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Adoption of K.R.

California Court of Appeals, Fifth District
Sep 2, 2008
No. F053471 (Cal. Ct. App. Sep. 2, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Tulare County. No. 04-0006007 Valeriano Saucedo and William Silveira, Judges.

Judge Saucedo determined that parental consent to the adoption was necessary; Judge Silveira denied the petition to declare the minor free of parental custody and control.

Jean Bourn for Plaintiff and Appellant.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Appellant.

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Respondent.


OPINION

VARTABEDIAN, Acting P. J.

K.R. was born in July of 1995. Her biological father, Nick C., was no longer living with K.R.'s mother, C.W., when K.R. was born. C.W. married J.W. after K.R. was born. J.W. filed a stepparent adoption request and a petition to determine the necessity of parental consent in September 2004. The court determined that Nick's consent was necessary before an adoption could proceed under Family Code section 8604. J.W. then filed a petition to declare K.R. free from Nick's parental custody and control, claiming that Nick had abandoned K.R. In June of 2007, the court found that J.W. had not proved by clear and convincing evidence that Nick intended to abandon K.R. and denied the petition to terminate Nick's parental rights.

Although documents filed in this proceeding use the name “Nicholas,” it appears from the record that “Nick” is respondent’s true name

J.W. and K.R. have separately appealed, claiming the evidence did not support the trial court's finding that Nick did not intend to abandon K.R. In addition, J.W. argues findings from a previous proceeding from which he did not appeal and claims the court proceeded under the wrong code section. We affirm.

FACTS AND PROCEEDINGS

Nick met C.W. in October of 1993 at a wedding. At that time Nick was in the Army. Nick and C.W. communicated with each other by letter and telephone until he returned in February 1994. Nick moved to Visalia in August of 1994 and began living with C.W. in an apartment. During that time they often visited C.W.’s mother and her grandmother, who also lived in Visalia. In November of 1994, Nick moved to Orange County for a job; C.W. went with him.

When they moved, C.W. told Nick she had missed a menstrual period. C.W. moved away from Orange County in January of 1995. At that time, she was not obviously pregnant. Nick stayed in the apartment for several months and then moved in with his parents in Fullerton, California. C.W. knew where he was but did not call him or give him any information to contact her.

C.W. called Nick two times after she left him. In the first telephone call, she wanted to make sure that she had been released from their apartment rental agreement. During the second telephone call, C.W. told Nick to not come looking for her. She told him that if he came looking for her she had family members who would physically harm him. He took the threat seriously, knowing that she had family members who had been in jail and were capable of doing physical violence.

C.W. testified that she left Nick because he was physically and verbally abusive to her. She told Nick immediately when she found out she was pregnant. C.W. left Nick and moved in with her mother in Visalia. Her mother supported her until C.W. was able to obtain aid to families with dependent children benefits before K.R.'s birth. Nick did not call her during her pregnancy, but she did have contact with some of Nick's relatives.

In April of 1995, before K.R. was born, the County of Tulare filed a complaint, listing "Nicholas" as the defendant, to establish a parental relationship and child support in case No. 95-11437.

By order dated October 23, 2007, we granted K.R.'s request to augment the record with the case files from Tulare County in case Nos. 95-11437 (county action to establish a parental relationship and child support), 97-177858 (C.W.'s action for sole legal and physical custody filed in 1997), and 98-4951 (petition for adoption by J.W. in 1998).

K.R. was born in July of 1995. According to C.W., Nick called her the day after she got home from the hospital. He asked about the baby. C.W. testified that during that call she threatened him and told him if he ever touched her again he would have to go toe-to-toe with her brother. Nick asked her if that was a threat and she said, "Yes it is. You understand?"

A default judgment was entered on November 21, 1996, establishing that "Nicholas" is the parent of K.R. In addition, Nick was ordered to pay $321 in child support, $300 a month in support arrearages, and provide health insurance coverage for K.R.

Nick received a call in 1996 regarding a baby with a last name he did not recognize (K.R.'s grandmother's maiden name) and involving a “Nicholas.” Nick was served with a default judgment and called family services asking for a paternity test. He was tested in January of 1997; in July of 1997, he obtained the results showing that he was K.R.'s biological father. Nick added K.R. to his health insurance and sent an insurance card to C.W. through child support services because he did not have K.R.'s address. The card was returned to Nick's mother's address in an envelope with no return address. Nick left his job in March of 1997 and was out of work except temporary work until 1999.

On March 4, 1997 C.W. filed a complaint against Nick requesting sole legal and physical custody of K.R. In the petition C.W. stated that Nick had left K.R. without any means of support and with the intent to abandon K.R. This complaint, in case No. 97-177858, was never served on Nick.

Nick met his current wife in 1996. They had a baby in 1998 and also got married that year. They had another baby in 2000. In addition, Nick has a child born prior to K.R. that he pays child support for. Nick's wife was the main support for the family. In 1999 she was pregnant when she fell and she had to spend the rest of her pregnancy on bed rest. In 2001 she was in an automobile accident and suffered a back injury. This affected her ability to work in 2001 and 2002. Nick began making support payments for K.R. in 1999.

J.W. started dating C.W. in November of 1996. They moved in together in May of 1997. He provides emotional and financial support to K.R. and holds her out to be his daughter. She calls him dad.

Nick stayed out of K.R.'s life and did not contact her because he had been threatened by C.W. with physical harm from her family members. Also, Nick did not want to step in earlier because he thought it would be better to wait until K.R. could understand the situation.

After several years Nick made efforts to find C.W. through home directories, telephone books, internet searches and asking the county. His efforts were fruitless. While still living in the Los Angeles area, Nick tried to hire a paralegal to assist him in establishing visitation with K.R., but the paralegal he hired was not legitimate. He, his wife, and their two children moved to Visalia and shortly thereafter, on June 24, 2004, Nick filed an order to show cause for modification of child custody, visitation, and child support. In addition, Nick requested that the Department of Motor Vehicles release his driver's license. In the request, he claimed that C.W. told him she did not want him to have anything to do with K.R. or with her. Nick decided to wait until K.R. was older before he attempted to initiate and establish a relationship with her. He asked for visitation to begin at once a month. This request was filed in case No. 95-11437, the previous action initiated by the government finding paternity and ordering support.

On September 1, 2004, J.W. filed an adoption request in case No. 04-0006007 (06007) asking the court to end the parental rights of Nick and allow J.W. to adopt K.R. The request alleged that Nick had not contacted K.R. for one year pursuant to Family Code section 8604. On that same date, J.W. filed a petition to determine the necessity of parental consent and sought an order that Nick's consent was not necessary for the adoption to proceed.

"A finding pursuant to [Family Code] section 8604 permits an adoption to proceed without the absent parent's consent and over that parent's objection." (In re Marriage of Dunmore (2000) 83 Cal.App.4th 1, 5.) Family Code section 8604 facilitates adoptions, while Family Code section 7822 makes abandonment an independent ground for termination of parental rights. (Dunmore, supra, at p. 4.)

A hearing was held on October 15, 2004, to determine the necessity of consent of the biological father before J.W. could adopt K.R. At the hearing J.W.'s counsel asked the court to find that consent was not necessary and to set the matter for a hearing to terminate Nick's parental rights. Counsel stated that K.R. is nine years old and does not know that Nick exists.

Counsel for Nick argued that the record shows that Nick has supported K.R. for years, has had the child secreted from him, and has been threatened to not have contact with her. In addition, he has tried to seek the whereabouts of K.R. Nick pointed out that it was not until after he served his papers seeking to have visitation that the papers were filed by J.W. to determine whether Nick's consent was required before J.W. could adopt K.R.

J.W.’s counsel argued that Nick had made no effort until June of 2004 to establish a relationship with K.R.; he is therefore not a presumed father and his consent is not necessary. The court questioned whether an evidentiary hearing should be held before the court determined the need for consent. Counsel for Nick replied that it was within the discretion of the court to determine the necessity for consent; if consent was not required, then the question would be whether Nick's rights should be terminated, "and that would be where the evidentiary hearing is held." J.W.’s counsel agreed that was how the matter should proceed.

The court found that Nick's consent was necessary for the completion of the adoption. In addition, the court ordered that if J.W. should choose to file a petition to terminate Nick's parental rights, he should do so forthwith. An appeal was not taken from this order.

On October 27, 2004, J.W. filed a petition to declare K.R. free from the parental custody and control of Nick and to terminate Nick's parental rights. He alleged that Nick left K.R. in the care and custody of C.W. for a period of over nine years and has never seen or spoken to K.R. In addition, he claimed Nick has never voluntarily provided support for K.R.

The matter proceeded in case No. 06007 with numerous hearings held trying to determine if and when K.R. should be told that Nick and not J.W. is her biological father. On March 21, 2006, the court found that a report should be prepared pursuant to Family Code section 7851. The court framed the issue as whether the court should declare that Nick had abandoned K.R. The court ordered that an attorney be appointed to represent the interests of K.R.

At the time this proceeding was instituted, Family Code section 7822 provided in pertinent part: “(a) A proceeding under this part may be brought where the child has been left without provision for the child’s identification by the child’s parent or parents or by others or has been left by both parents or the sole parent in the care and custody of another for a period of six months or by one parent 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 or parents, with the intent on the part of the parent or parents to abandon the child. [¶] (b) The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. 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 or parents.”

Tulare County Family Court Services submitted a report pursuant to Family Code section 7851. The social worker concluded that it did not appear that Nick intended to abandon K.R. by his failure to communicate pursuant to Family Code section 7822 and recommended that the petition for termination of Nick’s parental rights not be granted.

At the evidentiary hearing to determine if Nick had intent to abandon K.R., Nick testified to the facts as previously set forth, including that C.W. threatened him to stay away from K.R., that he had tried to locate K.R., and that he had paid support for several years. He testified that after he filed his request for visitation in 2004, he was given a letter from the county with a telephone number to call because C.W. wanted him to call K.R. Nick called and left a message. C.W. called him back and said he would never see or speak to K.R. and not to call her anymore. Nick testified he had never been abusive towards C.W. when they were together. Nick wants K.R. to be a part of his family.

Nick's cousin, Trisha, testified at the hearing. In addition to being related to Nick, Trisha's daughters are C.W.'s cousins. Trisha testified that Nick had asked her about K.R. but he never asked her where K.R. lived. Trisha testified that C.W. did not want Nick to see K.R., did not want Nick around, and did not want K.R. to know Nick.

C.W. testified to the facts as previously set forth, including that Nick was verbally abusive to her, that she told Nick immediately when she knew she was pregnant, that Nick did not call her during her pregnancy, and that she had threatened Nick. She testified that J.W. acts as K.R.'s dad. She testified that she never authorized the county to release information to Nick. She wanted Nick away from her and she did not want him to have anything to do with her or K.R.

After receiving written arguments in the case, the court issued a statement of intended decision. After holding a hearing on objections to the statement of decision, the court filed its statement of decision on June 1, 2007.

The court proceeded pursuant to Family Code section 7822. The court found that the evidence did not place either of K.R.'s biological parents in a favorable light. The court found ample evidence that Nick attempted to avoid paying child support. On the other hand, the court found that C.W. had a deep and abiding dislike for Nick and that she made no effort to inform Nick of K.R.'s whereabouts and actively discouraged contact when he spoke to her. The court found no evidence that Nick was physically abusive to C.W. The court found that Nick made only token efforts to find K.R. prior to 2004. The court described its interview with K.R. and said she regards J.W. as her father and desires to be adopted by him.

The court came to the following conclusion: “Has sufficient evidence been presented to the Court to establish the presumption of Family Code Section 7822(b)? Of course it has. Clearly, Respondent [Nick] failed to communicate with this child for a period in excess of one year. That is not sufficient for this Court to declare that K.R. was abandoned by him. Is that sufficient for this Court to declare that K.R. was abandoned by him? No. As established by [Neumann] v. Melgar (2004) 121 Cal.App.4th 152, abandonment, including intent to abandon, must be provided by clear and convincing evidence. This, the Petitioner [J.W.] has not established. Respondent did seek to avoid paying child support, but ultimately paid it. Respondent did not make strong efforts to communicate with the child given his knowledge as to the severity of C.W.’s dislike of him and the effect he thought it might have on his relationship with the child, but he finally made belated efforts to do so. In short, intent to abandon has not been proved by clear and convincing evidence.”

J.W. and K.R. filed an appeal from the judgment finding that the evidence did not establish that Nick had intent to abandon K.R.

DISCUSSION

I. Failure to Appeal from Order Requiring Consent

Family Code section 8604 provides that except in certain circumstances "a child having a presumed father under Section 7611 may not be adopted without the consent of the child's birth parents, if living."

J.W. filed a petition to determine the necessity of consent of Nick to the stepparent adoption, claiming that an exception was met in Family Code section 8604 and that the adoption could go forward without Nick's consent. On October 15, 2004, the court found that Nick's consent was necessary to go forward with the adoption. J.W. did not appeal from this order.

J.W. now contends (1) the trial court erred in finding that Nick's consent was necessary, (2) his appeal of this issue is timely, and (3) the trial court erred in not holding an evidentiary hearing to determine Nick's parental status.

Family Code section 7669 provides in pertinent part: “An order requiring or dispensing with a father’s consent for the adoption of a child may be appealed from in the same manner as an order of the juvenile court declaring a person to be a ward of the juvenile court and is conclusive and binding upon the father. [¶] After making the order, the court has no power to set aside, change, or modify that order.”

J.W. asserts that a juvenile becomes a ward of the court upon disposition of his or her case. He contends that final disposition in the instant case was when the trial court filed its decision on June 1, 2007, finding that Nick did not have intent to abandon K.R.

A minor is adjudged a ward of the court at a disposition hearing. (Welf. & Inst. Code, § 725.) A disposition order is an appealable order. (In re James J. (1986) 187 Cal.App.3d 1339, 1341-1342.)

We do not read Family Code section 7669 in the same manner as J.W. The statute intends to make the order requiring or dispensing with consent immediately appealable, just as an order adjudging a minor a ward of the court is appealable. Because the order concerning consent is an immediately appealable order, a later appeal is untimely regarding the issue of whether the party must consent to the adoption. To hold otherwise would run counter to the principles of expediency underlying the juvenile laws and the family court laws. Although an order at a disposition hearing in a juvenile wardship case is appealable, it is not the final disposition of the case. The court retains jurisdiction over the ward until he or she attains a certain age, and can change, modify, or set aside orders after the disposition order. (In re Allen N. (2000) 84 Cal.App.4th 513, 515.) The disposition order is interlocutory and the juvenile law allows appeals from interlocutory orders. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1251.) Thus, the statement in Family Code section 7669 that an appeal from an order regarding the necessity of consent may be taken in the same manner as an order of the juvenile court declaring a person a ward of the court means that a consent order is an appealable interlocutory order. In addition, to follow J.W.'s interpretation of the statute would prolong adoption proceedings, contrary to the purpose of adoption laws to give children stability as early as possible.

Next, J.W. argues that when the court found that consent was necessary it had not determined Nick's status in the proceeding and without a determination that Nick had standing as a presumed father the matter should not have moved forward. Again, J.W. did not appeal from the court’s order finding that consent was necessary and has thus forfeited his right to now challenge whether it was properly established at the hearing that Nick was a presumed father.

II. Proper Code Section for the Termination

J.W. contends this action should have proceeded under Family Code section 7664, where the consideration is whether it is in the best interest of the child that the father retains his parental rights, rather than Family Code section 7822, where the issue is whether the father had an intent to abandon the child. The main basis of his argument is that Nick's parental status was not established by Nick’s coming forward voluntarily, but was established by a government complaint.

He argues, “This is the issue that caused confusion in the trial court. If the Family Support’s action is sufficient to elevate the status of an alleged father, then Family Code section 7822(b) or even Family Code section 8604 may have been the applicable code to proceed under. However, if the Family Support’s action created a new status for alleged fathers such as a legal father, then the trial court should have proceeded under Family Code section 7664(b) .” (Underscoring in original.)

"A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status as defined in Civil Code section 7004. [Citations.] A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an 'alleged' father. [Citation.]" (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)

Nick's biological paternity was established; he was thus not an "alleged" father and the matter proceeded properly under Family Code section 7822. In addition, J.W. specifically filed his action regarding consent under Family Code section 8604; he should not be allowed another chance for the court to find that consent is not necessary pursuant to Family Code section 7664. We note that it was not until December 1, 2006, that J.W. suggested in a supplemental trial brief that the matter should proceed under section 7664 and acknowledged the case was a "procedural mess" based in large part on his original petition filed pursuant to Family Code section 8604.

Family Code section 7664 provides: “(a) If, after the inquiry, the natural father is identified to the satisfaction of the court, or if more than one man is identified as a possible father, each shall be given notice of the proceeding in accordance with Section 7666, unless he has been served with a written notice alleging that he is or could be the natural father of the child to be adopted or placed or relinquished for adoption and has failed to bring an action pursuant to subdivision (c) of Section 7630 to declare the existence of the father and child relationship within 30 days after service of the notice or the birth of the child, whichever is later. If any of them fails to appear or, if appearing, fails to claim parental rights, his parental rights with reference to the child shall be terminated. [¶] (b) If the natural father or a man representing himself to be the natural father claims parental rights, the court shall determine if he is the father. The court shall then determine if it is in the best interest of the child that the father retain his parental rights, or that an adoption of the child be allowed to proceed. The court, in making that determination, may consider all relevant evidence, including the efforts made by the father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child. If the court finds that it is in the best interest of the child that the father should be allowed to retain his parental rights, it shall order that his consent is necessary for an adoption. If the court finds that the man claiming parental rights is not the father, or that if he is the father it is in the child's best interest that an adoption be allowed to proceed, it shall order that that person's consent is not required for an adoption. This finding terminates all parental rights and responsibilities with respect to the child. Section 3041 does not apply to a proceeding under this chapter. [¶] (c) Nothing in this part changes the rights of a presumed father under Section 7611.”

III. Substantial Evidence of No Intent to Abandon

"A proceeding declaring a child free of parental custody and control because of his abandonment serves as a substitute for parental consent. [Citations.]" (Scott v. Family Ministries (1976) 65 Cal.App.3d 492, 502.) "We apply a substantial evidence standard of review to the trial court's findings. [Citation.] We apply this standard keeping in mind that in a section 7822 proceeding all of the trial court's findings must be made by clear and convincing evidence. [Citation.]" (In re Amy A. (2005) 132 Cal.App.4th 63, 67.)

A proceeding under Family Code section 7822 to have a child declared free from the custody and control of a parent may be pursued "where the child has been left … by one parent 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." (Fam. Code, former § 7822, subd. (a).) The trial court here found that this requirement was clearly satisfied.

It has been held that the intent to abandon must be shown during the one-year statutory period before the petition was filed. (In re Daniel M. (1993) 16 Cal.App.4th 878, 885.) It appears the court here based its finding on previous years, not the one year prior to the petition being filed. Because we find that the evidence was sufficient to find that Nick did not intend to abandon K.R., we need not determine if the court utilized the correct time period when it found that the one-year period of lack of support and/or communication was met.

A finding that the parent failed to provide support or failed to communicate with the child during the requisite one year period "is presumptive evidence of the intent to abandon." (Fam. Code § 7822, subd. (b).) An intent to abandon is a separate required element under Family Code section 7822. (In re Amy A., supra, 132 Cal.App.4th at p. 71.)

The presumption regarding the intent to abandon is a presumption affecting the burden of producing evidence. (In re Rose G. (1976) 57 Cal.App.3d 406, 417-418.) "The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption…." (Evid. Code, § 604.)

J.W. argues that the evidence was insufficient to show that Nick did not intend to abandon K.R. for the statutory period of one year. In particular, he points to the facts that Nick attempted to avoid paying child support in the beginning and did not make any attempts to locate K.R. until years later. He argues, as he did in the trial court, that Nick should not be allowed to enter K.R.'s life nine years after she was born.

K.R. contends that Nick's late efforts to communicate with her and his payment of child support under legal compulsion were not sufficient as a matter of law to overcome the presumption that arose after the court found that Nick did not communicate and/or support K.R. for a period of one year.

K.R. cites In re B.J.B. (1986) 185 Cal.App.3d 1201 as support for her argument that Nick's "testimony that he did not intend to abandon K.R. forever, but had always intended to contact her 'when she was older' did not overcome the presumption as a matter of law." In In re B.J.B. the court found that the child had been abandoned by his father. The father testified that he did not have an intent to abandon his child. The appellate court found that the trial court was not required to believe father's testimony as to his intent "nor does such testimony of itself overcome the presumption of abandonment as a matter of law." (Id. at p. 1212.)

Although a trial court is not required to believe a father's testimony that he did not intend to abandon his child, credibility of the witnesses is a determination to be made by the trial court. We cannot say that here the trial court could not have believed Nick's testimony. Nick testified that he was threatened by C.W. if he were to attempt to contact C.W. and K.R. C.W. verified that she made such a threat. Nick testified that he thought it would be better to contact K.R. when she was older. If believed, this evidence was sufficient to support a finding that Nick did not intend to abandon K.R.

In her reply brief, K.R. argues that the trial court specifically found that there was insufficient evidence to support the contention that C.W. threatened Nick with physical harm. To the contrary, in its statement of decision the court stated, "Respondent [Nick] claims C.W. threatened him with physical harm by her relatives should he attempt to contact K.R. C.W. denies this." This is not a statement that the evidence is insufficient, it is merely a recap of the facts. In a previous area of the statement of decision the court stated, "C.W. complained that Respondent was physically abusive to her. That was not established by evidence at trial." Thus, when the court found the evidence to be insufficient, it said so. It did not find the evidence insufficient, as K.R. claims, regarding Nick's contention that C.W. threatened him with physical harm.

In In re Daniel M., supra, 16 Cal.App.4th 878 the father claimed that the intent to abandon must be a permanent intent and is not satisfied by a temporary intent to abandon. The appellate court disagreed with the father and found that an intent to abandon a child "does not require an intent to abandon permanently. Rather, an intent to abandon for the statutory period is sufficient." (Id. at p. 885.) In other words, "a child cannot be abandoned and then put 'on hold' for a parent's whim to reunite." (Ibid.)

The evidence here was sufficient to find that Nick had no intent to abandon K.R. Nick provided testimony that he did not have the financial ability to pay support for a number of years. Although Nick initially was reluctant to pay child support, he did pay support after his paternity was established and after he had the ability to pay. Nick immediately put K.R. on his health insurance after paternity was established, but the coverage was refused by C.W. In addition, Nick was threatened by C.W. to stay away from K.R. Also, unlike other cases, Nick filed a petition seeking visitation with K.R. before J.W. filed his petition to terminate Nick's parental rights. This evidence was sufficient for the court to find that Nick was not putting his parental status on hold and seeking to reunite on a whim, but was doing what he could under the circumstances and requested visitation at a time he thought was reasonable in light of the dynamics of the relationships in question.

K.R. contends the presumption of abandonment was not rebutted by the payment of child support by Nick because his support was paid late, he did not make all of his support payments, and he made such payments only under legal compulsion.

As previously set forth, although Nick initially sought to avoid paying support, he paid support after paternity was established and after he had the ability to pay. Although paying child support under compulsion rather than voluntarily might lead to an inference that the intent to support the child is not done with the motive to maintain a relationship with the child, this is not always necessarily so. The fact of payment of support under any circumstances is more telling than whether those payments are voluntary or a result of the legal process. The statute does not distinguish between support payments made voluntarily or made under legal compulsion; what is relevant is whether support is paid.

K.R. argues that the presumption was not overcome by C.W.'s dislike of Nick and that C.W. did not hide herself or K.R. from Nick. K.R. contends the telling factor is that Nick made no effort to contact or establish a relationship with her for nine years. We find this argument unpersuasive in light of the fact that the trial court had evidence before it from which it could find that Nick was prevented from contacting K.R. based on C.W.'s threats to him.

The presumption "may be overcome by opposing evidence … and the question whether such intent to abandon exists and whether it has existed for the statutory period is a question of fact for the trial court, to be determined upon all the facts and circumstances of the case. [Citation.]" (In re Adoption of Neal (1968) 265 Cal.App.2d 482, 488.)

Finally, K.R. argues that even if the presumption was overcome the evidence was not sufficient to support the court's finding of no intent to abandon. She asserts the evidence established that Nick's conduct compels the conclusion that he had a total lack of interest in and commitment to K.R. We will not rehash the evidence again here. While reasonable minds may differ what the result should be from this evidence, the trial court's finding of no intent to abandon was supported by the evidence. "[B]efore a father may be charged with dereliction … it must be made to appear that he has intentionally shirked that responsibility at a time when, and under circumstances where, he should have assumed it." (In re Cattalini (1946) 72 Cal.App.2d 662, 670.) Abandonment is defined as "'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.'" (In re Daniel M., supra, 16 Cal.App.4th at p. 882.)

Finally, K.R. contends the court erred because it failed to consider her best interest. She argues regarding the emotional impact having Nick in her life will have, the chaos that will result, and that nothing will ever change the fact that she loves J.W. and will always consider him to be her father.

While the statutes in question are intended to protect the child and their purpose is to serve the welfare and best interests of a child, "'[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.] We therefore view the involuntary termination of parental rights as a 'drastic remedy which should be resorted to only in extreme cases of neglect or abandonment.' [Citation.]" (Neumann v. Melgar (2004) 121 Cal.App.4th 142, 163.) The willingness of someone to adopt a child should not enter the equation of whether an intent to abandon exists. (In re Daniel M., supra, 16 Cal.App.4th at p. 886; In re Cattalini, supra, 72 Cal.App.2d at p. 671.)

The evidence was sufficient to support the trial court's decision that Nick did not have an intent to abandon K.R.

DISPOSITION

The judgment is affirmed.

WE CONCUR: GOMES, J., HILL, J.


Summaries of

Adoption of K.R.

California Court of Appeals, Fifth District
Sep 2, 2008
No. F053471 (Cal. Ct. App. Sep. 2, 2008)
Case details for

Adoption of K.R.

Case Details

Full title:Adoption of K.R., a Minor. J.W., Plaintiff and Appellant, v. NICK C.…

Court:California Court of Appeals, Fifth District

Date published: Sep 2, 2008

Citations

No. F053471 (Cal. Ct. App. Sep. 2, 2008)