Opinion
F080054
03-02-2020
In re F.V., a Person Coming Under the Juvenile Court Law. MIGUEL V., Petitioner and Respondent, v. CLAUDIA V., Objector and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Objector and Appellant. Jeffrey Scott Drabin for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18AD-00020)
OPINION
THE COURT APPEAL from an order of the Superior Court of Merced County. Donald J. Proietti, Judge. Valerie N. Lankford, under appointment by the Court of Appeal, for Objector and Appellant. Jeffrey Scott Drabin for Petitioner and Respondent.
Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
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INTRODUCTION
Claudia V. and Miguel V. were married and together had one daughter, F.V. After the dissolution of their marriage, Miguel thwarted Claudia's attempts to visit with their daughter, and Claudia sought court orders to enforce visitation. In the midst of the child custody and visitation proceedings, Miguel filed a Family Code section 7822 petition to terminate Claudia's parental rights. His first petition was denied. When Claudia again went back to superior court to enforce visitation, Miguel filed another section 7822 petition. This second petition was granted. We reverse.
References to code sections are to the Family Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
In September 2014, Miguel filed for dissolution of the marriage and sought legal and physical custody of F.V., then three years old. Claudia responded, seeking physical custody of the minor, with joint legal custody, and visitation for Miguel. Miguel was represented by counsel in the dissolution proceedings; Claudia was not.
Miguel sought an emergency custody order, claiming Claudia had threatened to keep their daughter from him. The parties were ordered to mediation. In December 2014, the superior court ordered that parties have joint legal custody, Miguel to have physical custody, and Claudia to have reasonable visitation.
In February 2015, the parties signed a marital settlement agreement prepared by Miguel's attorney. The agreement gave legal and physical custody of the minor to Miguel, with Claudia to have reasonable visitation "by mutual agreement." Claudia at the time was unemployed, living with her brother, and struggling to get back on her feet. Claudia was not represented by counsel when she signed the agreement.
Under the agreement, each parent had the right to be involved in the minor's school activities; the parties were required to keep each other informed of all matters regarding the well-being of the minor, including educational and medical matters; and each parent was required to list the other as a contact for emergencies. The matter of child support was reserved.
On March 6, 2017, Claudia filed a request for a custody and visitation order with the superior court. She asserted that Miguel had prevented her from having contact and visitation with the minor and as a result, she had not seen the minor in over a year. Claudia alleged she had called Miguel to arrange visits, but he did not respond. At the June 5, 2017 hearing, neither party appeared, and the matter was removed from the calendar.
In November 2017, Claudia filed a request for a temporary emergency order for custody and visitation, asserting Miguel would not respond to inquiries about the minor's whereabouts and was preventing her from exercising visitation with the minor. The request was denied because Miguel did not appear, and the court file did not reflect a proof of service on Miguel.
On February 9, 2018, Claudia filed an ex parte application seeking an order for visitation. She asserted she had not given notice to Miguel because she believed he would avoid service. The request for an emergency order was denied and the parties were ordered to mediation. A hearing was set for March 7, 2018. The parties attended mediation but were unable to reach an agreement.
Father told the mediator that he was concerned that Claudia did not and would not provide adequate supervision of the minor. He also claimed the minor told him that Claudia hit her, pinched her, and pulled her hair. Claudia denied ever engaging in these behaviors with the minor. Claudia currently was gainfully employed and raising her three other minor children. The children's maternal grandmother was available for childcare when needed.
The mediator found that Miguel was not complying with any of the terms of the marital settlement agreement and was withholding visitation from Claudia by ignoring all her attempts to contact him or the minor. Consequently, the mediator recommended the court order visitation on a progressive basis, beginning with weekly visits. The mediator recommended that Miguel continue to have legal and physical custody of the minor and that Claudia have supervised visitation through Mary Eck weekly for two hours. Additional visitation could be agreed to by the parties in writing. The mediator also recommended that Claudia be given access to the minor's school records.
In addition, the mediator recommended the superior court issue standard orders to the parties, including that telephone contact be allowed between the minor and parent; neither parent was to make disparaging remarks about the other around the minor; neither parent was to do anything to alienate the minor's affection for the other parent; both parents were to be allowed to attend the minor's school, athletic, and extra-curricular activities; each parent was to be kept informed of the minor's address and telephone number, with any changes reported within 24 hours.
The mediator also recommended that dissatisfaction with the other parent, or the minor not wanting to engage in visitation, could not be used as a reason to violate the court order or to prohibit visitation.
At a hearing on April 13, 2018, both Miguel and Claudia testified. The superior court adopted the recommendations of the mediator with the change that the parties would have joint legal custody. The superior court found that Claudia posed no threat of harm to the minor and that Claudia's lack of contact with the minor was due to Miguel's "lack of cooperation with mother." A future hearing was scheduled for May 11, 2018, to review the supervised visitation condition. The first visit was to take place by April 27 and the second visit by May 4, 2018.
Claudia enrolled in a comprehensive parent education program designed to enhance parent-child relationships.
Miguel retained counsel to file a section 7822 petition terminating Claudia's parental rights to the minor. Miguel alleged Claudia left the minor in Miguel's custody without any provision for support; had not communicated with or visited the minor since July 2015; and had the intent to abandon the minor.
On April 14, 2018, Miguel filed a request in the superior court seeking a stay of the custody and visitation order pending the outcome of the hearing on the section 7822 petition.
On April 24, 2018, Miguel's attorney notified Eck that Miguel would not be complying with the superior court order for supervised visitation.
On May 4, 2018, an initial hearing was held on the section 7822 petition. Miguel was represented by counsel; Claudia was not. The superior court stayed all custody and visitation proceedings and orders pending a determination of the section 7822 petition.
When the superior court asked Claudia if she wanted an attorney to represent her, she responded, "Okay." The superior court informed her she had to fill out a financial declaration form if she wanted an appointed attorney, otherwise, she could hire her own attorney. The superior court did inform Claudia, however, that having an attorney represent her "could result in a delay in these proceedings" with the stay in place. An attorney was appointed to represent the minor.
On May 17, 2018, an attorney was appointed to represent Claudia in the section 7822 proceeding and the matter was set for a contested hearing.
The court investigator filed her report on May 31, 2018, recommending against termination of Claudia's parental rights. The minor was interviewed with her attorney present. Due to the minor's age, she was at this time in first grade, the minor had a limited ability to understand the nature of the proceedings.
The minor remembered her "long time ago" half sister and two half brothers. She recalled playing with her half sister. The minor stated Claudia would sometimes "hit me" and "pull my hair" and sometimes would do "good stuff." When asked if she would like to see her half sister and two half brothers again, the minor was uncertain. When asked if she would like to see Claudia, the minor initially indicated no, but when asked if she would like to know if Claudia changed, she nodded her head affirmatively.
The minor did not know why her visits with Claudia had stopped. The minor told the investigator that Claudia and her father, Miguel, were "NOT friends" and that Miguel did not like Claudia. When asked if she had a picture of Claudia, the minor said her father had one but had not shown it to her.
Minor's counsel filed a report. The minor indicated to her counsel that she lives with her father and aunt and does not have a "mom." The minor refers to Claudia by her first name. The minor recalled her half sister as being nice and that her half brothers sometimes fought. The minor mentioned "hair pulling" by Claudia and indicated that if things had changed, she would like to see Claudia.
Minor's counsel also contacted the minor's therapist, Nancy Montes, who stated the minor was diagnosed with adjustment disorder, anxiety and depression. The minor told her therapist she did not want to see Claudia because her father did not want her to do so. The therapist described the minor's feelings about Claudia as ambivalent. However, the therapist noted that the minor generally engaged in "all or nothing" feelings. When the therapist discussed with the minor that people can change and the concept of forgiveness, Miguel "flipped out" and cancelled the minor's upcoming therapy appointment.
Minor's counsel also met with Claudia, who reported that prior to filing for dissolution of their marriage, Miguel closed their bank account, changed passwords, took the minor's Social Security card and birth certificate, and took Claudia's cell phone. When it was returned, videos of Miguel "drinking to blackout" that Claudia claimed were on the phone had been deleted.
Claudia had joint legal and physical custody of three of her children; she shared custody with their father. Claudia last spoke to the minor, F.V., in February 2016 and the minor asked if she was "still her mom" and asked about her half brothers and half sister. Miguel ignored Claudia's requests for contact with the minor. Claudia met with an attorney three times to discuss how to go about enforcing her visitation rights. Claudia had a fairly recent picture of the minor in her home; it had been sent to her by Miguel.
Minor's counsel concluded that Claudia had made more than token efforts to visit with the minor but "her efforts were discouraged by the father." Minor's counsel also reported that the minor had expressed a desire to "see her mother and siblings but appears to vacillate for fear of being disloyal to her father." Minor's counsel opined that it would not be in the minor's best interests to terminate Claudia's parental rights.
At the August 29, 2018 hearing on Miguel's first section 7822 petition, the superior court took judicial notice of the family law file, considered other evidence submitted by the parties, and heard testimony from Miguel, Claudia, and the therapist.
The therapist testified that at first, the minor told her she did not want to see Claudia because her father did not want her to. In subsequent sessions, however, the minor claimed she did not want to see Claudia because Claudia was mean to her.
Minor's counsel was opposed to the termination of parental rights and noted that the minor was not being parented by Miguel or Claudia, she was being cared for by paternal relatives. Minor's counsel believed the relationship between the minor and Claudia could be repaired, but not if parental rights were terminated.
The superior court stated the minor needed to continue with her therapy to address her issues, which did not warrant terminating Claudia's parental rights. The superior court believed reintroducing Claudia into the minor's life would be possible. The superior court found it would not be in the minor's best interests to terminate Claudia's parental rights; however, it ordered no contact between Claudia and the minor until a court determined by therapeutic evidence that "it's in the child's best interests." The superior court also stated the family law case was the proper forum to work out the details.
In December 2018, Claudia filed a request in the family law case for a therapeutic assessment to move forward with visitation and a hearing was set for March 4, 2019. Claudia was present; Miguel was not.
Claudia again appeared in court on March 19, 2019, requesting a therapeutic assessment and visitation. Miguel was not present. The court directed her to the self-help center for assistance. A hearing was set for May 15, 2019. Claudia filed a proof of service showing that Miguel personally had been served with notice of the hearing.
On April 17, 2019, Miguel filed a second action to terminate Claudia's parental rights pursuant to section 7822. A hearing was set for June 28, 2019. Claudia and Miguel were both present for the June 28 hearing. The superior court re-appointed counsel for Claudia and the minor and the matter was continued to July 10, 2019.
On July 10, 2019, the matter was referred to a court investigator to prepare a report. The court investigator filed her report on August 30, 2019. The report indicates that Miguel had remarried. Miguel indicated his new wife, Melissa, wanted to adopt the minor and the minor was "all for it." There is, however, no adoption petition in the appellate record.
Minor's counsel interviewed Miguel, Melissa, and the minor. The minor was not seeing her therapist on a regular basis. When asked if she wanted to see Claudia, the minor responded, " 'I still don't know.' " Minor's counsel noted that the therapeutic assessment previously ordered in the prior section 7822 matter had not been done and that Claudia's request in the family court to enforce the requirement for an assessment had been stayed pending the outcome of the second section 7822 petition. Minor's counsel recommended against terminating Claudia's parental rights.
At the September 11, 2019 hearing on the second section 7822 petition, the therapist testified she saw the minor based upon the minor's needs. The minor had "slightly improved" regarding her trauma disorder. Miguel was present during most of the minor's sessions with the therapist. The therapist opined that the minor was not ambivalent about Claudia; the minor wanted to be adopted by Melissa. The therapist believed Melissa and the minor had a "really good bond." She opined it would be beneficial to the minor to be adopted by Melissa.
Miguel admitted that he understood the minor was to continue with therapy to resolve issues and potentially reintroduce Claudia into the minor's life. Miguel, however, believed the minor should not see Claudia.
Claudia testified that after the hearing on the first section 7822 petition, she phoned and texted Miguel to inquire about the minor; Miguel never responded. When Claudia went to court to obtain the therapeutic assessment and re-establish contact and served Miguel with the documents, five days later she was served with the second section 7822 petition. Claudia believed Miguel intentionally was not cooperating with her attempts to have a relationship with the minor.
Minor's counsel argued that it was in the minor's best interests to commence therapy with a new therapist who understood the goal of therapy was for the minor to make progress in her relationship with Claudia, not make a new family with the stepmother. Minor's counsel also noted that the minor had made little to no progress after months with the current therapist and that the minor's reaction to Claudia in front of this therapist was distinctly different than the minor's reaction to Claudia when around others.
Claudia's counsel argued that Miguel had continued to be uncooperative and that having a stepmother did not mean the minor should not have a relationship with her mother.
The court took judicial notice of its findings in the previous section 7822 hearing and concluded the only issue before the court was what was in the minor's best interests. The court found that "regardless" of the reason Claudia did not have contact with her daughter, the "fact is she did not." The court faulted Claudia for contacting Miguel after the last section 7822 hearing and for filing an action in family court. The court found it would not be in the best interests of the minor to delay terminating parental rights.
The court granted Miguel's second section 7822 petition and terminated Claudia's parental rights. Claudia filed a timely notice of appeal.
DISCUSSION
We address two primary issues in this appeal: (1) whether res judicata or collateral estoppel preclude review of the superior court's findings on abandonment; and (2) whether the requirements of section 7822 have been met warranting a termination of Claudia's parental rights as in the best interests of the minor. We conclude res judicata and collateral estoppel do not apply here, and substantial evidence does not support the findings that Claudia abandoned the minor within the meaning of section 7822.
I. Res Judicata and Collateral Estoppel Do Not Apply
Miguel contends that principles of res judicata and collateral estoppel preclude addressing the facts pre-dating the second section 7822 petition and preclude addressing the findings supporting a determination that Claudia abandoned the minor. Claudia's appellate counsel conceded the point. The concession is improvident, and we decline to accept it. (See People v. Cowger (1988) 202 Cal.App.3d 1066, 1074.)
Res judicata and collateral estoppel are affirmative defenses that must be specifically raised in the trial court. (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1526.) If not affirmatively raised in the trial court, the application of res judicata and collateral estoppel is waived; they are not jurisdictional concepts. (Pathe v. City of Bakersfield (1967) 255 Cal.App.2d 409, 418.) When a party seeks to use res judicata and collateral estoppel offensively, the use is subject to greater scrutiny due to the potential for injustice. (Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1414-1415.)
Here, the concept of res judicata and collateral estoppel were not asserted by Miguel in the superior court. The second section 7822 petition he filed did not seek to apply the principles of res judicata or collateral estoppel. He filed no other pleadings seeking to do so. Although, Miguel's counsel asked the superior court to take judicial notice of the prior section 7822 proceedings, a different case with a different case number, he did not ask specifically for collateral estoppel or res judicata to apply. The first mention of the principles of res judicata and collateral estoppel are in the superior court's closing comments, after the parties had rested their cases. However, the superior court is not a party who can assert the affirmative defense.
The termination of parental rights implicates a parent's fundamental liberty interest in the care, custody, and management of their child. (Santosky v. Kramer (1982) 455 U.S. 745, 753; In re Marilyn H. (1993) 5 Cal.4th 295, 306.) When a superior court issues an order terminating parental rights, earlier findings are subsumed within the order and potentially are reviewable in an appeal of that order. (See In re Matthew C. (1993) 6 Cal.4th 386, 388, 396, 401; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1832-1833 [both addressing Welf. & Inst. Code § 366.26].)
Moreover, we look to "public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting." (Pacific Lumber Company v. State Water Resources Control Board (2006) 37 Cal.4th 921, 943-944.) As discussed infra, the superior court incorrectly applied the law to the facts of this case. In light of the fundamental liberty interest at stake; the failure of Miguel to specifically raise the principles of res judicata or collateral estoppel in the second section 7822 proceeding in superior court; the principles are not jurisdictional; and the case law indicating offensive application of these principles is subject to greater scrutiny because of the potential for injustice, we conclude neither res judicata nor collateral estoppel can be asserted by Miguel to foreclose review of the findings on abandonment.
II. No Abandonment Under Section 7822
A proceeding to have a child declared free from the custody and control of a parent may be brought under section 7822 if the parent has abandoned the child. As applicable here, abandonment occurs when "[t]he child has been left by both parents or 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 or parents, with the intent on the part of the parent or parents to abandon the child." (§ 7822, subd. (a)(2).) Thus, three elements must be met: (1) the child must be left with another; (2) without provision for support or communication from a parent for a period of six months; and (3) all such acts were done " ' "with the intent on the part of such parent ... to abandon [the child]." ' [Citation.]" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 [addressing similar requirements of § 7822, subd. (a)(3)].)
" ' " '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.' " [Citations.]' [Citation.] Accordingly, the statute contemplates that abandonment is established only when there is a physical act—leaving the child for the prescribed period of time—combined with an intent to abandon, which may be presumed from a lack of communication or support." (In re Jacklyn F.V. (2003) 114 Cal.App.4th 747, 754; § 7822, subd. (b) ["failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon"].) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. (§ 7822, subd. (b) ["If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent"]; In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212.) Intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire. (B. J. B., at p. 1212.) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A. (2005) 132 Cal.App.4th 63, 68.)
Section 7850 dictates the requirements of the investigations relating to the proceedings to declare a child free from parental custody and control under section 7822. Specifically, section 7850 states,
"Upon the filing of a petition under Section 7841, the clerk of the court shall, in accordance with the direction of the court, immediately notify the juvenile probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, ... or the county department designated by the board of supervisors to administer the public social services program, who shall immediately investigate the circumstances of the child and the circumstances which are alleged to bring the child within any of the provision of Chapter 2 (commencing with Section 7820)."
The guidelines to which a court investigator must adhere when preparing his or her report is outlined in section 7851 and states the report shall include a recommendation of the proper disposition to be made in the proceedings in the best interest of the child and "shall include" a statement that the person making the report explained to the child the nature of the proceedings to end parental custody and control; a statement of the child's feelings and thoughts concerning the pending proceeding; a statement of the child's attitude towards the parent; and that the child was informed of the child's right to attend the hearing. (§ 7851, subds. (a), (b)(1)-(4).) If the child is too young to make a meaningful response, "a description of the condition shall satisfy the requirement" of subdivision (b). (§ 7851, subd. (c).)
Standard of Review
The party who files a section 7822 petition has the burden of proving by clear and convincing evidence that all elements of section 7822 have been met. (In re E.M. (2014) 228 Cal.App.4th 828, 838-839.) "Clear and convincing" evidence requires a finding of high probability. Evidence must be so clear as to leave no substantial doubt and must be sufficiently strong to command unhesitating assent of every reasonable mind. (In re David C. (1984) 152 Cal.App.3d 1189, 1208.)
We apply a substantial evidence standard of review to a trial court's finding under section 7822. (In re Amy A., supra, 132 Cal.App.4th at p. 67.) On 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." ' " (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1010.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.)
Section 7822 Analysis
We next consider whether substantial evidence supports the finding that Claudia's failure to provide support evidences an intent to abandon the minor. We conclude it does not.
Financial Support
Claudia at the inception of the dissolution proceedings was unemployed and struggling to get back on her feet. Miguel had drained their bank account of funds when he filed for dissolution of the marriage. There was no order for spousal support in the dissolution case. There is no evidence that Miguel made any demand for child support or sought a court order for child support. An intent to abandon cannot be based on a failure to support, absent a demand for support. (In re George G. (1977) 68 Cal.App.3d 146, 159.)
Visitation and Contact
Furthermore, substantial evidence does not support the finding that Claudia's lack of contact with the minor evidences an intent to abandon. The record evidence establishes that Claudia repeatedly sought to exercise her custody and visitation rights, but that Miguel consistently interfered with those rights by failing to comply with the terms of the marital settlement agreement and defying court orders.
Claudia sought physical custody of the minor, with joint legal custody, and visitation for Miguel in the dissolution of marriage proceedings. In December 2014, the superior court ordered that the parties have joint legal custody, Miguel to have physical custody, and Claudia to have reasonable visitation. In February 2015, in a marital settlement agreement prepared by Miguel's attorney, while Claudia was unrepresented, the agreement gave legal and physical custody of the minor to Miguel, with Claudia to have reasonable visitation "by mutual agreement."
Under the agreement, each parent had the right to be involved in the minor's school activities; the parties were required to keep each other informed of all matters regarding the well-being of the minor, including educational and medical matters; and each parent was required to list the other as a contact for emergencies. The matter of child support was reserved.
On March 6, 2017, Claudia filed a request for a custody and visitation order with the superior court. She asserted that Miguel had prevented her from having contact and visitation with the minor. Claudia alleged she had called Miguel to arrange visits, but he did not respond. In November 2017, Claudia filed a request for a temporary emergency order for custody and visitation, asserting Miguel would not respond to inquiries about the minor's whereabouts and was preventing her from exercising visitation with the minor.
On February 9, 2018, Claudia filed an ex parte application seeking an order for visitation. The parties were ordered to mediation. The parties attended mediation but were unable to reach an agreement.
The mediator found that Miguel was not complying with any of the terms of the marital settlement agreement and was withholding visitation from Claudia by ignoring all her attempts to contact him or the minor. Consequently, the mediator recommended the court order visitation on a progressive basis, beginning with weekly visits.
In addition, the mediator recommended the superior court issue standard orders to the parties, including that telephone contact be allowed between the minor and parent; neither parent was to make disparaging remarks about the other around the minor; neither parent was to do anything to alienate the minor's affection for the other parent; both parents were to be allowed to attend the minor's school, athletic, and extra-curricular activities; each parent was to be kept informed of the minor's address and telephone number, with any changes reported within 24 hours.
The mediator also recommended that dissatisfaction with the other parent, or the minor not wanting to engage in visitation, could not be used as a reason to violate the court order or to prohibit visitation.
At a hearing on April 13, 2018, the superior court adopted the recommendations of the mediator with the change that the parties would have joint legal custody. The superior court found that Claudia posed no threat of harm to the minor and that Claudia's lack of contact with the minor was due to Miguel's "lack of cooperation with mother." The court ordered that Claudia be reintroduced to the minor by progressive supervised visitation. A future hearing was scheduled for May 11, 2018, to review the supervised visitation condition. The first visit was to take place by April 27 and the second visit by May 4, 2018.
However, rather than comply with the marital settlement agreement and the superior's court's lawful orders issued in the family law proceeding, Miguel deliberately refused to comply and instead sought to terminate Claudia's parental rights by filing the first section 7822 petition and refusing to cooperate with supervised visitation.
The order on the first section 7822 petition found it would not be in the minor's best interests to terminate Claudia's parental rights. The superior court also stated the family law court was the proper forum to work out the details.
When Miguel did not succeed in terminating Claudia's parental rights in the first section 7822 proceeding, he again returned to his pattern of ignoring all of Claudia's inquires about the minor. Claudia responded in December 2018 by again seeking enforcement in the family law case, as directed in the court's order, for a therapeutic assessment of the minor to move forward with visitation. Claudia filed a proof of service showing that Miguel personally had been served with notice of the hearing. Miguel responded by filing a second action to terminate Claudia's parental rights pursuant to section 7822.
In ruling on the section 7822 petition, the court found that "regardless" of the reason Claudia did not have contact with her daughter, the "fact is she did not." This misstates the law. The reason for lack of contact goes to intent. While " 'nonaction of the parent after a judicial decree removing the child may convert a [judicial] "taking" into a "leaving" [of a child by a parent],' " that did not occur here. (In re Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 505.) When Miguel obtained custody of the minor in the family law case, Claudia repeatedly sought to enforce her visitation rights.
While failure to communicate with the minor for the statutory period may give rise to a presumption of intent to abandon, any evidence contrary to that presumption causes it to disappear and requires a determination of the issue of intent without regard to the presumption. (In re Rose G. (1976) 57 Cal.App.3d 406, 424.)
Clearly, the uncontroverted evidence established that Claudia filed multiple actions in superior court seeking to enforce her visitation rights. Ultimately, this resulted in a conclusion by the mediator that Miguel had interfered with Claudia's visitation rights by refusing to comply with the marital settlement agreement or cooperate with Claudia in scheduling visitation. In the family law case, the court found that Miguel had interfered with Claudia's visitation by refusing to cooperate and that Claudia posed no threat of harm to the minor. Additionally, in the section 7822 proceedings, minor's counsel found that Miguel had discouraged contact between Claudia and the minor and that Claudia made more than token efforts to have contact with the minor.
The controlling issue for a finding of abandonment is the subjective intent of the parent. (In re Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136.) Far from demonstrating an intent to abandon the minor, Claudia's actions demonstrated a clear intent to maintain the relationship and enforce a visitation schedule, but all her attempts were ignored by Miguel and thwarted by him when he refused to comply with the family law orders. We are extremely troubled by the fact that Miguel was allowed to circumvent the family law order enforcing Claudia's visitation rights by filing a section 7822 petition. And then when she sought to enforce the terms of the order from the first section 7822 hearing, Miguel filed a second petition to thwart that attempt. Section 7822 is not designed to serve as a mechanism for avoiding enforcement of visitation orders in family law proceedings. (See In re E.M., supra, 228 Cal.App.4th at pp. 837-838.)
Conclusion
In the first section 7822 proceeding, both the court investigator and minor's counsel reached the conclusion it was not in the minor's best interests to terminate Claudia's parental rights. The superior court at that time felt a therapeutic assessment of the minor should be made by a "neutral" and that person's recommendations followed on restarting visitation. The superior court also noted that the minor's current therapist, Montes, "was quite the advocate" and the court did not view her as a neutral. We note that this first section 7822 petition proceeded despite the pending order in the family law case requiring supervised visitation.
Despite the requirement for a therapeutic assessment by a neutral, Miguel had the minor engage in 23 subsequent sessions with Montes, sessions where he and his new wife were often present. It also is disturbing to note that Montes initially reported that the minor did not want to see Claudia because Miguel did not want her to see Claudia. After the subsequent sessions with Miguel and his new wife present, the minor's response to Claudia's name was to "cry" and "shake."
Miguel took no meaningful steps to obtain a neutral, therapeutic assessment and when Claudia sought a court order to enforce that requirement, it triggered Miguel filing his second section 7822 petition. Claudia acted in compliance with the order from the first section 7822 proceeding and sought to enforce the requirement of a therapeutic assessment in the family law court. The superior court's criticism of her in the second section 7822 proceeding for doing so was unwarranted.
We are reversing the order terminating Claudia's parental rights because there is no substantial evidence establishing she abandoned the minor within the meaning of section 7822. We strongly recommend that the superior court enforce the terms of the marital settlement agreement to the extent they are not inconsistent with the findings and order resulting from the April 13, 2018, hearing in the family law matter; that the findings and order from the April 13, 2018, hearing be enforced; that the superior court not entertain further section 7822 petitions from Miguel; and that Miguel not be allowed to circumvent or thwart any court order enforcing Claudia's visitation and custody rights.
DISPOSITION
The findings that Claudia abandoned the minor within the meaning of section 7822 and the order terminating Claudia's parental rights to the minor, F.V., are reversed.