Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County No. VAD007060, William Silveira, Jr., Judge. (Retired Judge of the Tulare Sup.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Marsha F. Levine, under appointment by the Court of Appeal, for Objector and Appellant.
Victor M. Perez for Petitioners and Respondents.
OPINION
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
B.H. (mother) appeals from an order freeing her son, L., for adoption by his legal guardian and the guardian’s partner. (Fam. Code, § 7822, subd. (a)(2).) Mother admits she failed to provide financial support for and failed to communicate with her son for several years. She also concedes her lapse is presumptive evidence of intent to abandon the child. Nevertheless, she contends evidence that she petitioned to terminate the child’s legal guardianship rebutted the presumption of her intent to abandon him. On review, we disagree and affirm.
All statutory references are to the Family Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Given the narrow focus of mother’s appeal, we do not summarize the entire record.
L. was approximately one year old in 1999, when he and mother moved into respondent C.B.’s home. Mother and C.B. separated in early 2005, but soon after the child went to live with C.B. C.B. petitioned later that year for guardianship of the child. Filed along with the petition was mother’s signed nomination of C.B. as guardian, and mother’s signed consent to the guardianship. In January 2006, following service of process and a social study, the court granted the petition and issued letters of guardianship.
In March 2007, mother filed the first of three petitions to terminate the guardianship. She alleged she had “no knowledge of this taking place” and that C.B. used the guardianship “as a means to try to keep contact with me and to have control of my son.” The petition was apparently not served and no proceedings were held in connection with it.
Mother filed a second petition to terminate the guardianship in August 2007. This time, she purportedly had C.B. served by mail. However, counsel on behalf of C.B. successfully moved to quash the summons, and the court denied the petition in September 2007. The minutes from that hearing do not show any appearance by mother. The findings and orders after hearing reveal mother called the court earlier that day claiming she feared for her life. Court staff informed her there was plenty of security. Court staff also advised mother that she had two outstanding felony warrants and would be arrested on the felony warrants.
Mother filed a third petition to terminate the guardianship in April 2010. It was defective in several respects.
Meanwhile, in February 2010, C.B. and her partner petitioned to declare the child free from parental custody and control. (§ 7820.) They alleged mother made neither any provision for the child’s support, nor any attempt to communicate with him since November 2006.
The petitioners told an investigating social worker they allowed the child to have contact with his maternal birth relatives and never stopped mother from having contact. Their residence and phone numbers had not changed in six years.
According to the child, he saw his maternal grandmother more than once a month. He also saw his maternal aunt and cousin. The child added he used to visit his mother, but she essentially ignored him during their visits. He would be mad and sad if he had to visit her again. As he saw it, she had not wanted to see him for years. He wanted to be adopted.
The maternal grandmother told the investigating social worker that if mother had wanted, she could have had contact with the child.
Mother told an altogether different story to the social worker. According to mother, when she and C.B. separated, the child stayed with mother except for visits. After a Thanksgiving 2006 visit, C.B. purportedly told mother she had legal guardianship of the child, and mother could not pick up the child. Mother claimed she never received any notice, no social worker ever talked to her, and she was never served regarding the guardianship. According to mother, C.B. would not allow her any physical contact with the child, and telephone contact stopped in the spring of 2007. Mother also no longer had contact with her own mother or sister.
The court conducted a July 2010 trial on the petition to free the child. C.B. testified mother had neither seen nor communicated with the child for almost four years. C.B. did not discourage mother from speaking to the child or threaten mother in any way. Mother also never sent any money for the child’s support.
Attorney David Candelaria testified he received a telephone call from mother shortly after Thanksgiving of 2006. Mother, who was hysterical, wanted the attorney to take legal action to obtain the child from C.B. She claimed C.B. would not return the child and threatened to have mother arrested.
Candelaria, however, did not take any legal action on mother’s behalf. He explained to mother that he previously represented C.B. and therefore had a conflict. Mother called Candelaria many times thereafter. He repeatedly told mother he had a conflict and could not help her. He referred her to several attorneys and told her of some self-help available.
Mother also testified. She relayed that her relationship with C.B. had been rocky and violent. C.B. had been the aggressor.
Mother denied ever signing the consent to L.’s guardianship, ever being served with guardianship papers, or knowing when the guardianship was granted. She later admitted the signature on the consent looked similar to her own. However, she added, she had never seen the document. She claimed she learned of the guardianship from C.B. on Thanksgiving Day in 2006. C.B. told her if she (mother) tried to get the child back, C.B. would have her arrested.
Mother accused C.B. of trying to control her life, by phoning and texting up to 50 times a day, and coming by at night. Mother also contradicted testimony C.B. gave about how long they lived together. Mother claimed they lived together from 2001 to the end of 2003, and then she moved back in for three months because C.B. needed financial assistance.
Mother testified that after she spoke with attorney Candelaria, she never retained a lawyer. She also admitted that she failed to appear when she previously petitioned to terminate the guardianship. However, she attributed her absence to statements the maternal grandmother allegedly made that C.B. would have her arrested. The court asked mother for what crime would she have been arrested. Mother replied “[f]or everything that C[.] had ever done in my life. I had no idea.”
Mother also testified she contacted several agencies to discover what warrants had been issued, but was not informed of any. She was nevertheless afraid of being arrested because C.B. was associated with the sheriff’s department and the local police department. When cross-examined about having been told by court staff in 2007 that she had felony warrants, mother insisted she was only told “if” she had warrants, she would be arrested. She acknowledged there was a felony warrant for her arrest. Yet, she claimed she did not learn of it until January 2010.
Asked if she had ever gone to C.B.’s house since 2006 to visit L. or made arrangements so that the child could visit with her in the maternal grandmother’s home, mother replied, “not allowed.” Mother testified she contacted “CPS, Social Services” to find out how to see and talk to the child. Asked if she ever pursued a petition for visitation with the child, mother testified she was instructed by an unidentified attorney and a self-help center to “file terminations for guardianship.” That was the only thing she was instructed to do.
Following closing arguments, the court granted the petition to free the child for adoption. The court found mother’s testimony was “selfserving.” It observed mother was able to file petitions to terminate the guardianship, but never petitioned for visitation, if in fact she was denied visits. It also found mother was focused on terminating the guardianship, but not visiting with the child. The court concluded mother had not overcome her presumed intent to abandon the child.
DISCUSSION
A child who 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 on the parent’s part to abandon the child, may be freed from the parent’s custody and control. (§§ 7820 & 7822, subd. (a)(2).) If a guardian has been appointed for the child, the court may still declare the child abandoned if the parent failed to communicate with or support the child. (§ 7822(b).)
A parent’s failure to provide support for or to communicate with the child is presumptive evidence of the parent’s intent to abandon. (§ 7822, subd. (b).) Like any other rebuttable presumption, it may be overcome by opposing evidence. (In re Gano (1958) 160 Cal.App.2d 700, 706.) However, whether the presumption has been overcome is a question of fact for the trial court. (In re Barrett (1959) 168 Cal.App.2d 584, 588-589.)
Mother acknowledges that the trial court was not required to believe her testimony regarding intent, and it found her testimony self-serving. She, nevertheless, contends her attempts to terminate the guardianship were sufficient to overcome her presumed intent to abandon because there was no reason to take such action if she did not believe it would reunite her with the child. We disagree. The trial court could well have determined from the evidence that mother was motivated by her animosity toward C.B., rather than a desire to see the child. In addition, the trial court could have given little weight to mother’s previous petitions to terminate the guardianship because she did little more than file them.
Mother also asserts, by filing petitions to terminate the guardianship, she did what she thought needed to be done based on the instructions she received, and she knew nothing about seeking visitation through the court. However, her assertions are based on her testimony, which the court did not find credible. We are bound by the trial court’s credibility determination. (In re Barrett, supra, 168 Cal.App.2d at p. 590.)
To the extent mother relies on attorney Candelaria’s testimony, it did not overcome the presumptive evidence of her intent to abandon. Given that Candelaria informed her from the outset that he had a conflict, we fail to comprehend what inferences might be drawn from his testimony, other than that mother apparently did not pay attention to his warning.
In the end, there was substantial evidence to support the trial court’s finding by clear and convincing evidence that mother intended to abandon the child. (In re Gano, supra, 160 Cal.App.2d at p. 705.)
DISPOSITION
The order freeing the child from mother’s care and custody is affirmed.