Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. No. S-1501-AT-2539 James Compton, Commissioner.
Roger R. Grass for Objector and Appellant.
Troy L. Childers for Petitioners and Respondents.
OPINION
Wiseman, Acting P.J.
While a mother was pregnant with her son, she and the father kidnapped a man and murdered him. Both parents were convicted of multiple offenses and imprisoned for life. The question in this case is whether the father’s crimes were sufficient grounds to terminate his parental rights under Family Code section 7825. We conclude they were and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
K.S., the father and appellant in this case, was arrested on August 12, 2000, and has been in custody ever since. In 2002 he was tried for and convicted of first degree murder (Pen. Code, § 187); kidnapping for ransom (Pen. Code, § 209, subd. (a)); second degree burglary (Pen. Code, § 460, subd. (b)); and conspiracy (Pen. Code, § 182, subd. (a)(1).) He was sentenced to life in prison without the possibility of parole. This sentence is mandatory in cases of kidnapping for ransom in which the victim is killed. (Pen. Code, § 209, subd. (a).) The mother, S.C., was also convicted of first degree murder, kidnapping for ransom, and conspiracy.
Their son, K., was born on October 27, 2000, about two months after the arrest. K. lived with his paternal grandmother for the first four months after his birth. After that, he went to live with the respondents in this case, K.R. and D.R., who are S.C.’s aunt and uncle and who became K.’s legal guardians on March 9, 2001. He has lived with them since then.
K.R. and D.R. decided to pursue adoption of K. They obtained the mother’s consent to termination of her parental rights. The father refused to consent. On August 7, 2007, K.R. and D.R. filed a petition in superior court to terminate the father’s parental rights. The petition described the father’s criminal offenses and cited Family Code section 7825, which states that a felony conviction can be grounds for termination of parental rights. It also cited Family Code section 7822, which provides for termination of parental rights in cases of abandonment.
At the hearing, the court took judicial notice of the father’s convictions and sentence. It appears from the reporter’s transcript that some documents showing the convictions and sentence were presented to the court, but these are not included in the appellate record. The appellate record also does not include any portion of the record of the criminal trial. Counsel for the aunt and uncle attempted to introduce a document purportedly showing a prior conviction, but the court declined to receive the document in evidence because it was not certified.
The court heard testimony by the aunt, the father, and the grandmother. The father claimed he was innocent and, having lost his regular appeal, was pursuing writ relief.
At the conclusion of the hearing, the court issued an oral ruling. It rejected the abandonment claim, finding no willful intent to abandon. It found the claim of unfitness based on a felony conviction to have been proven, however:
“[T]he Court finds as to Count 2, he has been convicted of a crime, the nature of which is such that it would prove his unfitness, the series of crimes, the kidnapping and the murder in the first degree.
“The Court finds that count has been proven, and specifically, that would be under Family Code Section 7825, and that has been proven by clear and convincing evidence.”
The court went on to find that termination of parental rights was in the child’s best interest and to grant the petition. It issued a written order on March 27, 2008.
DISCUSSION
Family Code section 7825, subdivision (a), provides:
“(a) A proceeding under this part [i.e., a proceeding to have a child declared free of a parent’s custody and control] may be brought where both of the following requirements are satisfied:
“(1) The child is one whose parent or parents are convicted of a felony.
“(2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child. In making a determination pursuant to this section, the court may consider the parent’s criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent’s ability to exercise custody and control regarding his or her child.”
The court’s determination must be supported by clear and convincing evidence. (Fam. Code, § 7821.)
In this context, “[u]nfitness means a probability that the parent will fail in a substantial degree to discharge parental duties toward the child.” (In re Christina P. (1985) 175 Cal.App.3d 115, 133.) Clear and convincing evidence of this probability is evidence that is so clear that it leaves no substantial doubt about the matter. (Id. at pp. 133-134.)
The father contends that, because the underlying facts of his convictions were not before the trial court, his unfitness was not proven. This amounts to a claim that there was insufficient evidence to support the judgment. “When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
The evidence was sufficient to support the court’s finding of unfitness under the clear-and-convincing-evidence standard. The father has been sentenced to life without the possibility of parole, and his conviction and sentence have been affirmed on appeal. He testified that he has no income and can provide no child support or medical insurance. Under these circumstances, it is practically certain that the father will fail to discharge his parental duties. He has no ability to take care of his son and no prospect of ever being able to do so. Further, the nature of the father’s crimes supports the trial court’s finding of unfitness. The record does not disclose much about these crimes beyond the bare fact of the convictions, but it does disclose two other crucial facts. First, the father’s fellow conspirator and coperpetrator was pregnant with the child at the time. The court reasonably could find that a man who conspires to commit and commits kidnapping and murder with a woman who is carrying his child demonstrates his unfitness for parenthood. Second, one of the crimes the father chose to commit carried a mandatory sentence of life without the possibility of parole. Only two outcomes were realistically possible: becoming a permanent fugitive and serving life in prison. Being caught and released without charge and being tried and acquitted were other possibilities, but not realistic ones. Adequate parenting by either parent of the soon-to-be-born child was not possible under either scenario. A fit parent would not choose to put his child in that situation.
The father cites three cases—In re Baby Girl M. (2006) 135 Cal.App.4th 1528 (Baby M.); In re Terry E. (1986) 180 Cal.App.3d 932 (Terry E.); and In re James M. (1976) 65 Cal.App.3d 254 (James M.)—in which petitions to terminate the parental rights of felons, including in one case a murderer, were unsuccessful. Each of these cases is distinguishable from the present case.
In Baby M., supra, 135 Cal.App.4th 1528, the trial court terminated a father’s parental rights based on his felony convictions of burglary, attempted burglary, and drug possession; his extensive misdemeanor record; and the court’s finding that the father had not “‘adequately addressed the problems which have led to his criminality.’” (Id. at p. 1531.) The Court of Appeal reversed, holding that “section 7825 appl[ies] to terminate parental rights only where a parent’s unfitness is demonstrated by the facts underlying a felony conviction.” (Id. at p. 1532.) The trial court erred in relying on other facts, especially those having to do with the father failing to address his “problems.” (Id. at pp. 1532, 1542, 1543.) Factors like this “may inform the court’s decision,” but “cannot, as appears to be the case here, themselves form the basis for” it. (Id. at p. 1543.)
The Baby M. court also disapproved of the trial court’s reliance on the father’s prior misdemeanor domestic violence convictions. (Baby M., supra, 135 Cal.App.4th at p. 1544, fn. 11.) A short time after Baby M. was decided, the Legislature amended section 7825 to add the second sentence of subdivision (a)(2) allowing the court to consider a parent’s prior criminal record if that record is relevant to parental fitness. (Stats. 2006, ch. 806.)
In the present case, the court’s decision to terminate the father’s parental rights was based on the facts of his crimes. The record did not contain many of those facts beyond the convictions themselves, but, as we have said, it contained enough. Unlike the trial court in Baby M., the trial court here did not rely on anything other than the crimes, the convictions, and their penal consequences.
True, the sentence of life without parole—which we have said the court properly could consider—is not among the facts “underlying” the felony convictions. (Baby M., supra, 135 Cal.App.4th at p. 1532.) It is a consequence of the felony convictions. We do not believe, however, that by emphasizing underlying facts the Baby M. court meant a sentence is always irrelevant to a petition filed under section 7825. If it did mean that, we decline to follow that part of its holding.
In Terry E., supra, 180 Cal.App.3d 932, the trial court applied former Civil Code section 232, subdivision (a)(4)—which was a predecessor to Family Code section 7825—to terminate the parental rights of a mother. (Terry E., supra, at p. 936.) The mother had been convicted of false imprisonment, oral copulation by force, and sexual penetration with a foreign instrument. She testified at her criminal trial that her codefendant—who was her boyfriend and the estranged husband of the victim—had compelled her to participate in the crimes by threatening to kill her and her children. (Id. at p. 939.) We reversed, concluding that the evidence was insufficient to sustain the termination. (Id. at p. 937.) There was no evidence that “the criminal disposition of the parent which gave rise to the felony convictions would continue in the future to render the parent unfit to care for the child.” (Id. at p. 952.) The respondent’s claim that the mother might repeat her criminal behavior in the future was conjecture. (Id. at p. 953.) We stated that clear and convincing proof of unfitness “requires evidence such as expert opinion based on a personal examination of the parent, an evaluation of the parent’s criminal history or conduct while in prison or other facts from which a rational inference may be drawn that the parent will be unable to properly care for the child in the future.” No evidence of this kind was in the record. Further, “prison incarceration does not ipso facto show a parent’s unfitness”; instead, it must be proven that “the parent has not [been] or cannot be rehabilitated during incarceration so that when he or she is released from prison the parent would be unable to properly care for the child.” Evidence of this was also lacking. (Ibid.)
In the present case, by contrast, there were “other facts from which a rational inference may be drawn that the parent will be unable to properly care for the child in the future.” (Terry E., supra, 180 Cal.App.3d at p. 953.) We have described these facts. With respect to incarceration, the question of whether the parent will be rehabilitated so that he can provide proper care when released does not arise. The father in this case will never be released, so the possibility of rehabilitation was not a factor the court could consider.
Finally, in James M., supra, 65 Cal.App.3d 254, the trial court dismissed a petition to terminate the parental rights of a father which was based on the ground that he had stabbed the children’s mother to death and been convicted of second degree murder. (Id. at pp. 256-257, 259.) The Court of Appeal affirmed, holding that the trial court reasonably could find unfitness had not been proved. (Id. at p. 265.) After reciting the underlying facts at length, the appellate court concluded, “Here, the trial court might reasonably find that the crime was a crime of passion, not the product of a violent and vicious character, but comprehensible within the framework of human folly, weakness and imperfection.” (Id. at p. 266.)
Without commenting on the correctness of James M., we observe that the procedural posture of that case was crucially different from the procedural posture of this case. There, the trial court had dismissed the petition, and the question on appeal was whether the record compelled a finding of unfitness. Despite the seriousness of the parent’s crime, the appellate court thought not. Here the petition was granted and we are asked only whether the evidence sufficed to support the finding of unfitness. We think so.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Dawson, J.