Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIA1400043, RIA1400044 & RIA1400045, Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Teri A. Kanefield, under appointment by the Court of Appeal, for Objector and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Petitioner and Respondent.
OPINION
KING J.
I. INTRODUCTION
Appellant, J.M., the biological father of three children, A1 (a girl, age 15), A2 (a girl, age seven), and A3 (a boy, age three), appeals from orders terminating his parental rights so the children can be adopted by their stepfather, respondent, S.M. (Fam. Code, §§ 7820, 7822.) The court terminated J.M.’s parental rights based on its determination that he left the children with their mother, A.M., in June 2012 with the intent to abandon them for the statutory period of one year. (§ 7822, subd. (a)(3).) J.M. claims insufficient evidence supports the court’s determination that he left the children with the intent to abandon them. We disagree, and affirm the orders terminating J.M.’s parental rights.
All further statutory references are to the Family Code unless otherwise indicated.
II. BACKGROUND
A. The Petitions and the Probation Officer’s Reports
S.M. married the children’s mother, A.M., in March 2014. In May 2014, S.M. filed the present petitions to terminate J.M.’s parental rights to each of the children so that S.M. could adopt them. (§ 7800.) The petitions alleged, in part, that J.M. abandoned the children in June 2012 when he left them in the care of A.M. for more than one year without providing for their support or communicating with them. (§ 7822, subd. (a)(3).) S.M. also filed adoption requests for each child.
Between June and October 2014, the Riverside County Probation Department interviewed J.M., A.M., S.M., and the two older children, A1 and A2, and filed reports recommending that the court grant the petitions and allow S.M. to adopt the children. (§§ 7850, 7851.) J.M. refused to consent to the adoptions, and a contested hearing on the petitions was held on February 18, 2015. Only J.M. testified at the hearing. The following facts are taken from the probation officer’s reports and J.M.’s hearing testimony.
B. A.M.’s Statements
A.M. and S.M. met and became friends around 1997 when she was working in a bar and he and his friends were patrons. A.M. and S.M. were married to others at the time and lost touch after A.M. stopped working at the bar. A.M. met J.M. in 1999 when she was in the process of divorcing her first husband; J.M. worked in a carpet store and A.M. was a customer. A.M. became pregnant with A1 three months later, and she and J.M. were married in September 1999.
J.M. was excited about the pregnancy and attended doctor’s appointments with A.M. But when A.M. was seven months pregnant with A1, J.M. was arrested for robbery. He was released on bail and entered an inpatient substance abuse program. Shortly after A1 was born in March 2000, J.M. was sentenced to 12 years in prison. He served 10 years and was released in 2010.
A.M. maintained her marriage to J.M. throughout his 10-year imprisonment. She took A1 to visit J.M. once or twice each month, and she and J.M. were allowed to stay together for two nights every three months. J.M. was “as good of a father as he could be” during his imprisonment, and A2 was born in June 2008. Toward the end of his sentence, J.M. saw A1 and A2 every week.
When J.M. was released in 2010, things were “great for two weeks, ” then his relationship with A.M. deteriorated. J.M. wanted to spend time with old friends and people he met while incarcerated and he began using methamphetamine in May 2010. In June 2010, he was acting “bizarre, ” so A.M. called the police, and gave them permission to search the home. The police found drugs in the home and jewelry that J.M. had stolen from a family friend. J.M. was arrested. This was a “turning point” for A.M., and she saw J.M. for “who he really was.”
J.M. became physically abusive to A.M. because she was rejecting him, but he was never physically abusive to A1 or A2. A.M. began having panic attacks and losing weight. A friend later told her that J.M. was “putting meth in [her] coffee.” Despite her tumultuous relationship with J.M., A.M. became pregnant with A3 in November 2010. She finally ended her relationship with J.M. in July 2011, one day before A3 was born, and filed for divorce in September 2011.
After A.M. filed for divorce, J.M. “stayed away most of the time, ” rarely visited the children, and “sporadically” gave A.M. money for the children. A.M. asked the family court to grant J.M. supervised visitation because he was acting “sketchy.” According to A.M., the visitation order allowed J.M. to visit the children for “a few hours” on the first Saturday of the month.
In June 2012, J.M. moved to Hawaii, and gave A.M. until December 2012 to decide if she wanted to live with him in Hawaii. Because A.M. believed J.M. was “making an attempt to be a part of their family” and felt she owed it to the children to “at least try, ” she spent the next six months communicating with J.M. and trying to decide if she wanted to reconcile. But during this period, J.M. only complained about “how hard things were for him” and “what a good guy he was.” He sent Christmas gifts for the children in December 2012, but A1, then age 12, refused to open the gifts or speak to J.M. when he called at Christmastime. A.M. did not allow A2, then age four, to speak to J.M. because she felt it would be “too hard.” A3 was only 18 months old in December 2012.
The probation reports state that J.M. gave A.M. until December 2013 to decide whether she wanted to move to Hawaii, but A.M. apparently meant to say that J.M. gave her until December 2012 to decide.
In January 2013, A.M. “googled” S.M., whom she had not seen in 17 years, in an attempt to reconnect with him. They met, began dating, and the children took to him right away. In early 2013, S.M. told A.M.: “If we get married, I’m going to adopt the kids.” According to A.M., “[i]t was never a question of [whether S.M.] would adopt, just when he would adopt [the children].”
Also in January 2013, J.M. told friends he was traveling to California to visit the children on A1’s 13th birthday in March 2013, and he did not intend to abide by the visitation order which limited his visits to the first Saturday of the month. A.M. was upset that J.M. was coming because she wanted to “cut off all ties” with him.
When J.M. arrived in California in March 2013, the first Saturday of the month had passed. A.M. was scared J.M. would try to visit the children anyway, because neighbors had seen him “driving back and forth” in front of A.M.’s home. Then, A.M. heard from a friend that J.M. had said she should “burn” for keeping him away from his children. In March 2013, A.M. sought a temporary restraining order (TRO) against J.M. in case he did not “leave back to Hawaii, ” and A.M. obtained a TRO against J.M. on March 15, 2013. A permanent injunction was issued on June 4, 2013.
In July 2013, A.M. and the children moved in with S.M. S.M. proposed marriage in November 2013, and he and A.M. were married in March 2014. Around Christmas 2013, J.M. attempted to contact the children, but A.M. “missed” his calls. J.M. attempted to contact A1 on her 14th birthday in March 2014, but A1 did not want to talk to him. A.M. wanted J.M.’s parental rights terminated so S.M. could adopt the children. A.M. said S.M. was an excellent provider, the children “ha[d] completely taken to him, ” and he offered A.M. the opportunity to stay home full-time and care for the children. A.M. and S.M. were unwilling to allow any of the children to visit or contact J.M. even if they wanted to.
C. Judicial Notice of the March 15, 2013, TRO Against J.M.
J.M. attended the March 15, 2013, hearing on A.M.’s TRO application. The court issued the TRO and set a mediation in May 2013. J.M. returned to Hawaii the day after the March 15 hearing, and he did not attend the May 2013 mediation or the June 4, 2013, hearing on the permanent injunction, even though he could have appeared at the mediation by telephone. As noted, the permanent injunction was issued on June 4, 2013, and is in effect until 2018. Neither the TRO nor the permanent injunction are part of the record on appeal.
S.M. has filed a motion to augment the record with a copy of the March 15, 2013, TRO issued by the San Bernardino County Superior Court in case No. FAMRS1103286. J.M. opposes the request, noting the TRO was not introduced into evidence in the trial court; only the parties’ stipulation of the “case printout” of the TRO was admitted. (Cal. Rules of Court, rule 8.155(a)(1)(A) [appellate court may augment record with document filed or lodged in superior court].) We have deemed S.M.’s request to augment the record as a request that we take judicial notice of the TRO. We grant the request and take judicial notice of the TRO. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
The “case printout” of the TRO is not part of the record or clerk’s transcript on appeal, apparently because the exhibits were returned to the parties at the close of the hearing.
J.M. claims he believed the TRO prohibited him from contacting the children “in any way” after March 15, 2013, but it is undisputed that J.M. attended the hearing on the TRO, and the TRO allowed J.M. “peaceful contact with [the] children... as required for court-ordered visitation, ” and further directed J.M. and A.M. to abide by the outstanding child custody and visitation order. As noted, the visitation order allowed J.M. to visit the children on the first Saturday of each month. And, as the trial court pointed out at the hearing on the petitions, the ostensible purpose of a May 2013 mediation, set at the time of the March 15, 2013, TRO hearing, was to allow J.M. some sort of contact with the children.
D. Additional Facts Provided by S.M.
S.M., who did not have children of his own, loved the children and “couldn’t live without them.” He had worked hard to win their trust and affection and had a strong parental relationship with each of them. He believed A1 had “suffered the most trauma with her biological father, ” and it was especially difficult for him to earn her trust. S.M. described himself, A.M., and the children as “a typical Christian family” who attended church every Sunday and took family trips together. S.M. and A.M. did not argue in front of the children.
Since S.M. became involved in the children’s lives in January 2013, through the time he was interviewed in June 2014, J.M. had not had contact with the children, nor had he provided any financial support for them. In S.M.’s view, J.M. was a “complete piece of trash who has been in and out of drug rehab, ” and if allowed to adopt the children, S.M. would “not allow [J.M.] to be a part of the children’s lives in [any] way, shape, or form.” S.M. believed J.M. had no “grasp on reality.” S.M. hid his true name from J.M. and kept the address where he, A.M., and the children resided confidential.
S.M. attended the hearing on A.M.’s application for the TRO. That day, J.M. told S.M. that, “all he wanted to do was be with his kids, ” but S.M. believed J.M. only wanted A.M. back. According to S.M., “only 10 percent of their conversation was about the kids.” J.M. was “fixated” on A.M. and would “use the kids to get to her.” When S.M. told J.M. he intended to adopt the children, J.M. “pleaded” with S.M. not to take his kids away from him.
E. J.M.’s Statements to the Probation Officer and Hearing Testimony
J.M. was interviewed by telephone on June 19, 2014, and July 2, 2014. Following his release from prison in 2010, he lived with A.M., A1 and A2 while working for the carpenter’s union. His relationship with A.M. “became tumultuous” when he began using methamphetamine. He was arrested for being under the influence of a controlled substance, was incarcerated for eight months, and upon his release his relationship with A.M. further deteriorated. He claimed he tried to be a good father and spent as much time as he could with the children before he moved to Hawaii in June 2012. He drove A1 to school every day, took the children places, and tried to have fun with them.
J.M. had two prior strike convictions in California. In January 2012, A.M. contacted the police and reported J.M. for domestic violence. When J.M. was in the police car, A.M. told him she would never rest until he spent the rest of his life in prison. The police officer released J.M. without arresting him, knowing J.M. was facing his third strike. J.M. said the officer “saved his life” by allowing him to avoid another arrest, and he promised the officer he would get “as far away from [A.M.] as possible.”
In June 2012, J.M. sold his van, gave A.M. half the money ($1,000), and bought a plane ticket for Hawaii. Other than a brief period of employment in Hawaii in December 2012, J.M. was homeless and jobless from June 2012 until the February 18, 2015, hearing on the petitions. He received $300 a month in food stamps but no cash, and he lived either on the beach in Hawaii, in rural areas “out in the bushes, ” or he “couch surf[ed].” In late 2012, he sent A.M. $300 or $400 two times and he sent Christmas gifts to the children in December 2012. He had no documentation he sent A.M. the money.
In January 2013, J.M. sold “everything [he] owned, ” and bought a plane ticket back to California, intending to see A1 on her 13th birthday. When he arrived in California in March 2013, A.M. would not allow him to see the children. He spent “three solid days” trying to see them. He attended the March 2013 “emergency hearing” on the TRO and returned to Hawaii the following day. His understanding of the TRO was that he was to have “zero contact” with A.M. and the children, including mail and telephone contact. He believed A.M. would lie and say he violated the TRO to send him to prison for the rest of his life. Because of the TRO, he had not attempted to contact A.M. or the children since March 2013.
After returning to Hawaii in March 2013, J.M. made several telephone calls to local lawyers and talked to father’s rights advocates, but they were unable to help him. He wasn’t “smart enough” to represent himself in court, and he had no money for paperwork or filing. He understood he had been given a mediation date in May 2013, and he could attend the mediation by calling the court by telephone, but he did not understand the word “mediation.” He mistakenly called the court on the wrong day, the day before the hearing, and to make the call, he had to travel around the island to use a land line. The next day, he couldn’t get to the other side of the island so he missed the mediation.
He later learned the petitions had been filed and S.M. was seeking to adopt the children. He had not supported the children since his brief period of employment in 2012 because he was unable to do so. Though he believed A.M. had bullied him since he met her, he did not want to be an “enemy” of her or S.M. and he wanted it to be noted he was “grateful” to S.M. for taking care of his children and “stepping up” when he could not. He did not want to take the children away from A.M.; he only wanted an opportunity to have some contact with them because he loved them and they meant “everything to him.”
F. A1’s Statements
A1 was 14 years old when the probation officer interviewed her in June 2014. She said she did not want to have any contact with her father, because she “waited 10 years for a perfect dad to come home and was disappointed when things did not work out.” She believed J.M. “cracked under [the] pressure, ” and she had “no desire” to mend her relationship with him. She thought of S.M. as her father and wanted S.M. to adopt her. He treated her mother with respect.
G. A2’s Statements
A2 was six years old when interviewed in October 2014. She appeared to have a clear, age appropriate understanding of the adoption proceedings. She had fond memories of her “Daddy [J.M.]” making “purple pancakes” for her and taking her to a park. She could not recall how long it had been since she had seen him, but said: “He went away to Hawaii and never came back.” She wanted to speak to him on the telephone sometimes, but A.M. would not allow her. She expressed a desire to spend time with J.M. if S.M. would let her, but she knew she would not see him again because her mother was “mad” at him.
When asked why her mother was mad, A2 said: “Because they use[d] to fight, but lots of parents fight.” She said she would be “kind of sad” if she could not see J.M. anymore, and her demeanor then changed from joyful to somewhat somber. She understood the meaning of adoption, and said she would be happy if S.M. adopted her because he took them places and got them ice cream. She did not want to attend the hearing on the petitions. A3 was not interviewed; he was two years old in June 2014.
H. The February 18, 2015, Hearing on the Petitions
S.M. represented himself at the hearing and J.M. and the children were represented by appointed counsel. After calling J.M. to testify, S.M. submitted the probation reports in evidence and a document showing J.M. owed $20,000 in back child support. In closing statements, minors’ counsel told the court that A2 spoke to him very differently than she spoke to the probation officer, and said she did not want to visit J.M.
At the close of the hearing, the court found by clear and convincing evidence that J.M. left the children with the intent to abandon them for more than one year. (§ 7822, subd. (a)(3).) The court pointed out that when J.M. moved to Hawaii in June 2012, a divorce petition had been filed but J.M. made no attempt before he left to obtain a visitation order that “would work” for him. The court discredited J.M.’s claim that he moved to Hawaii because he feared A.M. would have him sent to prison in California, saying “that sounds more like coming up with an excuse than what it really was.... [W]hat it looks like is you just wanted to get away.... [A]nd you chose Hawaii, and that was your choice.” The court noted J.M. could have moved somewhere closer to the children, where he could have stayed in contact with the children while removing himself from the “volatile situation” with A.M.
The court further found that when the TRO was issued in March 2013, J.M. must have known that “the whole purpose” of the May 2013 mediation was to allow him “some contact with the children, ” but he “called [the court on] the wrong day, ” then he “didn’t do anything else. And that was back in 2013.” (Italics added.) Then, J.M. didn’t get involved again until the petitions were filed in May 2014, and he “got involved not because [he] wanted to” but because the petitions were filed. The court granted the petitions after acknowledging that, though J.M. loved the children, he willfully intended to abandon them, abandoned them for more than one year, and terminating his parental rights was in the best interests of the children. J.M. appealed.
III. DISCUSSION
J.M. claims insufficient evidence supports the trial court’s factual determination that he left the children in the care and custody of A.M. for at least one year, without providing for their support and with the intent to abandon them. (§ 7822, subd. (a)(3).) He claims he supported the children to the best of his ability by making two $400 payments to A.M. in December 2012, and after that time S.M. and A.M. “actively thwarted ” his attempts to communicate with the children.
A. Applicable Law and Standard of Review
The Family Code permits a court to declare a child under the age of 18 years to be free from the custody and control of a parent when the parent has abandoned the child. (§§ 7820, 7822.) A declaration of freedom from custody and control terminates all of the parent’s parental rights and responsibilities to the child. (§ 7803.)
A parent abandons his or her child when the 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); In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 500.) “‘“‘[T]o 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.’”’ [Citation.]” (In re E.M. (2014) 228 Cal.App.4th 828, 839.) The intent to abandon need not be permanent; it is sufficient if the parent intended to abandon the child for the statutory period. (In re Amy A. (2005) 132 Cal.App.4th 63, 68.) The parent’s failure to support or communicate with the child is presumptive evidence of the intent to abandon. (§ 7822, subd. (b).) If the parent has “made only token efforts to support or communicate with the child” during the statutory period, the court may properly declare the child abandoned. (Ibid.)
The questions of physical abandonment and intent, including whether the statutory presumption has been overcome, are questions of fact for the trial court to resolve. (Adoption of Oukes (1971) 14 Cal.App.3d 459, 466.) The trial court’s findings must be supported by clear and convincing evidence. (§ 7821; In re Amy A., supra, 132 Cal.App.4th at p. 67.) On appeal, our task is to determine whether the record contains substantial evidence to support the trial court’s determinations. (In re E.M., supra, 228 Cal.App.4th at p. 839.) In determining whether substantial evidence supports the court’s findings, we do not resolve conflicts in the evidence or pass on the credibility of witnesses. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing the evidence is insufficient to support the findings. (In re E.M., supra, at p. 839.)
B. Analysis
In support of his claim that insufficient evidence supports the trial court’s findings, J.M. points to evidence he claims shows he did not intend to abandon the children. But J.M. disregards the precept that, on appeal, all evidence must be viewed in favor of the court’s factual findings and orders. (In re E.M., supra, 228 Cal.App.4th at p. 839.) J.M. emphasizes, for example, that when he moved to Hawaii in June 2012, he gave A.M. $1,000, half the money from the sale of his van, and A.M. admitted he was “making an attempt” to be “part of their family” through December 2012, when he sent A.M. two payments of $300 to $400, sent Christmas gifts to the children, and tried to contact the children. He also argues he moved to Hawaii, not with the intent of abandoning the children, but because A.M. threatened to have him sent to prison for the rest of his life, and he feared staying in California.
None of J.M.’s arguments undermine the substantial evidence supporting the trial court’s findings. As indicated, section 7822 allows a child to be declared abandoned if the parent has “made only token efforts to support or communicate with the child” during the statutory period. (§ 7822, subd. (b); In re E.M., supra, 228 Cal.App.4th at p. 838.) And here, the record clearly shows that J.M. made no more than token efforts to support and communicate with the children after he moved to Hawaii in June 2012 and continuing through the time of the February 18, 2015, hearing on the petitions.
With the exception of a brief period of employment in December 2012, J.M. spent his time in Hawaii being unemployed, homeless, and “couch diving, ” after he left A.M. in California to support the children, on her own, beginning in June 2012. His two $400 payments to A.M. in December 2012 were, at best, “token” efforts to support the children. We also disagree with J.M.’s claim that there was “no evidence” he was able to support the children more than he did. He was employed in a carpet store when he met A.M. in 1999, and he worked as a carpenter following his 2010 release from prison. There was no evidence he was unable to be regularly employed between 2012 and 2014. To the contrary, substantial evidence also shows he “chose” to move to Hawaii in June 2012, where he chose not to be regularly employed or support the children except for the two token payments he made to A.M. in December 2012.
The record also shows that J.M. made no more than token efforts to communicate with the children after he moved to Hawaii in June 2012. As the court pointed out, J.M. made no attempt to secure a visitation order that “would work for him” before he moved to Hawaii in June 2012, though A.M. had filed for a divorce in September 2011. J.M. also made no serious effort to visit or stay in contact with the children after the TRO was issued on March 15, 2013. As the court pointed out, he attended the March 15, 2013, hearing on the TRO, and therefore must have known that the “whole purpose” of the May 2013 mediation, set at the TRO hearing, was to allow him “some contact with the children.” He claims he missed the May 2013 mediation because he called the court on the wrong day, but the record shows his failure to attend the mediation by telephone was due to circumstances of his own choosing: specifically, his choice to live “out in the bushes” in Hawaii.
And contrary to his professed belief he was not allowed to contact the children after the TRO was issued on March 15, 2013, the TRO did not, in fact, prohibit J.M. from contacting the children in any way; to the contrary, it allowed him to visit the children pursuant to a visitation order, that is, on the first Saturday of every month. (Cf. In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 504 [“a parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively ‘taken’ from the parent by court order”].) Substantial evidence also shows that J.M.’s failure to make any effort to communicate with the children after March 15, 2013, was not due to the TRO. Nor was it due to efforts on the part of A.M. and S.M. to “actively thwart” his efforts to visit the children. Instead, the record shows that his failure to visit or communicate with the children after March 15, 2013, resulted from his own choices, including his choice to live in Hawaii-willfully unemployed and incommunicado-despite his physical and legal ability to stay in contact with the children and make a reasonable effort to support them.
IV. DISPOSITION
The orders terminating J.M.’s parental rights are affirmed.
We concur: McKINSTER Acting P. J., MILLER J.