Opinion
D078780
09-20-2021
In re V.P., a Person coming under the Juvenile Law. S.P., Plaintiff and Respondent, v. L.L. et al., Petitioners and Appellants.
John L. Dodd & Associates, John L. Dodd; Marcus Family Law Center, Ethan Marcus and Erin Kathleen Tomlinson for Petitioners and Appellants. Suzanne Miu Davidson, under appointment by the Court of Appeal, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, No. EAD000218 William D. Lehman, Judge.
John L. Dodd & Associates, John L. Dodd; Marcus Family Law Center, Ethan Marcus and Erin Kathleen Tomlinson for Petitioners and Appellants.
Suzanne Miu Davidson, under appointment by the Court of Appeal, for Plaintiff and Respondent.
McCONNELL, P. J.
L.L. and H.L. appeal the denial of their petition to declare V.P. free from the custody and control of his biological father, S.P. (Father), under Family Code section 7822. A petition to free a child from a parent's custody and control may be granted where “[o]ne 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.” (§ 7822, subd. (a)(3).) L.L. and H.L. contend there is insufficient evidence to support the trial court's finding that Father did not intend to abandon his son within the meaning of section 7822. They also contend their due process rights were infringed upon by the trial court. We reject these challenges and affirm.
Undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father and V.P.'s mother (Mother) dated briefly in 2006 while in high school. In 2011, Mother was diagnosed with synovial cancer, a rare form of cancer which primarily affects the arms and legs. Father and Mother started dating again in 2016. The couple saw each other approximately every other week, as Father lived in Arizona and Mother lived in San Diego.
Mother became pregnant in October 2017. The cancer progressed to stage four by the time she was five months pregnant, and she was forced to deliver V.P. three months premature. Father was present for V.P.'s birth and signed a voluntary declaration of paternity the day after V.P. was born.
V.P. was hospitalized in the natal intensive care unit (NICU) for two months because he was born premature. He suffered from lesions on his brain, holes in his lungs, undeveloped skin, and he risked developing cerebral palsy, deafness, and blindness. Father traveled from Arizona several times to visit V.P. while he was in the NICU.
Once V.P. was released from the hospital, he began living in San Diego with Mother and maternal grandparents, L.L. and H.L. (Grandparents), where he could continue to be treated by the same medical providers. Doctors had created a multi-year medical plan for him, which included ongoing evaluations and diagnostics. During the following months, Father visited V.P. in San Diego several times.
Grandparents maintained an apartment in San Diego and a home in Imperial Valley.
Mother died when V.P. was eight months old, and Grandparents moved with V.P. to their home in Imperial Valley. Although Father planned on taking V.P. to live with him in Arizona after Mother's death, he believed it was in V.P.'s best interests to continue living with Grandparents until V.P. finished his medical treatments. While in their care, Grandparents were responsible for taking V.P. to his medical appointments and supported V.P. financially. Although Father did not attend the appointments, Grandparents regularly updated him about V.P.'s progress. According to Father, he offered to provide financial support, but Grandparents told him it was not needed.
From the time of Mother's death to August 2019, Father visited V.P. for a few days at least once a month. Father provided V.P. with formula, food, wipes, diapers, and clothing during these visits.
Father's understanding was V.P. would start living with him full-time once V.P. had completed his physical therapy appointments in August or September 2019. Once August 2019 arrived, however, Father agreed to a transition period at Grandparents' request. In September 2019, V.P. began staying with Father every other week.
On March 16, 2020, Father and Grandparents had an argument about V.P.'s living arrangements. Father was concerned travel between Arizona and California could be restricted due to the escalating coronavirus pandemic and result in him becoming separated from his son. Grandparents ultimately agreed to let Father take V.P. to Arizona, although they were upset V.P. had no clear date of return.
On March 21, 2020, Grandparents drove to Arizona for an agreed upon overnight visit with V.P. One day before, Grandparents had filed a petition to determine parental relationship (the parentage case) in the Imperial County Superior Court (the trial court). (§ 7630.) In the parentage case, they sought legal and physical custody of V.P. as his “prospective adoptive parents” and a determination that Father is not V.P.'s parent. (§ 7630.)
Father was unaware of the parentage case when he released V.P. to Grandparents on March 21, 2020, believing V.P. would be returned the next day. Instead, Grandparents took V.P. with them to California, only informing Father of what they had done after they arrived home. Grandparents filed a petition to declare V.P. free from Father's custody and control and request to adopt him (the adoption case) several days later. (§ 7802.)
In October 2020, the Department of Social Services (the department) completed its investigation report for the adoption case. Based on interviews with Father and Grandparents, the department recognized Father had left V.P. in Grandparents' care and never provided Grandparents with financial support. However, the department found Father was in contact with V.P. at least once or twice every month and had secured provisions for V.P. throughout V.P.'s life. For these reasons, the department concluded Father's parental rights should not be terminated.
Upon the filing of a petition to free a child from the custody and control of a parent, the probation officer, qualified court investigator or department administering the public social services program “shall immediately investigate the circumstances of the child and the circumstances which are alleged....” (§ 7850.) The investigator “shall render to the court a written report of the investigation with a recommendation of the proper disposition to be made in the proceeding in the best interest of the child.” (§ 7851, subd. (a).) The court “shall receive the report in evidence and shall read and consider its contents in rendering the court's judgment.” (§ 7851, subd. (d).)
The trial on Grandparents' adoption case lasted several days. Father, Grandparents, other family members, and a family friend testified, along with the social worker who authored the department's report. The parties submitted briefs in advance of trial, along with numerous exhibits of photographs showing Father's visits with V.P. and his text messages with Grandparents regarding V.P.'s care.
At closing arguments, Grandparents' counsel conceded there was never a six-month period when Father did not visit V.P. but maintained Father's failure to provide support was sufficient to show abandonment. Father's counsel countered that although the abandonment statute provided for the termination of parental rights when there is no support, the statute also required an intent to abandon. Father's counsel argued Father never had such intent, and his decision to leave V.P. in Grandparents' care while V.P. received medical treatment was an exercise of his parental authority. In rebuttal, Grandparents' counsel contended Father's failure to provide support raised a statutory presumption of an intent to abandon, and such intent was further evinced by Father's decision to leave V.P. in Grandparents' care for a period of over six months. The parties submitted supplemental briefing following closing arguments.
The trial court issued its proposed statement of decision on March 1, 2021, denying Grandparents' petition to free V.P. from Father's parental custody and control. The court found Father had planned for V.P. to live with him in Arizona once V.P.'s medical condition stabilized, and at no point did he intend to abandon V.P. The court found Father's decision to leave V.P. in the Grandparent's care after Mother died “at best establishes that [Father] ‘temporarily suspended' his ‘parental duties to address the obstacles that were hindering' his ability to fulfill his role as a parent, i.e., that he lived and worked over [four] hours from where [V.P.'s] doctors were located.” Father was otherwise involved in V.P.'s life since birth, and the department's report confirmed it would be in V.P.'s best interests not to terminate Father's parental rights. After receiving Grandparents' opposition, the court adopted the proposed statement of decision as the decision and judgment on March 17, 2021. Grandparents timely appealed from the judgment.
DISCUSSION
Grandparents contend they met their burden of proof to terminate Father's parental rights based on clear and convincing evidence in the record showing Father abandoned V.P. We disagree and conclude the record contains ample evidence to support the trial court's findings. We also reject Grandparents' due process contentions, which lack support in the record.
1. Relevant Legal Principles and Standard of Review
A court may declare a child free from parental custody and control if the parent has abandoned the child. (§ 7822; Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.) In order to constitute abandonment three main elements must be met: (1) the child must have been left with another; (2) without provision for support or without communication from the parent for longer than six months; and (3) with the intent on the part of the parent to abandon the child. (§ 7822, subd. (a)(2).) A failure to provide support or communicate with the child is presumptive evidence of an intent to abandon, and token efforts will not overcome the statutory presumption. (§ 7822, subd. (b) .) In determining a parent's intent to abandon, the trial court “must objectively measure the parent's conduct, ‘consider[ing] not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of' the parent's efforts.” (Adoption of A.B. (2016) 2 Cal.App.5th 912, 923 (Adoption of A.B.).) “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.)
“Abandonment” and “intent, ” including whether the statutory presumption has been overcome, are questions of fact the trial court must resolve based on clear and convincing evidence. (§ 7821; In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 506 (Marriage of Jill & Victor D.).) On appeal, however, we review the trial court's findings for substantial evidence. (A.B., supra, 2 Cal.App.5th at p. 922.) This standard requires us to view the record in the light most favorable to the prevailing party. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 (O.B.).) We are precluded from determining the credibility of witnesses, resolving conflicts in the evidence, or reweighing the evidence. (Marriage of Jill & Victor D., at p. 503.) Grandparents as the appealing party bear the burden of showing the evidence is insufficient to support the trial court's findings. (A.B., at p. 923.)
2. Substantial Evidence Supports the Trial Court's Finding That Father Did Not Intend to Abandon V.P.
Grandparents contend the trial court misapplied the law regarding the statutory presumption, as Father's failure to provide support should have created a presumption of his intent to abandon V.P. They contend the trial court further erred by misconstruing the term “intent to abandon” by applying it in the lay sense. Relying on Father's failure to provide support and his decision to surrender his parental role to Grandparents for longer than six months, Grandparents conclude the record contained clear and convincing evidence Father abandoned V.P. within the meaning of section 7822.
In determining whether the statutory presumption applies, the trial court correctly considered Father's failure to provide support when it ruled on the petition. Under section 7822, a failure to provide support or communicate with the child is presumptive evidence of the parent's intent to abandon. (§ 7822, subd. (b) .) Although the trial court's statements during closing arguments suggested it may have misinterpreted the use of the disjunctive term “or” in the statute, the trial court's written order demonstrates the court understood the law and applied the correct standard. The court acknowledged section 7822 “on its face contemplates termination of parental rights for non-support alone” but that “it is hard to imagine a case justifying a finding of intent to abandon if the parent maintained regular communication with the child.” Although it is undisputed Father did not financially support V.P. for more than six months, each element of section 7822 is qualified by the requirement that the parent's actions must have been done with the intent to abandon the child. (§ 7822, subd. (a)(2); In re Cattalini (1946) 72 Cal.App.2d 662, 668.) Thus, “[t]he crucial issue here then was whether or not the alleged acts of [Father] were committed by him ‘with the intent to abandon' [V.P.].” (Cattalini, at p. 668.)
In this case, there is substantial evidence in the record to rebut any presumption raised by Father's failure to provide support, as substantial evidence shows it was not Father's intention to abandon V.P. Because V.P. was born premature, he suffered from numerous health problems and required ongoing medical care. Father testified he left V.P. with Grandparents so V.P. could continue to receive treatment from the specialists in San Diego who had treated him since birth. According to Father, the arrangement was never intended to be permanent, as he planned on V.P. living with him in Arizona once V.P. completed physical therapy. A text message from Father to Grandparents in October 2019 confirmed the arrangement to eventually transition V.P. to Father's care once V.P.'s condition stabilized, in which Father stated: “I also wanted to talk about [V.P.]... it's coming up on a year already and whenever you guys have time I [want to] talk about his plans in Arizona....” Then, as V.P.'s health improved, V.P. began splitting his time between Arizona and San Diego. Rather than intending to abandon V.P., this evidence, when viewed in the light most favorable to the judgment, shows Father left V.P. in Grandparents' care because he believed it was in his best medical interests.
In addition to the testimony regarding his subjective intent, Father's actions demonstrate he did not intend to abandon V.P. “In determining a parent's intent to abandon, the trial court may consider not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of the effort under all the circumstances [citation], as well as the quality of the communication that occurs.” (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212 (B.J.B.).) In this case, Father was not absent from V.P.'s life while V.P. was in Grandparents' care. Although Father did not attend V.P.'s medical appointments, text messages in the record show Father and Grandparents regularly communicated about V.P.'s health and progress. Father also visited V.P. for a few days at least once month after Mother's death, and Father provided for V.P.'s necessities when he was in his care. Father's visits with V.P. increased in August or September 2019, when V.P. began to spend half of his time with Father in Arizona. Then, in March 2020, when confronted with the possibility he would become separated from his son because of the corona virus pandemic, Father drove from Arizona to retrieve V.P. in California. Father's consistent and genuine efforts to maintain contact with his son constitute substantial evidence to support the trial court's finding Father had no intention of abandoning V.P. (In re H.D. (2019) 35 Cal.App.5th 42, 52-53 [mother's testimony combined with uncontradicted evidence of her efforts to reunite with her children was clear and convincing evidence she did not intend to abandon them]; B.J.B., at p. 1212) [intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire].)
Grandparents characterize Father's decision to leave V.P. in their care as “voluntary” because Father had other options, such as relocating from Arizona to be with V.P. during his treatments. They conclude this decision warrants terminating Father's parental rights, as Father abdicated his parental role during the “most crucial” period of V.P.'s life. These arguments, however, invite this court to substitute our judgment for that of the trial court, which we cannot do. The power to resolve credibility issues or determine conflicts in the evidence is vested with the trial court and not the appellate court. “[T]he test on appeal is not whether substantial evidence supports a finding the appellant wishes the court had made but rather whether substantial evidence, contradicted or not, supports the conclusions the [trial] court did make. [ Citation.]” (Adoption of A.B., supra, 2 Cal.App.5th at p. 925.)
We are not persuaded by Grandparents' remaining contentions that the trial court misapplied the law in determining whether Father intended to abandon V.P. The trial court's written decision referred to the relevant statutory provisions and looked to case law interpreting the requirements for abandonment under section 7822. Grandparents have not presented any arguments to convince us the cases cited in the written decision are no longer good law or were irrelevant to the present case. For instance, Grandparents contend the cases cited by the trial court requiring an “actual desertion” for abandonment are no longer good law, as the “more modern” approach is to focus on whether the parent has abandoned his or her parental role. However, Grandparents provide no authority to suggest “actual desertion” is no longer required for a finding of abandonment, and courts continue to rely on the “actual desertion” language when addressing petitions under section 7822. (See e.g., In re E.M. (2014) 228 Cal.App.4th 828, 839 [explaining that to constitute abandonment, “there must be an actual desertion” combined with an intention to entirely sever the parental relationship].) Grandparents also assert the trial court improperly relied on In re George G. (1977) 68 Cal.App.3d 146, 160, because the decision was based on former Civil Code section 232. However, the prior statute contains nearly identical language as it now currently appears in section 7822, and courts continue to rely on cases decided under the prior statute. (In re H.D., supra, 35 Cal.App.5th at p. 50, fn. 2 [collecting cases].)
For the foregoing reasons, we conclude substantial evidence supports the trial court's finding that Father did not intend to abandon V.P. A declaration of freedom from custody and control terminates all parental rights and responsibilities to the child, “a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment.” (§ 7803; In re T.M.R. (1974) 41 Cal.App.3d 694, 703.) Substantial evidence supports the trial court's conclusion that such remedy was not warranted in this case.
3. Grandparents' Due Process Contentions Fail
Grandparents contend the trial court adjudicated the adoption case (case no. EAD000218) and parentage case (case no. EFL002713) simultaneously, because the caption in the judgment identified both case numbers and the judgment referred to the cases as having been “consolidated.” They contend they were therefore denied their due process right to a hearing in the parentage case before a judgment was entered. We disagree.
Although the caption in the judgment identifies the case numbers for both cases and refers to them as “consolidated, ” these were two separate cases. According to the trial court, the cases had been consolidated “in effect, ” which only meant the court had access to both files and considered documents filed in both cases. Further, the judgment and the incorporated proposed statement of decision do not address any matters pertaining to custody or parentage. Instead, the court's reasoning solely pertained to the issues raised in the adoption case, and the court confined itself to the narrow question of whether Father's parental rights should be terminated for abandoning his son within the meaning of section 7822. We therefore reject Grandparents' due process contentions, as the judgment entered on March 17, 2021, solely pertained to the adoption case and did not purport to adjudicate matters related to the parentage case.
The record shows the trial court did ultimately hold a hearing in the parentage case on April 1, 2021, and an order regarding V.P.'s custody was entered that same day. Unfortunately, the case number on the transcript for that hearing reflects the case number for the adoption case (case no. EAD000218). However, we need not express an opinion on the April 1, 2021 order as it is outside the scope of this appeal, which is solely an appeal from the judgment entered on March 17, 2021. (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045 [notice of appeal will not be considered adequate if it completely omits any reference to the judgment [or order] being appealed].) Grandparents also indicate in their briefing a motion for a new trial on the April 1, 2021 order in the trial court is pending.
DISPOSITION
The trial court's judgment entered on March 17, 2021 is affirmed.
WE CONCUR: HUFFMAN, J., O'ROURKE, J.