In re Z.H.

Filed 12/4/24; certified for publication 12/31/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Z.H., a Minor. B338184
(Los Angeles County
Super. Ct.
No. 23CCAB00002)
I.H. et al.,
Petitioners and Respondents,
v.
K.M.,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Nichelle L. Blackwell, Juvenile Court
Referee. Affirmed and remanded with instructions.
Christopher Blake, under appointment by the Court of
Appeal, for Objector and Appellant.

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Family Building, Ted R. Youmans; and Leslie A. Barry for
Petitioners and Respondents.
_________________________________
K.M., the mother of minor Z.H. (Mother), appeals a
judgment freeing the child from her custody and control and thus
terminating her parental rights after the child’s father I.H.
(Father) and paternal grandmother C.L. filed a Family Code
section 7822 petition for that relief.1 We conclude Mother fails to
show the trial court erred or otherwise abused its discretion in
terminating her parental rights. We observe, however, that there
was a clerical error in the judgment regarding termination of
Father’s parental rights. Accordingly, we affirm the judgment to
the extent it terminates Mother’s parental rights but remand
with instructions to the trial court to correct the error in the
judgment regarding Father’s parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Section 7822 Petition and Amended Petition
In March 2023, C.L. filed a petition in this case (Los
Angeles County Superior Court case No. 23CCAB00002) to free
Z.H., who at the time was eight years old, from Mother’s custody
and control pursuant to section 7822. Two months later, C.L.
filed a notice of related cases stating that there was a pending
related case involving custody orders for Z.H. (Los Angeles
County Superior Court case No. BF058806). In May 2023, the
1 All undesignated statutory references are to the Family
Code.

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court ordered the two cases consolidated and stayed further
proceedings in case No. BF058806.
In July 2023, Father and C.L. filed an amended
section 7822 petition. It alleged that Mother, with the intent to
abandon Z.H., left the minor in the care of Father and C.L.
without provision for the child’s support and without any
communication for a period in excess of one year. The amended
petition also alleged that C.L. had filed a separate adoption case
(case No. 23CCAD01168)2 and that Father and C.L. intended to
coparent Z.H. According to the amended petition, Z.H. resided
with Father and C.L., Father had full physical and legal custody
of Z.H., and Mother had not visited Z.H. since December 2, 2017
and had not provided for any of the minor’s financial needs since
January 2020.
II. The Evidence at Trial
The bench trial began on May 20, 2024. The parties
stipulated to certain facts and the admission of certain exhibits.
Several witnesses, including Mother and C.L., testified at the
trial. Mother and Father’s son Z.H. was born in New Mexico in
October 2014. C.L. stayed with the family for the week of his
birth. Two weeks later, Mother and Father moved with Z.H. to
California, where they lived with C.L.
The child has lived in California with Father and C.L. since
October 2014. Mother also lived with Father and Z.H., but only
until May 2015, when Mother was arrested for domestic violence
and an emergency protective order was issued against her to
2 At a hearing on November 14, 2023, the trial court referred
to case No. 23CCAD01168 as “the adoption case” and stated that
it was a related case.

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protect Father and Z.H. According to C.L.’s testimony regarding
that incident, Mother had attempted suicide. When C.L., a
nurse, attempted to discuss Mother’s suicidal ideations, Mother
told C.L. that she was very depressed. When C.L. discussed
wanting to talk to Z.H.’s maternal grandmother and get Mother
help, Mother grabbed the baby and said Father and C.L. would
never see the baby again. Police officers arrived, and the next
day a protective order was issued against Mother.
The protective order was based in part on allegations of
Mother’s mental health issues—specifically, Mother hearing
voices telling her to kill herself and Z.H.—and domestic violence
by Mother. As police officers arrived to serve Mother with
paperwork, they happened to hear Mother yelling at Father.
Father had scratches on his chest and face, and the officers
arrested Mother for domestic violence.
In May 2015, based in part on Father’s statement that
Mother tried to commit suicide, the Solano County Superior
Court, in Case No. FFL139085,3 awarded Father sole physical
and legal custody of Z.H., which he continued to retain at the
time of trial. Mother was granted supervised visitation with Z.H.
twice per week at a professional facility.
Shortly after the domestic violence incident, Mother
returned to New Mexico. She began visiting Z.H. in California in
June 2015. As a result of Mother violating the facility’s
supervised visitation rules, Mother’s visitation of Z.H. at that
3 Jurisdiction over custody and visitation of Z.H., which
appears to have been initiated in Solano County, was transferred
back and forth between the two counties (Solano County Superior
Court case No. FFL139085 and Los Angeles County Superior
Court case No. BF058806) between 2016 and 2020.

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facility was suspended in July 2015, reinstated in August 2015,
and then terminated around September 2015. Sometime in late
2015, Mother moved back to California and lived with her cousin.
The court allowed Mother to visit Z.H. in October 2015 for the
child’s birthday, with the visit to be supervised by her cousin, and
subsequently granted Mother supervised visits every Saturday,
plus certain additional visits. Mother, however, only visited Z.H.
six times during the summer of 2015, plus once for his October
birthday, and once on Christmas Day 2015.
In January 2016, Mother took the child to Stockton,
California, which was not in Solano County, in violation of the
court’s order. Police officers arrived and informed her she was
violating a court order. Mother did not resume visitation of her
son again until March 2016. From March 2016 through July
2016, Mother visited the child approximately six to eight times,
with the visits occurring every other Saturday and lasting an
hour or two.
When Mother dropped off Z.H. with C.L. after one of the
visits, Mother asked if C.L. knew that the child was bleeding and
showed C.L. a smudge of red on the child’s diaper. C.L. was
concerned about Mother’s mental health because it was red
lipstick, not blood, on the diaper, which was dry.
In July 2016, venue of the custody and visitation case was
changed from Solano County to Los Angeles County, with
supervision of visits to continue, albeit through persons other
than Mother’s cousin. Mother moved back to New Mexico
sometime in 2016. She had no visits with Z.H. between July 2016
and August 2017. In September 2017, Mother was allowed
supervised visitation on alternate Saturdays. From August 2017
through December 2017, Mother visited the child only once per

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month for no more than one or two hours each time. She
completed a total of five visits in 2017 and did not visit her son at
all after 2017.
In January 2018, the custody and visitation case was
transferred back to the Solano County Superior Court, with
Mother to continue to have supervised alternate Saturday visits.
In January 2019, the Solano County Superior Court expressed
some concerns about Mother’s mental health due in part to
Mother’s claims that an imposter had appeared in court on her
behalf. The court also expressed concern that instead of
“exercis[ing] her personal visitation” for over a year, Mother
chose instead to visit by way of multiple FaceTime calls with a
“child [who] doesn’t know who [Mother] is because she hasn’t
exercised her physical visitation.” Father’s attorney informed the
court that, not only did a then four-year-old Z.H. struggle to sit
still in a chair during calls that lasted upwards of 30 minutes and
during which he was “being exposed to profanity” by Mother’s
new boyfriend in the background, Z.H. would “hid[e] from the
[computer] monitor” and become “distressed.” At the close of that
hearing, the court in Solano County “suspend[ed] the FaceTime
visits,” and ordered Mother to resume in-person supervised
visitation at a professional facility “so that your child can learn
who you are again.” The court noted, “It’s been a long time since
you’ve had those visits, and that is no one’s fault but your own.”
A subsequent hearing in May 2019 revealed that Mother
had not participated in any supervised visitation with Z.H. since
the previous hearing. The court observed that, “despite the fact
that there have been a lot of accommodations, both by L.A.
County and Solano County, to encourage [Mother] to actively
participate in the child’s life,” Mother had not “done anything to

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try to exercise her visitation” “for a year and a half.” The court
expressed frustration with Mother’s inability to “establish[]
herself as an active parent,” lamenting to her counsel, “I don’t
know what to do to encourage your client to participate in
parenting this child.” The court reduced Mother’s supervised
visitation with Z.H. to once per month, indicating, “I’m not
convinced that ordering every two week visits, when she’s not
going to show up for them, is appropriate.” In rejecting Father’s
request to suspend Mother’s supervised visitation, the court
expressed hope that Mother would “step up and try to reintegrate
with [her] child’s life” because “[t]he child doesn’t know [M]other
at this point . . . .”
On March 11, 2020, the Solano County Superior Court
transferred venue back to Los Angeles County and ordered
supervised visitation between Mother and Z.H. once per month
for two hours. In April 2023, the Los Angeles County Superior
Court discharged the previous child visitation orders pending a
review hearing and ordered that Mother and Z.H. may have
therapeutic visitation if the therapist determined it would be
appropriate. No therapeutic visits took place. Despite the
multiple visitation orders from 2018 to 2023, Mother’s last visit
with Z.H. occurred on December 2, 2017. Mother acknowledged
in an October 2023 interview with probation that she had missed
many important milestones in Z.H.’s life, including his first steps,
first words, and first day of school. She also acknowledged her
responsibility for the 2015 incident resulting in her arrest.
The Los Angeles County Superior Court had ordered
Mother to pay $105 in monthly child support to Father
commencing July 1, 2017. From September 2017 through
December 2017, Mother paid $50 per month, for a total of $200

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for 2017. In 2018, Mother paid a total of $517.70 in child
support. In 2019, she paid a total of $726.14. Mother did not
provide any financial support for the child after 2019.
Mother admitted at trial that she no longer paid child
support even though she knew it was court-ordered. Her child
support payments had been collected by a local child support
agency, which garnished Mother’s wages. When the agency
ceased providing collection services, Mother stopped paying child
support. She also did not provide medical insurance for Z.H.
Mother sent Z.H. no birthday or other gifts after 2017, nor
did she send him any birthday cards.
II. The Conclusion of Trial and the Judgment
After the close of evidence, on May 23, 2024, the trial court
found that Mother had abandoned the child for purposes of
section 7822. The court stated that “a parent is deemed to have
abandoned the child if for the one year period preceding the filing
of the petition that parent has left the child in the care, custody
and control of the other parent without providing any support for
the child, and without any communication or contact with the
child.” It also explained that it must find by clear and convincing
evidence termination of parental rights to be in the child’s best
interest.
In pronouncing its decision to terminate Mother’s parental
rights under section 7822, the court reasoned that “[t]he
Legislature makes it clear when the court makes this
determination [that a parent has abandoned the child], that the
child’s need for stability is key.” Citing the holding in Adoption of
A.B. (2016) 2 Cal.App.5th 912 (A.B.), the court held this “need for
stability cannot be postponed indefinitely to conform to an absent
parent’s plan to reestablish contact ‘in the distant future.’ ” (Id.

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at p. 923). The court found that, by leaving Z.H. in the care of
Father, Mother “has focused more on her struggles, as opposed to
the best interest of the child, and . . . when a parent focuses
on . . . her struggles, knowing that they have a young child out
here that needs to be cared for and needs to have stability, it does
not work.”
The trial court found persuasive the reasoning of the court
in A.B., supra, 2 Cal.App.5th 912 that “[F]ather’s . . .
emphasizing his own struggles was not enough to overcome this
presumption of abandonment . . . . [H]e should have been
focusing on the child’s need for stability.” Analogizing Mother’s
situation to that of the father in A.B., the trial court reasoned,
“Mother has, essentially, based on her conduct, not shown [Z.H.]
that his interests take precedence or his welfare comes first and
that his stability and consistency is first and that her parental
role must be exercised. She’s just abandoned that. She’s given it
up.” Referencing a similar conclusion by the judge in Solano
County, the court determined that “Mother has abandoned her
parental role and has left that responsibility to the father and the
paternal grandmother.” Though acknowledging that Mother
“holds [Z.H.] in her heart, she still loves him,” nonetheless, “it
still does not avoid a finding of abandonment under Family Code
section 7822.” Having found by clear and convincing evidence
that Mother abandoned the child under section 7822, the court
stated it was signing the judgment freeing Z.H. from Mother’s
care, custody and control and terminating her parental rights.
The court’s signed judgment, which provided for Z.H.’s freedom
from parental custody and control, was filed that same day.

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DISCUSSION
Mother challenges the termination of her parental rights on
the ground that the proposed adoption arrangement, a “second
parent adoption” in which Z.H. would be adopted by his paternal
grandmother C.L. while Father retained his parental rights, is
legally invalid. Specifically, she contends that a mother and her
adult son cannot simultaneously be the legal parents of the child.
Among other flaws in her argument, however, Mother fails to
show the trial court was required to consider any legal
impediment to the proposed adoption when it terminated her
parental rights, and we thus affirm the judgment terminating
those rights. Nevertheless, although Mother fails to establish the
trial court erred or otherwise abused its discretion in terminating
her parental rights, we remand the matter for the trial court to
correct a clerical error in the judgment.
I. Mother Fails To Show the Trial Court Erred or
Otherwise Abused Its Discretion in Terminating Her
Parental Rights
“Section 7822 provides a separate and distinct mechanism
for terminating parental rights based on a parent’s voluntary
abandonment of a child.” (In re Aubrey T. (2020) 48 Cal.App.5th
316, 325 (Aubrey T.).) Under section 7822, “[i]f a parent has left
his or her child in the care 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, a court may declare the
child free from the parent’s custody and control.” (In re E.M.
(2014) 228 Cal.App.4th 828, 838; see § 7822, subd. (a)(3).)
Pursuant to the statute, “[a] declaration of freedom from parental
custody and control . . . terminates all parental rights and

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responsibilities with regard to the child.” (§ 7803.) “Accordingly,
a section 7822 proceeding to terminate parental rights is
appropriate ‘where three main elements are met: (1) the child
must have been left with another; (2) without provision for
support or without communication from the parent for the
statutory period; and (3) with the intent on the part of the parent
to abandon the child.’ ” (Aubrey T., at p. 326.) “A trial court’s
finding of abandonment must ‘be supported by clear and
convincing evidence.’ ” (Ibid.; see § 7821.) The court must also
act in the best interest of the child in a proceeding under
section 7822. (§ 7890; see § 7801.)
“ ‘ “ ‘[The] question whether [an] intent to abandon exists
and whether it has existed for the statutory period is a question
of fact for the trial court, to be determined upon all the facts and
circumstances of the case.’ ” [Citation.]’ [Citation.] In making
this determination, the court ‘must objectively measure the
parent’s conduct, “consider[ing] not only the number and
frequency of his or her efforts to communicate with the child, but
the genuineness of” the parent’s efforts.’ ” (Aubrey T., supra,
48 Cal.App.5th at p. 327.) The “failure to provide support[ ] or
failure to communicate is presumptive evidence of the intent to
abandon. If the parent or parents have made only token efforts
to support or communicate with the child, the court may declare
the child abandoned by the parent or parents.” (§ 7822,
subd. (b).)
“ ‘[T]he decision to terminate parental rights lies in the first
instance within the discretion of the trial court, “and will not be
disturbed on appeal absent an abuse of that discretion.” ’ ” (A.B.,
supra, 2 Cal.App.5th at p. 924.) “ ‘When applying the deferential
abuse of discretion standard, “the trial court’s findings of fact are

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reviewed for substantial evidence, its conclusions of law are
reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.” ’ ” (Ibid.; accord,
Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.)
Here, Mother does not argue that there was insufficient
evidence to declare Z.H. free from her custody and control.4 As
C.L. and Father point out and Mother does not dispute, the
evidence is clear that the elements of section 7822 were met.
Rather, Mother challenges the termination of her parental rights
only on the ground that the proposed adoption arrangement is
legally invalid and asks this court to remand for the trial court to
determine whether “a termination of parental rights without a
planned adoption is not in the best interests of her son.”
The main crux of Mother’s argument on appeal is that the
termination of her parental rights was a precursor to C.L.
eventually adopting Z.H., which would result in a legally invalid
coparenting arrangement with Father. Mother, however, does
not expressly argue, let alone demonstrate with any citations to
the record, that the trial court relied on the legal validity of the
proposed adoption arrangement when it terminated her parental
rights.5 She also fails to demonstrate that the trial court was
4 Not only does Mother fail to challenge the sufficiency of the
evidence before the court in determining whether the criteria for
abandonment under section 7822 were met, but she makes no
citation to the record demonstrating that the termination of her
parental rights was not in Z.H.’s best interests.
5 Indeed, during the trial, the court at one point admonished
C.L. and Father’s counsel when the attorney questioned a
witness about adoption. The court explained that the adoption

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required to take into consideration any legal impediment to the
proposed adoption at issue in the related adoption case when it
terminated her parental rights in this case. She relies in part on
In re Valerie W. (2008) 162 Cal.App.4th 1, which concluded that
the trial court in that case should have addressed whether there
was a legal impediment to a proposed adoption by a mother and
her adult daughter when terminating the appellants’ parental
rights. (Id. at pp. 4, 15–16.) But In re Valerie W. and similar
cases, such as In re G.M. (2010) 181 Cal.App.4th 552, 562, which
addressed under what circumstances a trial court must consider
whether there were any legal impediments to adoption, were
decided under Welfare and Institutions Code section 366.26.
That statute, unlike Family Code section 7822, applies to
children “who are adjudged dependent children of the juvenile
court” and requires a finding of a child’s likelihood of being
adopted to terminate parental rights. (Compare Welf. & Inst.
Code, § 366.26, subds. (a) & (c)(1) [requiring a court to terminate
parental rights if it determines “that it is likely the child will be
adopted”] with Fam. Code, § 7822 [no mention of a similar
likelihood-of-adoption requirement].) Those cases thus do not
apply here to a parental rights termination proceeding under
Family Code section 7822.
We were similarly unable to locate any authority for the
proposition that, prior to granting a petition to terminate
parental rights under section 7822, a court must first ensure that
any proposed adoption would pass legal muster. (See T.P. v. T.W.
was a separate proceeding from the one to terminate Mother’s
parental rights: “[T]his is the termination part. This isn’t the
adoption part . . . .”

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(2011) 191 Cal.App.4th 1428, 1438–1439 [“[A] contemplated
adoption is not a sine qua non to a petition under section 7841[6]
. . . . In addition, the Legislature has . . . [not] expressly sought to
limit proceedings to terminate a parent’s rights to instances in
which adoption is contemplated”]; cf. Aubrey T., supra,
48 Cal.App.5th at p. 325 [distinguishing petitions for “the
termination of parental rights of nonpresumed fathers [under
section 7622] in a proposed adoption” with petitions under
section “7822 [which] provides a separate and distinct mechanism
for terminating parental rights based on a parent’s voluntary
abandonment of a child.”].) Thus, regardless of whether the
proposed adoption arrangement would have been legally invalid,
Mother fails to show the court erred or otherwise abused its
discretion in terminating her parental rights.7
II. The Judgment Contains a Clerical Error
We nevertheless remand the matter with instructions to
the trial court to correct a clerical error in the judgment
regarding Father’s parental rights.
“It is not open to question that a court has the inherent
power to correct clerical errors in its records so as to make these
6 Section 7841, like section 7822, is included in part 4 of
division 3 of the Family Code, and outlines who has standing to
bring a petition under section 7800 et seq. (§ 7841, subd. (a).)
7 Moreover, Mother forfeited her argument that the proposed
adoption arrangement is invalid by not raising it in the trial
court. (See, e.g., A.B., supra, 2 Cal.App.5th at p. 925 [“Scott
forfeited appellate review of this issue because he did not raise it
in the trial court”].)

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records reflect the true facts. [Citations.] The power exists
independently of statute and may be exercised in criminal as well
as in civil cases. [Citation.] The power is unaffected by the
pendency of an appeal or a habeas corpus proceeding. [Citation.]
The court may correct such errors on its own motion or upon the
application of the parties.” (In re Candelario (1970) 3 Cal.3d 702,
705; accord, People v. Baker (2021) 10 Cal.5th 1044, 1109; see In
re Roberts (1962) 200 Cal.App.2d 95, 97–98 [a court has “inherent
power” “after final judgment and regardless of lapse of time to
correct clerical errors or misprisions in its records, whether made
by the clerk, counsel or the court itself”; “ ‘[i]t is well settled that
orders may be made correcting judgments nunc pro tunc as of
their original date without notice and on the court’s own motion
so as to make them conform to the judicial decisions actually
made and this regardless of the lapse of time’ ”].)
“Clerical error . . . is to be distinguished from judicial error
which cannot be corrected by amendment. The distinction
between clerical error and judicial error is ‘whether the error was
made in rendering the judgment, or in recording the judgment
rendered.’ [Citation.] Any attempt by a court, under the guise of
correcting clerical error, to ‘revise its deliberately exercised
judicial discretion’ is not permitted. [Citation.] [¶] An
amendment that substantially modifies the original judgment or
materially alters the rights of the parties, may not be made by
the court under its authority to correct clerical error, therefore,
unless the record clearly demonstrates that the error was not the
result of the exercise of judicial discretion.” (In re Candelario,
supra, 3 Cal.3d at p. 705.)
Here, the trial court signed a form judgment, which the
record indicates had been submitted to it by counsel for C.L. and

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Father.8 The form judgment had not been modified to reflect that
Father would retain his parental rights. For example, the
preprinted language of the judgment stated that Z.H. “is hereby
declared and adjudged to be free from the custody and control
of . . . all person [sic] claiming to be the father and/or mother of
said minor . . . .”
The record, however, is clear that the trial court intended
that Father retain his parental rights and that Z.H. be declared
free from the custody and control of only Mother, not Father.
After explaining that it found Mother had abandoned Z.H. under
section 7822, the court stated, “Therefore, I sign this judgment
that frees the child from the care, custody and control of
[Mother.] [H]er parental rights are terminated by my signing of
this judgment today.” The court then observed, “Now [Z.H.] is
being freed from the care, custody and control of his mother,”
while emphasizing that father would be “allow[ed] . . . to
maintain his parental rights . . . .” (Italics added.) The court’s
statements clearly show that it did not believe the judgment it
was signing terminated Father’s parental rights. There is no
question that the filed judgment, to the extent it purports to free
Z.H. from Father’s custody and control and terminate Father’s
parental rights, does not reflect the exercise of judicial discretion;
8 The May 23, 2024 minute order stated that the court was
“in receipt” of the judgment and that “[s]aid document is signed
and filed on this date.” The top left-hand corner of the signed and
filed form judgment indicated it had been submitted by the
“Attorney(s) For [C.L.].” and listed two attorneys and their law
firm. The record shows the same two attorneys and their law
firm represented both C.L. and Father in this case, including
during the trial.

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rather, it reflects a clerical error.9 Accordingly, we remand to the
trial court for the limited purpose of correcting that error.
9 The very nature of the parties’ arguments on appeal shows
they too do not construe the record to reflect an intent by the trial
court to terminate Father’s parental rights when it signed the
judgment. As Mother acknowledged in her opening brief, “[t]he
[section 7822] petition was not directed against the father of
[Z.H.]; he would retain his full parental rights.” Given the clarity
of the record on this issue, it could not rationally be construed to
demonstrate anything other than a clerical error.

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DISPOSITION
The judgment terminating Mother’s parental rights is
affirmed, but the matter is remanded to the trial court with
instructions to correct the judgment to reflect that Father retains
his parental rights.
BERSHON, J.*
We concur:
EDMON, P. J.
EGERTON, J.
 Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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Filed 12/31/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Z.H., a Minor.
I.H. et al.,
Petitioners and Respondents,
v.
K.M.,
Objector and Appellant.
B338184
(Los Angeles County
Super. Ct. No. 23CCAB00002)
ORDER CERTIFYING OPINION
FOR PUBLICATION
THE COURT:
The opinion in the above-entitled matter, filed December 4,
2024, was not certified for publication in the Official Reports.
Upon request by respondents, and good cause appearing, it is
ordered that the opinion shall be published in the Official
Reports.
Pursuant to California Rules of Court, rule 8.1105(b), this
opinion is certified for publication.

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There is no change in the judgment.
EDMON, P. J. EGERTON, J. BERSHON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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