Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. A56878 Cynthia A. Bashant, Judge.
HUFFMAN, Acting P. J.
Thomas D. (Father) appeals the judgment declaring his minor daughters, Cierra and Sydney (the children or the girls), free from his custody and control (Fam. Code, § 7822), upon the petition brought by the registered domestic partner Shawn D. (Partner), of their mother, Rebecca D. (Mother). (All further statutory references are to the Family Code unless noted.) Partner wishes to adopt the children as a stepparent and has brought a separate petition to do so. (In re Cierra D. (Super. Ct. San Diego County, 2010, A56875).)
On appeal, Father contends there is no substantial evidence to support the trial court's conclusion that he left or abandoned the children. He argues that adverse custody decisions in the family court case for the dissolution of his marriage to Mother, in 2004 and 2006, made it difficult or impossible for him to maintain contact with the children, so that he could not have formed the necessary intent to leave or abandon them within the meaning of the statute. (§ 7822.) He argues that his intent was quite to the contrary, and that he showed enough efforts to communicate with and support the children, and to comply with court requirements regarding visitation. However, the record fully supports the trial court's decision and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Family History
Father and Mother were married in 1998, and Cierra and Sydney were born in 1998 and 1999, respectively. Around that time, the parents' relationship began to deteriorate. In February 2001, Child Protective Services (CPS) received a report that Father was neglecting the children. The matter was investigated by the San Diego Health and Human Services Agency (the Agency), and the report was substantiated.
In 2001, the parents separated, and their divorce became final in June 2003. In 2001, Father was ordered to pay $1,700 per month child support and he did so for a few years. Father began visiting the children under a mediated agreement. Father's young son, born in 1995, lived with him. In 2003, Mother began dating Partner, a neighbor she had known for some time.
After a June 2004 visit by the children to Father's house, six-year-old Cierra reported that Father's son, her half brother, then about nine years old, had inappropriate sexual contact with her. The Agency investigated the allegation, along with an allegation of general neglect by Father, and found them to be substantiated, and felony charges were brought against Father's son. Father did not believe the report, which caused friction between him and Mother, and she stopped all his contact with the children.
In August 2004, the custody dispute was mediated and the family court ordered that Father and Father's son undergo therapy to address the visitation problems. Mother was granted legal custody and Father's visitation with the girls was suspended, not to be resumed until he provided proof that such therapy had been conducted and the minors' therapist approved. Father did not feel that he could afford therapy, and he pursued martial arts and church activities instead. The charges against Father's son were dropped in May 2005.
Father did not complete therapy, nor did he resume visitation with the children after June 2004. In February 2006, Mother sought a move-away order to relocate to Michigan, where Partner's family lived. Father opposed the move, but did not attend the hearing, either due to his discouragement or to a back injury. In those 2006 orders, the family court approved the move to Michigan, and adhered to the 2004 orders that Father must undergo therapy to pursue visitation. The court noted that there was no proof he had done so, but if Father obtained a therapist, then he or she could communicate with the children's therapist about arranging future telephone/e-mail contact for Father with the girls. There was to be no contact with Father's son until he had treatment and the therapists approved. Father was also supposed to obtain a drug/alcohol assessment. The 2006 orders required the parties to keep each other apprised of their addresses and telephone numbers, and Mother was required quarterly to keep Father informed about the children's school and health status, and to give him notice of any visits they made to San Diego and to allow visitation here, if his therapy had been completed.
In the 2006 orders, child support issues were referred to the family support division. Father believed that Mother understood that paying support would be difficult for him, because he was not making much money at the time.
In 2006, Mother sent Father a letter from Michigan updating him about the children, but it was returned with no forwarding address. Mother interpreted the order as not allowing Father to send cards, gifts, or letters directly to the children, until he complied with the court's orders. During the next year or so, Father sent letters to the children to the lawyer for Mother and to a post office box, but he received no answers and then he stopped. His view was that he should wait until the children reached the age of 13 and then they could decide for themselves about having contact with him. Father obtained some free counseling after the children moved to Michigan, although he did not notify the court about it.
In 2007, Mother closed her request for child support enforcement, and the authorities notified Father that the case was closed. In mid-2008, Mother, Partner, and the children returned to California, but none of them was in contact with Father. Generally, he had been at the same address since 2002. Mother and Partner filed a declaration of domestic partnership in March 2010.
B. Current Petition and Hearing
In May 2010, Partner filed this petition to free the girls from Father's care and custody, so that she could adopt them, as a companion to her stepparent adoption petition. Father was served by a process server after there was some difficulty finding him, and he opposed the petition and was appointed counsel. A hearing was set in July of 2010 and trial in September 2010.
The adoptions social worker for the Agency (Tina Jako) filed an informational report and a formal report, supporting Partner's petition. Jako interviewed both parents, Partner, and the children, and reported that Father had not contacted the girls since 2004, and had not financially supported them since 2003. The reports said the girls were in favor of the adoption and it was in their best interests.
At the hearing on the petition, the court heard testimony from the parents, Partner, and the social worker. The court took judicial notice of the 2006 family court orders regarding move-away, visitation, and therapy, as well as support. This record has been augmented to include copies of those orders.
At the hearing, Mother testified that she had not received any financial support from Father since either 2003 or 2006, and the children did not receive any cards or gifts from Father while they were in Michigan. Mother and Partner had kept the same cell phone numbers for several years, but they received no calls from Father. To the best of their knowledge, Father could have located them through their telephone numbers or through the respective parents of Mother or Partner. They did not give Father their new address upon returning to San Diego, and used a process server for the adoption papers, since they could not find him. Mother and Partner each testified that Partner was already fulfilling a parental role.
Father testified that "until the moment that they left Kalamazoo, Michigan, " (or possibly left for Michigan?), he did everything he could to pursue visitation with them. Although he paid some child support on an irregular basis in 2006, he did not have a record of it. He never intended to abandon the children, "quite the contrary, " but he could not afford to pursue the therapy ordered for him. Although he obtained some free counseling after the children went to Michigan, he was unable to provide any proof of it to the court. With regard to the old sexual abuse allegations against his son, he believed that they were ludicrous and intended by Mother to alienate him from the girls. He believed that it should now be up to the girls whether they wanted to have contact with his now 15-year-old son, although he believed they would benefit from it. Father was willing to participate in a parenting arrangement that included him, Mother and Partner.
The social worker testified that if Partner were allowed to adopt the children, but Father also retained parental rights, that would create an unduly confusing situation for the children about who were their parents and who would take care of them. She was not aware of any less detrimental arrangement than adoption.
Counsel for the children agreed with Mother, Partner and the social worker that Father's parental rights should be terminated, based on abandonment.
C. Trial Court Ruling
In issuing the ruling, the court focused not upon reweighing evidence of past events, but upon the current issues presented by the petition. The court noted the parents had not concealed their addresses from each other, and contact would have been possible if Father had not apparently given up about halfway through the children's stay in Michigan. The court acknowledged that Partner, in reality, was already acting as a parental figure to the children, and found that the evidence supported a finding that Father had abandoned the children for more than one year. It would not serve the interests of the children to approve a parenting plan involving Mother, Partner, and Father as well. The judgment granted the petition, making findings by clear and convincing evidence that Father had left the children with Mother for over a year without communication or support and with the intention to abandon them. Father appeals.
DISCUSSION
Father contends there is no substantial evidence in support of the court's findings (1) he left the children in Mother's care and custody, and (2) he did not support or communicate with them for the statutory period, thus showing his intent to abandon them. He argues the judgment is inconsistent with the governing statutory standards, which require the court to liberally construe the statutes "to serve and protect the interests and welfare of the child[ren]." (§§ 7800, 7801, Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009-1010.)
I
"LEAVING" ELEMENT OF SECTION 7822
Section 7822 provides in pertinent part: "(a) A proceeding under this part may be brought if... [¶]... [¶] (3) 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."
For a petition under section 7822 to be sustained, a finding is required that the parent have an intent to abandon the child for the statutory period at least, not necessarily any intent to abandon the child permanently. (In re Daniel M. (1993) 16 Cal.App.4th 878, 881-883.) An order denying custody to one parent does not necessarily preclude a finding that parent "left" the child within the meaning of that section. (In re Amy A. (2005) 132 Cal.App.4th 63, 70.) The controlling factor is the parent's subjective intent and whether the abandonment has lasted for at least one year. (In re Brittany H. (1988) 198 Cal.App.3d 533, 550-551.)
Whether the parent had the requisite intent is a question of fact for the trial court, and is to be determined from an objective assessment of the parent's conduct, as opposed to his stated desire. (In re Brittany H., supra, 198 Cal.App.3d at p. 550; Adoption of Allison C., supra, 164 Cal.App.4th 1004, 1011.) The trial court must find an intent to abandon by clear and convincing evidence. (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1211.) The evaluation of a witness's credibility is delegated to the trial court. (Adoption of Allison C., supra, at p. 1015, fn. 9.)
" '[O]n review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.' [Citation.]" (In re B. J. B., supra, 185 Cal.App.3d 1201, 1211; In re Amy A., supra, 132 Cal.App.4th 63, 67.) "An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence is legally sufficient to support the finding of fact as to the abandonment [citations]. This is true, also, on the question of intent. [Citation.]" (In re Gano (1958) 160 Cal.App.2d 700, 705.)
Father first argues that his actions did not demonstrate any intent to abandon because he was compelled by circumstances to leave the girls in Mother's care and custody, once the family court awarded custody to her and suspended his visitation until he complied with therapy requirements, which he was financially unable to do. He argues that the petition is unsubstantiated in setting the statutory period as beginning from the 2006 move-away orders.
Father relies on In re Amy A., supra, 132 Cal.App.4th 63, and In re Jacklyn F. (2003) 114 Cal.App.4th 747, for defining when a child has been "left." (Id. at pp. 754-757.) In In re Jacklyn F., the facts were that the grandparents had filed a guardianship petition, when the child had been in their care for only three days. The child's mother unsuccessfully contested the guardianship proceedings. The court stated that once the guardianship petition was granted, the child's custody was "a matter of judicial decree, not abandonment, " and that the mother in that case had adequately shown an intent to retain a parental role, such as by sending the child " 'stacks' of letters, " through the therapist for the child, and where there was confusion about her visitation rights. (Id. at p. 756.) This conduct did not amount to showing her intent was to leave the child, although under different circumstances, there might be some possibility that a parent who stayed away from a child, even after court intervention, might be found to have "left" the child, within the meaning of section 7822. (In re Jacklyn F., supra, at p. 756.)
In In re Amy A., supra, 132 Cal.App.4th 63, this court concluded such "different... circumstances" were present. (Id. at p. 70.) In re Amy A. involved circumstances in which the family court awarded custody of the child to the mother and allowed the father reasonable visitation. (Id. at p. 66.) However, the father did not appear during the divorce proceedings, nor subsequently seek modification of the custody order, nor make efforts to visit, nor attempt to act as a parent. This court concluded that his "repeated inaction in the face of the custody order provides substantial evidence that he voluntarily surrendered his parental role and thus 'left' [the child] within the meaning of section 7822." (In re Amy A., supra, at p. 70.)
Father argues that he did more than the absent father did in the case of In re Amy A., supra, 132 Cal.App.4th 63. Specifically, he did appear in the dissolution matter, and he pursued some visitation up through 2004. However, after the 2004 custody and therapy orders were made, following mediation, the evidence showed Father took no meaningful action to comply with them, nor did he seek to have the orders to which he had agreed modified. After the charges against Father's son were dropped in 2005, Father still did not attempt to resume his parental role.
In 2006, the visitation and therapy orders were confirmed, at a hearing which Father did not attend, for whatever reason. Father continued to make some efforts to communicate with the children when they were taken out-of-state, but he did not make significant efforts to meet the visitation and therapy requirements imposed by the court, or to obtain a drug/alcohol assessment as ordered. Those requirements were not so onerous that they were impossible to meet. Even in light of all the circumstances, including his efforts to improve himself through martial arts and his church, he failed to take significant action that had been prescribed for him to preserve his parental role for these children.
We acknowledge that Father's financial and personal circumstances apparently made it very difficult for him to obtain therapy, and that he testified about his belief that the allegations against his son were untrue. Nevertheless, there was some official investigation of the matter at the time, finding the allegations were substantiated, even though charges were ultimately dropped. Father's disagreement with his need for therapy did not excuse the minimal efforts he made to obtain cost-free therapy and to provide proof of that. The record also reflects his lack of visitation since 2004 and only minimal efforts to communicate within court restrictions. That evidence, combined with his expressed attitude that he would wait until the children were 13 and could decide for themselves, gave the trial court sufficient support in the evidence to conclude that he had knowingly left the children in the other parent's care, within the meaning of section 7822, subdivision (a).
II
INTENT TO ABANDON; EXTENT OF EFFORTS TO COMMUNICATE OR PROVIDE CHILD SUPPORT
Under section 7822, subdivision (b): "The failure to provide... support... or failure to communicate is presumptive evidence of the intent to abandon. If the parent... ha[s] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent...."
In determining intent to abandon, the trial court considers the number and frequency of the efforts to communicate, the genuineness of those efforts, and the quality of the communication that results. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212.) Where both communication and support were lacking, the necessary intent may have been proven. (See In re Conrich (1963) 221 Cal.App.2d 662, 667.) A failure to communicate with the child for the statutory period may deprive a parent of the right to object to an adoption if an ability to communicate is shown. (In re Morrow (1970) 9 Cal.App.3d 39, 53, disapproved on other grounds in Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660.)
Father contends the record lacks any substantial evidence that during the requisite one-year period, he failed to attempt to meaningfully communicate with or lend support to the girls. We acknowledge that the 2006 order is somewhat unclear about the extent of "contact" allowed to him, until he complied with the court's therapy orders, and that Mother interpreted it, as she told the social worker, that Father was not allowed to send the children anything. However, Father was apparently aware that the 2006 orders allowed him to keep up contact by mail, since he told the social worker that he sent letters to the children while they were in Michigan for the first year (2006-2007), through counsel for Mother and the post office box, although he gave up when no reply was received. He also admitted in his testimony that he did not send any cards, gifts, or letters since 2006.
Even in light of these uncertainties in the record, the trial court had an adequate basis to conclude that Father made only token efforts to communicate with the children. After his visitation was suspended in 2004 pending compliance with the therapy orders, the only efforts Father made to resume contact were to pursue alternative activities to better himself, such as pursuing martial arts training and church work. Apparently, he did not make efforts to notify or persuade the court that he believed those efforts should be sufficient, or to seek modification of the orders, nor did he notify the court of his 2006 free therapy sessions.
To the extent Father argues that he did not know when the children returned from Michigan, and blames that upon Mother's failure to keep him notified of the children's plans, the record does not support his claims. The trial court made relevant findings that neither parent, nor Partner, purposefully concealed their addresses or telephone numbers from the other, and the court concluded that some ongoing contact would have been possible if Father had not apparently given up about halfway through the children's stay in Michigan. The court did not have to rely upon his stated desires to remain active in the children's lives, when the evidence was all to the contrary and suggested that the whole situation was too much trouble for Father to deal with, so he did not, instead waiting for the children to get older. (See In re Brittany H., supra, 198 Cal.App.3d at p. 550; Adoption of Allison C., supra, 164 Cal.App.4th 1004, 1011.)
Father further argues that Mother did not expect him to support the children, as he was not a big earner. A failure to support, without some demand or showing of ability, does not prove intent to abandon. (In re Adoption of R. R. R. (1971) 18 Cal.App.3d 973, 981.) Father knew that he owed child support from 2001 to at least 2007, but he made only partial payments after 2003, although he was employed off and on at least since 2006. An objective assessment of Father's conduct in failing to pursue visitation, communication, or support, even within the context of existing court requirements, supports the court's conclusions that Father made no more than token efforts toward preserving his parental role, since at least 2006. (§ 7822, subd. (b); In re Daniel M., supra, 16 Cal.App.4th at pp. 881, 883.) There is substantial evidence supporting the finding that Father intended to abandon the children.
III
BEST INTERESTS ARGUMENTS
Finally, Father contends that the court gave too much weight to its concept of the girls' best interests, and he disagrees that a stepparent adoption by Partner will serve those interests. Section 7800 et seq. refer to the court's duty to promote the children's best interests, and to liberally construe these statutes "to serve and protect the interests and welfare of the child[ren]" (§§ 7800, 7801). In reliance on those standards, Father again argues the record does not sufficiently support any finding of intent to abandon. (In re Daniel M., supra, 16 Cal.App.4th at p. 886.) Instead, Father argues that he should be allowed to supplement a new parenting arrangement, even if Partner's stepparent adoption is permitted, by retaining his parental rights and showing an interest in the children. Father believes that the children might benefit from continuing their family ties with him and ultimately with his son, if the children are agreeable.
At the hearing, counsel for Father inquired of the social worker whether it could serve the interests of the children to approve a parenting plan involving Mother, Partner, and Father as well. Father was relying upon his 22 letters of support in the file that he submitted to the social worker and that were attached to her report. The social worker replied that she believed it would be detrimental to the children to deny the petition to terminate Father's parental rights, because it would not lead to stability and might involve more ongoing conflict and litigation. Ultimately, the court agreed, which was a reasonable analysis of all the evidence, and appropriate within the meaning of the statutory scheme. Specifically, Partner, in reality, was already acting as a parental figure to the children, and they wanted the adoption to be completed.
While Father clearly cares for his daughters, substantial evidence supports the conclusions that he left them in Mother's care, failing to communicate with or to support them for more than a year, with the intent to abandon them. The judgment granting the petition under section 7822 must be affirmed.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.