Adoption of K.G. CA2/6 ( 2016 )

Filed 3/14/16 Adoption of K.G. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 SIX
Adoption of K.G., a Minor. 2d Juv. No. B265212
(Super. Ct. No. A017238)
(Ventura County)
K.L.,
Plaintiff and Respondent,
v.
H.D.,
Defendant and Appellant.
H.D ("Father") appeals an order granting a petition to terminate his parental
rights to his biological daughter, K.G., freeing her for adoption by K.G.'s maternal
grandmother, K.L. ("Grandmother").
Father contends the Ventura County Superior Court did not have jurisdiction
to terminate his parental rights because a Georgia probate court issued a guardianship order
in 2012 and has continuing exclusive subject matter jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3400 et seq.)1 Father
also contends the trial court denied his right to due process when it did not permit him to
testify telephonically. We conclude the UCCJEA does not apply to these adoption
1
All statutory references are to the Family Code.
proceedings and Father waived his due process claim when he stipulated that no witnesses
would be called. We affirm.
BACKGROUND
K.G. was born in 2006 in Georgia. Her parents were not married. No father is
identified on her birth certificate.
Father is K.G.'s biological father. Mother informed Father of her pregnancy. Father
did not support or visit K.G.
In February 2012, Mother relinquished her parental rights and selected
Grandmother as a temporary guardian for K.G. A Georgia probate court granted temporary
guardianship to Grandmother. Grandmother's guardianship petition alleged that K.G. was
born out of wedlock and that Father had "not legitimated" K.G. The Georgia court's order
does not address Father's parental rights.
In 2014, Grandmother filed a petition to adopt K.G. in the Ventura County
Superior Court. She and K.G. had lived in Ventura for more than two years.
Mother consented to adoption. Father did not consent.
Grandmother alleged Father's consent to adoption was not required for two
reasons: (1) Father deserted K.G. without providing information to identify her (§ 8606,
subd. (c)); and (2) an adopting parent had custody of K.G. by court order or agreement and
Father had not contacted K.G. or paid for her support for one year or more (§ 8604, subd.
(b)).
In a separate petition filed in the same action, Grandmother asked that the trial
court terminate Father's parental rights because (1) Father abandoned K.G. (§ 7822), and (2)
Father is a felon whose crime demonstrates unfitness (§ 7825). Grandmother later withdrew
her allegation that consent was not required under sections 8606 and 8604. She proceeded
solely on the grounds that Father's rights should be terminated because he abandoned K.G.
(§ 7822) and he is an unfit felon (§ 7825).
The trial court appointed counsel to represent Father. At trial, counsel
stipulated that the Ventura County Human Services Agency (HSA) report "would be
submitted into evidence without objection, that the court would accept the REPORT as
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evidence and counsel would argue on the facts and findings of the REPORT without the
necessity of calling further witnesses." HSA reported that Father was out of state, "recently
released from prison after serving a nine year sentence for possession of an un-registered
machine gun," "currently residing in a 'halfway house,'" and "not allowed to travel outside
of the state until July 2015." The court allowed Father to attend the May 2015 trial by
telephone but did not allow him to testify.
HSA's report was based on its interviews of Father, K.G., Mother, and
Grandmother. HSA reported that Father "has been incarcerated the child's entire life and, at
best, he has talked with [K.G.] on the phone a few times several years ago." Father was
"continuously absent . . . [in] excess of eight years and has failed to provide any support for
her." HSA summarized California Law Enforcement Telecommunications System
information concerning Father but concluded that it contained insufficient information to
find him unfit based on the nature of his convictions. (§ 7825.) Instead, HSA
recommended the trial court terminate Father's parental rights under section 7822 because
he abandoned K.G. HSA recommended that it is in K.G.'s best interest to be freed for
adoption to Grandmother.
The trial court terminated Father's parental rights pursuant to section 7822. It
found: Father is not the presumed father, he is the biological father; it is in K.G.'s best
interest that the adoption proceed (§ 7664); and "[p]ursuant to Family Code Section 7822
Father has abandoned [K.G.] and [K.G.] is free from custody and control of the Father."
Before trial, the trial court asked the parties whether the UCCJEA applies to
this proceeding. Grandmother argued it did not. Father did not submit a brief. The court
concluded that the UCCJEA does not apply to this proceeding. Accordingly, it did not stay
the action to communicate with the Georgia court on the question of jurisdiction (§ 3426,
subd. (b)) or determine whether K.G., K.G.'s parents, and any person acting as a parent do
not presently reside in Georgia (§ 3423, subd. (b)) as would be required if the UCCJEA
applied.
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DISCUSSION
Father contends the Ventura Superior Court did not have jurisdiction to
terminate his parental rights because the Georgia probate court has continuing exclusive
jurisdiction under the UCCJEA.
The UCCJEA provides the exclusive method of determining subject matter
jurisdiction in child custody proceedings. (In re Stephanie M. (1994) 7 Cal. 4th 295, 310.) It
provides that "child custody proceeding[s]" include "proceeding[s] for . . . guardianship . . .
[and] termination of parental rights." (§ 3402, subd. (d).) But it also provides that it does
not apply to adoption proceedings. (§ 3403 ["This part does not govern an adoption
proceeding or a proceeding pertaining to the authorization of emergency medical care for a
child"].) Jurisdiction over adoption proceedings is instead governed by section 9210.
Therefore, termination of parental rights here in this adoption proceeding is not governed by
the UCCJEA. To separate the termination petition from the adoption proceeding would
extol form over substance, unnecessarily prolonging these proceedings. No form of
litigation is less suited to delay than an adoption proceeding. (Adoption of Michael H.
(1995) 10 Cal. 4th 1043, 1072.) Termination requires expediency and finality in the interest
of the child's development and well-being. (In re Clarissa H. (2003) 105 Cal. App. 4th 120,
125.)
The Ventura County Superior Court had jurisdiction over the adoption
proceeding under section 9210. Section 9210 provides that a California court has
jurisdiction over a proceeding for adoption of a minor if the minor lived with a guardian in
California for at least six months before commencement of the action and there is
substantial evidence in California concerning the minor's present or future care. (§ 9210,
subd. (a)(1).) K.G. lived with her guardian, Grandmother, in California for more than six
months before commencement of the action. All substantial evidence concerning K.G.'s
care is in California, as demonstrated by HSA's report.
The Georgia probate court order does not undermine California's jurisdiction
over the adoption proceeding. A California court may not exercise jurisdiction over an
adoption proceeding if a court of another state has issued an order concerning the custody of
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the child unless either (1) the other state court does not have jurisdiction over the adoption
proceeding substantially in conformity with section 9210, subdivision (a)(1)-(4); or (2) the
other state court declines to assume jurisdiction. (§ 9210, subd. (c).) The Georgia court
issued an order concerning K.G.'s custody when it granted Grandmother's petition for
temporary guardianship. But Georgia does not have jurisdiction over this adoption
proceeding in conformity with section 9210, subdivision (a)(1)-(4): K.G. did not live in
Georgia for six months before this action was commenced (subd. (a)(1)); the prospective
adoptive parent, Grandmother, did not live in Georgia for six months before this action was
commenced (subd. (a)(2)); no agency in Georgia placed K.G. for adoption (subd. (a)(3));
and neither K.G. nor the prospective adoptive parent was physically present in Georgia
(subd. (a)(4)).
Father waived his claim that the trial court violated his right to due process
when it did not allow him to testify. Father stipulated that the court could rely on the HSA
report "without the necessity of calling further witnesses." The stipulation was a reasonable
tactic in view of Father's extensive criminal history, the details of which were not before the
court.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Janette Freeman Cohen, by appointment of the Court of Appeal, for Defendant
and Appellant.
Robert M. Baskin for Plaintiff and Respondent.
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