Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. AN13477, Joan P. Weber, Judge.
HUFFMAN, Acting P. J.
N.J. appeals an order terminating her parental rights to her minor son K.H., Jr., on the basis of abandonment under Family Code section 7822. N.J. challenges the sufficiency of the evidence to support the court's finding she "left" K.H. in the care and custody of another person with the intent to abandon him. N.J. further asserts her failure to provide financial support for K.H. was not a proper basis to establish abandonment because she did not have the means to support him, and his legal guardian was responsible for his care, custody and control. We affirm the order.
Statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
K.H. was born in February 2002 to N.J. and K.H., Sr., (the Father). When K.H. was three months old, N.J. was arrested and incarcerated for possessing, selling and transporting illegal drugs. K.H. was with her at the time of her arrest. In October 2002, the court awarded the Father sole physical and legal custody of K.H., with visitation of four hours a week for N.J. In December 2002, the Father and 10-month-old K.H. began living with the Father's girlfriend N.G.
N.J. visited K.H. sporadically between October 2002 and October 2004, and then moved to Maryland. N.J. claims she maintained contact with K.H. by telephone, continued to provide child support, and sent K.H. cards, letters and gifts. According to N.G., however, N.J. had not had contact with K.H. since May 2002. K.H. was unaware that N.J. was his biological mother and believed N.G. was his mother.
In September 2005, N.J. returned to San Diego. When the Father refused to allow her to visit K.H., N.J. filed a motion in court to enforce visitation but was unable to serve the Father with notice. N.J. stopped sending cards, letters and gifts, and stopped paying child support at the end of 2005.
In March 2007, the Father was shot and killed. N.J. successfully petitioned the court for custody of K.H. Around the same time, N.G. filed a request for guardianship of K.H. Pending a contested hearing, the court ordered that K.H. remain in N.G.'s custody. On February 4, 2008, the court awarded guardianship of K.H. to N.G. Because K.H. did not know N.J. and because he had been traumatized by the death of his father, K.H.'s therapist, Henrietta Himelstein, Ph.D., recommended no visitation or contact with N.J. The court's order specified that N.J. have no contact with K.H. "without further court order, " noting "[t]his order may change subject to the recommendations" of Dr. Himelstein.
K.H. had not been told N.J. is his biological mother. At the time of the section 7822 hearing, K.H. still did not know N.G. was not his biological mother.
N.J. did not return to court to modify the no contact order. She did not send K.H. cards, gifts or letters, provide child support or try to contact Dr. Himelstein concerning K.H.'s progress in therapy. On December 4, 2009, N.G. filed a petition to have K.H. declared free from N.J.'s custody and control under section 7822 so that N.G. could adopt him. The petition alleged N.J. left K.H. in the care and custody of N.G., without communicating with him or providing for his support, for more than one year.
The relevant statutory period here is six months, not one year, because the petition alleged N.J., who was K.H.'s sole parent, left him in the care and custody of "another person." (§ 7822, subd. (a)(2).)
The San Diego County Health and Human Services Agency (Agency) submitted a report in support of N.G.'s petition. Agency noted N.J. had not contacted K.H. or provided him with financial support for more than six months, which was presumptive evidence of her intent to abandon him. In Agency's opinion, adoption by N.G. was in K.H.'s best interests.
At a contested hearing, the court heard the testimony of N.G., N.J. and Dr. Himelstein. After considering Agency's report and K.H.'s guardianship file, and hearing argument of counsel, the court sustained the allegations of the petition by clear and convincing evidence, declared K.H. free from the custody and control of N.J. and found it was in K.H.'s best interests to be adopted.
DISCUSSION
I
N.J. challenges the sufficiency of the evidence to support the court's finding under section 7822 that she "left" K.H. in N.G.'s care and custody with the intent to abandon him. She asserts there was no evidence she had the requisite subjective intent to sever her relationship with K.H. Instead, she claims, she cared deeply about K.H. and wanted to spend time with him when it was safe to do so, but was restricted from seeing him, against her wishes, by the probate court's no contact order issued in conjunction with the guardianship order.
A
"Section 7800 et seq. governs proceedings to have a child declared free from a parent's custody and control. The purpose of such proceedings is to promote the child's best interest[s] 'by providing the stability and security of an adoptive home.' (§ 7800.) The statute is to 'be liberally construed to serve and protect the interests and welfare of the child.' (§ 7801.)" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009-1010 (Allison C.).)
The court may declare a child free from parental custody and control if the parent has abandoned the child. (§§ 7820 & 7822.) As applicable here, abandonment occurs when the child has been left by the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent, with the intent to abandon the child. (§ 7822, subd. (a)(2).) The failure to provide support or failure to communicate is presumptive evidence of the intent to abandon. (§ 7822, subd. (b).) If the parent has made only token efforts to support or communicate with the child, the court may nevertheless declare the child abandoned by the parent. In the event a guardian has been appointed for the child, the court may still declare the child abandoned if the parent has failed to communicate with or support the child within the meaning of section 7822. (Ibid.)
Whether a parent has intentionally abandoned a child within the meaning of section 7822 is a question of fact for the trial court. (Allison C., supra, 164 Cal.App.4th at p. 1011.) We review the court's findings for substantial evidence-evidence that is reasonable, credible and of solid value. (Ibid.; In re Brittany H. (1988) 198 Cal.App.3d 533, 549.) Our review does not permit us to consider the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the trial court's order and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; Allison C., supra, 164 Cal.App.4th at p. 1011.)
B
In determining the threshold issue of whether a parent has "left" his or her child with another person, the focus is "on the voluntary nature of a parent's abandonment of the parental role rather than on physical desertion by the parent." (In re Amy A. (2005) 132 Cal.App.4th 63, 69; In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504 (Marriage of D.).) "[A] parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively 'taken' from the parent by court order [citation]; however, the parent's later voluntary inaction may constitute a leaving with intent to abandon the child [citation]." (Marriage of D., at p. 504.) Thus, nonaction in the face of a judicial custody order may result in a finding the parent "voluntarily surrendered" his or her parental role. (Amy A., at pp. 68-69; accord In re Jack H. (1980) 106 Cal.App.3d 257, 264; In re Jacqueline H. (1979) 94 Cal.App.3d 808, 815-816.)
Here, N.J.'s conduct after the court granted the guardianship and ordered no contact "without further court order" constituted parental nonaction amounting to a "leaving." (In re Marriage of D., supra, 185 Cal.App.4th at p. 505.) Between February 2008 and December 2009, N.J. did not avail herself of the opportunity to seek a different court order. She had previously used the court system and knew how to do so. Moreover, N.J. made no attempt to contact Dr. Himelstein about K.H.'s progress in therapy regarding whether K.H. was ready to have visits with her. Although N.J. claims she wanted to have contact with K.H., she allowed nearly two years to elapse without returning to court to ask for visitation. From this, a reasonable inference could be drawn that N.J. voluntarily surrendered her parental role and thus, "left" K.H. in the care and custody of N.G. within the meaning of section 7822. (In re Amy A., supra, 132 Cal.App.4th at p. 70; cf. In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.)
Dr. Himelstein testified she told N.J.'s attorney she was willing to talk to N.J. because "she might want to know how [K.H.] was doing [in therapy]."
In Jacklyn F., the child was taken from the mother by judicial order making the grandparents the child's guardian. (In re Jacklyn F., supra, 114 Cal.App.4th at p. 749.) The mother tried to stay involved with the child by sending stacks of letters, and by requesting visits, telephone calls and counseling with the child. She also petitioned for termination of the guardianship. (Id. at pp. 750-751.) On appeal, the court held the mother had not "left" the child, whose "custody status became a matter of judicial decree." (Id. at p. 756.) The court nevertheless noted that under certain circumstances, "it might be proper to conclude that a parent has 'left' a child... despite court intervention...." (Ibid.) Unlike the mother in Jacklyn F., N.J. made no effort to be involved in K.H.'s life and did not seek court intervention to accomplish this.
C
The factual determination of intent to abandon is made by objectively measuring the parent's conduct. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) The trial court considers the frequency of times the parent tried to communicate with the child, the genuineness of the effort under all the circumstances and the quality of any communications that occurred. (Ibid.) The parent need not intend to abandon the child permanently; instead, the parent's intent is viewed during the period of time specified in the statute. (Allison C., supra, 164 Cal.App.4th at p. 1015; In re Daniel M. (1993) 16 Cal.App.4th 878, 881 [interpreting section 7822's predecessor statute to "require intent to abandon for the statutory period only, " rather than permanently].)
Here, the evidence showed N.J. failed to communicate with K.H. for more than six months, which "is presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) Although a guardian had been appointed for K.H. and N.J. was ordered to have no contact with him without further court order, the probate court left the door open for visits in the future. But, for almost two years, N.J. did not seek such an order in an effort to have visits with K.H., nor did she contact N.G. or Dr. Himelstein to ask about K.H.'s well-being. Despite N.J.'s stated wishes to spend time with K.H. as soon as it was safe to do so, the court could reasonably find N.J. did not overcome the presumption she intended to abandon K.H. for the statutory six-month period. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212 [intent to abandon must be based on objective measure of conduct, not parent's stated wish].) Substantial evidence supports the court's finding of abandonment under section 7822.
II
N.J. contends her failure to support K.H. for a period of more than six months cannot be used as a basis to establish abandonment under section 7822. N.J. asserts she had no duty to give N.G. money for K.H. once a guardianship was established. N.J. also asserts she lacked the financial ability to provide support.
A
Section 7822, subdivision (a) is written in the disjunctive so that a court may declare a child abandoned by a parent if the parent failed to communicate or failed to provide support for the statutory period. (See also § 7822, subd. (b) [failure to provide support or failure to communicate is presumptive evidence of intent to abandon].) Having concluded substantial evidence supports the court's finding N.J. abandoned K.H. by failing to communicate with him for more than six months, we need not also determine whether the evidence supports a finding N.J. failed to provide support for K.H.
In any event, N.J. admits she stopped paying child support at the end of 2005, and has not paid any since. If, as she claims, she did not have the financial ability to pay support, she could have requested a court order to reduce the amount of support owed. Moreover, the appointment of a guardian for K.H. in 2008 did not necessarily relieve N.J. of the obligation to support him or preclude the court from declaring K.H. abandoned if N.J. also failed to communicate with him. (§ 7822, subd. (b).) A parent's failure to contribute to her child's support absent a demand, coupled with a failure to communicate, may support an intent to abandon within the meaning of section 7822. (Allison C., supra, 164 Cal.App.4th at p. 1013; In re Randi D. (1989) 209 Cal.App.3d 624, 630.)
B
As we previously noted, the purpose of proceedings to have a child declared free from a parent's custody and control is to promote the child's best interests by providing the stability and security of an adoptive home. (§§ 7800 & 7801; Allison C., supra, 164 Cal.App.4th at pp. 1009-1010.) Throughout K.H.'s life, N.J. did not seek to take parental responsibility for his care or try to develop a parental relationship with him, choosing instead to let him live with the Father and N.G. Because of N.J.'s instability, she has been unable to be a parent to K.H. during his critical years of childhood, and K.H. does not know N.J. is his biological mother. Although N.J. can be credited for attempting to regain custody of K.H. after the Father died, her efforts were too little, too late. Once a guardianship was established, N.J. took no steps to modify that order or the no contact order in an effort to be a part of K.H.'s life. "[A]n important element that a trial court must consider, when making a decision about children, is the impact of the passage of time. Childhood is short; many basic attitudes and capacities are developed in the very early years. Ties are formed to the adults present in the child's life, and can only be broken by inviting emotional disaster." (In re Rose G. (1976) 57 Cal.App.3d 406, 425.) "[A] child's need for a permanent and stable home cannot be postponed for an indefinite period merely because the absent parent may envision renewing contact with the child sometime in the distant future." (In re Daniel M., supra, 16 Cal.App.4th at p. 884; see also Allison C., supra, 164 Cal.App.4th at p. 1016.) K.H. deserves the security and stability of a permanent home. Substantial evidence supports the court's finding it was in K.H.'s best interests to be adopted.
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.