt's petition under Family Code section 7822, subdivision (a). The court ordered that the matter be referred to Family Court Services to complete an investigation pursuant to Probate Code section 1516.5 and include the subdivision (a) factors.
The July 6, 2020 Family Court Services Investigator's supplemental report stated that termination of father's parental rights to Angelina was in her best interests because she was safe and flourishing in aunt's care. It described father's parent/child relationship with Angelina as not significant, noting visits had been inconsistent, father made minimal efforts to follow-up on petitions to change custody and visitation, and he had made only token efforts to provide support and care. Angelina told the investigator she wished to live with aunt and did not want to stay at father's home as she was "scared." She did not express a desire to visit her parents, whom she referred to by their birth names, or visit her brothers. Aunt would take Angelina to see her brothers when she asked.
The aunt's declaration stated that Angelina was safe in her home, where she had been for five years. With aunt, Angelina had flourished, while father and mother focused their efforts on substance abuse and were often homeless. Angelina had developed a parent/child bond with aunt and husband, whom she referred to as "mommy" and "daddy." Angelina visited her brothers at her grandmother's house, where they were in guardianship, but she had not seen them since June 2018.
The court, in its ruling, noted that intent to abandon was not a requirement of Probate Code 1516.5, but instead the analysis was on the child's best interest. The court found Angelina was in a stable, loving home and shared a strong bond with aunt; her relationship with father was inconsistent and she appeared to have no significant bond with her siblings. The court found Angelina would benefit from being adopted by aunt. It found it was in Angelina's best interest to terminate father's parental rights.
ANALYSIS
A petition under Family Code section 7822, may be brought if "[t]he child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child." (Fam. Code, § 7822, subd. (a)(2).) Probate Code section 1516.5 " 'create[s] yet another avenue for a guardian [in addition to Family Code section 7822 et seq.] where the child has been in the custody of the guardian for a long time and the parent or parents are not likely to reclaim the child but the parent or parents do not fall under one of the categories covered by existing law.' " (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1125.) A proceeding under Probate Code section 1516.5 may be brought when all of the following requirements are satisfied: "(1) One or both parents do not have the legal custody of the child. [¶] (2) The child has been in the physical custody of the guardian for a period of not less than two years. [¶] (3) The court finds that the child would benefit from being adopted by his or her guardian." (Prob. Code, § 1516.5, subd. (a)(1)-(3).) In determining whether the child would benefit from being adopted, "the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following: [¶] (A) The child and the birth parent. [¶] (B) The child and the guardian, including family members of the guardian. [¶] (C) The child and any siblings or half siblings." (Prob. Code, § 1516.5, subd. (a)(3)(A)-(C).)
In the first part of his lengthy letter brief, father strove to explain that the presiding judge in 2014 and 2015 (Judge Wyatt), was the one who "favored" a judgment of guardianship for Angelina with aunt, and he should have recused himself as he made a pass at father's wife in 2011 when he was presiding over a "homeless court" at the shelter where father was staying at the time. Father did not recall the incident until 2017, at which time he made a complaint to the Kern County Superior Court about the incident, which was then forwarded to Judge Wyatt. Following a response from Judge Wyatt, the Charles R. Brehmer, Judge of the Superior Court, issued a letter stating no incidence of judicial misconduct was found on the part of Judge Wyatt. Father was informed that he could file a complaint with the Commission on Judicial Performance. On July 9, 2020, the Commission on Judicial Performance sent father a letter stating the Commission voted to close the complaint, finding insufficient support for the allegation of impropriety on the information provided to date. Part of father's letter is a plea for counsel to help pursue this complaint further.
In the second part of the letter, father attempts to explain the various ways he attempted to visit Angelina, which were at issue at the termination hearing.
An appealed from judgment is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Appellant bears the burden to raise claims of reversible error or another defect. If he or she fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.) We conclude the first part of father's letter brief complaining of Judge Wyatt's alleged misconduct does not present good cause that any legally cognizable error in the juvenile court's orders exists. In the second portion of his letter brief, father, in essence, asks this court to reweigh and resolve conflicts in the evidence, and reject the court's conclusions. We are not at liberty to do so. Accordingly, the appeal is dismissed. (Phoenix H., supra, 47 Cal.4th at pp. 843, 846; In re Sade C., supra, at p. 994.)
DISPOSITION
The appeal is dismissed.