Opinion
D071933
08-25-2017
In re R.U., a Minor. M.P. et al., Petitioners and Respondents, v. A.U., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Petitioners and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. AN15670) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Petitioners and Respondents.
A.U., as the presumed father (Father) of the minor R.U. (the child; born in 2005), appeals the judgment declaring the child free from his custody and control, upon this petition brought by her mother, M.P. (Mother) and Mother's husband, K.P. (the stepfather). (Fam. Code, § 7822; all further statutory references are to the Family Code unless noted.)
On appeal, Father contends there is no substantial evidence to support the trial court's conclusions. He does not dispute that for purposes of applying the criteria of section 7822, subdivision (a) he "left" the child in Mother's care when he was jailed in 2007 on armed robbery charges, and while he has consequently been serving a 12-year term of incarceration. Although Father wrote to Mother in 2008, he has since been unable to contact or locate her for the purpose of pursuing any visitation requests, and has not visited with the child since 2007. In 2008, Mother testified for the prosecution at a hearing on the robbery charges against Father, about previous domestic violence between them. At the current trial, she testified that Father's brother (the paternal uncle, M.M.) had tried in 2008 to prevent her from testifying against Father. Consequently, she and the child were placed in a witness protection program for about a year, while the robbery trial was going on. After their exit from the program, Mother tried to remain out of touch with and unavailable to Father.
Father contends the court erred by finding he had demonstrated an intent to abandon the child, based on Father's years of communications with the paternal uncle and their other relatives about trying to find Mother and the child. Father also wrote numerous letters to various organizations and to the courts, requesting their assistance in obtaining records and information about pursuing legal proceedings on visitation or paternity. No such legal proceedings were filed. Father argues that the trial court should have acknowledged that he made more than "token" efforts throughout the years, to the extent of his ability, to establish contact with the child, and he thus showed no subjective or objective intent to abandon her. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 919.)
In rendering its ruling, the trial court acknowledged that due to Father's continuous incarceration, he has been unable to offer meaningful financial support to the child. To apply the statutory criteria of section 7822, subdivision (b), the court alternatively focused on the nature of the efforts that Father made between 2009 and 2015, to contact his relatives and Mother's relatives about establishing contact with Mother or the child, as well as his numerous letters to court authorities and legal aid organizations from 2010 through 2015. The trial court concluded that from this showing, Father had failed to rebut the statutory presumption that he had formed the necessary intent to leave or abandon the child within the meaning of the statute. (§ 7822.)
No respondent's brief in this proceeding has been submitted from Mother and the stepfather or from the San Diego Health and Human Services Agency (the Agency). However, we do not "treat the failure to file a respondent's brief as a 'default' . . . but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232-233.) Our review of the record persuades us that it fully supports the trial court's decision and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Family History
Father and Mother had a relationship which lasted off and on from 2001 to 2007. They were not married and lived sometimes with his parents. Mother sometimes used her first name and sometimes her middle name, and the paternal relatives generally knew her by her middle name. Father was present for the birth of the child in May 2005, and his name was entered on her birth certificate. He was previously married for several years to Mother's cousin, although they obtained a dissolution judgment.
Around the time of the child's birth, the parents' relationship began to deteriorate. According to Mother, as reported to an adoptions worker in connection with this petition, she and Father began to engage in domestic violence in 2005, and by the end of 2007, they had separated. She and the child moved in with the maternal aunt. For about a year, Father visited the child and provided some support to Mother. He told her he was getting an attorney to pursue visitation. He followed Mother to her job, making her feel threatened. He asked Mother's sister for money for the family, and when he picked her up, he assaulted the sister.
In February 2008, Father was arrested on armed robbery charges. The record shows that his charges also included a count of attempting to dissuade a witness by force or threat, which named Mother as the victim. (Pen. Code, § 136.1, subd. (c) (1).) Mother was required to testify in the criminal case against him, and learned from a friend that the paternal uncle was looking for her to prevent her from doing so. Father threatened to kill her and her family, and told her the uncle was looking for her. The prosecutor arranged for her and the child to be placed in a witness protection program for about a year, and she did not see Father after his trial concluded with a plea arrangement.
In July 2008, Father tried to contact court officials to request assistance in contacting the child, saying that her mother objected. Father wrote a letter to Mother in November 2008, asking about their health and requested that she send him pictures of their little one.
In early 2009, Father was sentenced to 12 years in prison for robbery. It is not clear from the record whether he was also convicted of attempting to dissuade a witness (Mother). In 2009, Mother and the child left the witness protection program. Father did not know their new address and did not send them letters or support after that.
Beginning in November 2009, Father wrote about 100 letters to the paternal uncle, who saved most of them. At least 16 of the letters asked the uncle for help in finding Mother, the child, and getting photographs of the child. In 2011 and 2013 to 2015, Father asked the uncle several times to "get at" or contact Mother's sister and cousins on his behalf, or find them on Facebook or Yahoo, and to tell them to "stop playing" and to give him photographs of the child. He also wanted them to wish the child happy birthday for him. He asked the uncle to do what he could to find the child for him and to find Mother's address for purposes of starting a court petition.
In 2010, Father wrote to the family law facilitator at the North County branch of Family Court to seek assistance on contacting the child. The facilitator wrote back several times between 2010 and 2012 to notify him additional biographical information was needed about Mother and the child, such as dates of birth and any relevant Superior Court case number.
In 2010, Father started contacting two legal aid organizations to ask for assistance in filing a paternity or visitation action. Between 2010 and 2013, the program "Legal Services for Prisoners with Children" sent him a copy of an "Incarcerated Parent's Manual" and a series of referrals. In 2010, the program California Rural Legal Assistance responded to him that it does not handle family law matters, and referred him to a lawyer referral services program.
In 2010, Mother noticed that some of Father's relatives were following her around town, and she saw them in stores around five times over three years. Mother did not complain to police about any such activity.
In May 2012, Mother and the stepfather were married. In 2013, Father's sister-in-law (the paternal aunt, R.M.) had arranged to buy a DVD from Mother, by finding her through a marketing website, and they met at a parking lot. Mother testified that she did not realize that the buyer was a relative of Father until they met that day. Afterwards, the aunt texted Mother several times to ask for some pictures of the child, and said she would stop bothering Mother if she did so. Mother sent the photographs, hoping that this action would satisfy the paternal relatives and give them some closure. Mother felt unsafe from the continued contact, partly because the paternal aunt was married to Father's brother who had threatened Mother, so she changed her phone number, and her family moved to a new home.
In June 2015, Father wrote a letter to Superior Court asking for help in determining whether he had been involved in any child custody actions and requesting documentation such as the child's birth certificate and any domestic relations papers involving him (such as from his previous marriage to Mother's cousin). The family law facilitator wrote back to Father in September 2015 asking for more information.
B. Current Petition and Reports
In July 2016, Mother and the stepfather filed the current petition to free the child from Father's care and custody. Father was served with the petition and wrote several letters to the court requesting that he be allowed to appear. Counsel was appointed for him and for the petitioners, as well as the child. A series of hearings ensued, and the court ordered that Father be produced from prison for trial on the petition.
The adoptions social worker for the Agency investigated and filed a formal report and an addendum report. She made a general reference to a related, separate stepparent adoption petition. The reports summarize interviews with the parties and the child and set forth a time line of the relevant events. Mother reported that her husband, the stepfather, has been involved in the child's life since the end of 2011 and has been financially supporting her since January 2012. Mother stated that while Father was still aware of her whereabouts, before March 2008 when they entered witness protection, he did not send any cards, gifts, or letters to their daughter.
The social worker interviewed the child, then 11 years old, concluding that she appeared to have an age appropriate understanding of the pending adoption. The child feels that her stepfather is a great person and he is her dad. She understands she has a biological father but she does not remember him and has not received any communications from him.
Father agreed to be interviewed with the caveat that he be able to send the social worker's notes to his attorney for review. He told the social worker he had been unfaithful to Mother during their relationship, which he felt led to the end of their relationship in 2007, which was the last time he saw the child. He denied engaging in domestic violence with Mother, and said he had no knowledge that his family had threatened her. He felt that he and his family had done everything they could to get access to his daughter, but they were prevented from doing so by Mother. Father said he loves his daughter and wishes to have contact with her, but he had been unable to serve Mother with a motion in regard to seeking contact with the child, because he did not have an address for them. Father has no problem with the stepfather, but he opposes the adoption and wants to have contact with the child when he is released in 2019.
The social worker's reports supported granting the petition by Mother and the stepfather, concluding that it was not Mother's actions, but Father's actions, that had prevented him from having contact with the child. The child was in agreement with adoption, which the social worker felt appeared to be in her best interests.
C. Hearings and Ruling
During two days of trial on the petition in February 2017, the court heard testimony from Mother, the stepfather, the social worker, relatives on both sides, and Father (to be further summarized in the discussion portion of this opinion). Although Father tentatively agreed to a stipulation to obtain some postadoption contact with the child, he withdrew his agreement and the matter proceeded to trial. The court took judicial notice of the criminal court records from Father's robbery case. There were no existing family court orders regarding custody of the child.
In issuing the ruling, the court noted that the lack of monetary support was not at issue, due to Father's incarceration since 2008. The court accordingly focused on his alleged failure to communicate with the child, in terms of whether the other elements of abandonment had been proven pursuant to section 7822. The court first took note that under the circumstances since 2008, showing a need for Mother and the child to participate in the witness protection program, Mother was not under an obligation to "make [herself] available" to be reached by Father. Because the evidence about her state of mind showed her actions were based on self-preservation and the child's safety, it was not unreasonable for Mother to "stay[] in hiding as best as she could."
The court accordingly concluded that based on the petitioners' showing, the burden was shifted to Father to demonstrate that the statutory presumption of intent to abandon should not apply. The court analyzed the evidence as showing that the kinds of outreach efforts that Father had made, to the agencies and to his own relatives, had not included efforts to communicate with the child individually, through cards or letters to be forwarded by family members. Also, Father had not followed through on the legal processes that he tried to start, before and after his arrest.
The court considered that Father's criminal case had some significance in this matter, by showing that his history of serious violent felonies was inconsistent with pursuing a parental relationship. Also at that time, Father had another family, and was not taking effective action to preserve his parental relationship with this child. The court made its findings by clear and convincing evidence and concluded Father had not overcome the presumption that his actions, to the extent they were voluntary after his incarceration, demonstrated the necessary intent to abandon this child. The court found that the child's best interests would be served by granting the petition for the stepparent adoption, and judgment was entered terminating Father's parental rights. Father appeals.
DISCUSSION
I
"LEAVING" ELEMENT OF SECTION 7822
Section 7822, subdivision (a) provides in pertinent part: "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." It is not required that the parent have an intent to abandon the child permanently, and the statutory period of abandonment for one year can be identified as occurring earlier than the filing date of the relevant petition for freedom from custody. (Adoption of A.B., supra, 2 Cal.App.5th at p. 919; In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 501 (Jill & Victor D.); In re Daniel M. (1993) 16 Cal.App.4th 878, 881-883.)
A parent may be found to have "left" a child in another person's care and custody if the evidence shows the parent voluntarily abandoned the parental role. Even where court intervention has "taken" the child from the parent, the parent's voluntary inactions thereafter may constitute leaving the child with intent to abandon her. (Jill & Victor D., supra, 185 Cal.App.4th at p. 505 [judicial taking by custody order can be converted into parent's leaving the child and abandoning her through nonaction].) Both direct and circumstantial evidence can be considered on the issue of intent to abandon. (Ibid.)
On appeal, Father forthrightly acknowledges he may be considered to have physically "left" the child under prevailing legal norms, based on his longtime incarceration. (§ 7822, subd. (a).) Further, he agrees that under section 7822, subdivision (b), the court properly considered the statutory factors of support or communication in the alternative, thus disregarding Father's lack of financial support for the child as a factor here, due to his longtime incarceration. (Adoption of A.B., supra, 2 Cal.App.5th at p. 923, fn. 10 [§ 7822, subd. (b) states the elements of abandonment in the disjunctive].)
Father instead challenges the judgment as lacking any substantial support for the court's findings that he left the child without such communications as would rebut his intent to abandon her. He argues, "To the absolute contrary, father tried for nine years to interact with [her], both through written correspondence and exploration of legal action. It therefore was error for the Superior Court to terminate father's parental rights." To examine this claim, we examine the record about the nature of his efforts toward regaining a parental role.
II
INTENT TO ABANDON; EXTENT OF EFFORTS TO COMMUNICATE
A. Statutory Standards
Section 7822, subdivision (b) explains that a parent's failure to communicate with the child for more than one year is presumptive evidence of the intent to abandon, and "[i]f 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 . . . ." The courts are required to liberally construe these statutes "to serve and protect the interests and welfare of the child." (§§ 7800, 7801.)
Whether a parent had the requisite intent to abandon a child is a question of fact for the trial court, that is to be determined from an objective assessment of the parent's conduct, as opposed to his stated desires. (In re Brittany H. (1988) 198 Cal.App.3d 533, 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.' " (In re B. J. B., supra, 185 Cal.App.3d at p. 1211; Adoption of A.B., supra, 2 Cal.App.5th 912, 922-923; In re Amy A. (2005) 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." (In re Gano (1958) 160 Cal.App.2d 700, 705.)
B. Analysis
The evidence demonstrated different types of efforts Father has made since 2008 toward establishing a relationship with the child, and he argues they "could not with any credibility be viewed either as token or minimal." (§ 7822, subd. (b).) The trial court was required to evaluate the number and frequency of the efforts to communicate, the genuineness of those efforts, and the quality of the communication that resulted. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212; Adoption of A.B., supra, 2 Cal.App.5th at p. 923 [child's need for stability cannot be postponed indefinitely to conform to an absent parent's plans to reestablish contact " 'in the distant future' "].)
Father argues that his actions did not demonstrate any intent to abandon because his numerous communications with his own family members, and efforts to have them communicate on his behalf with Mother's cousins and sister, were initially geared toward showing a parental interest in obtaining pictures of the child. As his release date in 2019 became closer, he started asking his relatives to seek out information about Mother's address for purposes of pursuing and serving some kind of visitation petition. For the same reasons, he contacted legal aid organizations and the courts to obtain information about how to file such a proceeding, although he did not succeed in doing so. He never asked his criminal defense attorney for help, but tried to find the attorney for his codefendant instead.
The trial court's role was to evaluate the conflicting facts about the nature of Father's efforts toward maintaining a relationship with the child, within the factual context shown by all the evidence. (Jill & Victor D., supra, 185 Cal.App.4th at p. 507 [requesting parent's behavior must be evaluated in context].) Mother stopped taking Father's phone calls in December 2007, and later told the social worker that he had directly threatened to kill her and her family. Mother told the social worker that the last time she saw Father in 2007, he was drunk and did not want to see the child, only Mother.
In 2008, Mother learned from a mutual friend that the paternal uncle was looking for her to tell her not to testify against Father, and she was then placed in the witness protection program. Later, during his criminal proceedings, Father refrained from trying to contact Mother and the child by phone, as his attorney did not want him to be perceived as trying to intimidate a witness. Understandably, Father had difficulty finding her and the child thereafter. At the hearing, he denied ever threatening Mother or her family.
Although the opening brief states that the paternal uncle testified at the hearing, the portion of the reporter's transcript it cites is testimony from another paternal aunt. In any event, it is not disputed that Father sought help from various relatives looking for Mother on Yahoo and social media. The relatives denied that they knew about any threats to Mother. The court heard testimony from the paternal aunt about how she ultimately found Mother through a marketing website. Mother told the adoptions worker that she thought the paternal aunt was being sneaky when she bought the DVD from her, and that Mother felt threatened by the encounter. Mother testified that she eventually sent the paternal aunt some photographs so that the paternal aunt would stop bothering her.
Mother testified that she had not received any financial support from Father's family while she was still living with them or while Father was in jail. They did not try to contact or help the child after Mother separated from Father. Father could not show from his communications with his relatives that they were predominantly directed toward assistance in developing a relationship with the child. Different inferences can be drawn from the persistence of his efforts to find Mother, based on the troubles that they had when they were together. The record does not support Father's claim that he was trying to communicate with Mother in order to reach out to the child as a parent. (Jill & Victor D., supra, 185 Cal.App.4th at p. 507.)
In making its ruling, the court commented that Father did not make any efforts to communicate directly with the child, by sending cards directed toward her and asking that they be delivered, if possible. Father did not succeed in developing any meaningful form of communications that demonstrated to the child that he wanted to have a parental relationship with her. In this factual context, the trial court did not have to believe Father's account that he made his best efforts toward trying to find Mother and the child because of his parental feelings. Father's inactions toward communicating with the child did not assist him in rebutting the presumption that he intended to abandon his paternal role. (Jill & Victor D., supra, 185 Cal.App.4th at p. 506.) The court did not have to rely upon his stated desires to remain active in the child's life, when the evidence was to the contrary. (See In re Brittany H., supra, 198 Cal.App.3d at p. 550; Adoption of Allison C., supra, 164 Cal.App.4th 1004, 1011.)
An objective assessment of Father's conduct in choosing how he would pursue communication with the child, through requests to his relatives and agencies to find Mother, supports the court's conclusions that Father did not rebut the circumstantial evidence presented that he mainly showed his intentions were to abandon the child. (§ 7822, subd. (b); In re Daniel M., supra, 16 Cal.App.4th at pp. 881, 883.) Finally, to the extent Father sought to participate in a parenting arrangement that included him and Mother's current family, he did not show how the child's interests would be best served in that way. The judgment granting the petition under section 7822 must be affirmed.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.