Opinion
2d Civil B322869
09-25-2023
A.E., Plaintiff and Appellant, v. R.T., Defendant and Respondent.
Gillett Law and Gregory F. Gillett, Alexandra Poletti, for Plaintiff and Appellant. Rickey Taylor, Jr., in propria persona, for Defendant and Respondent.
NOT TO BE PUBLISHED
Superior Court County No. 21FL-0145 of San Luis Obispo Matthew G. Guerrero, Judge
Gillett Law and Gregory F. Gillett, Alexandra Poletti, for Plaintiff and Appellant.
Rickey Taylor, Jr., in propria persona, for Defendant and Respondent.
YEGAN, J.
A.E. (Mother) and R.T. (Father) are the biological parents of M.A.T., born in March 2010. Mother filed a petition under Family Code section 7822 to declare M.A.T. free from the parental custody and control of Father. After an evidentiary hearing, the trial court denied the petition, finding that Father did not intend to abandon M.A.T., even though his attempts to contact her were "sporadic" and "uninspired." Mother contends the trial court erred as a matter of law because Father's conduct satisfies the standard for abandonment established in section 7822. She further contends the trial court's factual findings are not supported by substantial evidence. Father, who is selfrepresented, filed a motion to dismiss this appeal because Mother's counsel served him with certain documents using an incorrect email address. He declined to file a respondent's brief.
All statutory references are to the Family Code unless otherwise stated.
We deny the motion to dismiss and affirm the trial court's order.
Facts
Mother and Father were in an intimate partner relationship from 2008 to 2010. They had a son, M.T., in March 2009. Five months later, Mother and M.T. moved out of the apartment they shared with Father because Father was violent toward Mother. She obtained a domestic violence restraining order (DVRO) but dismissed it after discovering she was pregnant. M.A.T. was born in March 2010. The couple broke up again that June, after Father was again violent toward Mother. Mother left the house with only M.A.T. The couple agreed that their son M.T. would stay with Father while M.A.T. stayed with Mother.
M.T. is not at issue in this proceeding.
Mother and Father agreed to the entry of a Judgment Regarding Parental Obligations that provided for $0 in monthly child support for either child. It does not establish a visitation schedule for either parent. The judgment required Father to "provide and maintain health insurance coverage for the children if it is available through employment or a group plan, or otherwise available at no or reasonable cost, and must keep the local child support agency office informed of the availability of coverage;" and to inform the "local child support agency in writing within 10 days of any change in residence or employment."
Mother and Father went their separate ways, with Mother maintaining custody of M.A.T. and Father maintaining custody of M.T. Father spent some time with M.A.T. at Christmas in 2010. After that, he did not see M.A.T. in person until the fall of 2016, when she and Mother spent an afternoon with Father and M.T. at the paternal grandfather's house. Father testified that, after the 2016 visit, he had daily FaceTime calls with M.A.T. for about three weeks. Mother denied that any FaceTime calls occurred.
Father and M.A.T. had a chance encounter in December 2017 when they happened to see each other at a winter festival in San Luis Obispo. Their interaction lasted less than five minutes. Afterwards, Father tried to contact Mother via text and Facebook Messenger, to set up visits with M.A.T. Mother did not respond to him.
Father had no in person contact with M.A.T. after December 2017. He testified that, in the years between 2010 and 2017, he would reach out to Mother twice a year, around M.A.T.'s birthday and Christmas, to contact or visit M.A.T. With the exception of the fall 2016 visit, Mother did not respond to these messages. Father eventually stopped contacting her. There was some evidence Mother threatened to seek a restraining order if Father continued to contact her.
During these years, Father moved between California, Nevada, Colorado, Texas and Idaho, where he presently resides. He married in 2017 and was convicted of misdemeanor domestic violence against his wife that same year.
Mother testified that the Christmas 2010 visit lasted only a few hours and that the fall 2016 visit was "awkward" because Father didn't "really engage" with M.A.T. at all. She testified that Father had attempted to contact her about five times after they broke up. Most of those contacts were in early 2011. One of Father's sisters contacted Mother via Facebook messenger to set up the 2016 visit. She gave Father a phone number to text. Mother testified that she has only one Facebook account and has had the same phone number since 2013. Father has had that number since 2016. Father did not contact her after the December 2017 meeting to set up visits with M.A.T.
Mother described Father as "very abusive" during their "whole relationship." She decided to leave their son with him because she was "scared if I would try and take him, [Father] would just hit me." Mother believed Father was only violent toward women, so keeping M.A.T. away from him was the safest thing for her.
The trial court found that Father left M.A.T. in the care of Mother but that he did not leave her without provision of support because he was ordered to pay $0 in monthly support. Father made "sporadic, though consistent attempts to contact" M.A.T. Although these efforts were "uninspired," they were "greater than token efforts." The court concluded Father did not have an intent to abandon M.A.T. for any period of time. Father "testified as to an unwavering desire to have contact and made consistent efforts to have contact and for [M.A.T.] to know that he loves her." The trial court found Mother's "concerns about domestic violence" by Father "to be credible." It denied the petition to declare M.A.T. free from parental control.
Motion to Dismiss
Mother served the notice of appeal on Father through his then counsel. After Father's counsel withdrew, Mother served him by mail, to the mailing address previously provided by his former counsel. Later documents were served by email, but Mother's counsel inadvertently used an incorrect email address. Father moves to dismiss the appeal based on this incorrect service.
The motion is denied. It is clear that Father was actually served either to counsel or by mail to a correct mailing address. Father was not prejudiced by the typographical error and it provides no basis for dismissing the appeal.
Petition to Declare Child Free From Parental Control
Section 7822 provides that a petition to declare a child free from the control of a parent may be brought if, "One parent has left the 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." (Id., subd. (a)(3).) A finding of abandonment may be made 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]."'" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.)
"'"'In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.'"'" (In re E.M. (2014) 228 Cal.App.4th 828, 839, quoting In re Brittany H. (1988) 198 Cal.App.3d 533, 549.) The failure to communicate with a child or provide for the child's financial support for the statutory period of one year "is presumptive evidence of an intent to abandon and 'token efforts' to support or communicate will not overcome the presumption." (In re H.D. (2019) 35 Cal.App.5th 42, 50.)
We apply the substantial evidence standard of review to the trial court's findings under section 7822. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1010.) Substantial evidence is "evidence which is reasonable, credible, and of solid value ...." (People v. Perez (1992) 2 Cal.4th 1117,1124.) Ultimately, the question before us is whether, based on the whole record, any reasonable trier of fact could have found that Father did not intend to abandon M.A.T. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850.) In answering that question, "we do not pass on the credibility of witnesses, resolve conflicts in the evidence, or determine the weight of the evidence. [Citation.] We simply determine whether there is substantial evidence, believed by the trial court, that supports the court's findings." (In re Marriage of Jill &Victor D. (2010) 185 Cal.App.4th 491, 503.)
The testimony of a single witness may be sufficient to establish a fact, "even when there is significant countervailing evidence, or the testimony is subject to justifiable suspicion." (People v. Valenti (2016) 243 Cal.App.4th 1140, 1158.) If the record contains substantial evidence supporting the judgment, it is "irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Here, Father testified that he never intended to abandon M.A.T. He acknowledged that he did not pay child support for her, but relied on the child support order that did not require him to do so. In addition, Father testified that he attempted to communicate with M.A.T. about twice a year by reaching out to Mother by text or Facebook Messenger. Mother did not respond to most of these overtures. The trial court found Father's testimony credible and concluded that his "sporadic, though consistent attempts to contact" M.A.T. were more than token efforts. It found this evidence sufficient to rebut the presumption that Father intended to abandon M.A.T.
We may not second guess the trial court's credibility determinations or reweigh the evidence on which it relied. (In re E.M., supra, 228 Cal.App.4th at p. 839.) After viewing the whole record in the light most favorable to the trial court's order, as we must, we conclude it is supported by substantial evidence. Father complied with the parties' unconventional child custody and support arrangement for the first six years of M.A.T.'s life. Although he did not have face-to-face visits with her, Father made "sporadic but consistent" attempts to contact her through Mother. Mother did not respond to most of those overtures. Father testified that Mother threatened to seek a restraining order against him when he tried to contact M.A.T. Throughout this period, Father did not intend to sever his relationship with M.A.T. Father's testimony on these issues constitutes substantial evidence in support of the trial court's finding that Father rebutted the presumption that he abandoned M.A.T.
Conclusion
The motion to dismiss is denied. The order denying appellant's Petition to Declare Minor Free from Parental Control is affirmed.
We concur: GILBERT, P. J. CODY, J.