Opinion
G057984
06-30-2020
Adoption of G.C., a Minor. D.G., Plaintiff and Appellant, v. C.C., Defendant and Respondent.
Quinn & Dworakowski and David Dworakowski for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18AD000189) OPINION Appeal from an order of the Superior Court of Orange County, James L. Waltz, Judge. Affirmed. Quinn & Dworakowski and David Dworakowski for Plaintiff and Appellant. No appearance for Defendant and Respondent.
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INTRODUCTION
D.G. (Stepmother) is the wife of B.C. (Father), who is the father of G.C.; C.C. (Mother) is the mother of G.C. Stepmother filed a request to adopt G.C. and a petition under Family Code section 7822 to declare G.C. free from Mother's parental custody and control. Following a bench trial, the trial court denied the petition on the ground that Stepmother had failed to prove by clear and convincing evidence that Mother had abandoned G.C. within the meaning of Family Code section 7822, subdivision (a)(3) (section 7822(a)(3)) and that terminating Mother's parental rights would be in G.C.'s best interest.
Stepmother appealed from the order denying her petition to declare G.C. free from Mother's parental custody and control. She contends substantial evidence does not support the trial court's findings. Mother, the respondent, has not appeared in this appeal.
Section 7822(a)(3) provides that a child may be deemed abandoned if "[o]ne 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." (Italics added.) The italicized passage is key to this appeal. It is undisputed that Mother did not provide support for G.C., and, we shall assume, Mother did not communicate with G.C. for at least one year beginning in April 2017. We conclude, however, substantial evidence supports the trial court's finding that Mother did not intend to abandon G.C. and therefore affirm.
FACTS
Father and Mother dated in 2011. Mother became pregnant and told Father about her pregnancy. At the time, Father did not believe he was the father. Mother gave birth to G.C. in June 2012. Father did not learn of G.C.'s birth until about 10 months later.
At some point, Father took a paternity test. Within a few days of taking the test, Father went to visit G.C. at Mother's home. According to Father, G.C.'s crib was filled with trash, purses, shoes, and other items, leaving only a small area where a child could fit. In one instance, Father found G.C. holding a razor, and in another instance holding a Coca-Cola can. Mother joked that G.C. enjoyed getting a free high by standing near a window and inhaling marijuana smoke. Mother denied any of this was true and testified that, in any event, G.C. did not sleep in the crib.
In April 2013, Father received a telephone call from Mother's mother. She asked Father to come and pick up G.C. because Mother had been arrested and taken away by police officers. Father has had custody of G.C. ever since that time. G.C. feels safe and secure in Father's home.
In May 2013, Father filed a paternity petition in which he admitted paternity, alleged Mother was an unfit mother, sought legal and physical custody of G.C., and requested that Mother have no visitation whatsoever with G.C. He would not allow Mother to see G.C. Mother stipulated to granting Father sole legal and physical custody of G.C. In July 2013, the court in the paternity matter awarded Father sole legal and physical custody of G.C. and granted Mother three monitored two-hour visits per week.
Father and Stepmother started seeing each other in July 2013. They started living together in March or April 2016 and got married in August 2017. Stepmother met G.C. when Father brought G.C. with him to a party on July 4, 2013. Stepmother and G.C. have a loving relationship, G.C. refers to Stepmother as "mom" or mommy," and Stepmother acts in a parental role toward G.C. Stepmother sees to G.C.'s needs, takes her to doctor's appointments, makes sure she does her homework, and disciplines her appropriately. Stepmother went with Father to the parenting classes he had been ordered to attend by the court in the paternity matter. Stepmother views her relationship with G.C. as a "[m]other-daughter relationship."
At some point, Mother's visits with G.C. were canceled because Mother was unable to pay the visitation facility's fees. Mother filed a request to reinstate visitation. In July 2015, the court granted Mother's request and authorized visitation of two hours per week. Between July 2013 and April 2017, Mother missed some visits, but generally appeared for them. The visits went well. In January 2017, the court in the paternity matter awarded Mother 10 hours per week of monitored visitation with G.C. and ordered Father to cooperate in scheduling the appointments and assuring visitation took place. The court ordered the parties to exchange current telephone numbers and home addresses. Father provided Mother with a post office box address instead of a home address out of concern, according to Stepmother, for their safety due to a prior incident in which Mother and others appeared at Father's home unannounced and uninvited.
The visitation dispute in the paternity lawsuit was litigated intensely, indeed, the trial court found the paternity lawsuit and resulting custody battle between Father and Mother "exposed the open and bilateral hostility between the parents." Father filed two ex parte requests for a domestic violence temporary restraining order against Mother, one in June 2013 and the other in January 2014. Both were denied. On more than one occasion, Father asked the court to terminate Mother's visitation rights. Mother filed an order to show cause and an affidavit for contempt against Father in October 2015 and again in July 2016. Mother was unable to serve these on Father.
An order entered in May 2014 declared Father to be the father of G.C.
Mother last saw G.C. at a visit in April 2017. That month, Mother became homeless and remained homeless for about one year. She also was caring for a baby son born in March 2016. She lived out of her car for six months, and then lived with friends or in a shelter.
Mother filed a request for order regarding visitation in April 2017, but it was taken off calendar when Mother failed to appear at the hearing in June 2017. She did not appear because she did not have transportation. Her car, which served as her home, did not operate and was parked in a lot. While Mother was homeless, she made no effort to return to court in order to reconnect with G.C. That was because, Mother testified, she had nobody to look after her baby boy if she went to court, and she had "[n]o transportation, no phone, no money, no anything."
While she was homeless, Mother continued to receive $700 per month in social security and disability benefits. Mother also received food stamps and $350 per month in government aid for her baby boy. She did not use any of that income to support G.C. because she needed the money to provide for the baby. Father never requested the court to order Mother to pay child support, and there was no evidence he had ever asked her to help support G.C. At the time of trial, Mother was employed full time and had a safe, stable place for G.C. to live.
Father testified that Mother had had no contact with him since April 2017 and has never offered financial support for G.C. Father blocked Mother from his Facebook account. Stepmother testified that after April 2017, Mother had made no attempt to contact her even though she could have contacted Stepmother by text message, Facebook message, or court petition. But Stepmother testified she did receive a text message from Mother in January 2017 and a Facebook message from her in June or July 2018, after service of the adoption petition. Mother denied sending the Facebook message and the text message to Stepmother.
Mother testified that terminating her parental rights would not be in G.C.'s best interest because "she deserves to get to at least know me and I get to be a part of her life. I want to be there to provide for her as well." Mother also believed it would be important for G.C. to get to know her younger brother.
PROCEDURAL HISTORY
Stepmother filed her petition in July 2018. Tracking the language of section 7822(a)(3), Stepmother alleged that Mother had had no contact with G.C. since early April 2017, without provision for G.C.'s support or communication, and with the intent to abandon G.C.
In September 2018, Family Court Services prepared a "Report for Freedom from Parental Custody and Control" (the Freedom Report) in connection with Stepmother's petition. The Freedom Report, after relating the substance of interviews with Father, Stepmother, Mother, and G.C., concluded that G.C. "is a person defined in Family Code section 7822 and it is in the best interest of the minor to be freed from the parental custody and control of the natural mother, [Mother]." The Freedom Report nevertheless recommended that the court hear testimony from Mother before granting the petition. The Freedom Report was received into evidence at trial.
Father, Stepmother, and Mother testified at trial. The trial court denied Stepmother's petition in an 11-page ruling. The court made two overarching findings: (1) Stepmother failed to prove by clear and convincing evidence that Mother had abandoned G.C. within the meaning of section 7822(a)(3) and (2) Stepmother failed to prove that terminating Mother's parental rights would serve G.C.'s best interest. The court made a number of subsidiary findings and conclusions, as follows:
1. Father failed to prove by clear and convincing evidence that Mother had left G.C. in his care.
2. Father failed to prove by clear and convincing evidence that Mother had abandoned G.C. by failing to provide financial support.
3. Outside of monitored visitations, Father "did all he could to hid[e] or conceal" G.C. from Mother.
4. Father failed to prove by clear and convincing evidence that Mother intended to abandon G.C. The court specifically found "there was zero evidence [Mother] intended to abandon her child."
5. Father failed to prove Mother was an unfit mother and instead proved "he maintained an entrenched and steadfast determination to block, thwart, impede and frustrate [Mother]'s access and prevent any mother-daughter relationship."
6. Stepmother is well-bonded with G.C. and has served as a "loving, caring and nurturing step-mother," and G.C.'s "love and bond with [Stepmother] is real and doubtlessly the result of [Stepmother]'s nurturing, loving manner, demeanor and maternal tendencies." However, Mother should not be "banished" from G.C.'s life, and the Family Code recognizes a child may have more than two parents.
7. The testimony of Father and Stepmother failed to support a finding that terminating Mother's parental rights would be in G.C.'s best interest.
8. "The Freedom Report contained a dearth of evidence, well below any substantial evidence and well below any clear and convincing standard of proof, that terminating [Mother's] parental rights serves [G.C.]'s best interests."
9. Father's professed support for allowing post-adoption contact between Mother and G.C. was not credible.
10. Mother lives and works in Orange County and appears sufficiently stable to begin a process of reunifying with G.C.
11. Mother appears to be "fit, able and ready to parent."
12. G.C. is "very young and adaptable" and therefore reconnecting with Mother would be in G.C.'s best interest.
13. G.C. has a younger half-brother whom she would never meet or know if Stepmother's petition were granted.
DISCUSSION
A court has authority to terminate parental rights if a parent has abandoned the child. (Fam. Code, §§ 7803, 7822.) Abandonment may be found if one parent has left the child in the care and custody of another parent for a period of one year without provision for the child's support, or without communication from the parent, with the intent to abandon the child. (§ 7822, subd. (a)(3).) "A finding of abandonment 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." (In re E.M. (2014) 228 Cal.App.4th 828, 839-839 (E.M.).) The parent's failure to provide support or communicate with the child is presumptive evidence of an intent to abandon the child. (Fam. Code, § 7822, subd. (b).)
Abandonment means an actual desertion of the child with an intent to entirely sever, to the extent possible, the parental relationship. (E.M., supra, 228 Cal.App.4th at p. 839.) "The parent need not intend to abandon the child permanently; it is sufficient the parent had the intent to abandon the child during the statutory period." (Ibid.) The issue whether a parent intended to abandon the child during the one-year statutory period is a question of fact to be determined in consideration of all the facts and circumstances of the case. (Ibid.)
The scope of our review is limited. "The reviewing court examines the record to determine whether there is substantial evidence to support the trial court's conclusions. [Citation.] The reviewing court has no power to pass on the credibility of witnesses, resolve conflicts in the evidence or determine the weight of the evidence. [Citation.] It is the appellant's burden on review to show that the evidence is insufficient to support the trial court's findings." (E.M., supra, 228 Cal.App.4th 828, 839.) We view the evidence favorably to the prevailing party and in support of the order. (Ibid.)
As framed by Stepmother's petition, the time period for determining abandonment is one year following Mother's last visit with G.C., which was in April 2017. The trial court found that Father had failed to prove Mother left G.C. in his care; however, for purposes of our analysis, we shall assume Mother left G.C. in Father's care in April 2017. Mother has never made provision for G.C.'s support and, for purposes of analysis, we shall assume Mother had no communication with G.C. for at least one year following April 2017. While lack of support and communication is presumptive evidence of intent to abandon G.C., the trial court found that Mother never intended to abandon G.C. and this finding, which is supported by substantial evidence, rebutted the presumption of abandonment.
The trial court was correct in the sense that G.C. was already in Father's care in April 2017 because Father had sole legal and physical custody of her. Abandonment under section 7822(a)(3) focuses on whether the parent has abandoned the parental role, and a parent does not necessarily abandon the parental role if a court places the child in the custody of another. (In re H.D. (2019) 35 Cal.App.5th 42, 51.) But the "inaction" of a parent after an order grants custody to the other parent can turn an involuntary loss of custody into a voluntary leaving of the child. (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504.) Because the evidence supports the trial court's finding that Mother did not intend to abandon G.C., we need not address this issue. --------
Mother testified she never intended to abandon G.C. The trial court, which has the power to pass on witness credibility, believed her. Mother testified she became homeless in April 2017, had no ability to provide financial support for G.C., and had limited means of communication. Mother lived for six months in a nonoperational car, then with friends and in shelters, all the while struggling to care for a baby. She testified she had no means of transportation and no telephone, and had to use her limited resources to take care of the baby. From this evidence, the trial court was entitled to find, as it did, that Mother had become overwhelmed and that her failure to communicate with G.C. and provide her support, rather than reflect an intent to abandon, was the product of indigent circumstances.
Evidence of Mother's conduct before April 2017, though of less relevance than her conduct afterwards, also supports a finding that Mother did not intend to abandon G.C. Up until April 2017, Mother vigorously litigated visitation issues in the paternity lawsuit; as the trial court found, in the years preceding April 2017 Mother "relentlessly petitioned the court to hold [Father] accountable." She missed some visits with G.C. but, for the most part, attended them and interacted well with G.C. When visitation was canceled because Mother could not afford to pay the fees charged by the visitation facility, she went to court and got visitation reinstated. She sought a court order regarding visitation as late as April 2017 but, she testified, had no transportation to get to the hearing, and so it was taken off calendar. This evidence supports a finding that Mother wanted to maintain a mother-daughter relationship with G.C. but homelessness and poverty, not an intent to abandon G.C., prevented Mother from doing so.
Stepmother argues Mother had the ability to communicate with Father after April 2017 but did not do so. Quite a bit of trial time was consumed on the subject of text messages, e-mails, Facebook accounts and communications, and telephone numbers. We are not going to get into the details over whether Mother did or could communicate with Father or Stepmother, whether she had Father's contact information, who was blocked from whose Facebook account, and what Mother did or did not say in any communication. Only a few points need be made.
First, we are assuming Mother did not communicate with G.C. for one year following April 2017. Some cases have held that evidence of a parent's failure to communicate with or support the parent's child during the statutory period is in itself sufficient to show intent to abandon. (See, e.g., In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at pp. 504-505.) The trial court declined to draw that inference and instead found that Mother did not intend to abandon G.C. Substantial evidence supported that finding so we need not consider evidence supporting a contrary one. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)
Second, the trial court found that Father was not credible in testifying about providing Mother his contact information and information about his whereabouts. We have no power to question the court's assessment of Father's credibility. (E.M., supra, 228 Cal.App.4th at p. 839.)
The trial court also found that terminating Mother's parental rights would not be in G.C.'s best interest. A best interest finding, though technically unnecessary to rule on a claim of abandonment under section 7822(a)(3), ensures the court's decision advances the purpose of the statutory scheme to "serve the welfare and best interest of a child." (Fam. Code, § 7800.) Substantial evidence supports the trial court's best interest finding. The trial court, after observing Mother and hearing her testify, found she appeared fit, able, and ready to act as a parent toward G.C. Denying the petition meant G.C. can have both Stepmother and Mother as parents and will be able to have a relationship with her half-brother.
Stepmother argues that granting her petition would have been in G.C.'s best interest because (1) the Freedom Report reached the same conclusion, (2) Father and Stepmother have provided G.C. a stable and nurturing home, and (3) at the time of trial, G.C. had no relationship with Mother. The Freedom Report was not binding on the trial court and in fact recommended the court hear testimony from Mother before making a ruling. The trial court recognized Stepmother and G.C. were well bonded to each other as a result of Stepmother's "nurturing, loving manner, demeanor and maternal tendencies." Stepmother's love and care for G.C. are laudable. But, as the trial court found, granting Stepmother's petition would have "banished" Mother from G.C.'s life, while denying the petition would mean G.C. could have both Stepmother and Mother as parents. Denying Stepmother's petition gives Mother an opportunity to reestablish a relationship with G.C.
DISPOSITION
The order denying Stepmother's petition to declare G.C. free from Mother's parental custody and control is affirmed. Because Mother did not appear, no party may recover costs on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.