Opinion
G056141
11-20-2018
ADOPTION OF C.R., a Minor. D. R., Plaintiff and Respondent, v. J.R., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Paul A. Swiller, under appointment by the Court of Appeal, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17AD000119) OPINION Appeal from an order of the Superior Court of Orange County, James L. Waltz, Judge. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Paul A. Swiller, under appointment by the Court of Appeal, for Plaintiff and Respondent.
D.R. (Mother) filed a petition to terminate J.R.'s (Father) parental rights to their child, C.R., under Family Code section 7822. Father appeals the trial court's order granting Mother's petition, claiming he overcame the presumption he intended to abandon C.R. His contention lacks merit, and we affirm the order.
All further statutory references are to the Family Code. --------
FACTS
Mother and Father were married in 2009. C.R. was born in 2010. The couple separated in 2012, when Mother allegedly discovered Father was growing and selling marijuana. The couple reconciled in 2014, after Father was briefly incarcerated. Father lived with Mother and C.R. from September 2014 until April 2015.
Police arrested Father on April 16, 2015. Father remained in jail through the conclusion of the underlying trial. The trial court granted Mother sole legal and physical custody of C.R. Pursuant to a temporary restraining order issued on April 20, 2015, Father had no visitation with C.R. Mother started dating another man, Matthew G., at about the same time.
In May 2017, Mother petitioned the trial court to terminate Father's parental rights (petition). Mother and Matthew G. married in July 2017. That same month, Matthew G. filed an adoption request to adopt C.R.
Prior to trial, in response to questions posed by the court investigator, Father testified being incarcerated and the temporary restraining order made communicating with or supporting C.R. impossible. He also said he wrote C.R. letters but could not send them. Father said he felt sad about not having visitation or communication with his son. The court investigator's report for freedom from parental custody and control noted C.R. expressed his wishes to be adopted by Matthew G. It also stated C.R. did not want to see Father or live with him, and he remembered Father was mean. The report recommended granting Mother's petition.
At trial, Mother testified Father had not asked to have contact with C.R. and never filed court documents requesting any contact. Mother further described Matthew G.'s relationship with C.R., stating C.R. called Matthew G. "dad" and explained how Matthew G. taught C.R. how to swim and play baseball, and has been C.R.'s role model for half his life.
Matthew G. told the court he was a fatherly figure to C.R. He said he would wake up C.R., make him breakfast, take him to school, pick him up, take him to activities, and put him to bed.
Father stated when he lived with Mother and C.R., he cared for his son by taking him to school, taking him to amusement parks, riding bikes, and going to the park. Father said he wrote multiple letters to C.R. while he was incarcerated, but could not send them due to the restraining order. Father also stated he contacted legal organizations for assistance with his case. Father could not provide precise dates when he contacted the organizations. The evidence showed one organization responded to an inquiry, stating they did not represent incarcerated fathers and providing alternate options for legal services. Father told the court he completed a parenting class while incarcerated. Father admitted he had not spoken with C.R. since April 2015.
Father testified he was not aware that on July 21, 2017, the restraining order was amended to allow peaceful contact between Father and Mother to facilitate visitation. Father admitted he was served with an amended restraining order issued on July 21, 2017. Father also stated he asked his attorney to assist with visitation but received no help. Father admitted he did not utilize the court system to try to communicate with his son or ask for visitation rights.
Father's former criminal defense attorney testified he did not make any court filings to request visitation or communication with C.R. Attorney-client privilege prohibited the attorney from answering whether Father had ever requested such a filing. The attorney further stated Father asked about contacting his son, but the attorney advised him he could not contact C.R. at that time due to the pending restraining order. The attorney advised Father he was not a family law attorney and that Father should seek the help of a family law attorney regarding any filings in family court.
The trial court determined Father's willful inaction supported a finding he voluntarily left C.R., beginning in April 2015: "The trial record overwhelmingly supports [Father's] pattern of voluntary inaction while otherwise having the means and opportunity to do something toward amending the [temporary restraining order] and seeking some kind, any kind of contact with [C.R.]." The court noted "[a]fter April 2015 and while having the means to do so, [Father] undertook no action whatsoever to modify the family law temporary restraining order to allow some contact (in writing or telephone calls) with [C.R.]." It further observed Father was "intelligent, articulate, knowledgeable, outspoken, mentally fit and willing and proficient and capable of self-expression." "Further, at all times, [Father] was represented by a capable retained attorney representing [Father] in the family law [restraining order] action and for a time, the criminal case . . . [the attorney] testified and never told this judge [Father] ever asked him to file any motion and seek to modify the [restraining order.]."
The court considered Father's admission he had not communicated with C.R. since April 2015, as well as his failure to attempt to modify the restraining order to allow contact. Ultimately, the court terminated Father's parental rights: "[Father's] prolonged period of willful inaction . . . demonstrates [Father's] voluntary abandonment of [C.R. and] provides clear and convincing evidence that [Father] voluntarily surrendered his parental role and left (abandoned) [C.R.] within the meaning of section 7822." The court determined terminating Father's parental rights was in C.R.'s best interests.
DISCUSSION
The trial court concluded Father abandoned C.R. by failing to communicate with him for nearly three years. Under section 7822, a trial court may terminate parental rights where a parent has abandoned the child. To determine abandonment, the court considers whether 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).)
A finding of abandonment must be supported by clear and convincing evidence. (§ 7821.) On appeal, however, we decide if there is substantial evidence to support the trial court's finding of abandonment. (Adoption of Oukes (1971) 14 Cal.App.3d 459, 466.) "Under the substantial evidence standard of review, "'[a]ll conflicts in the evidence must be resolved in favor of the respondent[] and all legitimate and reasonable inferences must be indulged in to uphold the judgment.'" [Citation.] Abandonment and intent "'are questions of fact for the trial judge . . . . His [or her] decision, when supported by substantial evidence, is binding upon the reviewing court. 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].'" [Citation.] 'The appellant has the burden of showing the finding or order is not supported by substantial evidence.' [Citation.]" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010-1011 (Allison C.).) If the court finds abandonment, then it must consider the child's best interests before deciding whether to terminate parental rights. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 156 (Neumann).) I. Father Left C.R. Within the Meaning of Section 7822
As an initial matter, Father claims insufficient evidence supported the trial court's determination he left C.R. in Mother's care for at least one year. He argues the term "left" in section 7822 connotes voluntary action and "he did not voluntarily physically separate from his child but rather was involuntarily incarcerated." We note that "being incarcerated does not, in and of itself, provide a legal defense to abandonment of children." (In re Rose G. (1976) 57 Cal.App.3d 406, 424 (Rosie G.).) Contrary to Father's argument, the actions resulting in his incarceration were voluntary. (Allison C., supra, 164 Cal.App.4th at p. 1012.) This was sufficient for a finding Father voluntarily surrendered C.R.'s custody and care to Mother, beginning in April 2015 when Father was incarcerated for a second time. II. Father Failed to Rebut The Presumption He Abandoned C.R.
Father concedes he had no contact with C.R. from April 2015 to March 2018. This time period of nearly three years exceeds the one-year period required by section 7822 for a finding of abandonment. A presumption of abandonment arose, and Father had the burden to introduce evidence to contradict his intent to abandon C.R. (Rose G., supra, 57 Cal.App.3d at pp. 423-424.)
Father failed to rebut the presumption of abandonment. He argues substantial evidence demonstrated he wished to remain a father to C.R. He stated he was sad he did not have communication with his son. He testified he wrote a number of undelivered letters to C.R. and took parenting classes. He contends this was sufficient evidence to rebut the presumption of abandonment. He claims he did not "idly sit back and do nothing, but reached out in the only way he could from behind cell walls."
Father blames the restraining order for his inability to contact C.R. The record is devoid, however, of any attempt by Father to seek to amend the restraining order to allow for visitation or communication with C.R. So while Father was restrained from having contact with C.R., he was not restrained from trying to change the order.
Father argues the trial court's decision imposes additional burdens on incarcerated parents because his "intent to abandon was proven by the fact that he did not amend the restraining order." We disagree. The court's decision was premised upon Father's sustained pattern of voluntary inaction to take any steps towards regaining contact with C.R. The court did not require Father to have successfully challenged the restraining order or obtained visitation with C.R. Instead, the court determined Father's complete inaction to attempt to seek visitation or communication with C.R. for nearly three years demonstrated an intent to abandon the child. Furthermore, the court considered the facts that Father was mentally fit, intelligent, articulate, and represented by a capable attorney in both his civil restraining order matter as well as in his criminal case.
In assessing abandonment based on failure to communicate, courts look to the quantity and quality of parent and child communications and the genuineness of the parent's efforts to maintain the relationship. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212 (B.J.B.).) So while intent to abandon involves a subjective inquiry, the intent finding may be based on "objective measurement of conduct, as opposed to stated desire." (Rosie G., supra, 57 Cal.App.3d at p. 424.) Under this standard, a parent who honestly intends to maintain a relationship with the child, but does nothing to implement their desire, can be found to have the intent to abandon the child. (See B.J.B., supra, 185 Cal.App.3d at p. 1212.)
Case law cited by Father does not support his position. He relies on In re T.M.R. (1974) 41 Cal.App.3d 694 (T.M.R.), for the proposition an incarcerated parent who makes meaningful efforts to maintain a relationship with the child does not necessarily forfeit his or her parental rights. While we agree with the underlying statement of law, Father's case does not rise to the level of communication found in T.M.R. There, the Court of Appeal reversed the trial court's finding of abandonment. (Id. at p. 705.) The case involved an incarcerated mother who "communicated with her children on a frequent, regular and continuing basis, commencing such communications immediately after she was deprived of their custody and long prior to the commencement of the instant action." (Id. at p. 698.) Indeed, the evidence showed the mother wrote to her children twice a month, even though her children were too young to read. (Id. at pp. 698-699.) The court determined there was "no evidentiary support for the trial court's finding that defendant abandoned her children by failing to communicate with them after she was deprived of their custody." (Id. at pp. 699-700.)
Unlike T.M.R., here, Father admits he had no communication with C.R. for a period of nearly three years. To rebut the presumption he intended to abandon C.R., he points to evidence he thought about C.R. while in jail, wrote undelivered letters to him, contacted legal organizations for assistance with his case, and attended a parenting class in prison. He provides no evidence he attempted to amend the restraining order to allow visitation or communication with C.R., either on his own or with an attorney. This was insufficient to carry Father's burden of rebutting the presumption of his intent to abandon C.R.
Father failed to take any objective steps to facilitate communication with C.R. for nearly three years. We find no error with the trial court's determination. III. Terminating Father's Parental Rights Was in C.R.'s Best Interests
Father argues even if the trial court properly made a finding of abandonment under section 7822, the petition should have been denied because it was not in C.R.'s best interests. Mother contends his argument is without merit. We agree with Mother.
"Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child. [Citation.] Typically, such statutes are invoked for the purpose of terminating the rights of one or more biological parent, so the child may be adopted into a stable home environment. [Citations.] In any event, the best interests of the child are paramount in interpreting and implementing the statutory scheme. [Citation.] Indeed, our Legislature has declared that the statutory scheme 'shall be liberally construed to serve and protect the interests and welfare of the child.' (§ 7801.) It further directs that the trial court 'shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child.' (§ 7890, italics added.) [¶] We recognize, as well, that '"[t]he relationship of a natural parent to [his] child[ ] is a vital human relationship,'" with far-reaching implications for the child's growth and development. [Citation.] (Neumann, supra, 121 Cal.App.4th at pp. 162-163.)
The trial court's determination that termination of Father's parental rights was in C.R.'s best interests is fully supported by the record. C.R. had no relationship with Father since the age of four years old. In contrast, C.R. became bonded to Matthew G., who was his father figure for nearly half of his life. The evidence showed C.R. himself wanted the adoption, viewed Matthew G. as his "dad" and thrived in Matthew G.'s care. Conversely, C.R. did not wish to visit with his Father, and had bad memories of him.
The court fully considered C.R.'s interests in its statement of decision, "[t]erminating [Father's] parental rights is in [C.R.]'s best interests and will allow the minor to be adopted by Matthew [G.] who has undertaken [C.R.]'s care and provided a fatherly figure for [C.R.] for the past 3 years. [¶] [C.R.] should not be forced to wait for [Father] to get his life together . . . . " We find no error.
DISPOSITION
The order is affirmed.
O'LEARY, P. J. WE CONCUR: ARONSON, J. THOMPSON, J.